SLC Alert Digest No. 8 of 1999 - 20 July 1999€¦ · Tabled and ordered to be printed Issue No. 8 of 1999 20 July 1999. ... of Legislation Committee in its alert digests prior to

SCRUTINY OF LEGISLATION COMMITTEE

ALERT DIGEST

Tabled and ordered to be printed Issue No. 8 of 199920 July 1999

SCRUTINY OF LEGISLATION COMMITTEE– MEMBERSHIP –

49TH PARLIAMENT , 1ST

SESSION

Chair: Mrs Linda Lavarch MLA, Member for Kurwongbah

Deputy Chair: Mr Tony Elliott MLA, Member for Cunningham

Mrs Liz Cunningham MLA, Member for Gladstone

The Hon. Jim Fouras MLA, Member for Ashgrove

Dr John Kingston MLA, Member for Maryborough

Mr Peter Wellington MLA, Member for Nicklin

Principal Legal Adviser tothe Committee:

Professor Charles Sampford

Legal Advisers to the Committee: Associate Professor Gerard Carney

Associate Professor Bryan Horrigan

Mr Robert Sibley

Dr Max Spry

Committee Staff: Mr Christopher Garvey, Research Director

Ms Veronica Rogers, Principal Research Officer

Senior Research Officer – vacant

Executive Assistant - vacant

Scrutiny of Legislation CommitteeLevel 6, Parliamentary Annexe

George StreetBrisbane QLD 4000

Phone: 07 3406 7671

Fax: 07 3406 7500

Email: [email protected]

Alert Digest No.8 of 1999 Table of Contents

Page i

TABLE OF CONTENTS

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

1. AUSTRALIA ACTS (REQUEST) BILL 1999.......................................................................................... 1

Background.................................................................................................................................................... 1

Does the legislation have sufficient regard to the institution of Parliament? ............................................... 1Clause 2 .................................................................................................................................................... 2

2. COMMONWEALTH PLACES (MIRROR TAXES ADMINISTRATION) BILL 1999 .................... 4

Background.................................................................................................................................................... 4

3. CONSTITUTION (REQUESTS) BILL 1999............................................................................................ 5

Background.................................................................................................................................................... 5

Does the legislation have sufficient regard to the institution of Parliament? ............................................... 5Clause 2 .................................................................................................................................................... 7

4. DOMESTIC VIOLENCE (FAMILY PROTECTION) AMENDMENT BILL 1999............................ 8

Background.................................................................................................................................................... 8

Does the legislation have sufficient regard to the rights and liberties of individuals? ................................. 8Overview of the bill................................................................................................................................... 8clause 9 ..................................................................................................................................................... 9clause 11 ................................................................................................................................................. 10

5. HEALTH PRACTITIONERS (PROFESSIONAL STANDARDS) BILL 1999 .................................. 12

Does the legislation have sufficient regard to the rights and liberties of individuals? ............................... 12Overview of the bill................................................................................................................................. 12clauses 104, 162, 198, 236, 295 and 365................................................................................................ 13clauses 107 and 218................................................................................................................................ 14clauses 241, 243, 368, 389 and 391........................................................................................................ 14clause 392 (privacy)................................................................................................................................ 15clause 487 ............................................................................................................................................... 15

Does the legislation confer power to enter premises and to search for or seize documents or other propertywithout a duly issued warrant?.................................................................................................................... 16

clauses 78 to 106 inclusive ..................................................................................................................... 16Is the legislation consistent with the principles of natural justice? (immediate suspension)...................... 17

clause 59 ................................................................................................................................................. 17clauses 139, 182, 225 and 288 (right to legal representation)............................................................... 18clauses 140, 183 and 226........................................................................................................................ 19clause 224 ............................................................................................................................................... 19

Does the bill sufficiently subject the exercise of delegated legislative power to the scrutiny of theLegislative Assembly?................................................................................................................................. 20

clause 374 ............................................................................................................................................... 20Does the legislation confer immunity from proceeding or prosecution without adequate justification? ... 21

clauses 386 and 387................................................................................................................................ 21clauses 138, 181 and 222........................................................................................................................ 22

6. LIQUOR (EVICTIONS, UNLICENSED SALES AND OTHER MATTERS) AMENDMENT BILL1999 ................................................................................................................................................................. 23

Background.................................................................................................................................................. 23


Page ii

Does the legislation have sufficient regard to the rights and liberties of individuals? ............................... 23clause 9 ................................................................................................................................................... 23clause 9 (proposed s.165B)..................................................................................................................... 24clauses 11 to 19....................................................................................................................................... 26

Does the legislation confer power to enter premises and to search for or seize documents or other propertywithout a duly issued warrant?.................................................................................................................... 27

clause 18 ................................................................................................................................................. 27

7. PUBLIC SECTOR ETHICS AMENDMENT BILL 1999 ..................................................................... 28

Background.................................................................................................................................................. 28

Does the legislation have sufficient regard to the rights and liberties of individuals? ............................... 28clause 7 (proposed s.30) ......................................................................................................................... 28clause 10 (privacy).................................................................................................................................. 30clause 7 (proposed s.34) (privacy).......................................................................................................... 30

Is the legislation consistent with the principles of natural justice?............................................................. 31clause 7 (proposed s.30) ......................................................................................................................... 31

Does the legislation confer immunity from proceeding or prosecution without adequate justification? ... 32Clause 7 (proposed ss. 35 and 36).......................................................................................................... 32

Does the legislation make individual rights and liberties, or obligations, dependent on administrativepower only if the power is sufficiently defined and subject to appropriate review? .................................. 33

Clause 7 (proposed s.41) ........................................................................................................................ 34

8. STATE PENALTIES ENFORCEMENT BILL 1999............................................................................. 35

Does the legislation provide for the reversal of the onus of proof in criminal proceedings withoutadequate justification? and.......................................................................................................................... 36

Is the legislation unambiguous and drafted in a sufficiently clear and precise way? ................................. 36clauses 17, 18, 19 and 20 (reversal of onus of proof) ............................................................................ 36

Is the legislation unambiguous and drafted in a sufficiently clear and precise way? ................................. 37clauses 29, 60 (removal of demerit points when withdrawing infringement notices) ............................ 38

Does the legislation make individual rights and liberties, or obligations, dependent on administrativepower only if the power is sufficiently defined and subject to appropriate review? and ........................... 38

Is the legislation consistent with the principles of natural justice?............................................................. 38clauses 38, 42, 45, 48, 56, 63, 65, 69, 75, 77, 199, 125, 130, 155 (review of administrative action) .... 38

Does the legislation have sufficient regard to the rights and liberties of individuals? ............................... 41clause 104 (power to suspend driver’s licences) .................................................................................... 41

Does the legislation make individual rights and liberties, or obligations, dependent on administrativepower only if the power is sufficiently defined and subject to appropriate review? and ........................... 42

Does the legislation allow the delegation of administrative power only in appropriate cases and toappropriate persons?.................................................................................................................................... 43

clauses 10(3), 11 and 161 (extensive powers of registrar, registry staff and enforcement officers) ..... 43Is the legislation unambiguous and drafted in a sufficiently clear and precise way? ................................. 44

clause 109 and Dictionary...................................................................................................................... 44

9. STIPENDIARY MAGISTRATES AND OTHER ACTS AMENDMENT BILL 1999 ....................... 45

Background.................................................................................................................................................. 45clauses 3 to 7 inclusive ........................................................................................................................... 45

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ........... 48clauses 7 and 8........................................................................................................................................ 48

Is the legislation unambiguous and drafted in a sufficiently clear and precise way? ................................. 49


Page iii

Clauses 4 and 5....................................................................................................................................... 49

10. TRADE MEASUREMENT AMENDMENT BILL 1999.................................................................... 51

Background.................................................................................................................................................. 51

Does the legislation have sufficient regard to the institution of Parliament? ............................................. 51

Does the legislation make individual rights and liberties, or obligations, dependent on administrativepower only if the power is sufficiently defined and subject to appropriate review? .................................. 52

clauses 5 and 7........................................................................................................................................ 52Does the legislation allow the delegation of administrative power only in appropriate cases and toappropriate persons?.................................................................................................................................... 53

clause 9 ................................................................................................................................................... 53

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE..................... 56

11. ACQUISITION OF LAND AMENDMENT BILL 1999..................................................................... 56

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ........... 58Clause 6 .................................................................................................................................................. 58

12. CHARITABLE AND NON-PROFIT GAMING BILL 1999............................................................... 59

Background.................................................................................................................................................. 59clauses 111 to 160 inclusive ................................................................................................................... 59clauses 49, 71, 114(3) and Dictionary (Definition of “Criminal History”)........................................... 60Clause 144 .............................................................................................................................................. 61Clause 165 .............................................................................................................................................. 61clause 148 ............................................................................................................................................... 62

Does the legislation provide for the reversal of the onus of proof in criminal proceedings withoutadequate justification?................................................................................................................................. 62

clauses 169 and 170................................................................................................................................ 62clause 194 ............................................................................................................................................... 63


clause 171 ............................................................................................................................................... 64

13. COMMUNITY-BASED REFERENDUM BILL 1999 ......................................................................... 66

Background.................................................................................................................................................. 66clause 16 ................................................................................................................................................. 66clause 3 ................................................................................................................................................... 67


clauses 33-37 .......................................................................................................................................... 67clauses 38 and 39.................................................................................................................................... 68clause 58 ................................................................................................................................................. 69

14. FINANCIAL ADMINISTRATION AND AUDIT ACT 1999.............................................................. 70

Background.................................................................................................................................................. 70

15. FINANCIAL SECTOR REFORM (QUEENSLAND) BILL 1999...................................................... 72

Background.................................................................................................................................................. 72clauses 22, 35, 73.................................................................................................................................... 72clause 73 ................................................................................................................................................. 73

16. JUSTICE LEGISLATION (MISCELLANEOUS PROVISIONS) BILL (NO. 2) 1999.................... 75


Page iv

Background.................................................................................................................................................. 75clause 19 ................................................................................................................................................. 75clause 42 (proposed s 93J) ..................................................................................................................... 76clause 42 (proposed s 93L) ..................................................................................................................... 78clause 35 ................................................................................................................................................. 79

17. LOCAL GOVERNMENT AND OTHER LEGISLATION AMENDMENT BILL 1999 ................. 80

Background.................................................................................................................................................. 80clause 19 ................................................................................................................................................. 81

18. NATIVE TITLE (QUEENSLAND) STATE PROVISIONS AMENDMENT BILL 1999................ 82

Background.................................................................................................................................................. 82

APPENDIX B – TERMS OF REFERENCE............................................................................................... 88

APPENDIX C - MEANING OF "FUNDAMENTAL LEGISLATIVE PRINCIPLES"......................... 89

APPENDIX D – TABLE OF BILLS RECENTLY CONSIDERED ......................................................... 90

BILLS EXAMINED BUT NOT REPORTED ON -

FREEDOM OF INFORMATION AMENDMENT BILL 1999

HEALTH PRACTITIONER REGISTRATION BOARDS (ADMINISTRATION) BILL 1999

TRUSTS (INVESTMENTS) AMENDMENT BILL 1999

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 Assemblybefore the provision was 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. 8 of 1999 Australia Acts (Request) Bill 1999

1

SECTION A – BILLS REPORTED ON

1. AUSTRALIA ACTS (REQUEST) BILL 1999

Background

1.1. The Honourable P D Beattie MLA, Premier, introduced this bill into the LegislativeAssembly on 8 June 1999.

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

to assist the Commonwealth to remove restrictions on the States that would otherwiseprevent them from severing their links with the Crown.

1.3. The bill is directly related to the Constitution (Requests) Bill 1999, which is reportedon elsewhere in this Alert Digest.

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

National Scheme Legislation

1.4. The bill is intended to form part of national scheme legislation.4

1.5. National schemes of legislation have been a source of considerable concern, both tothe committee and to its interstate and Commonwealth counterparts.5 These schemestake a number of forms and the objection to them is greatest when they involvepredetermined legislative provisions which are either included in the bill introducedinto Parliament or which the bill incorporates by adopting Commonwealth orinterstate legislation. The Committee has considered such scenarios on a number ofoccasions.6

1.6. As the Premier stated in his Second Reading Speech:

(the bill forms part of) uniform request legislation which each State is proposing toenact.

The bill has now been passed by the Victorian and New South Wales Parliaments andbeen introduced in the Parliaments for the three other States.

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

Parliament.4 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.5 The relevant issues are canvassed in detail in Scrutiny of National Schems of Legislation - A Position Paper of

Representatives of Scrutiny of Legislation Committees throughout Australia, October 1996.6 See, for example, Alert Digest No. 5 of 1997 at pp14 and 13-38, Alert Digest No. 7 of 1998 at pp5-7.


2

1.7. The bill suffers from a difficulty common to all forms of national scheme legislation,which has been previously commented upon by the Committee.7 This concerns thepractical impediments to significantly amending bills whose underlying principles orcontent have previously been agreed upon by the Executive Governments of theparticipating jurisdictions.

Constitutional Validity

1.8. The bill is designed to deal with a constitutional issue which will arise if theNovember 1999 referendum on Australia becoming a republic is passed. Even ifAustralia became a republic at the federal level, s.7 of the Australia Act 1986 (whichdeals with the powers and functions of State Governors) might prevent the Statesfrom making their own constitutional changes to sever their links with the Crown.

1.9. This bill is designed to facilitate appropriate amendments to s.7, via the process setout in s.15(1) of the Australia Act. This process involves the Commonwealth passinga law which effects the appropriate amendment. Section 15(1), however, makes it aprecondition to the Commonwealth having this power that the Commonwealth law be:

passed at the request or with the concurrence of the Parliaments of all the States.

1.10. According to the Premier’s Second Reading Speech, the process incorporated in thisbill is regarded by the States as more legally secure and appropriate than thealternative route provided for under s.15(3) of the Australia Act. The committeenotes that each State’s Solicitor-General and Parliamentary Counsel has been involvedin the drafting of the bill.

1.11. The committee notes that the bill forms part of national scheme legislation.

1.12. The committee notes that the bill utilizes a process provided for in s.15 of theAustralia Act 1986, and further notes the Premier’s statement indicating that theSolicitors-General of all the States and Territories and the Commonwealth have beeninvolved in settling its contents.

♦ Clause 2

Clause 2 of the bill provides that it shall commence:

on the day after the day on which the Constitution Alteration (Establishment ofRepublic) 1999 of the Commonwealth receives the Royal Assent.

1.13. The bill will therefore not come into operation unless the forthcoming referendum onthe republic is passed.

1.14. This is, in the committee’s view, both a necessary and an appropriate provision.

7 See, for example, Alert Digest No. 5 of 1997 at pp14 and 13-38, Alert Digest No. 7 of 1998 at pp5-7 and Alert Digest

No. 7 of 1999 at pp14-15.


3

1.15. The Committee notes that the bill, quite appropriately, will not come into force unlessthe forthcoming referendum on the republic is passed.

Alert Digest No. 8 of 1999 Commonwealth Places (Mirror Taxes Administration) Bill 1999

4

2. COMMONWEALTH PLACES (MIRROR TAXESADMINISTRATION) BILL 1999

Background

2.1. The Honourable D J Hamill MLA, Treasurer, introduced this bill into the LegislativeAssembly on 25 May 1999. It was passed on 8 June 1999, and was assented to by theGovernor on 16 June 1999.

2.2. Upon receiving the Governor’s assent, the bill became an Act.

2.3. The Committee only has jurisdiction to comment on bills and not Acts.

2.4. The Committee therefore makes no comment with respect to this bill.

Alert Digest No. 8 of 1999 Constitution (Requests) Bill 1999

5

3. CONSTITUTION (REQUESTS) BILL 1999

Background

3.1. The Honourable P D Beattie MLA, Premier, introduced this bill into the LegislativeAssembly on 8 June 1999.

3.2. The purpose of the bill, as indicated by the Explanatory Notes, is:

to assist the Commonwealth Parliament to make amendments to the Commonwealthof Australia Constitution Act 1900 that would otherwise be in conflict with arepublicanised Constitution if the November referendum is carried.

3.3. The bill is directly related to the Australia Acts (Request) Bill 1999, which is reportedon elsewhere in this Alert Digest.


National Scheme Legislation


3.5. National schemes of legislation have been a source of considerable concern, both tothe committee and to its interstate and Commonwealth counterparts.10 These schemestake a number of forms and the objection to them is greatest when they involvepredetermined legislative provisions which are either included in the bill introducedinto Parliament or which the bill incorporates by adopting Commonwealth orinterstate legislation. The Committee has considered such scenarios on a number ofoccasions.11

3.6. As the Premier stated in his Second Reading Speech:

The bill will, when enacted, request the Commonwealth Parliament to enact aCommonwealth Act (the Commonwealth of Australia Constitution Act AmendmentAct 1999).

……





• in more than one jurisdiction, several jurisdictions or nationally.10 The relevant issues are canvassed in detail in Scrutiny of National Schems of Legislation - A Position Paper of

Representatives of Scrutiny of Legislation Committees throughout Australia, October 1996.11 See, for example, Alert Digest No. 5 of 1997 at pp14 and 13-38, Alert Digest No. 7 of 1998 at pp5-7.


6

Once all States make similar requests, the Commonwealth parliament will beempowered to enact the Commonwealth of Australia Constitution Amendment Act1999..

3.7. The bill suffers from a difficulty, common to all forms of national scheme legislation,which has been previously commented upon by the Committee.12 This concerns thepractical impediments to significantly amending bills whose underlying principles orcontent have previously been agreed upon by the Executive Governments of theparticipating jurisdictions.

Constitutional Validity

3.8. The bill is designed to address a constitutional issue which will arise if the November1999 referendum on Australia’s becoming a republic is passed. The CommonwealthConstitution is contained in cl. 9 of a United Kingdom Act, the Commonwealth ofAustralia Constitution Act 1900 (“the Constitution Act”). The preamble and coveringclauses (1 to 8) of that Act contain a number of provisions which are either spent orwhich, if Australia were to become a republic, would be either incongruous orunnecessary.

3.9. However, the process of amending the Constitution Act (which, as mentioned earlier,is a United Kingdom Act) is, in the words of the Premier in his Second ReadingSpeech, “not simple or straightforward”.

3.10. In order to achieve this end, according to the Premier, the Statute of Westminster 1931would need to be amended so as to remove a limitation contained in s.8 of thatStatute.

3.11. As with the Australia Acts (Request) Bill 1989, the process to be followed is set out ins.15(1) of the Australia Act 1986. This involves the Commonwealth legislating toamend the Statute of Westminster:

at the request or with the concurrence of the Parliaments of all the States.

3.12. Once that process is completed, the Commonwealth Parliament could legislate toamend the Constitution Act.

3.13. Additionally, the bill requests that the Commonwealth legislate in relation to therelevant matters pursuant to the process laid down in s.51(xxxviii) of theCommonwealth Constitution, which again empowers the Commonwealth to legislatein respect of such matters provided that the Parliaments of all the States request orconcur in that action.

3.14. The committee notes that whilst the amendment process envisaged by the bill involvesa number of separate stages, these are all expressly provided for in the Australia Act1986 and the Commonwealth Constitution.

12 See, for example, Alert Digest No. 5 of 1997 at pp14 and 13-38, Alert Digest No. 7 of 1998 at pp5-7 and Alert Digest

No. 7 of 1999 at pp14-15.


7

3.15. Finally, although the Premier’s Second Reading Speech does not specifically advert tothe matter, the committee has been advised by departmental officers that this bill, likethe Australia Acts (Request) Bill 1999, has been drafted with the involvement of theSolicitors-General of all States and Territories and the Commonwealth.

3.16. The Committee notes that the bill forms part of national scheme legislation.

3.17. The Committee notes that the bill utilizes a process expressly provided for in s.15 ofthe Australia Act 1986, and further notes that the Solicitors-General of all the Statesand Territories and the Commonwealth have been involved in settling its contents.

♦ Clause 2

3.18. Clause 2 of the bill provides that it shall commence:

on the day after the day on which the Constitution Alteration (Establishment ofRepublic) 1999 of the Commonwealth receives the Royal Assent.

3.19. The bill will therefore not come into operation unless the forthcoming referendum onthe republic is passed.

3.20. This is, in the committee’s view, both a necessary and an appropriate provision.

3.21. The committee notes that the bill, quite appropriately, will not come into force unlessthe forthcoming referendum on the republic is passed.

Alert Digest No. 8 of 1999 Domestic Violence (Family Protection) Amendment Bill 1999

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4. DOMESTIC VIOLENCE (FAMILY PROTECTION)AMENDMENT BILL 1999

Background

4.1. The Honourable AM Bligh MLA, Minister for Families, Youth and Community Careand Minister for Disability Services introduced this bill into the Legislative Assemblyon 8 June 1999.

4.2. The purpose of the bill, as indicated by the Explanatory Notes, is to:

amend the Domestic Violence (Family Protection) Act 1989 to improve theoperational efficiency and effectiveness of the Act.

Does the legislation have sufficient regard to the rights and liberties of individuals?13

♦ Overview of the bill

4.3. In her Second Reading Speech, the Minister states:

this bill is the result of a comprehensive review of the Act undertaken by myDepartment, in conjunction with the Queensland Domestic Violence Council, overthe last four years.

4.4. The bill incorporates a number of reforms intended to facilitate the effective operationof the Domestic Violence (Family Protection) Act (the Act).

4.5. Given the nature of the Act, most of these provisions will either promote or impingeupon the rights and liberties of individuals. The Act provides a Court-centred processfor protecting persons against spousal violence, and its provisions have the capacityto affect the aggrieved and respondent spouses, their children and other associatedpersons.

4.6. Measures contained in the bill include:• ensuring that a spouse subject to a domestic violence order can be prevented

from obtaining access to weapons in the course of their employment (cl. 9)

• limiting the right of a person subject to a domestic violence order to locate orattempt to locate the person’s spouse or other “aggrieved person” (cl. 11)

• enabling tenancy issues to be dealt with concurrently with domestic violenceorder proceedings (cl. 6)

• enabling temporary protection orders to be made (cl. 17)

• enabling regard to be had to family court “family contact orders”(cl.18)

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

of individuals.


9

• enabling a respondent spouse to be held in custody for up to four hours whilstarrangements are completed to safeguard the aggrieved spouse (cl. 28); and

• modifying the current requirement that a person must “knowingly” breach aprotection order (cl. 32).

4.7. As legislation of this kind impacts on the rights of various categories of persons,attempts should be made to achieve a fair balance between the rights of those persons,especially the respective spouses. Whilst any change the bill makes to the overallbalance of rights could be said to affect the rights and liberties of one of the categoriesof persons, the committee considers that where that balance should be struck isultimately a policy judgment.

4.8. Accordingly, the Committee does not propose to comprehensively comment on thebill’s contents, as it considers the appropriate balance of rights is a matter forParliament.

4.9. However, the following specific aspects of the bill do, in the committee’s opinion,raise “fundamental legislative principle” issues.

♦ clause 9

4.10. Under current s.23(2) of the Act the Court, in making a domestic violence order, mustprovide that the respondent spouse is not to possess a weapon for the duration of theorder.

4.11. Clause 9 of the bill inserts proposed s.23A, which addresses situations where such aperson has access to weapons as part of their employment. Section 23A enables theCourt, in such situations, to identify an appropriate “effective individual” within thepersons “employing entity”, who is in a position to ensure that the respondent spouseis prevented from possessing weapons as part of their employment, and to serve acopy of the domestic violence order upon that individual. The “effective individual”is then authorised to disclose information about the order to another person within theentity, to the extent necessary to ensure the respondent spouse does not obtainpossession of weapons in the course of their employment.

4.12. These provisions impact directly upon the privacy of the spouse subject to thedomestic violence order, and might even have adverse implications for the spouse’sfuture employment with the particular “employing entity”.

4.13. The Minister addresses this amendment in the following passages of the SecondReading Speech:

Another initiative of this bill is the ability of Courts to notify employers of theexistence of a domestic violence order where their employee is a respondent to anorder and has access to weapons in their employment.

I am aware that this amendment may have the potential to adversely impact onindividuals. However, I have carefully considered these issues and ensured that theprinciples of natural justice are preserved and safeguards built in.


10

Firstly, the Magistrate will consider whether the provision of such information isappropriate and the respondent will have the opportunity to be heard on the issue.Secondly, where the employer discloses the information more widely than isnecessary, the employer can be liable for a penalty of up to $3000.

4.14. The committee also acknowledges the protection afforded by the prohibition on the“effective individual” disclosing information to any other person about the domesticviolence order, except to the extent necessary to ensure the respondent spouse doesnot obtain possession of weapons in the course of their employment (see proposeds.23A(5)). The committee notes, however, that the prohibition imposed by proposeds.23A(5) upon the “effective individual” does not apply to the “other persons” towhom the “effective individual” legitimately communicates that information.

4.15. The provisions inserted by cl. 9 authorise disclosure of the existence of a domesticviolence order to the respondent spouse’s employer where the spouse has access toweapons as part of their employment. They also authorise the employer to disclose toothers information within the employing entity to ensure the spouse does not obtainpossession of weapons in the course of their employment. These powers all impactupon the respondent spouse’s right to privacy.

4.16. The committee seeks information from the Minister as to why the confidentialityobligation under proposed s.23A(5) does not extend to persons other than the“effective individual”.

4.17. The Committee refers to Parliament the question of whether the provisions of cl. 9have sufficient regard to the rights and liberties of respondent spouses.

♦ clause 11

4.18. Clause 11 amends current s.25 of the Act, which enables the Court to imposeconditions upon persons against whom domestic violence orders are made.

4.19. Clause 11 re-enacts most of the current matters in respect of which conditions cancurrently be imposed on the respondent spouse. Those include conditions:

• prohibiting the respondent spouse from entering premises or approaching within astated distance of premises

• prohibiting the respondent spouse from approaching or attempting to approach theaggrieved spouse (the order may state a distance within which an approach isprohibited)

4.20. Conditions may also currently be imposed which prohibit the respondent spouse fromcontacting or asking someone else to contact the aggrieved spouse.

4.21. The bill will extend the range of potential conditions to include a conditionprohibiting the respondent spouse from locating or attempting to locate the aggrievedspouse, or asking someone else to do so.

4.22. The process of “locating” another person simply involves establishing their presentwhereabouts, and does not necessarily involve any contact whatsoever with the


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aggrieved spouse. The aggrieved spouse may never become aware that this processhas occurred. Accordingly, questions might be raised as to the reasonableness ofimposing such a restriction upon the respondent spouse.

4.23. It could be argued that the restriction is justified on the basis that the act of locating, orattempting to locate the aggrieved spouse will often be followed by contact with thatspouse and/or the commission of further acts of violence.

4.24. The Minister addresses this aspect of the bill in the following passage from herSecond Reading Speech:

People escaping domestic violence are often forced to enter refuges or go intohiding. Now, respondents will be prohibited from attempting to locate or from beingassisted to locate people in refuge or hiding. The provisions of the Family Law Act1975 will be excluded from the operation of this prohibition to enable parents to seekcontact with their children.

4.25. The Committee notes that the prohibition does not prevent another person, including alawyer, locating the aggrieved spouse “for a purpose authorised by an Act”.

4.26. The Committee refers to Parliament the question of whether the provisions of cl. 11which prohibit respondent spouses from locating or asking someone else to locate theaggrieved spouse are an unreasonable interference with the rights and liberties of therespondent spouse.

Alert Digest No. 8 of 1999 Health Practitioners (Professional Standards) Bill 1999

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5. HEALTH PRACTITIONERS (PROFESSIONAL STANDARDS)BILL 1999

Background

5.1. The Honourable W M Edmond MLA, Minister for Health, introduced this bill into theLegislative Assembly on 11 June 1999.

5.2. The principal objects of the bill, as indicated by the Explanatory Notes, are:

• to protect the public by ensuring health care is delivered by registrants in aprofessional, safe and competent way

• to uphold the standards of practice within the health professions

• to maintain public confidence in the health professions

• to establish a uniform approach to the handling of complaints aboutregistrants, the investigation and discipline of registrants, and themanagement of impaired registrants

• to provide a system to deal with complaints about registrants that iscomplementary to that of the Health Rights Commission (“thecommission”) established under the Health Rights Commission Act 1991


♦ Overview of the bill

5.3. Before dealing with specific clauses of the bill, the committee considers it appropriateto make some general observations.

5.4. The bill is about processes for the disciplining of health practitioners (called“registrants” in the bill), and for ancillary matters. Not surprisingly therefore, the billcontains many provisions which impinge upon the rights of individuals, particularlyhealth practitioners. These provisions must be balanced against the right of the publicto receive a high standard service from health practitioners. The Minister in hersecond reading speech addresses this issue as follows:

The core principles underscoring the development of this legislation are: theprotection of the public; accountability; fairness; peer and public involvement; andefficiency and effectiveness. The Bills reflect a careful balancing of various viewsand interests against these core principles.


of individuals.


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Overall, the Bills have a strong emphasis on public interest and this has beenapplauded by health consumer groups in particular. The Administration Bill and theProfessional Standards Bill are at the leading edge of reform of occupationalregulation legislation and they reaffirm the state’s responsibilities in respect of theregulation of registered health practitioners.

5.5. Whilst the bill contains many provisions which impinge upon the rights of individuals,the committee recognises the significant efforts which have been made in draftingmany of these provisions to take account of fundamental legislative principles.

5.6. Nevertheless, various provisions of the bill give rise to concerns or require comment.These are addressed below.

♦ clauses 104, 162, 198, 236, 295 and 365

5.7. Clauses 104, 162, 198, 236, 295 and 365 all create an offence of giving a document“containing information the person knows is false or misleading in a materialparticular”. The provisions all relate to situations in which the person concerned isunder a legal obligation to give the document to a relevant person (an investigator, aninspector, a board, a panel or the tribunal).

5.8. The provisions mostly accompany others which make it an offence for an individual tomake a statement to the relevant person or body, that the person knows is false ormisleading in a material particular. They also incorporate provisions exonerating theperson if, when giving the document, the person informs the person to whom it isgiven “to the best of the person’s ability, how it is false or misleading” and, if thecorrect information is obtainable, gives it to that person.

5.9. Whilst the committee does not generally object to provisions which make it an offenceto make a false or misleading statement, it has on several previous occasionscommented adversely on provisions similar to cls. 104, 162, 198, 236, 295 and 365.15

5.10. Sponsoring Ministers have usually indicated to the Committee that the clauses areintended to apply to any and all documents, not just documents which the bill requiresthe person to keep. This is consistent with the usual wording of such clauses.

5.11. The committee maintains its previously-expressed view that this type of provision isunreasonable, in that persons are compelled not merely to hand over documents to astipulated person or body, but at the same time are automatically subjected to apositive duty to comment on the contents of those documents. An obvious alternativeapproach would be for the persons to whom the documents are given to then, if theywish, exercise their interrogatory powers and compel the giver to answer questionsabout the accuracy of any or all such documents.

5.12. Explanations provided by sponsoring Ministers on previous occasions have generallynot convinced the committee of the necessity for provisions of this type to beincluded.

15 See, for example, Alert Digest No. 11 of 1998 at page 24, Alert Digest No. 3 of 1999 at page 31.


14

5.13. The Committee is of the view that the obligation imposed upon persons by clauses104, 162, 198, 236, 295 and 365 is unreasonable, and has insufficient regard for therights and liberties of the persons compelled to give the documents.

5.14. The Committee seeks information from the Minister as to why it is thoughtappropriate for such clauses to be included in this bill.

♦ clauses 107 and 218

5.15. Clauses 107 and 218 confer power upon a board and the tribunal respectively, torequire a registered health practitioner to undergo a health assessment.

5.16. These provisions clearly impact upon the rights and liberties, including the right toprivacy, of the registrant.

5.17. On the other hand it can be argued, as do the Explanatory Notes, that such a power isreasonable and necessary because a registrant who is “impaired” (through, forexample, a drug addiction) may be a risk to themselves and their patients.

5.18. The Committee refers to Parliament the question of whether the power under cls. 107and 218 of the bill for registered health practitioners to be required to undergo a healthassessment has sufficient regard to the rights and liberties of those persons.

♦ clauses 241, 243, 368, 389 and 391

5.19. Clauses 241 and 243 empower the tribunal, if it decides that a ground for disciplinaryaction against a present or former registrant is established, to require the person to paya maximum fine of 1333 penalty units ($99,975.00).

5.20. This can fairly be described as a substantial amount.

5.21. Clause 368 provides that whilst all other offences against the bill are summaryoffences, offences against cls. 389 and 391 are indictable offences.

5.22. Clause 389 creates the offence of “taking a reprisal” (that is, causing detriment to aperson who has made a complaint to a board, etc) and cl. 391 creates an offence ofmaking a false complaint to a board in relation to a registrant.

5.23. Indictable offences may generally be described as more serious offences which arenormally tried before a judge and jury (though cl. 369 provides some scope for suchmatters to be dealt with summarily under the Justices Act 1886). The categorisation ofoffences against cls. 389 and 391 as such is therefore a matter of some significance.

5.24. The Committee draws to Parliament’s attention the heavy maximum fine which maybe imposed under cls. 241 and 243, and the fact that offences against clauses 389 and391 constitute indictable offences.


15

♦ clause 392 (privacy)

5.25. Clause 392 imposes a general confidentiality obligation upon persons who, inperforming functions under the bill, acquire information about another person’saffairs, and imposes a penalty for breach. However, the clause incorporates asubstantial number of exceptions, including disclosures made in the performance ofthe person’s functions under the bill or a related Act.

5.26. An examination of the bill reveals that it specifically provides for the giving ofinformation about persons (particularly registrants subject to disciplinary proceedings)in a significant number of situations.

5.27. For example, under ss. 261 and 384 other bodies can be notified of disciplinaryproceedings or other disciplinary orders in relation to specific registrants, althoughsafeguards are incorporated in that the relevant body must be satisfied that suchdisclosure is necessary.

5.28. In this regard the right of registrants to privacy must again be balanced against theright of the public to expect health services of reasonable quality, and appropriatebehaviour, from registrants.

5.29. The Committee refers to Parliament the question of whether the confidentialityprovisions contained in cl. 392 of the bill have sufficient regard to the rights andliberties of persons subject to the provisions of the bill, particularly registrants.

♦ clause 487

5.30. Clause 487, amongst other things, effectively re-enacts in this bill provisions whichwere previously contained in the Medical Act 1939. These obliged medicalpractitioners to immediately inform the police of certain crime-related informationobtained in the course of his or her professional activities. This includes informationobtained by the medical practitioner that a crime or attempted crime has taken place,or that the medical practitioner has treated a person for wounds, partial strangulationor asphyxiation and is not satisfied that the conditions have been accidentally incurred.

5.31. Duties of confidentiality by professionals towards their clients or patients have longbeen recognised at common law.

5.32. Accordingly, any provision which authorises members of the medical profession tobreach this long-standing obligation is a matter of some significance, and should beproperly justified. This is even more so when, as in the present case, a statutoryprovision obliges a medical practitioner to breach the obligation by informing anoutside person or body of certain aspects of a patient’s condition.

5.33. This is not to say that statutory provisions requiring such disclosure are unheard of.Most jurisdictions, for example, require notification of sexually transmitted diseases.

5.34. The committee notes the information to be disclosed by the medical practitionerrelates to the possible commission or attempted commission of a crime and concerns


16

violent crimes in particular. Therefore, the continuation of this statutory obligationwould appear to be reasonable.

5.35. The committee notes that cl. 487 obliges medical practitioners to inform the police ofinformation obtained by them in their professional capacity in relation to thecommission, or apparent commission, of crimes (particularly violent crimes).

Does the legislation confer power to enter premises and to search for or seizedocuments or other property without a duly issued warrant?16

♦ clauses 78 to 106 inclusive

5.36. The bill confers upon investigators significant powers of entry. These extendsomewhat beyond situations where the occupier consents or the entry is authorised bya warrant, in that entry can be effected to “public places” when they are open to thepublic.

5.37. Once entry has been effected, the bill confers on investigators a wide range of powers(see clauses 88-106) and confers additional powers to obtain information (see cls. 78-81). The bill also confers upon inspectors powers to obtain information (see cls. 363-366).

5.38. In respect of investigators, the Explanatory Notes state:

Effective investigation processes are essential to properly inform a board’s decisionto pursue disciplinary proceedings to protect the public. Accordingly, the Billconfers various powers upon investigators and board investigation committees toinvestigate allegations about registrants. The powers are standard investigationpowers, although there is also an additional power to require a registrant to undergoa health assessment and a power to seek expert advice.

5.39. Whilst the bill confers upon investigators and inspectors significant powers of entryand wide consequential investigative and enforcement powers, the committeerecognises the significant efforts which have been made in drafting many of thoseprovisions to take account of fundamental legislative principles.

5.40. The committee notes that the bill confers on investigators significant powers of entry,which extend somewhat beyond situations where the occupier consents or where awarrant has been obtained. The committee notes that once entry has been effected, thebill confers on investigators a further wide range of powers. Finally, the committeenotes that the bill confers on both investigators and inspectors significant powers toobtain information.

5.41. Departures from the safeguards provided by search warrants should be carefullyconsidered and adequately justified. The committee brings this concern, and the extentof the other powers referred to above, to the attention of Parliament.

16 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 foror seize documents or other property, only with a warrant issued by a judge or other judicial officer.


17

Is the legislation consistent with the principles of natural justice?17 (immediatesuspension)

♦ clause 59

5.42. Clause 59 enables a board to immediately suspend, or impose conditions upon, theregistration of a registrant.

5.43. The board is not required to hear submissions from the registrant before making sucha decision.

5.44. In this regard, it could be argued that the bill denies the registrant natural justice.Suspension of registration, in particular, has a very significant effect upon aregistrant’s financial and professional position.

5.45. However, cl. 59 limits the circumstances in which this power can be exercised, andincorporates a number of safeguards. Firstly, the power cannot be invoked unless theboard reasonably believes that the registrant “poses an imminent threat to the wellbeing of vulnerable persons” and “immediate action … is necessary to protect (thosepersons)”.

5.46. Further, the board is required to:

• take the action it considers the least onerous necessary in the circumstances,

• immediately thereafter inform the registrant,

• commence to investigate the matter or refer it to the tribunal,

• provide reasons for its decision, and

• advise the registrant of the availability of an appeal to the tribunal against thedecision.

5.47. The decision, however, continues to have effect until it is set aside by the tribunal orthe matter is otherwise determined by the tribunal.

5.48. In situations such as those dealt with by cl. 59, a balance must necessarily be struckbetween the rights of the registrant and the rights of the “vulnerable persons” underthreat from the registrant’s behaviour.

5.49. The committee notes that cl. 59 empowers the board to immediately suspend orimpose conditions on a registrant’s registration, and that in so doing it is not requiredto provide the registrant with an opportunity to be heard.

17 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 naturaljustice.


18

5.50. The committee refers to Parliament whether cl. 59, to the extent that it denies theregistrant natural justice in relation to the making of an immediate suspension orcondition-imposing order, has sufficient regard to the rights of the registrant.

♦ clauses 139, 182, 225 and 288 (right to legal representation)

5.51. Under the scheme of the bill, minor disciplinary matters are dealt with by registrationboards and health assessments are dealt with by health assessment committees.Routine disciplinary matters are dealt with by professional conduct review panels.

5.52. All of these bodies are intended to proceed in a relatively informal manner.

5.53. The most serious disciplinary matters, which may merit cancellation or suspension ofa registrant’s registration, are generally dealt with by the Health Practitioner Tribunal,which is constituted by a District Court Judge assisted by assessors.

5.54. The bill’s provisions concerning legal representation basically reflect this hierarchy.

5.55. In hearings before boards, health assessment committees and panels, the registrant andany complainant may be accompanied by a lawyer or another person, and a board mayhave a lawyer present to assist it.

5.56. A board may permit a person other than a lawyer to address it on behalf of theregistrant, and a panel may permit a non-lawyer to address it on behalf of theregistrant or the board’s nominee. No person (either lawyer or non-lawyer) is entitledto address a health assessment committee.

5.57. A lawyer may not address a board, a panel or a Health Assessment Committee onbehalf of any person.

5.58. In short, lawyers can be present at the various proceedings mentioned above and canadvise the parties involved, but they are unable to appear before (that is, address) thebody.

5.59. The Explanatory Notes (in relation to cls. 139 and 182) state:

The prohibition on legal representation is considered essential to ensure an informaland non-legalistic approach to the hearing. Importantly, a registrant may choose(under various clauses of the bill) to have a disciplinary matter dealt with by theTribunal and be represented by a lawyer at that hearing.

5.60. In the tribunal, on the other hand, any party may have a lawyer or other person appearon their behalf. As mentioned earlier, the tribunal deals with more seriousdisciplinary matters.

5.61. The committee notes that whilst lawyers may accompany parties appearing atdisciplinary proceedings, they cannot appear before (that is, address) disciplinarybodies other than the tribunal.


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5.62. Taking into account the nature of the various disciplinary bodies established under thebill, the committee considers the bill’s provisions about access to legal advice andlegal representation, accord with the principles of natural justice.

♦ clauses 140, 183 and 226

5.63. Clauses 140, 183 and 226 all provide that a disciplinary body may direct that thecomplainant be excluded from part or all of the disciplinary hearing until thecomplainant has given evidence. In the case of the tribunal, other witnesses maysimilarly be excluded. In each case, the disciplinary body can only exercise thisdiscretion if it believes the attendance of the complainant (or other witness) beforegiving evidence would seriously prejudice the fairness of the hearing.

5.64. Such a power is consistent with the practice adopted in Courts18.

5.65. The committee notes that cls. 140, 183 and 226 enable the complainant and otherwitnesses to be excluded from the hearing until they have given evidence.

5.66. The committee observes that this power is consistent with the practice adopted incourts of law.

♦ clause 224

5.67. Clause 224 provides for the giving of evidence by “special witnesses”. This termincludes individuals younger than 12, persons the disciplinary body believes would belikely to be disadvantaged as witnesses by reason of intellectual impairment or culturaldifferences, individuals likely to suffer severe emotional trauma and individuals likelyto be so intimidated as to be disadvantaged as a witness.

5.68. Clause 224 stipulates a number of arrangements which may be made to assist suchpersons to give evidence. These include enabling another person to accompany themto provide emotional support, giving evidence by video tape, giving evidence from aroom other than that in which the tribunal is sitting, and ordering the registrant to beexcluded from the hearing or be obscured from the view of the special witness whilstthe special witness is giving evidence.

5.69. The cl. 224 arrangements will tend to reduce the opportunity for the registrant and hisor her legal representatives, and the tribunal itself, to interact with and assess theevidence of the “special witness” to the same extent as if evidence had been given inthe normal manner.

5.70. This could be said to detract from the rights of the registrant in relation to thepresentation of his or her case, and thereby to limit the provision of natural justice.

5.71. In matters of this kind, it is essential that a fair balance be struck between the rights ofthe registrant, the witness and the public.

18 Cross on Evidence (5th Aust edition) 1996 at page 390.


20

5.72. The Committee refers to Parliament the question of whether the procedures set out incl. 224 for the giving of evidence by “special witnesses” have sufficient regard to therights and liberties of all persons concerned, including those of registrants subject todisciplinary proceedings.

Does the bill sufficiently subject the exercise of delegated legislative power to thescrutiny of the Legislative Assembly?19

♦ clause 374

5.73. Clauses 374 provides as follows:

A board may develop codes of practice, or adopt another entity’s code of practice, toprovide guidance to its registrants as to appropriate professional conduct orpractice.

5.74. A code of practice, or an amendment thereof, has no effect until it is approved by theMinister by gazette notice (cl.374(3)).

5.75. Clause 376 provides that a code of practice “is admissible as evidence” in disciplinaryproceedings, where those proceedings involve issues of appropriate professionalconduct or practice for the particular profession.

5.76. It should be noted that the stated purpose of the codes is to “provide guidance” toregistrants (cl. 374), and that whilst they constitute evidence of what is appropriateprofessional conduct, they are not declared to be conclusive evidence in respect ofthose matters (cl 376).

5.77. Because the code does not have effect until a gazette notice indicating Ministerialapproval has been published, the code would appear to be a “statutory instrument” interms of the Statutory Instruments Act 1992. However, the codes are not “subordinatelegislation” under that Act’s usual criteria, nor does the bill deem them to besubordinate legislation. Accordingly, the codes will not be required to be tabled in theLegislative Assembly, and will not be subject to Parliamentary disallowance.

5.78. The committee has previously considered bills permitting matters of significance,which might normally have been expected to be dealt with in subordinate legislation,to be incorporated in Ministerial directions or codes of conduct, departmentalguidelines or other instruments not subject to Parliamentary scrutiny.

5.79. In considering the appropriateness of such provisions, the committee takes intoaccount a variety of factors including the importance of the matters dealt with andtheir suitability for inclusion in subordinate legislation.

19 Section 4(4)(b) 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 sufficiently subjects the exercise of a delegated legislative powerto the scrutiny of the Legislative Assembly.


21

5.80. In respect of cl. 374, the committee has had difficulty in assessing whether thecontents of the proposed codes of practice are or are not matters which would moreappropriately be included in subordinate legislation.

5.81. The Committee seeks information from the Minister as to why it has been thoughtappropriate to incorporate the relevant material in board-generated codes of practice,rather than in regulations.

Does the legislation confer immunity from proceeding or prosecution withoutadequate justification?20


5.82. Clause 386 confers upon members of boards, panels and the tribunal, and assessorsassisting the tribunal, the same protection and immunity as a District Court judgeperforming judicial functions. The clause also confers on parties appearing before aboard, a panel or the tribunal, and witnesses appearing before those bodies, the sameprotection and immunity as parties and witnesses enjoy in District Court proceedings.

5.83. In respect of the tribunal, the committee considers such immunity is appropriate.Although the matters dealt with by boards and panels are generally less serious,extension of the same immunity in respect of disciplinary proceedings before thosebodies is also perhaps not unreasonable.

5.84. Clause 387 confers immunity from civil and criminal liability upon persons who“honestly and on reasonable grounds” give information to investigating authorities inrelation to a complaint, an investigation, or for another purpose under the bill’sprovisions.

5.85. The Explanatory Notes address this issue as follows:

As the boards may rely upon complaints and information to trigger the processeswhich are used to protect the public, it is essential to remove any significantdeterrents to the making of complaints. It is important to acknowledge that personswho make complaints under this legislation do not receive any personal advantagefrom doing so (for example, they do not receive compensation for damages). Theprovision is defensible on the grounds that if complainants could be sued fordefamation or breach of confidence it is unlikely that complaints would be madeand, consequently, the public protection objectives of the legislation would befrustrated.

Further, clause 387 provides a restricted immunity. The immunity is only availablefor persons giving information to relevant entities for the purposes of making acomplaint or in the course of an investigation or another purpose under the Bill.

Also, this provision is standard for legislation of this kind and effectively mirrorssection 135 of the Health Rights Commission Act 1991.

20 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 orprosecution without adequate justification.


22

5.86. The committee refers to Parliament the question of whether the immunity grantedunder cl. 386 to members of disciplinary bodies, and to participants in disciplinaryproceedings before those bodies, is justified in the circumstances.

5.87. The committee refers to Parliament the question of whether the immunity given by cl.387 to complainants and other persons supplying information in relation toinvestigations and for other purposes under the bill’s provisions, is justified in thecircumstances.

♦ clauses 138, 181 and 222

5.88. Clauses 138 and 181 respectively provide that hearings before boards and panels arenot open to the public. Clause 222, on the other hand, provides that hearings beforethe tribunal, except in relation to “impairment” matters, are generally open to thepublic.

5.89. As mentioned earlier, the tribunal generally deals with more serious disciplinarymatters.

5.90. Whilst courts of law are generally open to the public, and whilst open hearings areusually considered to promote the proper application of justice, many court hearings,depending upon the nature of the matter being dealt with, are in fact either wholly orpartially closed to the public.

5.91. Moreover, the proceedings of statutory bodies other than courts, even where theyexercise powers which may impact adversely on individuals, are often not open to thepublic. This reflects a range of imperatives, including a perceived need to maintain asuitable level of privacy in relation to some or all of the persons involved.

5.92. As mentioned earlier, the bill imposes a general requirement to conduct publichearings upon the tribunal, which hears more serious disciplinary matters (which mayjustify cancellation of, or imposition of conditions upon, a registrant’s registration).

5.93. This issue is in strict terms perhaps more closely related to the rights and liberties ofindividuals rather than to the provision of natural justice, but the committee considersit is more conveniently dealt with in conjunction with the various other hearing-relatedissues canvassed above.

5.94. The Committee considers the degree of public access to hearings of the variousdisciplinary bodies established under the bill’s provisions to be reasonable.

Alert Digest No. 8 of 1999 Liquor (Evictions, Unlicensed Sales and Other Matters) Amendment Bill 1999

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6. LIQUOR (EVICTIONS, UNLICENSED SALES AND OTHERMATTERS) AMENDMENT BILL 1999

Background

6.1. The Honourable R J Gibbs MLA, Minister for Tourism, Sport and Racing introducedthis bill into the Legislative Assembly on 25 May 1999.

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

to clarify and strengthen the existing provisions of the Liquor Act dealing with theeviction of patrons from licensed premises and the unlicensed sale of liquor.


♦ clause 9

6.3. Clause 9 replaces current s.165, and inserts new ss.165A and 165B. Section 165Bwill be referred to in more detail later in this Chapter.

6.4. Proposed s.165 sets out a specific list of grounds upon which persons may be requiredto leave licensed premises, and authorises the use of “necessary and reasonable force”for that purpose. Proposed s.165A likewise lists a number of specific grounds uponwhich a person can be refused entry to licensed premises, and necessary andreasonable force applied if they attempt to enter.

6.5. The background to these provisions appears from the following passages of theMinster’s Second Reading Speech:

For some time now licensees have considered it their right to vet the entry of patronsto their establishment and to check behaviour by removing problem patrons toprovide a safe environment for all. However, recent Court decisions have cast somedoubt on these provisions and have effectively removed the rights of licensees tocontrol their premises.

6.6. To the extent that the provisions expressly authorise removal of persons from, andrefusal of entry to, licensed premises, and authorise the use of necessary andreasonable force against them, proposed sections 165 and 165A will have an impactupon the rights and liberties of the patrons and intending patrons against whom theyare invoked. However, these restrictions upon the movement of particular individualsmust be considered in the context in which they occur, and in light of the rights ofother patrons and members of the public, and of the legal obligations to whichlicensees may be exposed.

6.7. The Minister refers to these matters in the following passages from his SecondReading Speech:


of individuals.


24

Coupled with this new flexibility (provided by the Liquor Act 1992) came greatersocial obligations in relation to the responsible service of alcohol. Licensees andtheir staff were asked to minimise the potential harms from alcohol sales byconsidering their management and service practices and to ensure a safeenvironment for patrons.

In providing this safe environment, the licensee must be able to monitor and checkpatron behaviour. Prohibiting entry to people who may be known trouble makers,intoxicated, underage or disorderly is not only good business practice, but itsafeguards the wellbeing of all patrons.

……

Equally as important as prohibiting entry is the ability to remove patrons who arecreating a disturbance, disorderly or for some other lawful reason. We have all readabout the increasing number of civil suits where licensees are being sued for notprotecting their patrons. This amendment will empower licensees and theiremployees to do just that. It’s not good enough to say “let the police deal with it”.Consider our country licensees. The local officer in charge of Police may be hoursaway. The licensee can’t just give a fellow another drink and ask him to sit quietlyand wait for the police to eject him from the hotel. This amendment contemplates thepossible harm these circumstances can cause to the problem patron and to otherpatrons.

6.8. Proposed ss. 165 and 165A confer upon licensees express rights, in stipulatedcircumstances, to remove patrons from, or refuse intending patrons entry to, licensedpremises, and authorise the use of necessary and reasonable force against them if theydo not comply.

6.9. The Committee refers to Parliament the question of whether those provisions of thebill have sufficient regard to the rights and liberties of the patrons and intendingpatrons concerned.

♦ clause 9 (proposed s.165B)

6.10. As mentioned earlier, proposed s.165 lists a number of specific grounds upon whichpersons may be required to leave licensed premises, and proposed s.165A likewiselists a number of specific grounds upon which persons may be refused entry tolicensed premises.

6.11. These sections are qualified by proposed s.165B, which provides as follows:

Preservation of other rights to prevent entry to premises or remove persons frompremises

Sections 165 and 165A do not limit any rights a person has under another law toprevent entry to premises to anyone or remove anyone from premises.

Example -

A licensee decides on a dress standard for persons in the licensed premises. The licensee may exercise the licensee’s rights apart from this Act to stop anyone whodoes not comply with the standard from entering the premises.


25

6.12. This draws attention to the corresponding question of what (if any) obligation anoperator of licensed premises has to allow persons who are not in breach of ss. 165and 165A entry to, and service at, the licensed premises.

6.13. The issue is best considered in terms of a general liquor licence.

6.14. In the committee’s view the operator of licensed premises, as owner or lessee of thosepremises, would enjoy a common law right to exclude other persons from theirproperty. The Anti-Discrimination Act 1991 would of course prevent such actionbeing taken on the basis of, for example, the affected person’s sex, age22 or race.Subject to that, however, the operator could refuse entry to any individual at will.

6.15. For example, it would seem to the committee that the operator of the sole hotel in asmall town could exclude a completely respectable individual simply because of someprevious business dispute with the person. In a similar vein, media reportsoccasionally refer to licensed premises which exclude persons because, whilst well-dressed and well-behaved, they are not attired in a pre-determined style, or because oftheir physical appearance.

6.16. In other words, it seems operators of licensed premises, unlike licensed taxi operatorsfor example, will have a general right to choose their patrons on whatever basis theyplease (subject to their not breaching anti-discrimination laws).

6.17. The Minister’s Second Reading Speech contains the following relevant passages:

In 1992 I introduced a new Liquor Act which allowed licensees greater flexibility instructuring and promoting their business to target a particular market sector. Sincethat time, diversity has flourished and hospitality operators are servicing a moresophisticated and demanding local market and are also able to quickly respond tointernational trends for tourists.

……

The licensee should be free to set the tone of their venue, for example by enforcingminimum dress standards and therefore cater for a particular market niche.

6.18. In addition, the Explanatory Notes state:

New section 165B preserves the rights of persons to prevent entry to the premises orremove persons from the premises other than in the circumstances outlined insections 165 and 165A. Licensees have the same general rights as the operator ofany other business to manage the business in a manner that they see fit. This mayinclude targeting a niche market, through dress codes for example, and generallysetting standards regarding patron behaviour. This will differ from premises topremises. It is not intended that sections 165 and 165A limit those rights in any way.

6.19. Both of the quoted sources to support the committee’s interpretation of the Act.

6.20. The committee seeks information from the Minister as to whether the policy intent isthat operators of licensed premises should enjoy an unqualified right (subject to any

22 The Liquor Act, of course, requires the exclusion of minors.


26

conditions of the particular licence, and to anti-discrimination laws) to excludepersons from their premises.

♦ clauses 11 to 19

6.21. Clauses 11 to 19 make a number of amendments to existing provisions of the LiquorAct and introduce various new sections, all of which are aimed at deterring theunlicensed sale of liquor.

6.22. The bill attempts to achieve this result in a number of ways. For example:• proposed new s. 169 and amended s. 171 will substantially increase the

maximum penalties for unlicensed sale of liquor and carrying or exposingliquor for sale

• amendments to s.173 will make it easier to convict the occupier or owner ofthe unlicensed premises from which liquor has been, or is being, sold

• new s.183A expressly authorises investigators to seize property if theyconsider that action necessary to prevent the use of the property in continuingor repeating unlicensed sales of liquor

• proposed new s.228A disqualifies a person from holding a licence or permitupon being convicted at least twice for unlicensed sales, and continues thatdisqualification for periods of 5 or 10 years depending upon the number ofconvictions.

6.23. The following passages from the Minister’s Second Reading Speech provide thebackground to these amendments:

The Amendment bill also seeks to increase the penalties relating to the unlicensedsale of liquor. The illegal sale of liquor brings with it the associated problems ofunrestrained and unsupervised public consumption of liquor including publicdrunkenness, violence and vandalism. Unlicensed operators have the propensity tocause significant harm within the community without any of the usual social or legalobligations. Legitimate operators have to pay for the same privileges, obtain townplanning approvals, run the gauntlet of public objections and provide facilities to anappropriate standard. The unlicensed operator sets up shop without considerationfor the law or their surrounding community.

This amendment will also increase the penalties for sly-grogging and I put theseunscrupulous operators on notice that the fines will fit the crime and the harm thatthey cause. In the more remote areas of this State sly-grogging is affecting manyindigenous communities. It undermines any attempts by local councils to enforcecommunity laws and control liquor supplies, leading to problems of drunkenness,violence and family distress.

6.24. The relevant provisions of the bill will impact not only upon the persons conductingthe unlicensed liquor sales, but upon others such as owners of premises. Thecommittee’s comments are mainly directed towards the position of these latterpersons.


27

6.25. Again, the impact which the various provisions mentioned above will have on therights and liberties of individuals associated with the unlicensed sale of liquor must bebalanced against the rights of the public, which can be adversely affected in a varietyof ways by uncontrolled and illegal sales of alcohol.

6.26. The Committee refers to Parliament the question of whether the provisions of clauses11 to 19, which in various ways penalize the activities of persons associated with theillegal sale of liquor, have sufficient regard to the rights and liberties of those personsnot necessarily involved in the offence, such as owners or lessors of premises.

Does the legislation confer power to enter premises and to search for or seizedocuments or other property without a duly issued warrant?23

♦ clause 18

6.27. Clauses 18 inserts Division 2 of Part 7 (proposed ss.187A to 187G), which relate tothe seizure of property by investigators. These powers will largely be exercised inassociation with investigators’ powers of entry.

6.28. The provisions cover a number of matters, including receipts for seized property,return of seized property, access to seized property, forfeiture of unreturned property,forfeiture of property on conviction and dealings with forfeited property.

6.29. These provisions are ancillary to the various powers which Part 7 of the Act confersupon investigators, including the powers conferred by proposed s.183A to seizeproperty to prevent its use in continuing or repeating illegal sales of liquor.

6.30. The committee notes that the provisions of clause 18, which are similar to provisionscontained in a number of recent bills, confer significant powers upon inspectors.Whilst those powers impact upon the rights and liberties of individuals, the committeerecognises the significant efforts which have been made in drafting many of thoseprovisions to take account of fundamental legislative principles.

6.31. The Committee notes that cl. 18 of the bill confers upon investigators some additionalpowers in relation to seizure of property.

6.32. The Committee refers to Parliament the question of whether the additional powershave sufficient regard to the rights and liberties of persons from whom the property isseized, and of the owners of that property.



Alert Digest No. 8 of 1999 Public Sector Ethics Amendment Bill 1999

28

7. PUBLIC SECTOR ETHICS AMENDMENT BILL 1999

Background

7.1. The Honourable PD Beattie, MLA, Premier, introduced this bill into the LegislativeAssembly on 26 May 1999.

7.2. The purpose of the bill, in the words of the Explanatory Notes, is as follows:

The Bill provides for the establishment of a Queensland Integrity Commissioner.

……

The purpose of the measure is to provide for a source of confidential advice onconflict of interests and related ethics and integrity matters, on request, to Ministers,Parliamentary Secretaries, Chief Executives, and a small range of other “designatedpersons”, in the interests of avoiding personal conflicts of interests.


♦ clause 7 (proposed s.30)

7.3. To the extent that Division 5 of the bill (proposed ss. 29-32) provides for the IntegrityCommissioner to give confidential advice, upon request from a “designated person”,concerning their own interests there is no significant impact upon the rights of thatdesignated person.

7.4. An example of this would be if the Premier were to seek advice in respect of a conflictof interest issue involving his or her own interests.

7.5. The committee however has concerns about the potential impact of the Division 5process on the large number of “designated persons” who, unlike the Premier (andperhaps Ministers and Parliamentary Secretaries), are the subordinates of another“designated person” within an organisational hierarchy.

7.6. The most numerically significant of this latter category is senior executive officers andsenior officers employed in departments and public service offices, and equivalentpersons in “government entities”. These persons work under, and are subject to, theirdepartmental chief executive or equivalent.

7.7. Despite the intended voluntary nature of the Division 5 process, the committee isconcerned there could be unintended consequences of these provisions. Firstly, itraises the question whether expectations will develop on the part of superiors thatsubordinate “designated officers” will submit without question to the process and acton the Commissioner’s advice. Secondly, there is potential for this process toadversely impact on the rights of subordinate “designated officers” who choose not to


of individuals.


29

access the Commissioner’s advice, or if having done so choose not to abide by thatadvice.

7.8. To best illustrate this concern and the potential impacts, the following is a possiblescenario:

• A departmental chief executive raises with a senior officer employed in hisor her department the question of whether certain private business interestsof that senior officer create a conflict of interest for the officer. The officermay express the view that no such conflict arises.

• The chief executive nevertheless demands the senior officer refer the matterto the Integrity Commissioner (pursuant to the proposed Division 5). Thesenior officer might decline to do, or do so only under protest. If the seniorofficer takes the first course, the chief executive can request advice from theCommissioner of his or her own volition, about the senior officer’s conflictof interest issue (pursuant to the proposed Division 5).

• The Integrity Commissioner then advises that the senior officer’scircumstances constitute a conflict of interest. The senior officer indicates tothe chief executive that he or she disputes the Commissioner’s view. Thechief executive, having obtained the advice (either from the senior officer orby exercising his or her power to obtain it from the Commissioner underproposed s.34(6)) indicates to the senior officer that he or she shouldimplement the Commissioner’s advice.

• The senior officer again declines to do so, or does so only under significantpressure from the chief executive.

• If the Commissioner’s view was to be subsequently tested in a Court or anindustrial or disciplinary tribunal and confirmed, then the senior officer’sactions in respect of the conflict of interest issue may incur punishment.

• Alternatively, if the Integrity Commissioner’s view was tested and rejectedby a Court or industrial or disciplinary tribunal, or if no formal disciplinaryor other proceedings are taken against the officer, the actions of the officermay still have an adverse effect, either directly or indirectly, in respect of hisor her future career.

7.9. The committee notes, however, the bill does not make the Integrity Commissioner’sview on any conflict or interest issue conclusive of the matter. Further, the ethicalissues (including conflict of interest issues) with which the Commissioner will dealare often difficult, and conflicting views may quite reasonably be held on particularmatters. The Premier concedes as much in the following extract from his SecondReading Speech:

The purpose of the Integrity Commissioner is to encourage community confidence inGovernment and Public Institutions, by helping Ministers and other elected andappointed Senior Officials avoid conflicts of interest.

……


30

Public Officials now have an opportunity to pro-actively obtain advice about conflictof interest matters from (the Commissioner), and, in doing so, prevent conflicts fromarising.

The Commissioner will be able to provide, on request, independent and confidentialadvice to assist Ministers and other public officials to resolve the often complex andunique ethical dilemmas that can confront them.

……

Conflicts of interests can be very complex matters. Conflicts may be difficult todefine, and even more difficult to resolve in a way that satisfies everyone, andprotects the public interest. It can be overwhelming to work through these difficultissues alone. My Government believes that a source of voluntary, confidential andexpert advice on ethical dilemmas can be a real benefit in resolving potentialconflicts before they happen.

7.10. Division 5 of the bill establishes a process under which “designated persons” canobtain advice from the Integrity Commissioner on conflict of interest issues.

7.11. The Committee refers to Parliament the question of whether the existence of thatprocess may impact adversely on the rights of “designated persons” who aresubordinate to other such persons in an organisational hierarchy, and who choose notto access the Division 5 process or, having done so, choose not to abide by theCommissioner’s advice.

♦ clause 10 (privacy)

7.12. The committee notes that the bill amends the Freedom of Information Act 1992 tomake matter exempt from that legislation if it is information whose release isforbidden by proposed s.33.

7.13. The committee believes it is critical to the operation of the Integrity Commissionerthat all affected parties have complete confidence in the confidentiality of the process.

7.14. The committee therefore seeks an assurance from the Premier that all documentsrelated to requests for advice from the Integrity Commissioner, including ancillary andrelated documents, will be exempt from the FOI process.

♦ clause 7 (proposed s.34) (privacy)

7.15. Proposed s.34 enables “relevant documents” about a conflict of interest issue to bedisclosed to designated persons in particular circumstances. “Relevant documents”include requests for advice on a conflict of interest issue, further informationrequested by and given to the Integrity Commissioner, and the advice ultimately givenby the Commissioner about the issue.

7.16. Proposed ss.34(4), (6) and (7) require the Integrity Commissioner to give “relevantdocuments” about a particular conflict of interest issue to the Premier, a Minister, aParliamentary Secretary and a departmental chief executive officer (or equivalent


31

person in a government entity) respectively if the documents relate to a “designatedperson” about whom they may respectively seek advice, and if they ask for them.

7.17. This significantly affects the privacy of persons who choose to seek advice from theIntegrity Commissioner in relation to their own conflict of interest issues. A generalright to privacy is conferred by proposed s.33, subject to exceptions including thosejust mentioned.

7.18. It can be argued it is appropriate for the Premier, Minister, Parliamentary Secretaryand chief executive officer or equivalent, (all of whom are “superiors” of the“designated person” with the conflict of interest problem) to be able to informthemselves about the issue and about the Commissioner’s view of it.

7.19. The Committee refers to Parliament the question of whether the provisions of the billenabling the Premier and other persons to demand and obtain from the IntegrityCommissioner copies of “relevant documents” concerning advice given by theCommissioner in relation to relevant “designated persons”, has sufficient regard to theright to privacy of the “designated persons ”.

Is the legislation consistent with the principles of natural justice?25

♦ clause 7 (proposed s.30)

7.20. A major aspect of the natural justice doctrine is the right to present one’s case to thedecision-maker.

7.21. As mentioned earlier, the Integrity Commissioner has a purely advisory role and doesnot have power to make decisions that bind “designated persons”. Nevertheless, asalso pointed out above, the committee considers advice given by the Commissionercould conceivably have an adverse impact on such persons’ rights.

7.22. For this reason, the committee believes it is important that the right to natural justiceof “designated persons” should be adequately protected.

7.23. Where advice is sought from the Integrity Commissioner by a “designated person”who is actually involved in the conflict of interest issue, that person has an opportunityto make the Commissioner aware of all relevant matters, and to put his or her case tothe Commissioner, in the request for advice under proposed s.30(1). However, the billalso enables certain persons (the Premier, Ministers, Parliamentary Secretaries,departmental chief executives and their equivalents in other government entities) toseek advice from the Commissioner about conflict of interest issues involving other“designated persons”. For example, the chief executive officer of a department mayseek advice about a conflict of interest issue involving a senior executive officer orsenior officer employed in the department (proposed s. 30(5)).

25 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 principlesof natural justice.


32

7.24. The bill does not expressly confer upon a “designated person” about whom advice issought by another person, any entitlement to make submissions to the IntegrityCommissioner on the matter before the advice is given.

7.25. Proposed s.31(1) requires that a request for advice “must disclose all relevantinformation” about the conflict of interest issue, but that provision of itself would notappear to accord natural justice to a “designated person” about whom advice is sought.

7.26. The Committee notes the bill does not expressly confer upon “designated persons”about whom advice is sought by others any entitlement to put their case to theIntegrity Commissioner prior to the Commissioner forming a view on the matter.

7.27. The Committee recommends that the bill be amended to expressly confer upon such“designated persons” a right to make submissions to the Integrity Commissioner.

Does the legislation confer immunity from proceeding or prosecution withoutadequate justification?26

♦ Clause 7 (proposed ss. 35 and 36)

7.28. Proposed s. 35 confers on “designated persons” a limited immunity from liability.However, the immunity is only applicable in the following circumstances:

• the immunity only relates to acts carried out by the “designated person” toresolve the conflict in the manner indicated in the Integrity Commissioner’sadvice;

• the immunity only applies to situations where the “designated person” haspersonally asked for the Commissioner’s advice, and does not apply tosituations where advice about the designated persons conflict of interest issuehas been sought by another person, for example, their departmental chiefexecutive.

7.29. The immunity conferred by proposed s.35 does not affect any liability for acts oromissions in relation to the conflict of interest issue which are done or made beforereceipt of the Commissioner’s advice.

7.30. Protection for actions intended to give effect to the Commissioner’s advice wouldseem necessary, given that it is always possible advice given by the Commissionerwould be (albeit quite inadvertently) contrary to law, inappropriate or perhaps evenunethical.

7.31. However, the committee is unable to discern why the protection offered by proposeds.35 is limited to “designated persons” who have asked the Commissioner for adviceabout their own conflict of interest issue, and does not extend to situations where

26 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 fromproceeding or prosecution without adequate justification.


33

another person has asked for advice about it. In such situations the “designatedperson”, having seen the Commissioner’s advice to the other person (who might, forexample, be the person’s departmental chief executive), might wish to implement it,but would not be covered by the indemnity conferred by the proposed section.

7.32. Proposed s. 36 provides that the Integrity Commissioner:

is not liable in a civil proceeding or under an administrative process for an act oromission done or made by the Integrity Commissioner acting in good faith for thepurposes of this part.

7.33. Since the only effective requirement is that the Commissioner act “in good faith” theimmunity conferred by cl.36 must also extend to negligent acts.

7.34. The committee has previously commented on provisions that excluded civil liabilityfor anything done or omitted to be done in the exercise of powers and functionsconferred under a bill, subject only to a requirement of good faith.27 The committeehas expressed the view that it is a fundamental legal tenet that everyone is equalbefore the law, and has accordingly queried such provisions on the basis that theyexempt public officials from a ground of potential legal liability (tortious liability, andparticularly negligence) to which ordinary citizens are subject. In effect, suchprovisions apply to the Government and its officials a different law to that whichapplies to citizens.

7.35. Although the Explanatory Notes refer to proposed s. 36 in connection with the bill’sconsistency with fundamental legislative principles, neither the Explanatory Notes northe Premier’s Second Reading Speech contain any express justification for theconferral of this extended immunity.

7.36. The committee seeks information from the Premier as to why the immunity conferredby proposed s.35 does not extend to cases where the Integrity Commissioner’s advicewas originally sought by another person, but where the “designated person” involvedin the conflict of interest issue wishes to implement that advice.

7.37. The Committee seeks information from the Premier as to why the immunity conferredupon the Integrity Commissioner by proposed s.36 extends to negligent and othertortious acts.

Does the legislation make individual rights and liberties, or obligations, dependenton administrative power only if the power is sufficiently defined and subject toappropriate review?28

27 See Alert Digest No. 9 of 1999 at pp.14-15, paragraphs 3.7 to 3.16, Alert Digest No. 11 of 1997 at pp.43-

45, paragraphs 5.44 to 5.50, and Alert Digest No. 12 of 1997 at pp.36-37, paragraphs 5.32 to 5.41.

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


34

♦ Clause 7 (proposed s.41)

7.38. Proposed s.41 stipulates grounds upon which the Governor in Council may terminatethe appointment of the Integrity Commissioner. The first such ground is that theCommissioner:

can not satisfactorily perform the Integrity Commissioner’s duties.

7.39. In the committee’s view this provision exhibits a degree of imprecision. Whilst itclearly encompasses matters such as physical and mental incapacity, the nature of theCommissioner’s functions and the qualifications stipulated in proposed s.37(2) aresuch that questions could arise as to what other situations it might extend to.

7.40. Proposed s.37(2) provides as follows:

37(2) A person is qualified for appointment as the integrity commissioner if theperson has knowledge, experience, personal qualities and standing within thecommunity suitable to the office.

7.41. For example, it might became widely known that the Commissioner had, in respect ofa private business dealing, conducted him or herself in a manner which, though notillegal, might be considered quite unethical, would this affect the Commissioner’s“standing within the community” to the extent that the Commissioner would not beable to satisfactorily perform his or her duties?

7.42. The Committee seeks information from the Premier as to whether proposed s.41(a) isintended to extend beyond physical or mental incapacity.

7.43. If so, the committee recommends that the Premier consider amending proposeds.41(a) to define at least some of the additional circumstances which would preventthe Commissioner from satisfactorily performing his or her duties.

Alert Digest No. 8 of 1999 State Penalties Enforcement Bill 1999

35

8. STATE PENALTIES ENFORCEMENT BILL 1999 29

Background

8.1. The Honourable Matt Foley, MLA, Attorney-General and Minister for Justice andMinister for the Arts, introduced this bill into the Legislative Assembly on 11 June1999.

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

to establish the State Penalties Enforcement Registry (to be known by the acronym‘SPER’30) which will replace the current SETONS regime. The SPER will beresponsible for the collection and civil enforcement of most penalties amounts dueand owing to the State, including:

(a) court ordered fines;

(b) infringement notice penalties and fees;

(c) compensation and restitution; and

(d) amounts of forfeited under undertakings and recognisances.

Overview of the bill

8.3. Under the bill there are 4 identified stages.

8.4. The first stage involves either the issue of an infringement notice or a court imposedfine with stipulated time to pay. When an infringement notice is issued, the offenderis given 28 days to choose one of the following options:

• pay the fine in full to the administering authority31

• apply to pay by instalments32

• elect to have the offence decided in a Magistrates Court33

• if a motor vehicle is involved give to the issuing authority a declaration.

8.5. The second stage arises if the alleged offender, in the case of the infringement notice,does nothing34 or elects to pay by instalments35 or in the case of court ordered fines,

29 The committee thanks Mr Robert Sibley, Barrister-at-Law, Senior Lecturer in Law, Queensland University of

Technology, for his valued advice in relation to the scrutiny of this bill.30 Explanatory Notes, at p.131 Clause 22(1)(a)32 Clause 22(2)33 Clause 22(1)(b)34 Clause 33


36

defaults36. The authority or the court registry may refer the matter to the registrar ofSPER who registers the certificate or particulars and may take enforcement action. Inthe cases other than election to pay by instalment the referral attracts a fee additionalto the amount outstanding37. However, where there is a failure to make twoinstalments the registrar may cancel the instalment method38 and an additional fee isthen imposed. In all three cases the registrar may issue an enforcement order to thedebtor to pay within 28 days39 advising also of the period of imprisonment for failureto pay calculated pursuant to cl.39. Upon service of the enforcement notice the debtorhas four options:• pay the full amount

• apply for an extension of time

• apply to pay in instalments

• apply for a fine option order

• if it relates to an infringement notice, elect the Magistrates Court

8.6. The third stage involves civil enforcement by the use of enforcement warrants or finecollection notices in the case where further default occurs.

8.7. The fourth stage involves the issue of arrest and imprisonment warrants although thethird stage may be passed in certain cases40.

Does the legislation provide for the reversal of the onus of proof in criminalproceedings without adequate justification?41 and

Is the legislation unambiguous and drafted in a sufficiently clear and precise way?42

♦ clauses 17, 18, 19 and 20 (reversal of onus of proof)

8.8. Clause 17(1) provides that if an infringement notice offence involves a vehicle, theowner is taken to have committed the offence even though the actual offender mayhave been someone else. Clause 17(2) provides that subsection (1) does not affect theliability of the actual offender but the owner and the actual offender cannot both be

35 Clause 2436 Clause 3437 Clause 3538 Clause 3639 Clause 34(4); 37(b); 38(1)(a)40 Clause 6241 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 criminalproceedings without adequate justification.

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


37

punished for the offence. Clause 17(3) provides that the owner must not be taken tohave committed the offence if they make and give either an

• illegal use declaration;

• known user, unknown user declaration; or

• sold vehicle declaration.

8.9. In the case of an illegal use declaration, cl.18(2) provides that a court must find theowner not guilty if it is satisfied that the vehicle was stolen or illegally taken at therelevant time. Known user declarations and sold vehicle declarations cls.19(5) and20(5) provide that the court must find the owner not guilty if it is satisfied the ownerwas not in charge or the vehicle had been sold at the relevant time.

8.10. The owner declarations are only part of the evidence the Court takes into account. Inthe case of unknown user declarations the court must find the owner not guilty ifsatisfied that the owner was not the user at the relevant time AND that the enquiriesmade to find out the name and address of the person who was in charge werereasonable and carried out with reasonable diligence. The provision does not specifywho has to prove that the enquiries were of the particular character: however, it isarguable that the provision requires the owner to prove these matters. The provisionshould make this matter clear. If this is so, then the committee notes that this placesan additional burden of proof on the owner of the vehicle.

8.11. The committee notes the reference in the Explanatory Notes to cases where theevidentiary onus is placed on a person to prove matters peculiarly within theknowledge of that person such as the case of Weissensteiner v The Queen (1993) 178CLR43. These cases apply where there is sufficient circumstantial evidence availableto infer beyond reasonable doubt that the person committed the offence. Thecommittee is concerned that in the current bill there is an unwarranted reversal of theonus of proof, particularly in the case of unknown user declarations under cl.20.

8.12. The committee notes that the bill does not expressly state who bears the onus ofproving reasonable enquiries were made. The committee recommends an expressprovision regarding this matter be inserted in the bill.

8.13. The committee is also concerned that cl.20 may unjustifiably reverse the onus ofproof, particularly in relation to unknown user declarations.

8.14. The committee refers to Parliament the question of whether such a reversal of onus iswarranted in the circumstances.


43 Explanatory Notes, at p.844 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 sufficientlyclear and precise manner.


38

♦ clauses 29, 60 (removal of demerit points when withdrawing infringementnotices)

8.15. Clause 29 requires the registrar of SPER to cancel the registration of the particulars ofany infringement notice withdrawn by an administering authority pursuant to cl.28,and to refund any amount paid to SPER by the person for the offence. Unlike cl.31,where an infringement notice is cancelled under cl.30 due to mistake, there is norequirement that any demerit points for the offence be cancelled and a clear note ofthat fact made by the administering authority. The committee considers it would beinequitable to impose such a request in one case and not the other.

8.16. The committee also notes that cl.60 does not spell out that when an enforcement orderis cancelled the demerit points are also cancelled, although the committee notes thatthe clause provides that “any enforcement action already taken must if practicable bereversed”. However this could also be conveniently included in the specific mattersprovided for in cl.60(4).

8.17. The committee draws these drafting issues to the attention of Parliament.

8.18. The committee recommends that the bill be amended to address these concerns.

Does the legislation make individual rights and liberties, or obligations, dependenton administrative power only if the power is sufficiently defined and subject toappropriate review?45 and

Is the legislation consistent with the principles of natural justice?46

♦ clauses 38, 42, 45, 48, 56, 63, 65, 69, 75, 77, 199, 125, 130, 155 (review ofadministrative action)

8.19. The principle of natural justice requires that a party whose rights may be affected byan administrative decision has the right to be heard.47 The committee is of the viewthat a party should be allowed to submit evidence in support of the party’s case, and tocontradict evidence which forms the basis of the opponent’s case. Based on theseunderstandings of natural justice, the committee has the following concerns48:• Clause 38 allows the registrar of SPER to make an enforcement order in the

absence of and without notice to the enforcement debtor. Clause 155specifically prohibits the debtor from seeking to review this decision under theJudicial Review Act 1991. The only relief is to seek cancellation of the orderfrom the registrar on the grounds under cl.56 which allow for late or non

45 Section 4(3)(a) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and

liberties of individuals depends on whether, for example, the legislation makes rights or liberties, or obligations,dependent on administrative power only if the power is sufficiently defined and subject to appropriate review.

46 Section 4(3)(b) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights andliberties of individuals depends on whether, for example, the legislation is consistent with the principles of naturaljustice.

47 Flick, G A, Natural Justice Principles and Practical Application, 2nd edition, Butterworths, 1984 at pp.68-69.48 Ibid. Citing R v Hull Prison Board of Visitors; ex parte St Gremaine (1979) 3 All ER 545 at 550-552


39

service of the order or accident or illness etc of the debtor. There is a furtherright to apply to the Magistrates Court if the registrar refuses the applicationunder cl.56. However the court can only make a decision about the applicationthat the registrar could have made49 which restricts the decision to the mattersin the application50 as limited by cl.56 itself.

• This enforcement order is in turn served on the debtor who has the choiceswithin 28 days either to pay the full amount, or apply to the registrar of SPER:for an extension of time; to pay by instalments; for a fine option order. Wherea debtor chooses to apply for an extension of time or to pay by instalments theregistrar makes a decision under cl.43 whether to grant or refuse theapplication. No criteria are spelt out in respect of this decision other than, inthe case of repayments less than the minimum instalment, to find exceptionalcircumstances. This decision is also non reviewable by operation of cl.155.

8.20. Where a debtor applies for a fine option order and the registrar decides the debtor canpay the amount the registrar must reject the application pursuant to cl.45. No criteriafor making this decision are spelled out in the bill. The debtor is to be informed andprovided with reasons.51 This decision is reviewable under the Judicial Review Act1991. Where the registrar decides to accept an application for a fine option order it isto be referred to the chief executive (corrective services) for a decision about whetherthe debtor is suitable for community services under a fine option order. The debtor isto be informed of the registrar’s decision and is given the right to be heard on thequestion by the chief executive either in person or over the phone.52 The chiefexecutive then decides whether the debtor is suitable for performing communityservice. No criteria are spelled out in the bill as to what makes a person unsuitableother than including the case where the debtor has breached a community serviceorder in the previous 12 months.53 The debtor is to be informed of the decision butnot the reasons. They may choose one of the other options previously available butare specifically precluded by cl.155 from judicially reviewing the decision under theJudicial Review Act 1992.

8.21. Where a default under an enforcement order is alleged, the registrar may issue anenforcement warrant under cl.63 to seize and sell or impose a charge on specifiedproperty to recover the amount outstanding plus an additional civil enforcement fee.No criteria appear in the bill for the making of this decision as opposed to a decisionto, for example, issue a fines collection notice redirecting earnings pursuant to cl.75.Neither the decision to issue a warrant or a decision to issue a fines collection notice isjudicially reviewable under the Judicial Review Act 1992. The only relief in theformer case is for a person who has an interest in the property to apply to the registrarto cancel, suspend or vary all or part of the warrant. No criteria are spelled out in the

49 Clause 58(4)50 Clause 57(1)51 Clause 45(2)52 Clause 47(3); 48(3)53 Clause 48(4)


40

bill as to how the decision to order or cancel etc the warrant is to be made. Thesedecisions will often have very significant impact on the debtor and any co-owners ofproperty.

8.22. Notice of the pending issue of an enforcement warrant is required to be given by theregistrar. In the case of property belonging to a partnership pursuant to cl.65 thepartners of the debtor must be given 10 days notice of intention to issue the warrant.There is a discretion in cl.69 vested in the registrar when issuing an enforcementwarrant until the officer attempts to recover the amount owing and to interview thedebtor. No criteria appear in the bill as to when this discretion should be exercised.

8.23. Because of the serious impact the enforcement of the warrant has on a debtor and anyco-owners of property (including also, for example, entry and search day and nightincluding the use of force to certain circumstances) the committee believes that theinstruction in cl.69 should be mandatory steps in all cases at the least. If theenforcement officer, after interview, is satisfied the debtor can pay by regularredirection and the debtor agrees the warrant is suspended.

8.24. In contrast to the enforcement warrant, in the case of the fines collection notice, thedebtor may, pursuant to cl.77, apply to the registrar to cancel suspend or vary thenotice. Again, no criteria for making the decision appear in the bill. However cl.155does not prevent this decision of the registrar from being judicially reviewed.

8.25. The committee also notes that there is no judicial review available in the case of thedecision of the registrar to register interests in land or other property with for examplethe registrar of titles.54

8.26. Where the registrar of SPER is satisfied that an enforcement warrant can not beenforced and other avenues and not available to recover, or there is a failure to complywith an instalment payment notice or a fine option order a warrant for the arrest andimprisonment, directed to all police officers, may be issued pursuant to cl.119. Thebasis for making these decisions does not appear in the bill other than in the case of afailure to comply with a fine option order. The decision to issue the arrest warrant isnot judicially reviewable.55 In the case of failure to comply with a fine option order,an authorised corrective services officer must first give notice to the debtor to stop orgive a reasonable explanation. If the corrective services officer is not satisfied that areasonable explanation has been given a fine option order breach notice must be givento SPER. The decision that no reasonable explanation is given is not judiciallyreviewable.56 Under cl.129 the registrar may revoke the fine option order if, afterconsidering the report of corrective services about the contravention by orunsuitability of the debtor to perform the order, the registrar is satisfied thecontravention is without reasonable excuse. This decision is not judicially reviewableunder the Judicial Review Act 199257: however, a limited right of review is provided

54 Clause 155(1)(d)55 Clause 155(1)(c)(v)56 Clause 155(1)(a)(ii)57 Clause 155(1)(e)


41

for in cl.130. This is to the registrar of the nearest Magistrates Court not to amagistrate. The decision may be made in the absence of and without notice to theapplicant and the court registrar’s decision is final.58 There is thus no right to be heardother than stating reasons in writing in the application as provided for in cl.130(2).That decision is not judicially reviewable under the Judicial Review Act 1991 pursuantto cl.155(1)(f). The committee notes that under the Penalties and Sentences Act 1992,only a court can revoke a fine option order after considering evidence given by theCorrective Services Commission and on behalf of the offender.59

8.27. An order for arrest and imprisonment is the final and most draconian step in theprocess and constitutes an interference with the fundamental right to liberty, oftendescribed by the courts as the most fundamental of rights.60 The committee isconcerned that there is no indication in the bill as to the level of satisfaction that theregistrar must have that payment of an unenforced warrant cannot be satisfied in anyother way under the act before issuing an arrest warrant. Is it to be a belief or meresuspicion? Should it be based on reasonable grounds? The committee is alsoconcerned that there is no avenue of review of the decision except in the limitedcircumstances of attempting to persuade the registrar of SPER or a court registrar thata fine option order should not be revoked and this is without a right to be heard.Because there are so many administrative processes to be gone through before thepower to issue an arrest and imprisonment warrant arises, the debtor should bebrought before a Stipendiary Magistrate to ensure that the proper grounds exist forimprisonment.

8.28. The committee draws to the attention of Parliament a number of concerns in relationto cls. 38, 42, 45, 48, 56, 63, 65, 69, 75, 77, 125, 130 and 155. These concerns relateto the lack of stipulated criteria for various significant decisions, and to variousprovisions which limit or deny natural justice.



♦ clause 104 (power to suspend driver’s licences)

8.30. Under cl.104, the registrar may suspend an enforcement debtor’s driver’s licence if thedebtor has defaulted in paying instalments or failed to discharge a fine option order ortaken no action to have the matter decided in a court. If after service of the notice of

58 Clause 130(6)59 Section 7460 As Justices Mason and Brennan observed in Williams v R (1986) 161 CLR 278 at 299 “The right to personal liberty is,

as Fullager J described it, “the most elementary and important of all common law rights”: Trobridge v Hardy. Personalliberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and hadnever been abridged by the laws of England “without sufficient cause”. He warned “Of great importance to the public isthe preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprisonarbitrarily whomever he or his officers thought proper … there would soon be an end of all other rights and immunities”.

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


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intention to suspend on the debtor the unpaid amount is paid within 14 days, thedriver’s licence is suspended until the amount is paid or the amount is otherwisedischarged under the Act.62 If the debtor has no licence they are disqualified fromholding or obtaining a drivers licence until all amounts are paid.63 The suspensionmust be reviewed after each 3 months and if the registrar is satisfied the debtor is nottaking steps to satisfy the unpaid amount the registrar may issue an arrest andimprisonment warrant.

8.31. The committee questions why it is appropriate to single out individuals who haveinfringement notices of convictions relating to motor vehicle for additional penaltiesduring the default periods when the full range of other powers under the act areavailable. The committee notes that other offences dealt with under the act may be farmore serious than those involving motor vehicles. The committee considers it isunfair to single out one group of offenders for cancellation. In the committee’s viewthis power should apply to all offenders or not at all.

8.32. Clause 104 does not address the level of satisfaction that the registrar has to havebefore deciding to suspend a driver’s licence. The decision is not judiciallyreviewable under the Judicial Review Act 199164, and the debtor has no right to beheard.

8.33. In particular, there is no opportunity to argue that the loss of licence will havesignificant additional impact on the debtor where it is necessary for the livelihood ofthe debtor such as is available under s.20A of the Traffic Act 1949. The bill does notaddress the level of satisfaction that the registrar must have that the debtor is nottaking steps to satisfy the unpaid amount before issuing an arrest and imprisonmentwarrant.

8.34. Because the power to arrest is dependent on so many administrative systems notfailing, the committee considers that no person should be liable to imprisonmentbefore being brought first before a Stipendiary Magistrate, who must be satisfied thatthe debtor has in fact failed the various stages of the enforcement under the bill.

8.35. The committee has various concerns about the impact of cl.104 upon the rights andliberties of individuals. In particular, the committee is concerned that persons may beliable to imprisonment without first being brought before a Stipendiary Magistrate.


Does the legislation make individual rights and liberties, or obligations, dependenton administrative power only if the power is sufficiently defined and subject toappropriate review?65 and

62 Clause 105(2) & (3)63 Clause 106(4)64 Clause 155(1)(iv)65 Section 4(3)(a) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and



43

Does the legislation allow the delegation of administrative power only in appropriatecases and to appropriate persons?66

♦ clauses 10(3), 11 and 161 (extensive powers of registrar, registry staff andenforcement officers)

8.37. Under cl.11 the registrar or staff of the registry of SPER who are justices of the peace(Magistrates Court) may make or issue the enforcement orders, warrants or finecollection notices that may be issued by the registrar. There are very extensive powersgiven to the registrar under the act, and in the case of warrants in particular thecommittee questions whether it is appropriate to delegate such powers to othermembers of the registry. It is imperative that uniformity of practice be applied to theuse of such powers. In the committee’s view there is insufficient review of theadministrative actions under the act, and the committee is concerned that so many ofthe steps are not subject to natural justice and judicial review. The committee sharesthe view of the Electoral and Administrative Review Commission that laws comingbefore the Queensland Parliament should not contain provisions that oust thesupervisory jurisdiction of the Supreme Court in judicial review, without good cause;and that consideration should be given to the provision of a statutory right to seekmerits review from an independent body in respect of statutory decision-makingpowers which affect rights, interests and liberties to a significant extent.67

8.38. Under cl.10(3) the registrar may engage commercial agents as enforcement officers.Commercial agents are those licensed under the Auctioneers and Agents Act 1971.Under cl.161 the registrar may delegate the registrar’s powers to an appropriatelyqualified person, including the power to engage a commercial agent as an enforcementofficer to a bailiff.

8.39. Enforcement officers are given very significant powers under the act. These includethe power to interview debtors and the power under cl.70 to execute enforcementwarrants at any reasonable time of the day or night. In the case of residentialpremises, under cl.71, they may apply to a magistrate or justice of the peace for asearch warrant and may enter and re-enter premises pursuant to the warrant, searchand seize things and use reasonable force and help. They may also exercise thepowers in relation to things seized pursuant to cl.73 and may demand name andaddresses and other information under cl.114.

8.40. In the committee’s view it is questionable that such extensive powers should beentrusted to those who often will be commercial agents when the only review is thereturn by them of a certificate to the registrar under cl.74 stating what was done toenforce the warrant and what action was taken.

66 Section 4(3)(c) 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 allows the delegation of administrative poweronly in appropriate cases and to appropriate persons.

67 Electoral and Administrative Review Commission Report on Review of the Office of Parliamentary Counsel, 1991 atp.21


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8.41. The committee notes that the bill confers extensive powers on registrars, registry staffand enforcement officers. The committee has concerns about the considerable scopefor delegation of these powers, and the range of persons to whom they may bedelegated.

8.42. The committee refers to Parliament the question of whether these provisions of the billare justified in the circumstances.


♦ clause 109 and Dictionary

8.43. There appears to be a typographical error in cl.109. The reference to fine optionorders should not refer to cl.69, which addresses redirections from financial accountsand earnings.

8.44. In the Dictionary, the definition of ‘enforcement officer’ should refer to s.10(3)(a), not10(2)(a).

8.45. The committee draws these drafting issues to the Minister’s attention.

68 Section 4(3)(k) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and


Alert Digest No. 8 of 1999 Stipendiary Magistrates and Other Acts Amendment Bill 1999

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9. STIPENDIARY MAGISTRATES AND OTHER ACTSAMENDMENT BILL 1999

Background

9.1. The Honourable MJ Foley MLA, Attorney-General and Minister for Justice andMinster for the Arts, introduced this bill into the Legislative Assembly on 8 June1999.

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

to put in place a better system for the resolution of disputes over Magistrates’transfers. Further, that system preserves the independence of QueenslandMagistrates.

Does the legislation have sufficient regard to the fundamental legislative principles?69 -Independence of the Judiciary


9.3. The Committee has previously expressed the view that judicial independence is anissue which falls under fundamental legislative principles.70

9.4. Judicial independence is not specifically referred to in s.4 of the Legislative StandardsAct (meaning of “FLPs”). However, an independent judiciary is an essential elementof a parliamentary democracy based on the rule of law. The maintenance of anindependent judiciary is one of the principles relating to legislation that underlie aparliamentary democracy based on the rule of law.71

9.5. A number of the provisions of the bill are relevant to the issue of judicialindependence, and these are addressed below.

Place and Term of Initial Appointment

9.6. Clause 4 of the bill will insert into the Stipendiary Magistrates Act 1991 a newsubsection 5(3), which provides that when the Governor in Council appoints a personas a magistrate, the appointment must state a place of initial appointment, and theperiod (not longer than 5 years) of the appointment at that place.

9.7. Proposed subsection 5(4) provides that the magistrate may be transferred to anotherplace before the end of the initial period of appointment, if the magistrate and theChief Stipendiary Magistrate so agree.

69 Legislative Standards Act, s.4(1).70 See Alert Digest No 5 of 1997 at pp.23-27 and Alert Digest No 6 of 1997 at pp 38-45.

71 Legislative Standards Act, s.4(1).


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9.8. The committee is satisfied that proposed s.5(3) is consistent with the principle ofjudicial independence. The general immunity from involuntary transfer or threat ofinvoluntary transfer (subject to the paragraphs below) during the period of initialappointment removes any possibility of such a transfer influencing the magistrate’sexercise of his or her functions.

Chief Stipendiary Magistrate’s power to transfer during initial appointment

9.9. Proposed s.5(5) provides that, despite subsection 5(3), the Chief StipendiaryMagistrate may for good reason directly related to the magistrate, involuntarilytransfer the magistrate within the period of initial appointment. The proposedprovision includes examples of “good reasons”, including that the Chief StipendiaryMagistrate has disciplined the magistrate and a transfer is necessary to maintaincommunity confidence in the Court, and the magistrate’s incompatibility with thelocal community or with another magistrate at the same place.

9.10. Accordingly, the Chief Stipendiary Magistrate will have a qualified power toinvoluntarily transfer magistrates, for good reason directly related to the magistrate.

Power to transfer under section 10(2)(a)

9.11. Proposed s.10(4) requires the Chief Stipendiary Magistrate, before making a transferdecision under s.10(2)(a), to consult the magistrate concerned, give written notice ofthe proposed maximum period of the transfer and, probably most importantly:

(have) sufficient and reasonable regard to the Magistrate’s personal circumstancesand all other relevant considerations.

9.12. The Chief Stipendiary Magistrate has a generally unqualified right to temporarilytransfer a Magistrate, because of urgent circumstances, for a period of not longer than3 months.

9.13. In the committee’s view, these provisions strike a reasonable balance between thedegree of independence conferred by the immunity from involuntary transfer and therequirement for the good administration and effectiveness of the Magistrates Court.

Review of transfer determinations

9.14. As mentioned above, proposed s. 5(5) of the bill will expressly confer power upon theChief Stipendiary Magistrate to transfer a magistrate, for good reason, during theperiod of initial appointment. Section 10(2) of the Act currently confers a generalpower on the Chief Stipendiary Magistrate to transfer Magistrates.

9.15. The bill will also insert new s.18A(2), which empowers a magistrate to request theChief Stipendiary Magistrate for a transfer to another place, if that magistrate has beenin his or her current place for at least the term stipulated in his or her appointment orfor any agreed period of appointment, or (if currently a magistrate) has been at aparticular place for at least 5 years.


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9.16. If the Chief Stipendiary Magistrate refuses such a request, provisions inserted by cl. 6(proposed ss.10A to 10I) will address the situation. These provisions establish ajudicial committee (s.10A), whose function is to review the abovementioneddeterminations at the request of an aggrieved magistrate (s.10B).

9.17. The committee is comprised of:

the Chief Justice or a judge of the Supreme Court nominated by the Chief Justice;and

the Chief Judge or a judge of the District Court nominated by the Chief Judge; and

a judge of either the Supreme Court or the District Court nominated by the ChiefJustice. (s.10C).

9.18. The judicial committee conducts a “merits” review of the relevant decisions (s.10E).

9.19. The committee notes that disputes over transfers are not to be resolved within theMagistrates Court itself, or by the Executive Government. They are to be determinedby other judicial officers of considerable standing.

9.20. Two aspects of the review process require mention. Firstly, proposed s.10F providesthat the committee shall have “full and unfettered discretion to determine its ownprocedure when conducting a review”. The Minister in his Second Reading Speechjustifies this provision on the basis that it:

minimises the intervention of Executive Government and the Legislature in theaffairs of the judicial arm of Government.

9.21. Secondly, proposed s.10I declares that the judicial committee’s determination is finaland conclusive and cannot be challenged by any legal means, including by judicialreview. The Minister in his Second Reading Speech provides the following rationalefor these provisions:

There are two reasons for this exclusion. Firstly, the remedy of review on the meritsand the making of what the committee regards as the best decision is greater than theremedy of judicial review, which can lead to the making of another decision by theoriginal decision maker of a decision. Secondly, it would be inappropriate to have asingle judge of the Supreme Court review a decision of a committee comprising theChief Justice of the Supreme Court, Chief Judge of District Courts and another judgeof either the Supreme Court of District Court.

9.22. In short, aggrieved Magistrates are provided with a review panel of considerable legaleminence, which is entitled to consider disputes “on the merits” (that is, by way of afull review). Given that the review panel is both eminent and is comprised of judges,the bill empowers it to determine its own procedure and protects its decisions fromlegal challenge.

9.23. Finally, cl. 10 will exempt the judicial committee and its activities from the operationof the Freedom of Information Act 1992. The Minister in his Second Reading Speechdraws a comparison with the exemption which that Act presently confers upon theexercise of judicial functions by judges.


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9.24. It seems to the committee that these provisions strike a reasonable balance betweenthe need to maintain the judicial independence of magistrates and the imperative toprovide an appropriate appeal mechanism in respect of transfers.

9.25. The Committee does not consider that the provisions of the bill have any adverseeffect on the judicial independence of stipendiary magistrates.

Does the legislation adversely affect rights and liberties, or impose obligations,retrospectively?72

♦ clauses 7 and 8

Proposed section 18A

9.26. Clause 7 inserts new s.18A, which gives certain magistrates power to request theChief Stipendiary Magistrate to transfer them to another place after certain requiredperiods of time have elapsed. One such case is that of a magistrate already appointedas at the date of the commencement of the bill, who has been a magistrate at aparticular place for at least the preceding 5 years (s.8A(1)(c)). Section 18A(6)expressly declares that, for the purpose of calculating the 5 year period, the period theMagistrate has served at that place before the commencement of the bill’s provisionsis to be included.

9.27. Difficulties can sometimes arise in determining whether a particular legislativeprovision has retrospective effect. The committee considers there is significant doubtas to whether proposed s.18A is retrospective in any meaningful sense.

Proposed section 24

9.28. Clause 8 inserts s.24, which provides that an aggrieved magistrate may request areview by the judicial committee of a transfer decision of the Chief StipendiaryMagistrate made under s.10(2)(a), if the determination was made between 31 March1999 and the commencement date of the bill. The Chief Stipendiary Magistrate’sdecision is taken to have been made after the commencement date.

9.29. In other words, the bill upon commencement will operate retrospectively to 31 March1999.

9.30. The Committee always takes care when examining legislation that commencesretrospectively or has effect retrospectively, to evaluate whether there are any adverseeffects on rights and liberties or whether obligations retrospectively imposed areundue.

9.31. As mentioned above, proposed s.24 does have retrospective effect and proposed s.18Amay possibly have such effect.

72 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 imposeobligations, retrospectively.


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9.32. Insofar as aggrieved magistrates are concerned, both provisions are of benefit to themin that they confer rights and give access to an appeal process. It is difficult to arguethat the provisions are in any substantive sense adverse to the Chief StipendiaryMagistrate, since they would ultimately impact on the administration of theMagistrates Courts rather than on the Chief Stipendiary Magistrate personally.

9.33. It could be argued that the provision of these rights indirectly have an adverse impacton other magistrates, in that a successful appeal may consequentially affect themovements of those other magistrates between different places. This seems a fairlycomplex issue and perhaps a fairly remote consequence. The committee concedesthere may be an argument to that effect, but does not find the argument convincing.

9.34. In the circumstances, the committee makes no comment with respect to theretrospective effect of clause 7.

9.35. With regard to cl.8, the committee seeks information from the Minister as to whetherany “reviewable determinations” made since 31 March 1999 could, if successfullyappealed, have an adverse impact on the transfer options of other magistrates.


♦ Clauses 4 and 5

9.36. The committee is concerned that the relationship between the transfer process underproposed s.5(5) and the transfer process under s. 10(2)(a) is not clear.

9.37. For example, does the requirement under proposed s. 10(4)(b) to have sufficientregard to the magistrate’s personal circumstances when making a transferdetermination under s. 10(2)(a), also apply to a transfer determination under proposeds. 5(5)? Further, is the requirement to give notice of a determination under s.10(2)(a)74 applicable to a determination under proposed s.5(5)? Whilst proposeds.10D(2) suggests this, the committee believes the matter could be more directlyaddressed.

9.38. Further, the committee has had difficulty in discerning the intended effect of proposeds.10(7), which declares that s. 19(4) “does not affect a condition of appointment oragreement under section 5(3) or (4)”.



74 See proposed s.10(5).


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9.39. The committee seeks information from the Minister in relation to these drafting issues.

Alert Digest No. 8 of 1999 Trade Measurement Amendment Bill 1999

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10. TRADE MEASUREMENT AMENDMENT BILL 1999

Background

10.1. The Honourable JC Spence MLA, Minister for Aboriginal and Torres Strait IslanderPolicy and Minister for Womens Policy and Minister for Fair Trading, introduced thisbill into the Legislative Assembly on 8 June 1999.

10.2. The purpose of the bill, as indicated by the Minister in her Second Reading Speech, is:

to make minor or technical amendments to the Trade Measurement Act 1990, whichare necessary to overcome difficulties with the administration of the legislation.



10.4. National schemes of legislation have been a source of considerable concern, both tothe committee and to its interstate and Commonwealth counterparts.77

10.5. The Explanatory Notes provides the following background to the bill:

Under a formal agreement signed in 1990 between the Commonwealth, the Statesand the Territories (except Western Australia), all jurisdictions, with the exception ofTasmania and Western Australia, enacted model uniform trade measurementlegislation.

In 1995 a Trade Measurement Advisory Committee (“TMAC”) was formed by theMinisterial Council on Consumer Affairs (“MCCA”) and one of its functions was theongoing review of trade measurement legislation nationally.

TMAC has recommended more than forty (40) amendments to the trade measurementActs and Regulations of participating States and Territories, which it considers willimprove trade measurement administration. MCCA has requested that Queenslandproceed with drafting the recommended amendments to the Queensland trademeasurement legislation and in the interests of uniformity these amendments will beused as a model by the other participating States and Territories to amend their ownlegislation.

10.6. The bill suffers from a difficulty common to all forms of national scheme legislation.Whilst there is scope for its provisions to be amended during debate, suchamendments (if inconsistent with any of the principles inherent in the agreement





• in more than one jurisdiction, several jurisdictions or nationally.77 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.


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between the Commonwealth, States and Territories) would be met by an objectionfrom the sponsoring Minister that consistency with the agreement is necessary.

10.7. This bill forms part of national scheme legislation. Many elements of such schemeshave been identified by scrutiny committees nationally as undermining the institutionof Parliament.

10.8. Scope for any amendment of the bill is limited by the fact that the sponsoring Ministerwould no doubt assert that, since the bill is predicated upon the agreement betweenStates and Territories and the Commonwealth, no significant amendment of the bill’sprovisions is permissible.

10.9. The committee refers to Parliament the question of whether the bill has sufficientregard to the institution of Parliament.

Does the legislation make individual rights and liberties, or obligations, dependenton administrative power only if the power is sufficiently defined and subject toappropriate review?78

♦ clauses 5 and 7

10.10. Clauses 5 and 7 insert (into current ss. 7 and 8 respectively) provisions empowering aninspector who finds a person using a measuring instrument which does not conformwith the requirements of the Act to give the owner or user a written notice requiringthe person to remedy or stop the contravention within 28 days. If such notice iscomplied with, the person to whom it is given is taken not to have committed anoffence in relation to the relevant matter.

10.11. The clauses do not contain any express limitations upon the inspector’s discretionarypower.

10.12. However, the Minister in her Second Reading Speech makes the following statementsin relation to clauses 5 and 7:

Two new provisions in Part 2 of the Act will give an Inspector a discretionary powerto grant an owner of a measuring instrument up to 28 days to correct an instrumentwhich does not conform with the requirements of the Act.

If the discretion is exercised a person can only be prosecuted if the time allowed hasexpired and the instrument has not been corrected.

The discretion to allow an extended period will only be exercised where the error isin favour of the consumer. If the error is to the detriment of the consumer, the traderwill not be given an extended period to correct the instrument, but will be required tocease using the instrument until it is repaired.




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10.13. Given the content of the relevant clauses, the third abovementioned paragraph of theMinister’s Second Reading Speech would appear to refer to cl. 7.

10.14. It would seem from the Minister’s Speech that the policy intent is that the cl. 7discretion will only be exercised in situations where the error concerned is in favour ofthe consumer.

10.15. In the circumstances, it would seem appropriate that such a restriction be expresslydeclared in the bill itself.

10.16. The Committee recommends that cl. 7 be amended to expressly provide that theinspector’s discretion to issue a compliance notice under proposed s.8(4) is onlyavailable where the error concerned is in favour of the consumer.

Does the legislation allow the delegation of administrative power only in appropriatecases and to appropriate persons?79

♦ clause 9

10.17. Clause 9 amends current s.10 of the Act. Section 10 deals with “State primarystandards for measurement” and “classes of reference standards of measurement”.Section 10 currently requires the “administering authority” to arrange for theprovision, custody and maintenance of the former standards, and requires eachlicensee to provide the latter standards in relation to the exercise of its functions. Ineach case, the obligation at present is to provide such standards of measurement “asmay be necessary”.

10.18. Although the term “necessary” is rather general in nature, the Act currently assessesthat concept in objective terms. The bill, on the other hand, will expressly leave thedetermination of what standards are “necessary” to the discretion of the“administering authority”, although that discretion will be subject to the usual impliedrequirement that it be exercised in a reasonable manner.

10.19. Nevertheless, the bill replaces an objective standard with a subjective discretionarypower.

10.20. The Explanatory Notes address the matter as follows:

This makes it clear that the administering authority determines the denominationsreferred to and allows the administering authority to specify the actualdenominations of standards required and will ensure more accurate verification ofinstruments (underlining added).

10.21. Although the matter may be of relatively minor significance, the committee notes thatcl. 9 replaces the current objective test of what is “necessary” with a subjective testdetermined by reference to the opinion of the administering authority.

79 Section 4(3)(c) 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 allows the delegation of administrative poweronly in appropriate cases and to appropriate persons.


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10.22. The Committee seeks further information from the Minister as to the reason for thischange.

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SECTION B

COMMITTEE RESPONSE TOMINISTERIAL CORRESPONDENCE

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

... a report of a committee of the Legislative Assembly that was made to the LegislativeAssembly before the provision was enacted80

Matters reported on to Parliament by the Scrutiny of Legislation Committee in its alert digests prior to theenactment81 of a provision may therefore be considered as extrinsic material in its interpretation.

80 Section 14B(3)(c) Acts Interpretation Act 1954.81 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. 8 of 1999 Acquisition of Land Amendment Bill 1999

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SECTION B – COMMITTEE RESPONSE TO MINISTERIALCORRESPONDENCE

11. ACQUISITION OF LAND AMENDMENT BILL 1999

Background

11.1. The Honourable Rod Welford MLA, Minister for Environment and Heritage andMinister for Natural Resources, introduced this bill into the Legislative Assembly on25 May 1999. As at the date of publication of this digest, the bill had not been passed.

11.2. The committee commented on this bill in its Alert Digest No. 7 of 1999 at pages 2-5.The Minister's response to those comments is referred to in part below and reproducedin full in Appendix A to this Digest.

Does the legislation have sufficient regard to the rights and liberties of individuals? 82

11.3. The current provisions of the Acquisition of Land Act 1967 prescribe that where landis to be taken it must be identified by reference to the surveyed lot or, where there isno registered plan, it must be depicted in “a plan of survey of the land certified asaccurate by an authorised surveyor”. The bill will add a further option, namely, thatthe land be depicted in “a plan sufficient to substantially identify the land.”

11.4. The committee noted the advice received from the Minister’s department that thelongstanding Main Roads Department practice, which reflects the procedure which thebill will formally introduce, was to depict on the plan an area which was the greatestarea it might conceivably require, and that any discrepancy between the land shown onthe plan and the land ultimately taken was almost always in the form of a reduction inthe land taken. The committee also noted that that discrepancy could be significant.

11.5. The committee sought information from the Minister as to the likely impact uponlandowners’ use and enjoyment of land which is included in a plan “substantiallyidentifying” it for acquisition, but which is ultimately not acquired, and also whether alandowner would be entitled to compensation under the Act for this impact, during therelevant period, on the capacity to use that part of his or her land not ultimatelyacquired. The committee also sought to clarify whether retrospective application ofthe provisions would adversely affect the rights and liberties of individuals.

11.6. The Minister made the following response:


of individuals.


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Based on the experience of the Department of Main Roads over the past 30 years,plans showing approximate areas are reasonably accurate. In the vast majority ofcases, significant area variations do not arise and there is little, if any, impact onlandowners’ use and enjoyment.

The advice given to the Committee that it is quite rare for additional land to be takenof any significance is accurate. But importantly, it was not apparently advised that itis equally rare for less land to be taken of any significance.

The Department of Main Roads’ practice of using plans that substantially identify anarea is specifically used to minimise the land taken. If the Department of Main Roadswas required to use survey plans, this would force it to take ‘the greatest area itmight conceivably require’. This is because the surveyed area would have toaccommodate possible design changes that occur with many road projects.

In nearly every case of a partial land take, the owner remains in possession of theland and can continue to receive income, or any benefits from the land taken, untilworks have commenced. Consequently, there is no disadvantage to such land ownersbetween the taking of land and commencement of construction.

Compensation is usually negotiated based on the approximate area, unless survey isavailable beforehand. Therefore, there may be a monetary advantage to the affectedlandowner in instances where substantially less land is ultimately found to berequired.

In cases where the area required is substantially greater than the approximate area,a further acquisition process will be undertaken to acquire the additional land andcompensation paid accordingly.

In conclusion, it is recognised that it was unfortunate the advice given to theCommittee required clarification, as it gave rise to unnecessary concerns. However,I would reiterate the points I made in my Second Reading Speech to the House thatthe Government does not seek an advantage through these amendments and that landholders’ rights to compensation are protected.

11.7. In light of the information now provided by the Minister, it would appear that thecurrent departmental practice results in much less detriment to landowners than thecommittee had previously believed might be the case.

11.8. To that extent, the committee’s concerns about the current departmental practice havebeen allayed. The fact remains, however, that the bill will provide some scope forpractices of the kind which concerned the committee (that is, where the land initially“substantially identified” for acquisition is the greatest area which might conceivablybe required).

11.9. The committee notes the Minister’s advice that compensation, in practice, is usuallynegotiated on the basis of the approximate area. The committee takes this to meanthat the department does not require adjustments to later be made if the area in facttaken turns out to be somewhat smaller.

11.10. The committee notes the Minister’s response.


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11.11. The committee refers to Parliament the question of whether cls.3, 4 and 5 of the bill,in permitting land proposed for resumption to be merely “substantially identified” hassufficient regard for the rights of landowners.

Does the legislation adversely affect rights and liberties, or impose obligations,retrospectively?83

♦ Clause 6

11.12. The Minister’s latest advice indicates that the longstanding departmental practice hasnot tended to produce many significant discrepancies between the land originallyidentified and that ultimately taken. It is noted that any such discrepancies have beenas likely to involve the taking of more land as of less. However, both types ofdiscrepancy appear to be rare.

11.13. The committee also notes the Minister’s advice that compensation has usually beennegotiated on the basis of the approximate area initially identified.

11.14. The committee is of the view that the bill’s retrospective validation of pastacquisitions will not disadvantage landowners.

11.15. The committee makes no further comment with respect to the bill’s retrospectiveoperation.

83 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 imposeobligations, retrospectively.

Alert Digest No. 8 of 1999 Charitable and Non-Profit Gaming Bill 1999

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12. CHARITABLE AND NON-PROFIT GAMING BILL 1999

Background

12.1. The Honourable David Hamill MLA, Treasurer, introduced this bill into theLegislative Assembly on 25 May 1999. The bill was passed with amendments on 8June 1999.

12.2. The committee commented on this bill in its Alert Digest No.7 of 1999 at pages 6-13.The Minister’s response to those comments is referred to in part below andreproduced in full in Appendix A to this Digest. This correspondence is dealt with bythe Committee in accordance with its practice of placing all correspondence receivedon the public record.

Does the legislation confer power to enter premises and to search for or sieze documentsor other property without a duly issued search warrant?84


12.3. The committee noted that the bill confers on inspectors wide powers of entry, whichextend beyond situations where the occupier consents or where a warrant has beenobtained. The committee further noted that once entry has been effected, the billconfers on inspectors a further wide range of powers.

12.4. The committee pointed out that departures from the safeguards provided by searchwarrants should be carefully considered and adequately justified, and brought theseconcerns to the attention of the Parliament.

12.5. The Treasurer provided the following response:

Powers of entry

Persons involved in the conduct or operations of charitable and non-profit gaming inQueensland must be continually subject to close scrutiny in order to protect theintegrity of charitable and non-profit gaming in the public interest. Therefore, it isessential that inspectors are able to enter premises at which charitable and non-profit gaming occurs, at the time the game(s) are taking place, and the place wherethe person permitted under the legislation carries on business.

In the absence of a warrant, Inspectors may only enter a place where a charitableand non-profit game is being, or is about to be, conducted or a place where anapproved person carries on business or is otherwise open for entry. This isconsidered reasonable, as persons wishing to be involved in the operation ofcharitable and non-profit gaming must be willing to be subject to such scrutiny. The




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ability to enter premises without a warrant will provide a means for ensuring theintegrity of charitable and non-profit gaming is not compromised.

Inspectors do not have the power to enter other places without a warrant, except withthe consent of the occupier. In addition, to gain such consent, the inspector must tellthe occupier the purpose of the entry. The occupier is not obliged to give consent.

Powers of seizure

The powers of seizure, at places entered with the consent of the occupier, requirethat the inspector reasonably believes that the “thing” to be seized is evidence of anoffence against the legislation and that the seizure must be consistent with thepurpose of entry, as told to the occupier when asking for occupier’s consent.

By removing “things” that may contravene the legislation, the public is assured thatsuch “things” are unlikely to be used at a later date. These powers are thereforenecessary to provide the general public with confidence that charitable and non-profit gaming is being conducted to the highest levels of probity and integrity.

Power to Attend before an Inspector

The power to attend before an inspector is necessary to ensure the integrity and theprobity of charitable and non-profit gaming and to protect the public interest.Persons involved in the conduct or operations of charitable and non-profit gaming inQueensland must be continually subject to close scrutiny in order to protect theintegrity of charitable and non-profit gaming in the public interest. Therefore, it isessential that inspectors are able to compel persons to attend before an inspector toprovide information necessary to ensure the continued integrity and probity of thecharitable and non-profit gaming industry. Clause 146(5) provides anyone compelledto attend before an inspector with protection against self-incrimination.



♦ clauses 49, 71, 114(3) and Dictionary (Definition of “Criminal History”)

12.7. The above clauses contain provisions authorising the chief executive to obtain the“criminal history” of those persons applying for licences. The definition of “criminalhistory” in the bill extends disclosure requirements to charges as well as convictions.

12.8. The committee referred to Parliament the question of whether the disclosureprovisions enabling the chief executive to have access to a relevant person’s “criminalhistory” referred to in the above clauses have sufficient regard to the rights andliberties of the persons affected by them.

12.9. The Minister responded as follows:

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

liberties of individuals.


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Disclosure of criminal history is paramount in ensuring that licensees meet thehighest level of probity and integrity. Access to this information will protect thecharitable and non-profit gaming industry from persons seeking to make private gainthrough charitable and non-profit gaming schemes.

A fundamental principle in the provision of all forms of gambling activities in thisState and regulated jurisdictions, nationally and internationally, is the exclusion ofundesirable persons from benefiting, either directly or indirectly, from the conduct ofgambling or influencing the conduct of gambling.

The purpose of the probity provisions is to enable investigations of persons beingconsidered for a licence, having regard to financial capacity, business reputation,experience, criminal history, and past and present associations which may impact theforegoing criteria. These requirements ensure that the reputation of all licensees isbeyond reproach.

Participation in the management of charitable and non-profit gaming is a privilegerather than a right, and carries obligations to the community with it. Close scrutinyof persons wishing to be a part of the industry provides the public with confidencethat industry participants are of good character.


♦ Clause 144

12.11. Under the bill an inspector could require a person to make available certain documentsand require the person to certify a copy of the document as a true copy. This clausemakes failure to comply an offence.

12.12. The committee referred to Parliament the question of whether the clause has sufficientregard to the rights and liberties of individuals affected by it.

12.13. The Minister stated the following in his response:

The clause is necessary to allow the documents required to be produced under clause142 to be acceptable as evidence. Considering that clause 142(2) gives an inspectorthe option of either retaining the original documents or leaving the original with theowner and copying it instead, it is not considered to be an onerous requirement torequire the person to certify the document.


♦ Clause 165

12.15. This clause provides that certain offences against the bill are indictable offences. Thecommittee noted that categories of offences which the bill classes as indictable (which


62

are bribery, cheating, and forgery and uttering) involve acts which already constitutecriminal acts under the Criminal Code.

12.16. The Minister made the following comments:

These offences are required in the Bill to allow inspectors appointed under the Billwho have expertise in the Bill’s provisions to investigate and prosecute withoutrecourse to the Queensland Police Service. The provisions are standard across allgaming legislation within Queensland.


Does the legislation confer immunity from proceeding or prosecution without adequatejustification?86

♦ clause 148

12.18. The committee examined this clause and considered that, given the requirement todisclose documents under clause 147, the immunity under clause 148 upon personsobeying that statutory requirement is appropriate.

12.19. The Minister responded to the committee’s comments:

It is noted that the Committee considers that the immunity conferred by clause 148upon persons obeying the requirement to disclose documents under clause 147 isappropriate.

12.20. The committee thanks the Minister for his response.

Does the legislation provide for the reversal of the onus of proof in criminalproceedings without adequate justification?87


12.21. The above clauses impose liability on executive directors for offences committed bytheir corporation. Such clauses effectively reverse the onus of proof, since under a lawa person can generally not be found guilty of an offence unless he or she has thenecessary intent.

86 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 orprosecution without adequate justification.

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


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12.22. Whilst the committee appreciates the difficulties of determining liability in certaincircumstances (including corporations), the committee as a general rule is notsupportive of provisions which reverse the onus of proof. The committee referred toParliament the question of whether these clauses contain a justifiable reversal of theonus of proof, and therefore have sufficient regard to the rights and liberties ofindividuals.

12.23. In his response, the Minister stated:

These clauses are not offence provisions but are intended to make it clear that aperson is responsible for the actions of the person’s representatives undertaken inaccordance with the legislation. In this regard, the legislation places a legalobligation on the licensee to make reasonable efforts to ensure that its employeesand agents follow the provisions of the legislation. In relation to an offence whichmay make a person vicariously liable, the prosecution would still bear the onus ofproving all elements of the offence.

The defence outlined in clause 170(4) is broad and would thus exempt any personfrom liability under either provision who was genuinely not responsible for theoffending act or omission. This defence would not be difficult to establish inappropriate cases.

12.24. The committee notes the Minister’s comments.


Does the bill allow the delegation of legislative power only in appropriate cases and toappropriate persons?89

♦ clause 194

12.25. This clause authorises the making of saving or transitional regulations designed toassist transition from the old to the new statutory regimes in respect of the conduct of“art unions”.

12.26. The committee maintained the view that it has expressed on similar provisions in thepast. It generally recommends against any provision allowing regulations to providefor matters which should have been, but are not, covered in a principal Act ofParliament.

88 Section 4(2)(b) of the Legislative Standards Act 1992 requires that legislation has sufficient regard for the institution of

Parliament.89 Section 4(4)(a) of the Legislative Standards Act 1992 requires whether a bill has sufficient regard for the institution of

Parliament depends on whether, for example, the bill allows a delegation of legislative power only in appropriate casesand to appropriate persons.


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12.27. The committee referred to Parliament the question whether the reasons provided in theExplanatory Notes accompanying the bill justify the use of these regulation-makingpowers and therefore whether this provision of the bill has sufficient regard to theinstitution of Parliament.

12.28. The Minister provided the following response:

Transitional arrangements are necessary to ensure a smooth transition between theconduct of games under the Art Unions Act 1992 and the conduct of charitable andnon-profit games under the new legislation. Whilst it is anticipated that Part 10 ofthe Bill deals with all matters necessary to effect the transition, the complexity ofsome of the issues may result in unforeseen circumstances which are not dealt with inthe Bill. Such arrangements will be in the public interest by ensuring the integrityand probity of the charitable and non-profit gaming industry.

Furthermore, for existing permit holders, the transfer to the new structure may becomplex. It is important to ensure that the transition causes minimal disruption tothese entities by establishing a facility for transitional regulations through which theintegrity of charitable and non-profit gaming will not be compromised.

The proposed clause would only be used in extraordinary circumstances and, atpresent, there are no foreseeable situations which would require the use of theprovision. In addition, this power and the regulation made pursuant to it are subjectto sunset clauses. Notwithstanding this, it should be stressed that should this clausebe required, it will only be utilised to ensure the public interest is observed and thatplayers are not disadvantaged. Further, any such regulations would need to bebackdated to the date of commencement of the legislation to ensure effectiveprotection of players’ interests.


♦ clause 171

12.29. This clause provides that any obligation or liability which the bill imposes upon anunincorporated association is imposed upon the “management members” of theassociation. Any offence under the bill committed by an unincorporated association istaken to have been committed by the “management members”. The committee notedthat whilst the difficulties of determining liability in respect of unincorporatedassociations conducting gaming activities are appreciated, it had concerns about thisprovision as it reverses the onus of proof.

12.30. The committee referred to Parliament the question of whether the clause contains ajustifiable reversal of the onus of proof, and therefore has sufficient regard to therights and liberties of individuals.


90 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 criminalproceedings without adequate justification.


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This clause is not an offence provision; rather, it makes it clear that a managementmember of an unincorporated association is responsible for actions of theassociation, as well as the unincorporated association itself. In relation to an offencewhich may make a person vicariously liable, the prosecution would still bear theonus of proving all elements of the offence.

The defence outlined in clause 171(5) is broad and would thus exempt any personfrom liability under the provision who was genuinely not responsible for theoffending act or omission. This defence would not be difficult to establish inappropriate cases.


Note

The Minister also provided information concerning cls. 46( e ), 47( c ) and 69. As thecommittee did not report on these clauses in the Alert Digest, the committee will notaddress the Minister’s comments on them.

Alert Digest No. 8 of 1999 Community-Based Referendum Bill 1999

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13. COMMUNITY-BASED REFERENDUM BILL 1999

Background

13.1. Mr W P Feldman MLA, Member for Caboolture and Parliamentary Leader of the OneNation Party, introduced this private member’s bill into the Legislative Assembly on 9March 1999. As at the date of publication of this digest, the bill had not been passed.

13.2. The committee commented on this bill in its Alert Digest No. 3 of 1999 at pages 1-10.The Member's response to those comments is referred to in part below and partiallyreproduced in Appendix A to this Digest (due to the overall length of the Member’sresponse, it has not been possible to reproduce it in full). The document in full hasbeen tabled in Parliament.


Is the content of the explanatory note sufficient?92

♦ clause 16

13.3. The committee noted that both in the second reading speech and in the explanatorymemorandum accompanying the bill, reference is made to the fact that when a“legislative proposal” has obtained the necessary community support for the holdingof a referendum and has been drafted in bill form, it will be examined by the Scrutinyof Legislation Committee. The bill contains no provisions which would specificallyempower the Scrutiny of Legislation Committee to examine the proposed law. Assuch the explanatory note was inaccurate.

13.4. The Member provided the following response:

The CBR Bill will propose an amendment to the Parliamentary Committees Act 1995,to ensure that all bills under the CBR process are examined by the Scrutiny ofLegislation Committee and also any other relevant committee, as intended as shownby the Second Reading Speech and the Explanatory Notes. This examination andamendment process is fundamental to the whole CBR proposal.

The amendment will ensure that the bill as amended is in conformity with theexplanatory memorandum and the second reading speech.

13.5. The committee notes the Member’s response.


Parliament.92 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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♦ clause 3

13.6. The committee made note of this clause which attributed to words in this bill the samemeaning as in the Referendums Act 1997. The committee sought information from theMember as to whether clause 3 refers only to words defined in the Dictionary to theReferendums Act, or to all words used in that Act. The committee also expressedconcern about the range of terms which cl. 3 potentially “cross-references”, andrecommends that consideration be given to amending the bill to reduce reliance onthis process.

13.7. The Member responded as follows:

Clause 3 will be omitted. A small number of words as defined will be inserted in theDictionary to the Referendums Act 1977.

13.8. The committee thanks the Member for his response to the committee’s concerns.



♦ clauses 33-37

13.9. The committee expressed concerns over the level of penalties imposed, widely framedoffences and the reversal of the onus of proof by making officers of a body, whetherincorporated or unincorporated, personally liable for contravention of the Act by thatbody.

13.10. The Member in his response undertook to have these clauses omitted and replacedwith provisions of existing legislation. He writes:

CBR Bill clauses 33-37 to be omitted.

They will be replaced by New “PART 5 - ENFORCEMENT”

as follows -



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

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


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33A-K reflect sections 149, 151-160 of the Electoral Act 1992;

Existing clauses 36(1) and 34 are rewritten as 33L and 33M;

34A-C reflects sections 72-74 of the Referendum Act;

The penalties are those provided by the Electoral Act and the Referendums Act undercomparative offence provisions or comparable.

The amendments address the clauses of concern to the committee in points 1.55-1.66,and I thank the Committee for the opportunity to amend the Bill to improve it.

13.11. The committee thanks the Member for addressing the committee’s concerns and notesthat appropriate amendments will be proposed.

Does the legislation make individual rights and liberties, or obligations, dependent onadministrative power only if the power is sufficiently defined and subject to appropriatereview?96


13.12. These clauses provide that certain decisions are subject to the operation of the JudicialReview Act 1991 and the jurisdiction of the Supreme Court. The committee interpretedthis as impliedly excluding other decisions from these jurisdictions.

13.13. The committee sought information from the Member as to whether this was theintended effect of these clauses and referred to Parliament the question of whether thereview processes provided for under cls 38 and 39 are appropriate in thecircumstances.

13.14. The Member proposed the following amendments:

Clause 38 has been omitted and replaced.

New Clause 38 follows section 180 of the Electoral Act 1992, which provides fordecisions of a primarily administrative character to be dealt with by a MagistratesCourt constituted by a Magistrate.

Clause 39 has been rewritten to ensure that the Supreme Court may hear anyapplication which may be brought before it, and that the jurisdiction of the SupremeCourt may deal with any matter. It is however provided that matters requiringjudicial determination and declaration of the law have been specially made theprovince of the Supreme Court.

New Clauses 38-39 make it clear that the jurisdiction of the Supreme Court is not tobe restricted in any way.


liberties of individuals depends on whether, for example, the legislation makes individual rights and liberties, orobligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriatereview.


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13.15. The committee thanks the Member for clarifying these issues and notes thatamendments are proposed.


♦ clause 58

13.16. The committee was concerned that the regulation making power granted to theGovernor in Council in this provision was too broad and suggested it would bepreferable if the clause listed at least some major matters about which regulations maybe made, thereby limiting the scope of the delegation of legislative power.

13.17. The Member proposed the following amendments:

Clause 58 is amended to reflect section 182 of the Electoral Act 1992 more closely.

Clause 58 has been amended to reflect exactly section 99 of the Referendums Act1997.

Given that the regulation making power would be almost certainly the primaryresponsibility of the Minister administering the Electoral Act 1992 and theReferendums Act 1997, it would seem unlikely that any greater check should beplaced on the Minister.

NOTE: Further, any regulation made by the Governor in Council is subject todisallowance in the Legislative Assembly, and is liable to scrutiny of a ParliamentaryCommittee. This would appear to provide very adequate safeguards.

13.18. The committee notes the Member’s response.

97 Section 4(4)(a) of the Legislative Standards Act 1992 requires whether a bill has sufficient regard for the institution of

Parliament depends on whether, for example, the bill allows a delegation of legislative power only in appropriate casesand to appropriate persons.

Alert Digest No. 8 of 1999 Financial Administration and Audit Act 1999

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14. FINANCIAL ADMINISTRATION AND AUDIT ACT 1999

Background

14.1. The Honourable D J Hamill MLA, Treasurer, introduced this bill into the LegislativeAssembly on 15 April 1999. The bill was passed with amendments on 8 June 1999.

14.2. The committee commented on this bill in its Alert Digest No. 6 of 1999 at pages 7-11.The Minister’s response to those comments is referred to in part below andreproduced in full in Appendix A to this Digest. This correspondence is dealt with bythe Committee in accordance with its practice of placing all correspondence receivedon the public record.


14.3. The committee noted that cl.15 of the bill inserts a new s.22 which has the effect of‘sign-posting’- that is, the definition of a term incorporated in the bill does not itselfset out the meaning, but defines that term by reference to the meaning which that termhas in another piece of legislation.

14.4. The committee did not consider this to be an unreasonable provision, but wasconcerned that readers of future Appropriation Acts may not be aware of its existence.The committee sought information from the Minister as to what drafting practices willbe adopted in relation to future Appropriation Acts in order to ensure readers will bemade aware of the section.


I am advised that, in the drafting of an Appropriation Bill, the inclusion of a clausemirroring section 22 would still leave open the question of which words areoriginally defined in the Financial Administration and Audit Act. Therefore, forfuture Appropriation Bills, it is proposed that Treasury Drafting Instructions willrequest that where, by virtue of section 22 of the Financial Administration and AuditAct, a word has the same meaning as in that Act, it be clearly footnoted in eachinstance.

In addition, it is proposed that the explanatory notes in the front of the AppropriationBill will draw attention to the existence of section 22 and note the particular wordswhich are affected.

14.6. The committee thanks the Minister for his response and notes that drafting and otherprocesses will be adapted to make readers of future Appropriation Acts aware ofproposed s.22.



Alert Digest No. 8 of 1999 Financial Administration and Audit Act 1999

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Alert Digest No. 8 of 1999 Financial Sector Reform (Queensland) Bill 1999

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15. FINANCIAL SECTOR REFORM (QUEENSLAND) BILL 1999

Background

15.1. The Honourable David Hamill MLA, Treasurer, introduced this bill into theLegislative Assembly on 25 May 1999. The bill was passed without amendment on 8June 1999.

15.2. The committee commented on this bill in its Alert Digest No.7 of 1999 at pages 14-17. The Minister’s response to those comments is referred to in part below andreproduced in full in Appendix A to this Digest. This correspondence is dealt with bythe Committee in accordance with its practice of placing all correspondence receivedin relation to bills on the public record.


15.3. The committee noted that the bill forms part of national scheme legislation. Manyelements of such schemes have been identified by scrutiny committees nationally asundermining the institution of Parliament.

15.4. The committee referred to Parliament for its consideration the question of whether thebill has sufficient regard to the institution of Parliament.

15.5. The Minister responded to the Committee’s comments:

While this Bill refers to two collections of national scheme legislation - the FinancialInstitutions Scheme and the Corporations Law - it is not itself template legislation.Rather, each State and Territory must pass similar legislation to wind-up theFinancial Institutions Scheme and transfer supervision to the Commonwealth.Further the Bill in fact abolishes the Financial Institutions Scheme.



♦ clauses 22, 35, 73

15.7. The committee sought information from the Minister as to the amount of potentialfinancial detriment which the bill would occasion current board and tribunal membersand inspectors due to changes outlined in the bill to state supervisory authorities, and


Parliament.100 Section 4(2)(a) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to the rights and



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whether or not it is intended that these people will be financially compensated for anyloss.

15.8. The Minister responded to the committee:

Members of the Boards of the Australian Financial Institutions Commission (AFIC)and the Queensland Office of Financial Supervision (QOFS) receive a flat annualfee. They do not receive additional payment for attending meetings or sitting oncommittees. Board members have been aware of the proposed winding up of theFinancial Institutions Scheme for over twelve months and have been activeparticipants in the transfer process. Board members will continue to receive paymentuntil transfer to the Commonwealth is effected.

Members of the Appeals Tribunal receive payment, at an agreed rate, only when theyare actively considering an appeal. To date, no appeals have been heard by theTribunal and there are no appeals pending.

Officers of QOFS are the only persons appointed as inspectors under the FinancialIntermediaries Act 1996. Their appointment to the position of inspector is to enablethem to perform certain functions under the Financial Intermediaries Act 1996 andno additional remuneration is paid as a result of this role. Their ceasing to act asinspectors under the Financial Intermediaries Act 1996 will not of itself cause anyfinancial detriment to those officers.

15.9. The committee thanks the Minister for this information.

♦ clause 73

15.10. The committee was concerned that despite the fact that the state supervisory bodieswere being dissolved the consequences of the decisions which these bodies made priorto dissolution may continue to be relevant to parties affected by a reviewable decision.

15.11. The committee sought information from the Minister as to:• the extent to which decisions made would continue to be relevant to affected

parties; and

• what process, if any, would be available in the Commonwealth Scheme foraffected parties to recommence their application or obtain review of decisionsmade before the transfer.


As from the transfer date financial institutions will come under a new supervisoryregime and any decisions made by AFIC or QOFS which affected financialinstitutions will either be ratified or negated by the Commonwealth regulators in thenormal course of events. If a financial institution has a grievance under these newarrangements it is able to approach the Commonwealth Administrative AppealsTribunal which reviews decisions made by the Australian Securities InvestmentsCommission under the Corporations Law and the Australian Prudential RegulationAuthority under the Banking Act 1959 and Life Insurance Act 1995.


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15.13. The committee notes that the Minister does not refer to any proposed legislativeprovision, either State or Commonwealth, which would guarantee that entities affectedby decisions made by AFIC or QOFS will not lose any right they may have had toappeal such decisions. Therefore, it appears that the mechanisms referred to by theMinister are administrative arrangements which will be implemented “in the normalcourse of events”.

15.14. The committee seeks information from the Minister as to whether the entitiesconcerned will lose their right to appeal.

Alert Digest No. 8 of 1999 Justice Legislation (Miscellaneous Provisions) Bill (No. 2) 1999

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16. JUSTICE LEGISLATION (MISCELLANEOUS PROVISIONS)BILL (NO. 2) 1999

Background

16.1. The Honourable M Foley, MLA, Attorney-General and Minister for Justice andMinister for the Arts, introduced this bill into the Legislative Assembly on 25 May1999. As at the date of publication of this Digest, the bill had not been passed.

16.2. The committee commented on this bill in its Alert Digest No. 7 of 1999 at pages 27-32. The Minister's response to those comments is referred to in part below andreproduced in full in Appendix A to this Digest.


♦ clause 19

16.3. The committee noted that the bill brought certain offences within the jurisdiction ofthe District Court, contrary to general practice that matters with the most seriousconsequences would be dealt with by the Supreme Court and beyond the jurisdictionof the District Court.

16.4. The committee sought information from the Minister as to why it is consideredappropriate to bring these particular offences within the jurisdiction of the DistrictCourt instead of the Supreme Court.


Section 61 (1) of the District Courts Act 1967 confers jurisdiction on the DistrictCourt to deal with indictable offences involving a maximum penalty not exceeding 14years imprisonment. Section 61(2) provides for a number of exceptions to thisgeneral position and gives the District Court jurisdiction to hear a range of offencesfor which the maximum penalty is life imprisonment. These offences include rape,armed robbery, grievous bodily harm with intent and other life offences. All otheroffences attracting a penalty exceeding 14 years imprisonment must be heard in theSupreme Court of Queensland.

Currently, the exceptions provided in section 61(2) of the District Courts Act 1967 donot include riot offences where the maximum penalty is life imprisonment. Offencesof this kind are located in sections 64 (Rioters remaining after proclamationordering them to disperse) and 65 (Rioters demolishing buildings, etc) of theCriminal Code and section 92(3)(b) (Unlawful assembly, riot and mutiny) of theCorrective Services Act 1988.

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



76

The amendment was initiated by a submission from the Chief Justice of the SupremeCourt. The basis for the proposed expansion of the jurisdiction of the District Courtis that riot offences are no more complex or serious than other like offences alreadywithin the jurisdiction of the District Court. In view of this, there appears no need forserious riot offences to be within the exclusive jurisdiction of the Supreme Court ofQueensland. Further, increasing the jurisdiction of the District Court to try riotoffences attracting a maximum penalty of life imprisonment represents arationalisation of court resources and will result in a small cost saving. The ChiefJudge of the District Court has no objection to the increase in jurisdiction.

16.6. The committee notes the Minister’s response and refers the matter to Parliament for itsconsideration.

♦ clause 42 (proposed s 93J)

16.7. The committee noted that the bill provided that an officer of a corporation could bearrested for the corporation’s non-compliance with a subpoena.

16.8. The committee sought clarification from the Minister as to whether it is intended thatthe power to arrest and detain a “named officer” will only apply to an officer named inthe subpoena. The committee also requested information as to the current practice ofissuing subpoenas to corporation.

16.9. The Minister provided the following information in his response:

The practical difficulty identified by the committee regarding subpoenas addressed tocorporate bodies has been the subject of considerable judicial consideration. Asubpoena to give evidence requires that the recipient attend for the purpose ofattending court and giving evidence on oath. No oath can be administeredmeaningfully to a corporation and thus no subpoena to give evidence can validly beserved on a corporation (Fieldhouse v FCT (1989) 25 FCR 187). Subpoenas toproduce documents were considered in Penn-Texas Corporation v Murat Anstalt (No2) [ 196412 QB 647. Lord Denning said (at 663):

“The question arises, what is to be done when the documents are in the possession ofa company? How is the court to compel production of them? One thing is quite clear.It is no good serving a subpoena duces tecum on any of the officers or servants of thecompany: for each of them can say that he has no authority from the company toproduce them, and that would be an end of any proceedings against him: seeCrowther v Appleby (1873) LR 9 CP 23 and Eccles & Co v Louisville and NashvilleRailroad Co [1912] 1 KB 13.5. The only thing to do is to serve a subpoena ducestecum on the company itself requiring it, by its proper officer, to give evidence andproduce the documents. That is what was done in R v Daye [1908] 2 KB 333. And itseems to me to be the only way in which a company can be compelled to producedocuments which are in its possession or custody. The command or requirement onthe company is comparable to an order on a company, by its proper officer, to file anaffidavit of documents or to answer interrogatories. The officer answering must makeinquiries of the other officers as to the documents and must then produce them onbehalf of the company: see Bank of Russian Trade Ltd v British Screen ProductionsLtd [I9301 2 KB 90. The only limitation is that the subpoena must be issued for thepurposes of the trial, and not for the purposes of discovery beforehand. ”


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Consistent with these authorities, subpoenas issued out of Queensland courtsdirected to a corporation are currently directed to a named officer of thecorporation, or if the identity of the officer is not known, to the “proper officer” ofthe corporation. This is the position in all Australian jurisdictions. Currently, non-compliance with a subpoena in Queensland is enforced either by proceedings forcontempt, or by a warrant under the relevant rules of court or section 50 of theSupreme Court Act 1995.

Provisions to the same effect as proposed in section 93L are contained in theSupreme Court Rules 1970 (NSW), Part 42, Rule 7 and the General Rules ofProcedure in Civil Proceedings 1996 (Vie), rule 66.07. Those rules enable a warrantto issue for the arrest of “any officer of the corporation”.

The capacity to issue a subpoena to a person who is designated by office or positionis preserved by the Uniform Civil Procedure Rules, Rule 414. Rule 414(7) requiresthe name or designation by office or position of the person to whom the subpoena isdirected to appear on the subpoena before it is issued.

Rule 421(2) provides that compliance with a subpoena may be enforced only if it isproved that the subpoena has been received by the person to whom it is addressed orthe person has actual knowledge of it. Accordingly, in the absence of proof of receiptof the subpoena or actual knowledge of it, a court would not be able to issue awarrant for the arrest of an officer of a corporation.

Where a subpoena has issued to the “proper officer” of a corporation, a warrantwould not issue for the arrest of “the proper officer”. The warrant would name anindividual officer or director of the corporation. However, such a warrant would notissue unless it was established that the officer or director had actual knowledge ofthe subpoena. In the contempt context, it has been held that a director who isunaware of an order is not guilty of contempt merely because of the corporation’scontempt (Madeira v Roggette Pty Ltd [1990] 2 Qd R 357 at 364, affirmed inMadeira v Roggette Pty Ltd (No 2) [ 19921 1 Qd R 394).

16.10. The committee thanks the Minister for providing this information. The Minister’sresponse indicates that by applying a combination of common law principles, the CivilProcedure Rules, and Court practice a warrant would only be issued for the arrest ofan officer for failure to comply with a subpoena where:

• the officer was named in the original subpoena and it is proved that the subpoena wasreceived by the person to whom it is addressed or the person has actual knowledge of it; or

• in circumstances where the subpoena names the “proper officer”, it is established that theofficer or director had actual knowledge of the subpoena.

16.11. The committee is concerned that procedures which allow for the arrest of a namedofficer where a warrant has been issued to the “proper officer” may not have sufficientregard to the rights and liberties of that officer. The committee notes that such awarrant would only be issued where it could be established that the officer had actualknowledge of the subpoena. However, in the committee’s view this does notnecessarily ensure that the officer has actual knowledge that he or she is obliged tocomply with the subpoena.


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16.12. Given that the consequences of the warrant are potentially extremely serious thecommittee considers that in order to have sufficient regard to the right and liberties ofaffected officers, it should be a requirement for the issue of a warrant for arrest thatthe officer named in the warrant was personally named in the subpoena.

16.13. Further the committee considers that it would be preferable for the safeguards to beexpress in the legislation. Accordingly, depending on Parliament’s decision regardingparagraph 16.12, the committee recommends that s.93J(2) be:

• amended to provide that a warrant may only be issued for the arrest of an officer named in aduly served warrant; or

• reworded to reflect that a warrant may only be issued for the arrest of an officer where it isestablished that the officer had actual knowledge of the subpoena.

♦ clause 42 (proposed s 93L)

16.14. This clause enabled a warrant to be obtained from a justice of the Supreme Courtwhere it is established that a defendant to a claim has absconded, or is about toabscond, and the absence of the defendant would materially prejudice the plaintiff inprosecuting the proceedings or enforcing a judgment which may be given against thedefendant. The committee noted that the bill appeared to give the judge a discretion asto whether to fix an amount as security. If a judge exercised a discretion not to fix anamount then a defendant could be liable to arrest, without the option of paying thesecurity. The committee considered that such a discretion is not appropriate in civilmatters.

16.15. The committee requested information from the Minister as to the reasons why adiscretion is necessary in this provision. The committee recommended that theMinister amend the bill to provide that the court must fix an amount as security, to bestated in the warrant.


Proposed section 93L needs to be read in conjunction with Chapter 20, Part 8 of theUniform Civil Procedure Rules.

There is a distinction between the warrant that issues under proposed section 93Land the current writ of capias ad respondendum. The latter authorises theimprisonment of the defendant until the trial of the plaintiffs claim unless thedefendant gives security for bail. In contrast, a warrant under Chapter 20, Part 8requires the defendant to be brought before a court within 24 hours, or as soon aspracticable afterwards. The warrant simply secures the attendance of the defendantbefore the court. Having regard to the limited effect of the warrant, it is appropriatefor the Supreme Court to have a discretion to fix an amount as security, dependingon the circumstances of the particular case. Rule 942 of the Uniform Civil ProcedureRules requires the court to release the defendant from custody unless it is satisfiedthat failure to detain the defendant would materially prejudice the plaintiff inprosecuting the proceeding or enforcing any judgment that may be given. The courtmay make a range of orders to secure the defendant’s release under Rule 942(2).Rule 944 enables a defendant to apply for a review of an order under Rule 942.


79

16.17. The committee notes the Minister’s response and refers the matter to Parliament.


♦ clause 35

16.18. The committee noted that this clause would insert a provision, the numbering ofwhich would create two sections 27A. The committee sought information from theMinister as to whether the Reprints Act 1992 will fully clarify the order in which thesections will fully appear in the Act, as fully amended.

16.19. The Minister stated in his response:

It is proposed to amend the Bill in Committee to properly number the section insertedby clause 35. Any other changes made under the Reprints Act 1992 are entirely amatter for the Parliamentary Counsel.

16.20. The committee thanks the Minister for his response and notes his proposal to amendthe bill in committee.



Alert Digest No. 8 of 1999 Local Government and Other Legislation Amendment Bill 1999

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17. LOCAL GOVERNMENT AND OTHER LEGISLATIONAMENDMENT BILL 1999

Background

17.1. The Honourable T M Mackenroth MLA, Minister for Communication andInformation and Minister for Local Government, Planning, Regional and RuralCommunities, introduced this bill into the Legislative Assembly on 29 April 1999.The bill was passed with amendments on 8 June 1999.

17.2. The committee commented on this bill in its Alert Digest No. 6 of 1999 at pages 12-13. The Minister’s response to those comments is referred to in part below andreproduced in full in Appendix A to this Digest. This correspondence is dealt with bythe Committee in accordance with its practice of placing all correspondence receivedon the public record.


17.3. The committee noted that the bill, if not passed by July 1 1999, would haveretrospective effect.

17.4. The Minister stated in his response:

The Committee has noted that certain provisions in the Bill in its present form, if notpassed by 1 July 1999, would have retrospective effect. It is anticipated that the Billwill be debated in Parliament before the end of June and that arrangements be madefor royal assent as soon as possible following passage of the Bill. Therefore, it isanticipated the legislation will commence before 1 July 1999.

17.5. The committee thanks the Minister for his response.




104 Section 4(4)(a) of the Legislative Standards Act 1992 requires whether a bill has sufficient regard for the institution ofParliament depends on whether, for example, the bill allows a delegation of legislative power only in appropriate casesand to appropriate persons.

Alert Digest No. 8 of 1999 Local Government and Other Legislation Amendment Bill 1999

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♦ clause 19

17.6. The committee sought information from the Minister as to why, in contrast to thestatutory provisions dealing with other local governments, proposed s 42A leavesidentification of the relevant financial standard to the regulation-making process.


The Committee has also sought clarification as to why the proposed new section 42Aof the City of Brisbane Act 1924 dealing with contracts provides for the exemption toopen competition to be prescribed by regulation rather than identifying the relevantfinancial standard. The amendment has been drafted in this manner as the LocalGovernment Finance Standard 1994 (LGFS) does not apply to the Brisbane CityCouncil (BCC). To apply the pre-qualified supplier arrangements it will be necessaryto amend the City of Brisbane Regulation1993 so that provisions similar to certainsections of the LGFS will apply to BCC.


Alert Digest No. 8 of 1999 Native Title (Queensland) State Provisions Amendment Bill 1999

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18. NATIVE TITLE (QUEENSLAND) STATE PROVISIONS AMENDMENTBILL 1999

Background

18.1. The Honourable P D Beattie MLA, Premier, introduced this bill into the LegislativeAssembly on 26 May 1999. As at the date of publication of this Digest, the bill had not beenpassed.

18.2. The committee commented on this bill in its Alert Digest No. 7 of 1999 at pages 33-37. ThePremier’s response to those comments is referred to in part below and reproduced in full inAppendix A to this Digest.


Is the content of the explanatory note sufficient?106

18.3. The committee noted that the Explanatory Notes do not clarify on a clause-by-clause basisthe nature of the changes effected by each provision of the bill. The committee is thereforeconcerned that the Explanatory Notes do not provide the standard of explanation necessaryto comprehend the changes effected by each clause of the bill.

18.4. The committee requested information from the Premier as to the reasons for this departure.

18.5. The Premier provided the following response:

In drafting the amendments to the original parts 12 to 18, following exhaustive consultationwith not only Commonwealth Government officials but also the Queensland IndigenousWorking Group and industry bodies, it became apparent that the most effective andcomprehensible way of presenting the result was to maintain the structure, order andlegislative intent, but replace in total those parts, rather than omit and insert individualamendments.

In order to appreciate the changes, I understand that on 3 1 May 1999 the Committee wasprovided with a copy of a document which was a comparison of the 1998 Act with thecurrent bill. That document indicates amendments by underlining additions to the existingprovisions and strike-through deletions from that Act.

At paragraph 6.15 the Committee notes that the changes introduced by the new partsappear to regulate further the process for applying for and being granted various miningtenements. That is an accurate reflection of the overall thrust of the changes. Whereas theoriginal parts 12 to 18 might to some degree have relied upon administrative procedures,


Parliament.106 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.


83

because of the balance of the interests of native title holders, miners and pastoralists itbecame necessary, following discussions with the Commonwealth, for the process to bemore prescriptive.

In this regard, the explanatory notes to the bill before the house have been drafted in a wayto replace the explanatory notes to the Act and to more fully describe process.

18.6. The committee notes the Premier’s comments.


18.7. The committee noted that proposed s 707 is intended to provide the general principles inrelation to native title compensation but that it failed to state the principles incomprehensible terms. The committee drew this issue to the attention of Parliament.

18.8. The Premier responded to these comments:

The Committee states that the general principle relating to compensation set out in section707 is not clear. I agree with the Committee that clarity on the issue of compensation isimportant in the area of native title.

After lengthy consultation with the Commonwealth Native Title Task Force the provisionsdealing with compensation (part 18) have been extensively redrafted from the original part18. The result is a more comprehensive and logical setting out of the compensationprovisions.

Section 707.( 1) states the general entitlement for compensation:

“An entity is entitled to compensation for the effect of a relevant act on the entity’ s nativetitle rights and interests, including for activities carried out under the mining tenement thesubject of the relevant act as a result of the relevant act. ”

Section 706 details the definition of ‘relevant act’. Section 707 remains a broad statement ofthe general entitlement.

Part 18 has been set out in divisions which detail definitions, general principles, payment ofcompensation and dealing with money held in trust.

I believe the compensation provisions are now clearer and more precise than the previouspart 18.

The Committee is advised that the word “entity” is used to ensure that the widest possiblenet is cast for a native title right to compensation. If this word was not used, there was somedoubt as to the right to compensation of Registered Native Title Body Corporate.

The Committee notes that in a number of provisions the additional requirements for a grantof a mining tenement are to apply ‘with necessary changes’ to a renewal of those grants.

107 Section 4(3)(k) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to the rights and

liberties of individuals depends on whether, for example, the legislation is unambiguous and drafted in a sufficiently clear andprecise manner.


84

The scheme for renewals with ‘necessary changes’ is no different to the original scheme.However in the new parts, where there may have been a question as to what was anecessary change, the necessary change has been expressly spelt out. See for example thenew sections 467 and 469 that immediately follow the sections noted by the Committee.

The Committee notes that the proposed section 438 confers on the mining registrar a widediscretion in relation to the imposition of conditions on prospecting permits which “addressany matter raised by a native title notification party in the consultation”.

18.9. The committee notes the Premier’s comments.

Alert Digest No. 8 of 1999

85

This concludes the Scrutiny of Legislation Committee’s 8th report to Parliament in 1999.

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.

Linda Lavarch MLAChair

20 July 1999

– APPENDICES –

Appendix A – Ministerial Correspondence

Appendix B – Terms of Reference

Appendix C – Meaning of “Fundamental Legislative Principles”

Appendix D – Table of bills recently considered

Alert Digest No. 8 of 1999 Appendix A – Ministerial Correspondence

87

Alert Digest No. 8 of 1999 Appendix B – Terms of Reference

88

APPENDIX B – TERMS OF REFERENCE

The 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 principles108 to particular Bills and particularsubordinate legislation; and

(b) the lawfulness of particular subordinate legislation;

by examining all Bills and subordinate legislation109.

(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).

108 “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 torights and liberties of individuals and the institution of Parliament.

* The relevant section is extracted overleaf.109 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. 8 of 1999 Appendix C – Meaning of “Fundamental Legislative Principles”

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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.110

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

(a) rights and liberties of individuals; and

(b) 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 appropriatepersons; 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 awarrant 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 LegislativeAssembly; 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.

110 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. 8 of 1999 Table of Bills Recently Considered

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APPENDIX D – TABLE OF BILLS RECENTLY CONSIDERED

BILL

(SHORTTITLE)

DATEINTRODUCED

/PASSED

CLAUSE/SECTION

PRINCIPLE ARISING MINISTERIAL RESPONSE AD No.

Acquisition of LandAmendment Bill 1999

Bill No. 41

25 May 1999 ♦ cls. 3, 4 5♦ cl. 6

♦ Does the legislation have sufficient regard to the rightsand liberties of individuals?

♦ Response provided.♦ Response provided.

AD 7/99 &AD8/99

Australia Acts(Request) Bill 1999

Bill No. 48

8 June 1999 ♦ the bill generally♦ cl. 2

♦ Does the legislation have sufficient regard to theinstitution of Parliament?

♦ AD 8/99

Charitable and Non-Profit Gaming Bill 1999

Bill No. 36

25 May 1999 ♦ cls. 111-160♦ cls. 49, 71, 114(3)♦ cl. 144♦ cl. 165♦ cl. 148♦ cls. 169 and 170♦ cl. 194♦ cl. 171



91

BILL

(SHORTTITLE)

DATEINTRODUCED

/PASSED

CLAUSE/SECTION


Constitution (Requests)Bill 1999

Bill No. 49

8 June 1999 ♦ the bill generally♦ cl. 2


♦ AD 8/99

Defamation (Matters ofPublic Interest)

Amendment Bill 1999

Bill No. 30

29 April 1999 ♦ cls. 3 & 4 ♦ cl. 4

♦ Is the legislation unambiguous and drafted in asufficiently clear and precise way?


AD 6/.99

Domestic Violence(Family Protection)

Amendment Bill 1999

Bill No. 50

8 June 1999 ♦ cl. 9♦ cl. 11



♦ AD 8/99

FinancialAdministration

Legislation AmendmentBill 1999

Bill No. 28

15 April 1999 ♦ cl. 15♦ cls. 2 & 48


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

♦ Response provided. AD 6/99


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BILL

(SHORTTITLE)

DATEINTRODUCED

/PASSED

CLAUSE/SECTION


Financial Sector Reform(Queensland) Bill 1999

Bill No. 38

25 May 1999 ♦ cls. 22, 35, 73♦ cl. 73



AD 7/99

Health Practitioners(Professional Standards)

Bill 1999

Bill No. 53

11 June 1999 ♦ cls. 104, 162, 198,236, 295, 365

♦ cls. 107, 218♦ cls. 241, 243, 368,

389, 391♦ cl. 392♦ cl. 487


AD 8/99

Industrial Relations Bill1999

Bill No. 37

25 May 1999 ♦ cl. 125♦ cl. 234♦ cl. 251 and 334♦ cl. 319♦ cl. 633♦ cl. 673♦ cl. 462♦ cls. 5(1)(d), 72(4),

83(7), 186, 275, 582,586 and 590



♦ Is the legislation consistent with the principles of naturaljustice?

♦ Does the legislation confer immunity from proceeding orprosecution without adequate justification?

AD 7/99

Justice Legislation(Miscellaneous

Provisions Bill (No. 2)1999

Bill No. 41

25 May 1999 ♦ cls. 2(1), 33, 34, 37 to41 and 46 to 48

♦ cls. 7,8,9, 10 and 27(7)♦ cl. 19♦ cl. 42♦ cl. 35

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

♦ does the legislation have sufficient regard to the rightsand liberties of individuals?

♦ Is the legislation unambiguous and drafted in asufficiently clear and precise manner?

AD 7/99


93

BILL

(SHORTTITLE)

DATEINTRODUCED

/PASSED

CLAUSE/SECTION


Liquor (Evictions,Unlicensed Sales and

Other Matters)Amendment Bill 1999

Bill No. 34

25 May 1999 ♦ cl. 9 cl.9 (proposed s.165B)♦ cls. 11-19♦ cl. 18


♦ Does the legislation confer power to enter premises andto search for or seize documents or other propertywithout a duly issued warrant?

AD 8/99

Local Government andOther Legislation

Amendment Bill 1999

Bill No. 31

29 April 1999 ♦ cl. 2♦ cl. 19


♦ Does the bill allow the delegation of legislative poweronly in appropriate cases and to appropriate persons?

♦ Response provided.♦ Response provided.

AD 6/99

Native Title(Queensland) State

Provisions AmendmentBill 1999

Bill No. 44

25 May 1999 ♦ Does the legislation have sufficient regard to the rightsand liberties of individuals?

♦ Does the legislation impose obligations retrospectively?♦ Does the legislation have sufficient regard to the

institution of Parliament?♦ Is the conte nt of the explanatory note sufficient?

AD 7/99

Primary IndustriesLegislation Amendment

Bill 1999

Bill No. 40

25 May 1999 ♦ cl. 2(1) part 3 & 7♦ cl. 2(4)♦ cl. 4♦ cl. 449 & 69(3)♦ cl. 12♦ cl. 19♦ cl. 12♦ cl. 52

♦ AD 7/99


94

BILL

(SHORTTITLE)

DATEINTRODUCED

/PASSED

CLAUSE/SECTION


Public Sector EthicsAmendment Bill 1999

Bill No. 43

26 May 1999 ♦ cl. 7 (proposed s.30)♦ cl. 7 (proposed s.34)♦ cl. 7♦ cl. 7♦ cl. 7



♦ Does the legislation confer immunity from proceeding orprosecution without adequate justification?

♦ Does the legislation make individual rights and liberties,or obligations, dependent on administrative power only ifthe power is sufficient defined and subject to appropriatereview?

AD 8/99

Road Transport ReformBill 1999

Bill No. 29

15 April 1999 ♦ general comment & cl.33

♦ cls. 6, 23, 24 & 37♦ cl. 36♦ cl .38♦ cl. 55



♦ Does the bill authorise the amendment of an Act only byanother Act (by a “Henry VIII clause”)?


♦ Does the bill allow the delegation of legislative poweronly in appropriate cases and to appropriate persons?

AD 6/99

State PenaltiesEnforcement Bill 1999

Bill No. 51

11 June 1999 ♦ cls. 17, 18, 19 and 20♦ cls. 29, 60♦ cls. 38, 42, 45, 48, 56,

63, 65, 69, 75, 77, 199,125, 130, 155

♦ cl. 104♦ cl.s. 10(3), 11, 161♦ cl. 109

♦ Does the legislation provide for the reversal of the onusof proof in criminal proceedings without adequatejustification?



♦ Does the legislation make individual rights and liberties,or obligations, dependent on administrative power only ifthe power is sufficiently defined and subject toappropriate review?



♦ Does the legislation make individual rights and liberties,or obligations, dependent on administrative power only ifthe power is sufficiently defined and subject to

♦ AD 8/99


95

BILL

(SHORTTITLE)

DATEINTRODUCED

/PASSED

CLAUSE/SECTION


appropriate review?♦ Does the legislation allow the delegation of

administrative power only in appropriate cases and toappropriate persons?


Stipendiary Magistratesand Other Acts

Amendment Bill 1999

Bill No. 45

8 June 1999 ♦ cls. 3 to 7♦ cls. 7, 8♦ cls 4, 5

♦ Does the legislation have sufficient regard to thefundamental legislative principles? - Independence of theJudiciary



♦ AD 8/99

Trade MeasurementAmendment Bill 1999

Bill No. 47

8 June 1999 ♦ cls. 5, 7♦ cl..9

♦ Does the legislation make individual rights and liberties,or obligations, dependent on administrative power only ifthe power is sufficiently defined and subject toappropriate review?

♦ Does the legislation allow the delegation ofadministrative power only in appropriate cases and toappropriate persons?

♦ AD 8/99

Documents

SLC Alert Digest No. 8 of 1999 - 20 July 1999€¦ · Tabled and ordered to be printed Issue No. 8 of 1999 20 July 1999. ... of Legislation Committee in its alert digests prior to