scrutiny of legislation committee · ms tamara vitale, executive assistant scrutiny of legislation...

SCRUTINY OF LEGISLATION COMMITTEE

ALERT DIGEST

Tabled 10 February 2009

Issue No 01 of 2009

SCRUTINY OF LEGISLATION COMMITTEE

MEMBERSHIP

52nd PARLIAMENT, 1ST SESSION

Chair: Mrs Carryn Sullivan MP, Member for Pumicestone

Deputy Chair: Mr Peter Wellington MP, Member for Nicklin

Ms Peta-Kaye Croft MP, Member for Broadwater

Ms Kate Jones MP, Member for Ashgrove

Mr Evan Moorhead MP, Member for Waterford

Mr Ray Stevens MP, Member for Robina

Mrs Jann Stuckey MP, Member for Currumbin

Legal Advisers to the Committee: Professor Gerard Carney

Dr William G. Crane

Mr Robert Sibley

Ms Nicole Watson

Committee Staff: Mrs Julie Copley, Research Director

Mrs Ali Jarro, Principal Research Officer

Ms Tamara Vitale, Executive Assistant

Scrutiny of Legislation Committee

Level 6, Parliamentary Annexe Alice Street

Brisbane Qld 4000

Phone: 07 3406 7671 Fax: 07 3406 7500

Email: [email protected]

mailto:[email protected]

Alert Digest No 01 of 2009 Table of Contents

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TABLE OF CONTENTS

TERMS OF REFERENCE...................................................................................................................................x

FUNDAMENTAL LEGISLATIVE PRINCIPLES..................................................................................................x

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

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

1. Acquisition of Land and Other Legislation Amendment Bill 2008 ..............................................1 Background .......................................................................................................................................1 Acts to be amended ..........................................................................................................................1 Reasons for bill .................................................................................................................................1 Application of fundamental legislative principles ...............................................................................2 Does the legislation have sufficient regard to rights and liberties of individuals? ..............................2

♦ clause 7 ..................................................................................................................................2

Does the legislation provide for the acquisition of property with fair compensation?.........................3

♦ clause 8(6) ..............................................................................................................................3

Is the legislation consistent with the principles of natural justice? .....................................................6

♦ clause 5(1) ..............................................................................................................................6

♦ clause 6 ..................................................................................................................................7

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

♦ clause 45 ................................................................................................................................8

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? ...........................................................................................................................................9

♦ clause 18 ................................................................................................................................9

Does the legislation have sufficient regard to Aboriginal tradition and Island custom? ...................10

♦ clause 8(5) ............................................................................................................................10

2. Auditor-General Bill 2008 .............................................................................................................13 Background .....................................................................................................................................13 Reasons for bill ...............................................................................................................................13 Application of fundamental legislative principles .............................................................................13 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................13

♦ clauses 44, 46(4), 47(2), 48(7) and 50 to 53.........................................................................13

Does the legislation provide appropriate protection against self-incrimination? ..............................14

♦ clauses 46 to 48....................................................................................................................14


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Does the legislation confer immunity from proceeding or prosecution without adequate justification?16

♦ clauses 46(6), 47(4), 48(9) and 55........................................................................................16

Does the legislation confer power to enter premises without a duly issued warrant?......................18

♦ clause 46 ..............................................................................................................................18

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................19

♦ clause 31 ..............................................................................................................................19

3. Corrective Services and Other Legislation Amendment Bill (No.2) 2008.................................21 Background .....................................................................................................................................21 Acts to be amended ........................................................................................................................21 Reasons for bill ...............................................................................................................................21 Application of fundamental legislative principles .............................................................................21 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................21

♦ clauses 15 to 22....................................................................................................................21

♦ clause 38 ..............................................................................................................................24

♦ clauses 7 and 15...................................................................................................................24

♦ clause 44 ..............................................................................................................................25

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ..26

♦ clause 39 ..............................................................................................................................26

4. Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008...................................29 Background .....................................................................................................................................29 Acts to be amended ........................................................................................................................29 Reasons for bill ...............................................................................................................................29 Application of fundamental legislative principles .............................................................................29 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................29

♦ various provisions .................................................................................................................30

♦ clauses 20, 45 and 56...........................................................................................................31


♦ clauses 20 and 45.................................................................................................................32

Does the legislation provide for the acquisition of property with fair compensation?.......................36

♦ part 2.....................................................................................................................................36

Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?.....................................................................................................................37

♦ clause 21 ..............................................................................................................................37


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♦ clause 56 ..............................................................................................................................38


♦ clause 76 ..............................................................................................................................39

Is the legislation consistent with the principles of natural justice? ...................................................39

♦ clauses 13 and 22.................................................................................................................40

5. Financial Accountability Bill 2008................................................................................................41 Background .....................................................................................................................................41 Act to be repealed ...........................................................................................................................41 Acts to be amended ........................................................................................................................41 Reasons for bill ...............................................................................................................................41 Application of fundamental legislative principles .............................................................................41 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................41

♦ clauses 46 and 47.................................................................................................................42

6. Greenhouse Gas Storage Bill 2008..............................................................................................43 Background .....................................................................................................................................43 Reasons for bill ...............................................................................................................................43 Application of fundamental legislative principles .............................................................................43

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

♦ clause 2 ................................................................................................................................43

Does the legislation have sufficient regard to the rights and liberties of individuals? ......................44

♦ clauses 27 and 28.................................................................................................................44

♦ clause 336 ............................................................................................................................46

♦ clause 361 ............................................................................................................................47

♦ clauses 87, 169 and 178.......................................................................................................48


♦ clause 425 ............................................................................................................................48




♦ clauses 393 and 409(2) ........................................................................................................53


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♦ clause 172 ............................................................................................................................55


♦ clauses 335 and 356.............................................................................................................56

Is the legislation constitutionally valid?............................................................................................58

♦ clause 379 ............................................................................................................................58

Does the bill allow the delegation of administrative power only in appropriate cases and to appropriate persons? ......................................................................................................................59

♦ clause 426 ............................................................................................................................59

7. Mineral Resources Amendment Bill 2008 ...................................................................................61 Background .....................................................................................................................................61 Acts to be amended ........................................................................................................................61 Reasons for bill ...............................................................................................................................61 Application of fundamental legislative principles .............................................................................61

8. Mineral Resources Amendment Bill (No.2) 2008 ........................................................................63 Background .....................................................................................................................................63 Acts to be amended ........................................................................................................................63 Reasons for bill ...............................................................................................................................63 Application of fundamental legislative principles .............................................................................63

9. Planning (Urban Encroachment-Milton Brewery) Bill 2008 .......................................................65 Background .....................................................................................................................................65 Reasons for bill ...............................................................................................................................65 Application of fundamental legislative principles .............................................................................65 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................65

♦ clauses 7 and 8.....................................................................................................................65

♦ clauses 9 to 11......................................................................................................................67


♦ clause 8 ................................................................................................................................68

10. Property Law (Mortgagor Protection) Amendment Bill 2008.....................................................71 Background .....................................................................................................................................71 Act amended ...................................................................................................................................71 Application of fundamental legislative principles .............................................................................71


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11. Property Law and Another Act Amendment Bill 2008................................................................72 Background .....................................................................................................................................72 Acts to be amended ........................................................................................................................72 Reasons for bill ...............................................................................................................................72 Application of fundamental legislative principles .............................................................................72 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................72

♦ the bill generally ....................................................................................................................72

Does the legislation have sufficient regard to the institution of Parliament?....................................73


12. Resorts and Other Legislation Amendment Bill 2008 ................................................................75 Background .....................................................................................................................................75 Acts to be amended ........................................................................................................................75 Reasons for bill ...............................................................................................................................75 Application of fundamental legislative principles .............................................................................75 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................75

♦ clauses 16, 20, 53 and 59.....................................................................................................76

PART I - BILLS.................................................................................................................................................77

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE............................77

13. Adult Proof of Age Card Bill 2008................................................................................................77 Background .....................................................................................................................................77 Application of fundamental legislative principles .............................................................................77 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................77




♦ clause 47 ..............................................................................................................................78

14. Animal Management (Cats and Dogs) Bill 2008..........................................................................79 Background .....................................................................................................................................79 Application of fundamental legislative principles .............................................................................79 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................79


♦ clause 172 ............................................................................................................................80


♦ clause 111 ............................................................................................................................80


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♦ clauses 112 and 125.............................................................................................................81


♦ clause 41 ..............................................................................................................................82


♦ clauses 33 and 166...............................................................................................................82

Does the legislation provide for the acquisition of property with fair compensation?.......................83

♦ clause 142 ............................................................................................................................83


♦ clause 101 ............................................................................................................................83

Does the legislation make individual rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review?..........................84

♦ clause 89 ..............................................................................................................................84

♦ clause 132 ............................................................................................................................84

15. Health and Other Legislation Amendment Bill 2008 ..................................................................87 Background .....................................................................................................................................87 Application of fundamental legislative principles .............................................................................87 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................87




♦ clause 180 ............................................................................................................................88

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ..88

♦ clause 2 ................................................................................................................................88

Does the bill sufficiently subject the exercise of delegated legislative power to the scrutiny of the Legislative Assembly?.....................................................................................................................88

♦ part 22...................................................................................................................................88

16. Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008 .........91 Background .....................................................................................................................................91 Application of fundamental legislative principles .............................................................................91 Does the legislation have sufficient regard to the institution of Parliament?....................................91


Is the legislation unambiguous and drafted in a sufficiently clear and precise way? .......................91


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♦ clause 5 ................................................................................................................................92


♦ clause 8 ................................................................................................................................92


♦ clause 53 ..............................................................................................................................92


♦ clause 54 ..............................................................................................................................93

17. Local Government Bill 2008 .........................................................................................................95 Background .....................................................................................................................................95 Application of fundamental legislative principles .............................................................................95 Is the legislation unambiguous and drafted in a sufficiently clear and precise way? .......................95

♦ clauses 9 and 28...................................................................................................................95




Does the legislation have sufficient regard to Aboriginal tradition and Island custom? ...................97



♦ clause 56 ..............................................................................................................................99

♦ clause 127 ............................................................................................................................99


♦ clauses 142 to 145..............................................................................................................100

Is the legislation consistent with the principles of natural justice? .................................................100

♦ clause 122 ..........................................................................................................................100


♦ clauses 57 and 238.............................................................................................................101

18. Penalties and Sentences and Other Acts Amendment Bill 2008.............................................103 Background ...................................................................................................................................103 Application of fundamental legislative principles ...........................................................................103 Does the legislation have sufficient regard to the rights and liberties of individuals? ....................103

♦ clause 3 ..............................................................................................................................103


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Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .......................................................................................................................................103

♦ clause 3 ..............................................................................................................................103

19. Residential Tenancies and Rooming Accommodation Bill 2008 ............................................105 Background ...................................................................................................................................105 Application of fundamental legislative principles ...........................................................................105 Does the legislation have sufficient regard to the rights and liberties of individuals? ....................105

♦ clause 543 ..........................................................................................................................105

♦ clauses 205 and 206...........................................................................................................106

♦ clauses 370 and 375...........................................................................................................106

Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?...................................................................................................................107

♦ clause 513 ..........................................................................................................................107

20. Revenue and Other Legislation Amendment Bill (No.2) 2008 .................................................109 Background ...................................................................................................................................109 Application of fundamental legislative principles ...........................................................................109 Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? 109

♦ clause 2 ..............................................................................................................................109

♦ clause 71 ............................................................................................................................110

♦ clause 90 ............................................................................................................................110

Does the legislation have sufficient regard to the rights and liberties of individuals? ....................111

♦ clause 35 ............................................................................................................................111

♦ clause 48 ............................................................................................................................111

♦ clause 51 ............................................................................................................................112

♦ clauses 52, 57, 65 and 127.................................................................................................113

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .......................................................................................................................................113

♦ clause 29 ............................................................................................................................113

Does the legislation make individual rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review?........................114

♦ clause 105 ..........................................................................................................................114


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21. Summary Offences and Other Acts Amendment Bill 2008......................................................117 Background ...................................................................................................................................117 Application of fundamental legislative principles ...........................................................................117 Does the legislation have sufficient regard to the rights and liberties of individuals? ....................117

♦ clause 4 ..............................................................................................................................117

Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?...................................................................................................................117

♦ clause 4 ..............................................................................................................................117

22. Transport (New Queensland Driver Licensing) Amendment Bill 2008 ...................................119 Background ...................................................................................................................................119 Application of fundamental legislative principles ...........................................................................119 Does the legislation have sufficient regard to the rights and liberties of individuals? ....................119

♦ various provisions ...............................................................................................................119

♦ various provisions ...............................................................................................................119

PART I - BILLS...............................................................................................................................................120

SECTION C – AMENDMENTS TO BILLS............................................................................................120 (NO AMENDMENTS TO BILLS ARE REPORTED ON IN THIS ALERT DIGEST) .......................120

APPENDIX

PART II – SUBORDINATE LEGISLATION ....................................................................................................121

SECTION A – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCERNS..................................................................................................................................121

SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES (including list of correspondence) ...........................................122

APPENDIX

NOTE:

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

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

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

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

Alert Digest No 01 of 2009 Terms of Reference and Fundamental Legislative Principles

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

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

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

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

b) the lawfulness of particular subordinate legislation;

by examining all Bills and subordinate legislation.

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

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

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

• part 4 (Explanatory notes); and

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

• section 9 (Meaning of “subordinate legislation”)

• part 5 (Guidelines for regulatory impact statements)

• part 6 (Procedures after making of subordinate legislation)

• part 7 (Staged automatic expiry of subordinate legislation)

• part 8 (Forms)

• part 10 (Transitional).

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

Section 4 is reproduced below:

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

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

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

* The relevant section is extracted overleaf.

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


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

1. rights and liberties of individuals; and

2. the institution of Parliament.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) authorises the amendment of an Act only by another Act. 3

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

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

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

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

(d) amends statutory instruments only; and

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

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

3 A ‘Henry VIII clause’ is one which permits an Act of Parliament to be amended by subordinate legislation.


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PART I

BILLS

Alert Digest No 01 of 2009 Acquisition of Land and Other Legislation Amendment Bill 2008

Chapter 1 Page 1

PART I - BILLS

SECTION A – BILLS REPORTED ON

1. ACQUISITION OF LAND AND OTHER LEGISLATION AMENDMENT BILL 2008

Background

1. The bill was introduced into the Legislative Assembly on 2 December 2008 by the Honourable Craig Wallace MP, Minister for Natural Resources and Water and Minister Assisting the Premier in North Queensland.

2. On 2 February 2009, the Minister tabled an erratum to the explanatory notes to the bill.

Acts to be amended

3. The bill would amend the: • Acquisition of Land Act 1967; and • Land Act 1994.

4. In addition, the bill would effect consequential amendments to the: • Integrated Planning Act 1997; and • South Bank Corporation Act 1989.

Reasons for bill

5. Regarding the proposed amendment of the Acquisition of Land Act, the explanatory notes identify a number of policy objectives. They are that the bill is intended to:4 • overcome uncertainties arising from the Queensland Court of Appeal decision of Sorrento Medical

Service Pty Ltd v Chief Executive, Department of Main Roads (2007) QCA 73 (The Sorrento decision) by narrowing the meaning of the term ‘interest’ in the Act to limit the class of persons who must be served with a notice of intention to resume and who may be entitled to claim compensation;

• clarify process matters and modernise the Act by codifying current practices, providing transparency and improving consistency of payment of compensation among the constructing authorities such as what constitutes compensable disturbance items (e.g. moving costs, phone, internet reconnections etc);

• impose a statutory time limit on allowing a claim for compensation of three years and provide a safeguard that enables claims outside the statutory period by the constructing authorities at their discretion or by order of the Land Court where it considers it reasonable in the circumstances;

• broaden the class of claimants entitled to be paid consequential costs for the purchase of a replacement property to include consequential costs on investment properties;

4 At 1-2.


Chapter 1 Page 2

• provide the Land Court with jurisdiction over the recovery of overpayment of compensation; and

• contemporise the wording and layout, update and categorise the description of items in the Schedule and remove redundant items.

6. Regarding the remaining amendments to be effected by the bill, the explanatory notes state that the bill:5 • contain[s] a number of minor technical amendments to the Land Act 1994 to rectify anomalies that arose

as a consequence of the commencement of the Land and Other Legislation Amendment Act 2007 and also remove several obsolete provisions dealing with the Brigalow and other lands development; and

• make[s] consequential amendments to the Integrated Planning Act 1997 and the South Bank Corporation Act 1989.

Application of fundamental legislative principles

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

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

♦ clause 7

8. Clause 7 would amend section 11 (Amending of gazette resumption notice) of the Acquisition of Land Act. New section 11(1A) would allow the Minister to amend, by way of gazette notice, the description or area of land in a gazetted resumption notice. New section 11(1B) would allow amendment only where the change is made to more accurately describe the area.

9. The explanatory notes to the bill provide information regarding the proposed amendment:6 The resumption sketch plans are an approximation of required land only and there are at times minor discrepancies between the resumption plans and the survey plans. This will not disadvantage land owners because compensation is negotiated on the basis of the final surveyed area. Also the practice enables the constructing authorities to minimise the land area to be acquired which benefits owners. Because of the purely technical nature of these changes they will be able to be made by the relevant Minister or an appropriately qualified delegate of the relevant Minister.

10. Clause 7 would amend the Acquisition of Land Act to allow the Minister to amend, by way of gazette notice, the description or area of land in a gazetted resumption notice.

11. The committee suggests that clause 7 has sufficient regard to the rights of individuals as compensation payable would not be affected by any amendment of the description or area of land by way of a gazette notice under new section 11(1A).

5 At 2.

6 At 14-15.


Chapter 1 Page 3

Does the legislation provide for the acquisition of property with fair compensation?

12. Section 4(3)(i) of the Legislative Standards Act provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation provides for the compulsory acquisition of property only with fair compensation.

♦ clause 8(6)

13. Clause 8 of the bill would amend section 12 of the Acquisition of Land Act to: • remove an obsolete provision; • amend statutory provision regarding the effect of taking leasehold land; and • clarify the right to claim compensation.

14. Regarding the latter amendment, clause 8(6) would insert a new section 12(5C) into the Acquisition of Land Act: (5C) Despite subsection (5), a person does not obtain a right to claim compensation under this Act in relation to an interest in land that is an interest under a services contract for the land.

15. The explanatory notes to the bill provide detailed information regarding the amendment to section 12 to be effected by clause 8(6):7 The insertion of section 12(5C) in the Act is to provide that a right to claim compensation for an interest affected by an acquisition of land does not extend to an interest under a contract merely for the provision of services on, to, or in relation to land. The amendment will overcome potential uncertainties arising from the Sorrento decision by limiting the meaning of “interest” in the Act. Prior to the Sorrento decision, the provisions of the Act had been interpreted to mean that a person was only entitled to compensation in respect of resumed land where that person had a freehold or a leasehold estate, or incorporeal interests such as easements or profits à prendre on the land.

The Sorrento decision took a broader interpretation of what constituted an interest in land and extended the class of persons who may be entitled to claim compensation to include persons who have a personal right existing in the land, but which are not proprietary rights in the land. The Sorrento decision involved a contractual licence for car parks over land. The Sorrento decision has left the scope of what constitutes an interest uncertain. At its broadest, the decision could be interpreted in subsequent court actions to extend to other personal rights such as cleaners with a contract to clean a building or oil companies who have a contract with a service station.

The concept of what will constitute an “interest” under the Bill is broader than prior to the Sorrento decision but narrower than the uncertain position at law following the Sorrento case. The amendments will codify existing practice, ensuring that no one who in the past had a right to compensation will lose that right and extend the right to compensation to include some non-proprietary interests, namely persons with a valuable contractual licence over the land. Persons with a valuable contractual licence should be entitled to compensation, even though the interest is not a proprietary interest.

16. The explanatory notes to the bill identify a possible concern that clause 8(6) might be inconsistent with the fundamental legislative principle that legislation provide for the compulsory acquisition of property

7 At 15-16.


Chapter 1 Page 4

only with fair compensation. However, it is suggested that the proposed amendment merely clarifies and codifies existing practices:8 Clause 8 of the Bill amends the Act to clarify that a person does not obtain a right to claim compensation under the Act in relation to a services contract that may be extinguished because of the taking of land under the Act. The principle outlined in subsection 4(3)(i) of the Legislative Standards Act that legislation provide for the compulsory acquisition of property only with fair compensation is of some relevance however the amendment is designed to codify existing practices and ensure that no one who would have had a right to claim compensation before the amendment commences will lose that right.

Also, the amendment potentially extends the right to claim compensation in relation to certain non-proprietary rights in land. This extension of the right to claim compensation is consistent with the Sorrento decision. The amendment is in response to the Sorrento decision and clarifies the types of interest for which compensation may be claimed under the Act.

17. In respect of the information provided in the explanatory notes, the committee provides some background information regarding the decisions of the Court of Appeal in Sorrento and then makes a number of observations to assist the Parliament’s consideration of clause 8(6).

18. In Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads, the Court of Appeal was asked to determine whether the appellant company was entitled to claim compensation under the Acquisition of Land Act in respect of resumed land over which the appellant had car parking rights for its medical centre. Construction of section 12(5) of the Act was central to the Court’s determination of the issue and, in particular, the words ‘interest of every person entitled to the whole or any part of the land’.

19. The Court of Appeal held by majority (McMurdo P and Chesterman J; Holmes JA dissenting) that the words extended to an interest by way of contractual licence to park cars on the acquired land. In construing section 12(5), each majority judgment adopted the approach explained by Gaudron J in Marshall v Director General, Department of Transport (2001) 205 CLR 603 at 623: It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations …

Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.

20. The Chief Executive of the Department of Main Roads sought special leave to appeal the decision in Sorrento to the High Court. A majority of that Court (Kirby J and Hayne J; Crennan J dissenting) refused special leave and provided reasons.9 It was accepted that, as indicated by the dissenting reasons in the Court of Appeal of Holmes J, there were arguments both ways as to whether the words

8 At 10.

9 Chief Executive Department of Main Roads v Sorrento Medical Services Pty Ltd [2007] HCA Trans 474 (31 August 2007), available at: www.hcourt.gov.au.


Chapter 1 Page 5

‘interest of every person entitled to the whole or any part of the land’ in section 12(5) of the Acquisition of Land Act extended to an interest by way of contractual licence to park cars on the acquired land. However, the majority was not ultimately convinced that the case was one for the grant of special leave. The majority reasons, provided by Kirby J, were: The interest in question literally engages the subsection. The engagement of that provision is reinforced when regard is had to section 18 of the Act with its reference to compensation of a licensee. The purpose of the Act is beneficial and protective. The Act has been amended many times and could be re-expressed if interests of the type in question were to be excluded by the Queensland Parliament from entitlements to compensation. There is no doubt that the respondent has suffered a quantifiable loss…

It follows that the Court does not consider that an appeal would enjoy reasonable prospects of success. Special leave is therefore refused with costs.

21. In respect of clause 8(6), therefore, the committee notes first that the amended section 12 of the Acquisition of Land Act would operate to provide clarification of the class of people entitled to claim compensation for compulsory acquisition of an ‘interest’. Under the current legislation, in accordance with the interpretation of section 12(5) adopted by the Court of Appeal and High Court, the words ‘interest of every person entitled to the whole or any part of the land’ extend to an interest by way of contractual licence to park cars on the acquired land.

22. Second, the committee notes that, contrary to the impression that may be provided by the explanatory notes to the bill, the decisions of the Courts regarding section 12(5) have not altered or created uncertainty in the meaning of the provision.10 Rather, as the meaning was uncertain and contested, they courts have provided, for a given set of circumstances, the meaning of the words used in the provision:11 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say.

23. In Wilson v Anderson (2002) CLR 401 at [8], Gleeson CJ described the role of the court in the following way: In the construction or interpretation of a statute, the object of a court is to ascertain, and give effect to, the will of Parliament… Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will.

24. The principles of construction utilised by the Court of Appeal in Sorrento to interpret section 12(5) were stated in the judgments. Each majority judgment adopted the approach outlined by Gaudron J in Marshall v Director General, Department of Transport (2001) 205 CLR 603 at 623: It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations …

10 See page 15, for example, where it is stated that, ‘The amendment will overcome potential uncertainties arising from the Sorrento decision’.

11 The Honourable JJ Spigelman AC, ‘The Principles of Legality and Clear Statement’ in Judicial Commission of New South Wales, Statutory Interpretation: Principles and pragrmatism for a new age; Education Mongraph 4 – June 2007, 13 at 15.


Chapter 1 Page 6

Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.

25. Third, the judgments of the Court of Appeal and High Court referred to the principles of statutory interpretation to be adopted regarding section 12 of the Acquisition of Land Act because the provision affected rights and liberties of individuals regarding the compulsory acquisition of property only with fair compensation. In his judgment, for example, Chesterman J (as he then was) stated:12 One should not lose sight of the obvious point that one is construing a subsection which confers a right to compensation upon the loss of land taken for the public benefit. One should not search for meanings which are not readily apparent, nor be assiduous to find a statutory context which would exclude the wider definition of interest and so restrict the right to compensation. One should approach the construction of the provision in the manner described by Gaudron J and Heydon JA, and one should not rely upon words of nebulous meaning to provide a statutory context inconsistent with the application of the Acts Interpretation Act.

26. Finally, the committee notes that, although clause 8(6) seeks to ‘overcome uncertainties’ regarding section 12(5), uncertainty may arise regarding meaning of the words in the amended provision. New section 12(5C) would state that a person may not claim compensation under the Act in respect of an ‘interest in land that is an interest under a services contract for the land’. However, the judgment of Chesterman J noted that the word ‘interest’ in section 12(5) could easily mean either ‘interest in land’ or ‘interest’ as defined by the Acts Interpretation Act’. Chesterman J did not determine the point. Nevertheless, clause 8(6) may appear to assume the word ‘interest’ in section 12(5) means ‘interest in land’.

27. Clause 8(6) of the bill may be inconsistent with the fundamental legislative principle that legislation provide for the acquisition of property only with fair compensation.

28. The committee refers to Parliament the question whether clause 8(6) of the bill has sufficient regard to rights and liberties of individuals.

Is the legislation consistent with the principles of natural justice?

29. Section 4(3)(b) of the Legislative Standards Act provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation is consistent with the principles of natural justice.

♦ clause 5(1)

30. Clause 5(1) (new section 7(2A) to (2D)) would amend section 7 of the Acquisition of Land Act to require, where common property is to be taken, service of a notice to resume on the body corporate of

12 At [57].


Chapter 1 Page 7

the common property and each entity known by the constructing authority to have an interest in the common property (other than an owner of a lot) must be served with a notice to resume. Currently, service on all owners of residential schemes is required.

31. The explanatory notes provide information regarding the proposed amendment:13 The amendment is required because, if a notice of intention to resume has to be served on all owners of residential schemes, the process is cumbersome, time consuming and costly.

The complexity of dealing with all owners of common property has been recognised in section 18 of the Act which provides a mechanism to deal with claims for compensation. However, the Act does not currently make it clear that if common property is proposed to be resumed then the body corporate is the only entity that ought to be served with a notice of intention to resume. In order to ensure that individual unit holders are aware of the resumption and their possible right to claim compensation, the body corporate will be required to send out a copy of the notice of intention to resume with notice of the first general meeting after it received the notice of intention to resume.

32. Accordingly, clause 5(1) would provide that individual unit holders in a body corporate need not be provided with a notice of intention to resume, arguably an exclusion of the requirement of natural justice that a person be advised of executive action that would affect his or her rights and interests. However, clause 12 would amend section 18 of the Acquisition of Land Act to impose responsibility for provision of a copy of the notice of intention to resume upon the body corporate.

33. Clause 5(1) would provide that a notice of intention to resume need be provided only to certain persons or entities.

34. However, clause 12 would impose upon a body corporate a requirement to provide a copy of a notice of intention to resume upon individual unit holders in a body corporate.

35. The committee suggests that the legislation has, in this respect, sufficient regard to rights and liberties of individuals.

♦ clause 6

36. Clause 6 would amend section 8 of the Acquisition of Land Act to state that if a constructing authority, after considering an objection, amended a notice of intention to resume with the owner’s consent, the authority need not allow a further period in which to object.

37. The explanatory notes to the bill state:14 This amendment is intended to remove the ability of an objector to make a second challenge of an amended notice of intention to resume where the amendment is made with the agreement of the owner.

38. The committee notes the justification provided for clause 6.

13 At 13.

14 At 14.


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39. Clause 6 would provide that if after considering an objection, a constructing authority amended a notice of intention to resume with the owner’s consent, the authority need not allow a further period in which to object.

40. The committee suggests that clause 6 may have sufficient regard to rights and liberties of individuals.

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

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

♦ clause 45

42. Clause 45 of the bill would insert a new chapter 9, parts 1F and 1G into the Land Act. New section 521T of the Land Act (Provision about change of purpose of reserves) would state that the purpose of an operational reserve changed under section 31B (Changing community purpose) prior to the commencement of the transitional provision would be taken to have been lawfully changed.15

43. The committee examines legislation that would operate retrospectively to evaluate whether there would be any adverse effects on rights or liberties or whether obligations imposed retrospectively would be unduly onerous. When considering ‘sufficient regard’, the committee generally examines whether: • the retrospective operation would be adverse to persons other than the government; and • individuals have relied on the legislation and would have legitimate expectations based on the

existing legislation.

44. The explanatory notes suggest that new section 521T would not be inconsistent with the fundamental legislative principle:16 At clause 45 of the Bill, proposed section 521T of the Land Act 1994 retrospectively validates registered changes to the purpose for which particular reserves under the Act are dedicated. This amendment is not inconsistent with the principle in subsection 4(3)(g) of the Legislative Standards Act that legislation does not adversely affect rights and liberties, or impose obligations, retrospectively.

Any registered change to which the provision applies would have been from a purpose that was not a community purpose under the Land Act 1994 to a purpose that is a community purpose under the Act. The registered changes that have been made sought only to protect and facilitate the purpose for which the land was to be used. The changes do not detrimentally impact on the use of the land by the trustees of the reserves.

45. Clause 45 of the bill would insert a new section 512T in the Land Act to validate, retrospectively, change in the purpose of an operational reserve.

15 See explanatory notes at 26.

16 At 11.


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46. The committee refers to Parliament the question whether the proposed retrospective operation is justified.

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

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

♦ clause 18

48. The schedule to the Acquisition of Land Act lists the purposes for which land may be resumed under the Act. Clause 18 would replace the schedule, amending, updating and categorising the description of purposes for which land may be taken. Part 14 (Other purposes) of the schedule would provide: any purpose declared under a regulation to be a purpose for which land may be taken under this Act.

49. In respect of proposed part 14 of the shedule, the explanatory notes to the bill state:17 Proposed part 14 of the schedule provides for other purposes to be declared under a regulation, and reinserts the regulation-making power under the current schedule.

It is arguable that this proposed part 14 of the new Schedule is a Henry VIII clause and breaches the principle in subsection 4(4)(c) of the Legislative Standards Act that legislation authorise amendment of an Act only by another Act.

50. A ‘Henry VIII’ clause is defined by the committee as a clause in an Act of Parliament which enables the Act to be amended by subordinate or delegated legislation.

51. In January 1997, the committee reported to the Parliament on Henry VIII clauses.18 While the committee has generally opposed the use of Henry VIII clauses in bills, the committee’s report stated that usually it did not consider provisions enabling definitions of terms to be extended by regulation to be Henry VIII clauses. Further, the committee stated that it considered Henry VIII clauses may be excusable, depending on the given circumstances, in four situations. These are to facilitate: • immediate executive action; • the effective application of innovative legislation; • transitional arrangements; and • the application of national schemes of legislation.

52. Where provisions fall within the scope of excusable ‘Henry VIII’ provisions, the committee further examines whether the provision would represent an inappropriate delegation of legislative power.

17 At 10.

18 Report no 3, The Use of ‘Henry VIII Clauses’ in Queensland Legislation, available at www.parliament.qld.gov.au/slc.


Chapter 1 Page 10

53. In this regard, the explanatory notes to the bill provide the following information:19 [T]he scope of what may be prescribed under a regulation is limited by:

the short title to the Act, which makes it clear that the purposes that may be listed under the Schedule are limited to “public works and other public purposes”; and

the functions of constructing authorities under their various enabling Acts. For example where the constructing authority is a local government, it would be constrained by the Local Government Act 1993. It is necessary to retain the regulation making power because it is not practicable to provide in the Schedule a comprehensive list of every single public work or public purpose for which it may be necessary, in the public interest, to acquire land. It would cause undue delay to the construction of important public infrastructure if the Act had to be amended to add a new purpose before land acquisition could occur. Having an additional power to prescribe other purposes is consistent with the acquisition legislation in other States and Territories.

54. The committee notes that clause 18 would amend the schedule to the Acquisition of Land Act to allow regulations to identify ‘any purpose … for which land may be taken under this Act’. However, the explanatory notes to the bill indicate that the scope of the regulation-making power would be confined by the long title to the Acquisition of Land Act and by the scope of the legislative authority under which a person or entity compulsorily acquires land.

55. Clause 18 of the bill would amend the schedule to the Acquisition of Land Act to allow regulations to identify ‘any purpose … for which land may be taken under this Act’.

56. The committee refers to Parliament the question whether clause 18 has sufficient regard to the institution of Parliament.

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

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

58. Section 36 of the Acts Interpretation Act 1954 provides that, in an Act: Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships; and

Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships.

♦ clause 8(5)

59. Clause 8(5) of the bill would insert new subsections (4A) and (4B) in section 12 of the Acquisition of Land Act.

19 At 10-11.


Chapter 1 Page 11

60. The explanatory notes indicate:20 The introduction of sections 12(4A) and (4B) confirms that land acquired from a deed of grant in trust or lease under the Land Act 1994 may be dealt with by the constructing authority disregarding the fact the acquired land becomes unallocated State land on and from the date of the publication of the gazette resumption notice and remains unallocated State land until the land has been allocated under the Land Act 1994 or any other Act.

61. As the new section 12 (4A) and (4B) would affect land acquired from a deed of grant in trust, they would affect Aboriginal and Torres Strait Islander communities with landholdings of this nature. However, the explanatory notes to the bill indicate that neither those communities nor representatives of those communities were consulted prior to the introduction of the legislation.

62. Clause 8(5) of the bill may raise issues regarding Aboriginal tradition and Island custom and, in particular, the associations of Aboriginal people and Torres Strait Islanders with land held under a deed of grant in trust.

63. The committee notes that relevant consultation regarding clause 8(5) was not undertaken prior to the introduction of the bill.

20 At 15.


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Alert Digest No 01 of 2009 Auditor-General Bill 2008

Chapter 2 Page 13

2. AUDITOR-GENERAL BILL 2008

Background

1. The Premier, the Honourable AM Bligh MP, introduced the bill into the Legislative Assembly on 4 December 2008.

2. On the same day, the Financial Accountability Bill 2008 was introduced into the Legislative Assembly by the Treasurer, the Honourable Andrew Fraser MP. Clause 91 of that bill would repeal the Financial Administration and Audit Act 1977. Parts 5 and 6 of the Financial Administration and Audit Act relate to the Auditor-General.

Reasons for bill

3. The explanatory notes to the bill state:21 The policy objective of the Auditor-General Bill 2008 (the Bill) is to replace and update Parts 5 and 6 of the Financial Administration and Audit Act 1977 (the FA&A Act). The Bill will:

• further emphasise and enhance the independence of the Queensland Auditor-General;

• address a number of operational issues to improve the ability of the Queensland Audit Office to carry out its functions; and

• consolidate audit provisions contained within other parts of the FA&A Act and the Government Owned Corporations Act 1993 into one piece of legislation and make further miscellaneous amendments.


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

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

♦ clauses 44, 46(4), 47(2), 48(7) and 50 to 53

5. Various provisions of the bill would create offences. The proposed offences, together with respective maximum penalties, are set out below.

Clause Offence Maximum Penalty

44 Failure, without reasonable excuse, to return identity card 10 pu ($1000)

46(4) Failure, without reasonable excuse, to provide reasonable assistance to auditor authorized to access documents and property

40 pu ($4000)

21 At 1.


Chapter 2 Page 14

47(2) Failure, without reasonable excuse, to provide information 40 pu ($4000)

48(7) Failure, without reasonable excuse, to provide evidence 40 pu ($4000)

50 False or misleading statement to auditor 80 pu ($8000)

51(1) Obstruction of auditor 80 pu ($8000)

52 Impersonation of auditor 80 pu ($8000)

53 Failure to maintain confidentiality of protected information 200 pu ($20 000) or imprisonment for one year

6. Clauses 44, 46(4), 47(2), 48(7) and 50 to 53 of the bill contain offence provisions and would operate to affect rights and liberties of individuals.

7. The committee refers to Parliament the question whether each offence and the respective proposed maximum penalty has sufficient regard to rights and liberties of individuals.

Does the legislation provide appropriate protection against self-incrimination?

8. Section 4(2)(a) of the Legislative Standards Act requires legislation to have sufficient regard to rights and liberties of individuals and section 4(3)(f) provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation provides appropriate protection against self-incrimination.

9. The common law privilege against self-incrimination provides that:22 No one is bound to answer any question or produce any document if the answer or the document would have a tendency to expose that person to the imposition of a civil penalty or to conviction for a crime.

10. Section 10 of the Evidence Act 1977 (Privilege against self incrimination) expressly preserves the principle.

♦ clauses 46 to 48

11. Division 2 of part 3 of the bill would confer authorised auditors with powers to conduct audits, including of performance management systems (clause 38), consolidated fund accounts (clause 39), public sector entities (clause 40) and expenditure for ministerial offices (clause 41).

12. To facilitate the exercise of powers by authorised auditors, provisions in part 3 of the bill would require people to provide information to investigation officers: • clause 46(4) – would create an offence of failing to comply with a requirement regarding access

to documents and property;

22 JD Heydon, Cross on Evidence, 7th ed, LexisNexis Butterworths, 2004, [25065].


Chapter 2 Page 15

• clause 47(2) – would create an offence of failing to comply with a requirement to provide information;

• clause 48(7) – would create an offence of failing to comply with a requirement to produce evidence.

13. In each case, a related provision (clauses 46(5), 47(3) and 48(8)) would erode the privilege against self-incrimination, stating that self-incrimination would not constitute a reasonable excuse for failing to comply with a statutory requirement: • clause 46(5) – a requirement regarding access to documents or property; • clause 47(3) – a requirement regarding provision of information; and • clause 48(8) – a requirement regarding provision of evidence.

14. The High Court has held that the privilege against self-incrimination is inherently capable of applying to executive inquiry and may be described as a common law substantive right,23 although the availability of the privilege in respect of the exercise of any non-judicial power will fall to be determined upon the proper construction of the legislation conferring power.24

15. The courts recognise the power of the Parliament to abrogate the privilege. However, they have indicated a reluctance to give a wide interpretation to provisions abrogating the privilege. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (200) 213 CLR 543, for example, the High Court stated:25 Courts do not construe legislation as abolishing, suspending or adversely affecting rights, freedoms and immunities that the courts have recognised as fundamental unless the legislation does so in unambiguous terms. In construing legislation, the courts begin with the presumption that the legislature does not interfere with these fundamental rights, freedoms and immunities unless it makes its intention to do so unmistakably clear. The courts will hold that the presumption has not been overcome unless the relevant legislation expressly abolishes, suspends or adversely affects the right, freedom or immunity or does so by necessary implication.

16. The potential impact upon rights and liberties of legislation eroding protection against self incrimination is described in the following way in Cross on Evidence:26 Historically, the rule has assumed greatest importance in proceedings before judicial tribunals, for these are empowered by inherent or expressly conferred jurisdiction to compel parties and witnesses to produce documents, to answer questions and to perform other acts. A feature of modern society has been the readiness of the legislature similarly to endow non-judicial officers, such as the Commissioners of Taxation, the Australian Competition and Consumer Commission, company investigators and police officers. Before such persons there are practical difficulties in the way of resolving claims to privilege when the inquiry is non-judicial and not on oath. In court, a witness will normally make a claim to privilege on oath and depose to an apprehension that the evidence will entail self-jeopardy. The judge will then rule on the claim forthwith. These procedures are not

23 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 340-1 and 344; Sorby v Cth (1983) 152 CLR 281 at 309.


25 At [43].

26 At [25085]. See also the citations at n207: Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 340-1 and 344; Sorby v Cth (1983) 152 CLR 281 at 309.


Chapter 2 Page 16

readily available when the question is asked as part of an executive inquiry before a person without legal training, and without power to perform this judicial task.

17. The explanatory notes to the bill indicate generally:27 Clauses 44 to 52 are sourced from sections 83 to 91 of the FA&A Act and retain the existing powers of the Auditor-General and other authorised auditors to obtain information necessary to conduct audits.

18. The explanatory notes to the bill do not address the matter of appropriate protection against self incrimination.

19. Clauses 46 to 48 would adversely affect the common law and statutory protection from self incrimination, a fundamental right recognised by the courts in respect of executive inquiry. The relevant provisions of the bill demonstrate a clear intention to interfere with the fundamental right. However, the committee notes that the relevant provisions are contained in the current legislation and, by implication, stated to be ‘necessary to allow the Auditor-General to perform his or her operational responsibilities’.28 The committee notes also that the provisions eroding the privilege against self-incrimination are accompanied by safeguards of individual rights, as outlined in paragraph 24.

20. Clauses 46 to 48 would adversely affect the common law and statutory protection from self incrimination, a fundamental right recognised by the courts in respect of executive inquiry.

21. The committee refers to Parliament the question whether the clauses 46 to 48 have sufficient regard to rights and liberties of individuals.

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

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

♦ clauses 46(6), 47(4), 48(9) and 55

23. Clause 55 would protect an authorised auditor from civil liability for acts or omissions done honestly and without negligence. Liability would attach instead to the State. In respect of clause 55, the explanatory notes state:29 Clause 55 prevents civil action against an authorised auditor for acts or omissions done honestly and without negligence, but provides for liability in such circumstances to attach to the State. This personal protection for auditors is sourced from section 94 of the FA&A Act and is considered necessary and appropriate in view of the involvement of the Auditor-General in the audit of joint ventures and other commercial undertakings involving third parties.

27 At 12.

28 Explanatory notes at 3.

29 At 13.


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24. A further three provisions relate to the admissibility in criminal proceedings of evidence provided to auditors acting under the authority of the legislation: • clause 46(6) – any information, document or thing obtained by an auditor exercising powers

under clause 46 (Access to documents and property) would not be admissible in a criminal proceeding against the person who provided them, other than in a proceeding relating to the falsity of the answer;

• clause 47(4) – any information, document or thing obtained as a consequence of a person providing information requested by an authorised auditor under clause 47 (Obtaining information) would not be admissible in a criminal proceeding against the person, other than in a proceeding relating to the falsity of the answer; and

• clause 48(9) – any information, document or thing obtained as a consequence of a person providing information requested by an authorised auditor under clause 48 (Obtaining evidence) would not be admissible in a criminal proceeding against the person, other than in a proceeding relating to the falsity of the answer.

25. In respect of these provisions, the explanatory notes indicate generally:30 Clauses 44 to 52 are sourced from sections 83 to 91 of the FA&A Act and retain the existing powers of the Auditor-General and other authorised auditors to obtain information necessary to conduct audits.

26. However, the explanatory notes identify a breach of fundamental legislative principles by the proposed provisions:31 In addition, clauses 46(6), 47(4) and 48(9) provide immunity in relation to any information obtained as a direct or indirect consequence of the information that the Auditor-General has obtained during an investigation. The breach of fundamental legislative principles is justified on the basis that the power is designed to encourage appropriate cooperation with the Auditor-General, which is necessary to allow the Auditor-General to perform his or her operational responsibilities.

27. A fundamental tenet of the law is that everyone is equal before the law. Consistent with this principle, legal liability should be the same for the government, its officials and its entities as for private citizens. The committee notes that clauses 46(6), 47(4), 48(9) and 55 depart from the fundamental principle. However, the committee also notes that, in each case: • as stated in paragraph 19, these provisions seek to balance the abrogation of the privilege

against self incrimination; • the provision replicates a provision in the current legislation; and • the explanatory notes provide justification for any breach of fundamental legislative principles.

28. Clause 55 would protect an authorised auditor from civil liability for acts or omissions done honestly and without negligence.

30 At 12.

31 At 3.


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29. Clauses 46(6), 47(4) and 48(9) relate to the admissibility in criminal proceedings of evidence provided to auditors acting under the authority of the legislation.

30. Each provision equates with one in the current legislation. Further, the explanatory notes provide justification for breach of fundamental legislative principles.

31. The committee refers to Parliament the question whether clauses 46(6), 47(4), 48(9) and 55 are justified.

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

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

♦ clause 46

33. In order to facilitate the exercise the powers conferred on authorised auditors by part 3 of the bill, clause 46 would confer powers of entry and post-entry powers on authorised auditors. These would include powers to: • enter, at any reasonable time and without consent or warrant, a place occupied by –

- a public sector entity or other entity subject to audit; or - a financial institution with which a public sector entity, or other entity subject to audit,

maintains an account (clause 46(3)(a)); • access fully and freely all relevant documents and property (clause 46(1) and (2)); • inspect, examine, photograph or film anything in a place entered (clause 46(3)(b)); • copy documents in a place entered (clause 46(3)(c)); and • take into a place entered persons, equipment and materials reasonably required (46(3)(d)).

34. The committee has considered, in other respects, the appropriate regard to rights and liberties provided in clause 46. As in its consideration in those contexts, the committee notes that the powers of entry and post-entry powers are contained in the current legislation and are proposed as ‘necessary to allow the Auditor-General to perform his or her operational responsibilities’.32 Further, the committee notes that the bill contains some safeguards of rights and liberties; see, for example, clause 44 (Identify cards for authorised auditors), clause 45 (Proof of authority as authorised auditor), clause 49 (Compensation) and clause 53 (Confidentiality). Given these considerations, the committee suggests that clause 46 has sufficient regard to rights and liberties of individuals.



Chapter 2 Page 19

35. Clause 46 would confer powers of entry and post-entry powers on authorised auditors.

36. The committee suggests that clause 46 has sufficient regard to rights and liberties of individuals.



♦ clause 31

38. Clause 30(1) and (2) of the bill would require the auditor-general to audit, each financial year, the consolidated fund (public accounts) and all public sector entities other than the Queensland Audit Office. However, clause 30(3)(a) provides that a regulation made under clause 31 may exempt a public sector entity from audit by the auditor-general.

39. Clause 31(1) would enable the Governor in Council to exercise delegated legislative power to exempt a public sector entity from audit by the auditor-general. However, clause 31(2) provides that the Governor in Council may not exercise the delegated power unless the Minister has consulted with the auditor-general about the proposed regulation.

40. In respect of the delegation of legislative power to be allowed by clause 31, the explanatory notes to the bill identify possible inconsistency with fundamental legislative principles:33 The Bill could be considered to infringe Fundamental Legislative Principles as clause 30 has the potential to authorise the amendment of the operation of the Bill through a regulation. The regulation could be used to exclude a public service entity from the requirement that it be audited by the auditor-general.

41. A ‘Henry VIII’ clause is defined by the committee as a clause in an Act of Parliament which enables the Act to be amended by subordinate or delegated legislation.

42. In January 1997, the committee of the 48th Parliament reported to the Parliament on Henry VIII clauses.34 While the committee generally opposes the use of Henry VIII clauses in bills, the former committee’s report stated that as a general rule it did not consider provisions enabling definitions of terms to be extended by regulation to be Henry VIII clauses. Further, the report stated that, depending on the circumstances, Henry VIII clauses may be excusable in four situations; namely, to facilitate: • immediate executive action; • the effective application of innovative legislation; • transitional arrangements; and

33 At 2.

34 Report no 3, The Use of ‘Henry VIII Clauses’ in Queensland Legislation, available at www.parliament.qld.gov.au/slc.


Chapter 2 Page 20

• the application of national schemes of legislation.

43. Where provisions may fall within the scope of those considered Henry VIII provisions, the committee examines whether the provision would represent an inappropriate delegation of legislative power. In this context, the committee notes that clauses 30 and 31 of the bill are in the same terms as existing sections 73 and 74 of the Financial Administration and Audit Act 1977. In addition, the explanatory notes indicate:35 … it is considered that appropriate checks are in place to ensure that regulations are made only in appropriate cases. Clause 63 provides authority for the Auditor-General to report to the Legislative Assembly if he or she considers that a regulation should not have been made or should have been made differently.

44. A report to the Legislative Assembly in accordance with clause 63 would facilitate parliamentary scrutiny of a regulation made in exercise of the legislative power delegated by clause 31 of the bill. The parliamentary scrutiny would include disallowance procedures, where relevant.36

45. The committee suggests that consideration of the proposed sections 30 and 31, their similarity to existing provisions and the checks on delegated power to be imposed, may indicate that the proposed delegation of legislative power in clause 31 would be appropriate.

46. Clause 31(1) would enable the Governor in Council to exercise delegated legislative power to exempt a public sector entity from audit by the auditor-general.

47. Proposed sections 30 and 31, their similarity to existing provisions and checks to be imposed on any exercise of the delegated power, may indicate that the proposed delegation of legislative power would be appropriate.

48. The committee refers to Parliament the question whether the delegation of legislative power in clause 31 is appropriate.

35 At 2.

36 See Statutory Instruments Act 1992, section 50.

Alert Digest No 01 of 2009 Corrective Services and Other Legislation Amendment Bill (No.2) 2008

Chapter 3 Page 21

3. CORRECTIVE SERVICES AND OTHER LEGISLATION AMENDMENT BILL (NO.2) 2008

Background

1. On 25 November 2008, the bill was introduced into the Parliament by the Honourable Judy Spence MP, Minister for Police, Corrective Services and Sport.

2. On 3 December 2008, the Minister tabled an erratum to the explanatory notes to the bill.

Acts to be amended

3. The bill would amend the: • Corrective Services Act 2006; and • Penalties and Sentences Act 1992.

4. The bill would repeal the Sporting Bodies Property Holding Act 1975.

Reasons for bill

5. The explanatory notes state:37 The Corrective Services Act 2006 (the Act) came into force on 28 August 2006. Since the commencement of the Act a number of issues have been identified in relation to the interpretation and operation of the Act. As a result, a number of amendments are required. In some cases these amendments are proposed to reflect current policy and business practice in the management of prisons and offenders. In other cases the amendments are of a technical nature to ensure that the legislation achieves its stated objectives.



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


7. Clauses 15 to 22 of the bill would amend provisions of the Corrective Services Act regarding the process by which a person may be approved to visit a corrective services facility and the conditions under which he or she may visit.

37 At 1.


Chapter 3 Page 22

8. Clauses 15 to 22 would amend or insert provisions for: • prescription of people who would not be required to apply for approval to access correctional

facilities (clause 15); • approval of interim access granted to a personal visitor prior to a final access decision (clause

17, new section 156A); • approval of urgent access granted to a commercial visitor for the purposes of maintenance

(clause 17, new section 156B); • exemption from requirements to submit an application form and for assessment under section

156(2) conferred on law enforcement, child safety, emergency services officers (clause 15); • a legal practitioner to apply for access without the requirement of assessment against factors

listed in section 156(2) of the Corrective Services Act (clause 16(1)); • suspension by the chief executive of access approval in specified circumstances for a period of

up to one year (clause 18); • amendment or revocation of access approval (clause 19); and • requirements that adult visitors undergo biometric identification at each visit (clause 20).

9. The explanatory notes to the bill do not provide specific information as to whether clauses 15 to 22 have sufficient regard for rights and liberties of individuals. In respect of the bill generally it is stated that:38 The Bill has been drafted with due regard to the Fundamental Legislative Principles (FLPs) as outlined in the Legislative Standards Act 1992 (the LSA). Section 4(2) of the LSA requires that legislation has sufficient regard to the rights and liberties of individuals.

10. The information provided regarding the reasons for the bill indicates that, in respect of the interpretation and operation of current provisions of the Corrective Services Act regulating visitors to a corrective services facility, issues to be addressed are:39 • Compliance with the formal requirements in sections 155 and 156 is time consuming and is not possible

when urgent access must be facilitated eg to repair a burst water pipe;

• The scrutiny of a visitor’s application against their criminal history and whether they have been involved in escapes from prison is not necessary for all visitors who are currently subject to section 156(2);

• The power to suspend access approval does not allow for effective management of visitors who pose a risk to the security and good order of a facility. A power to cancel access and set a period of time during which a new application will not be considered is required; and;

• Biometric scanning to verify identification is used to assist with the processing of visitors. Corrective Services’ power to impose this requirement needs to be clarified to ensure that all visitors can be compelled to participate in the system.

11. Accordingly, clauses 15 to 22 of the bill raise issues regarding the rights and liberties of people detained in corrective services facilities and of the various people who visit corrective services

38 At 5.

39 At 3.


Chapter 3 Page 23

facilities. Recently, in relation to the rights and liberties of individuals detained in relation to the commission of a criminal offence,40 the committee observed that, in a free and just society offenders should be treated humanely,41 and that section 3 of the Corrective Services Act recognises that every offender should be treated humanely and with dignity and that: every member of society has certain basic human entitlements, and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.

12. In this context, the committee notes that clauses 15 to 22 seek to balance the need to maintain the safety and security of corrective services facilities with rights and liberties of individuals. The committee notes that, while clauses 15 to 22 would have an impact upon individual rights and liberties, they contain also provisions safeguarding rights and liberties. New section 157A(2) (clause 19) would require that, in making a decision to amend or revoke a visitor’s access approval, the chief executive must consider the effect of the proposed amendment or revocation on a child given approval to accompany the visitor.

13. Rights and liberties to which clauses 15 to 22 should have sufficient regard include: • the right to privacy; • the right to protection of families and children; • the right to humane treatment when deprived of liberty.

14. A submission regarding clause 20 of the bill was received from the Queensland Council for Civil Liberties. The committee has, in accordance with section 50(2) of the Parliament of Queensland Act, authorised the tabling and publication of the submission. Copies are available from the Queensland Parliament’s tabled papers site.42 The committee notes that the submission questions the justification for the significant infringement of individual rights and liberties to be imposed by clause 20. It is stated that the Corrective Services Act does not sufficiently protect personal information to ensure the privacy of biometric data collected for the purposes of clause 20.

15. In addition, the committee notes that a submission by the Human Rights Law Resource Centre Ltd to the Scrutiny of Acts and Regulations Committee of the Parliament of Victoria regarding the Corrections Amendment Bill 2008 (Vic) contains useful information regarding the rights of prisoners and the families and children of prisoners.43 In October 2008, relevant issues were discussed with the HRLRC by committee members during a discussion regarding legislative regard for the rights and liberties of individuals.

16. Clauses 15 to 22 would affect rights and liberties of individuals, including individuals detained in relation to the commission of a criminal offence, their families, friends and others including legal representatives.

40 See: AD 6/2008.

41 Article 10 of the International Covenant on Civil and Political Rights guarantees the right of all persons deprived of their liberty to be treated with humanity and respect for their inherent dignity.

42 Available at: www.parliament.qld.gov.au/view/legislativeAssembly/tabledPapers.asp.

43 Available at: www.parliament.vic.gov.au/sarc/Alert_Digests_08/Submissions/HRLRC_Corrections_Amend.pdf


Chapter 3 Page 24

17. Clauses 15 and 22 seek to balance the need to maintain the safety and security of corrective services facilities with rights and liberties of individuals.

18. The committee refers to Parliament the question whether clauses 15 to 22 have sufficient regard to rights and liberties of visitors.

♦ clause 38

19. Clause 38 would amend section 350 (Proceedings for offences) of the Corrective Services Act. A new section 350(3) would, in respect of offences under section 28F(1) and (5) regarding dealings with the artwork of prisoners, allow for a prosecution to be commenced more than one year after the offence is committed but within 6 months of it coming to the knowledge of the complainant.

20. The explanatory notes to the bill indicate that:44 Prisoners may give their artwork to a person to hold on their behalf many years before their release. An offence against the prisoner artwork provisions may not be discovered until the prisoner is released. Under the existing section 350 there is a risk that prosecutions for these offences would be out of time. The amendment therefore allows for a prosecution to be commenced more than 1 year after the offence is committed but within 6 months of it coming to the knowledge of the complainant. This will ensure that offences under this section can be effectively prosecuted.

21. In respect of whether clause 38 has sufficient regard to rights and liberties of individuals, the explanatory notes state:45 It is arguable that the Bill may breach the FLPs in that it provides in Division 1A in relation to offences related to dealing in artwork, that there will be an extension of the limitation of time for summary offences.

A proceeding for an offence under section 28F of Division 1A may start at any time but, if started more than 1 year after the commission of the offence, must start within 6 months after the offence comes to the complainant’s knowledge.

The extension to the limitation of time is justified in that the offence in relation to prisoner artwork may not be discovered until the prisoner is released. This may be many years after the offence was committed. Without an extension of the limitation of time prisoners and recipients of artwork will be able to escape prosecution.

22. Clause 38 of the bill would extend the time within which a prosecution for summary offences regarding dealings with the artwork of prisoners may be commenced.

23. The committee refers to Parliament the question whether clause 38 has sufficient regard to rights and liberties of individuals.

♦ clauses 7 and 15

24. Clauses 7 and 15 of the bill would create offences. The proposed new offences, together with respective maximum penalties, are set out below.

44 At 24.

45 At 5.


Chapter 3 Page 25

Clause New section Offence Maximum Penalty

7 28A(1) Restricted dealing with prisoner’s artwork 40 penalty units ($4000)

28E Consideration asked or accepted for prisoner’s artwork

40 penalty units ($4000)

28F(1) Unauthorised disposal of prisoner’s artwork by person holding artwork


28F(5) Consideration asked or accepted for prisoner’s artwork by person holding artwork


15 96C Failure to comply with conditions for mutual assistance approval

6 months’ imprisonment

25. Clauses 7 and 15 of the bill would create new offences.

26. The committee refers to Parliament the question whether the offences and/or the respective proposed maximum penalties have sufficient regard to rights and liberties of individuals.

♦ clause 44

27. Clause 44 of the bill would repeal the Sporting Bodies’ Property Holding Act 1975.

28. The issue of the sufficiency of regard had by clause 44 to rights and liberties of individuals was addressed by the Minister in her second reading speech:46 …the bill makes a minor change to sports legislation and repeals the Sporting Bodies’ Property Holding Act 1975. The act was established to provide a vehicle for unincorporated sporting bodies to hold property through trusts.

Since the enactment of the Associations Incorporation Act 1981, all relevant bodies in Queensland have become incorporated under either State or Commonwealth law.

The Department of Local Government, Sport and Recreation is confident that all relevant sporting bodies are using this legislation.

Further, legal advice received from Crown Law on 6 March 2006 indicated that the repeal of the act would not affect the legal ability for these affiliates to own land acquired under the act, or to divest it in the future, as the original land acquisition was undertaken in accordance with the law of the day.

The act is therefore redundant and may be repealed.

29. The committee notes the information provided by the Minister.

30. Clause 44 of the bill would repeal the Sporting Bodies’ Property Holding Act 1975, enacted to provide a vehicle for unincorporated sporting bodies to hold property through trusts.

46 Hon Judy Spence MP, Second Reading Speech, Queensland Parliamentary Debates (Hansard), 25 November 2008, 3678.


Chapter 3 Page 26

31. The committee notes information provided by the Minister in the second reading speech to the bill that rights and liberties of individuals would not be affected by enactment of clause 44.


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

♦ clause 39

33. Clause 39 would insert a new chapter 7A, part 4 into the Corrective Services Act. The new part would contain transitional provisions for the Corrective Services and Other Legislation Amendment Act 2008 to ensure:47 • resettlement leave of absence programs approved prior to the commencement of the amending

legislation could continue but that a new program could not be approved (see clauses 10 to 13); • orders granting reintegration leave prior to the commencement of the amending legislation

would continue in force but that new grants of leave could not be made; • the validity of parole board decisions made after 1 July 2001 taken more than 120 days after

receipt of an application; • the validity of anything done or omitted to be done regarding the automatic cancellation of

parole under section 209 prior to its amendment by the amending legislation or under the repealed Corrective Services Act 2000 where a sentence of imprisonment ‘to the rising of the court’ was imposed (see clause 29); and

• the validity of prior dealings in relation to prisoner trust accounts, as per compliance with the new sections 311 and 311A (see new section 490).

34. The committee examines legislation that could have effect retrospectively to evaluate whether rights or liberties would be adversely affected or whether obligations imposed retrospectively would be unduly onerous. When considering ‘sufficient regard’, the committee generally examines whether: • the retrospective operation would be adverse to persons other than the government; and • individuals have relied on the legislation and would have legitimate expectations based on the

existing legislation.

35. The committee notes that these matters have been addressed in the explanatory notes to the bill, which state generally that, ‘There may be an argument that the transitional provisions for certain amendments breach section 4(3)(g) of the LSA in that they provide for retrospective operation.’48


48 At 5.


Chapter 3 Page 27

36. More specifically, the explanatory notes provide justification for the retrospective operation of the latter three elements of the proposed transitional provisions:49 The amendment to section 209 will ensure that sentences of imprisonment to the rising of the court do not automatically cancel a parole order. The provision currently requires that parole be automatically cancelled when this sentence is imposed. It was not possible to take this action in all cases as information in relation to this sentence of imprisonment. The fact that a sentence to the rising of the court was ordered was not always provided to Queensland Corrective Services as this sentence does not require supervision. Given that there has been inconsistent application of this provision some clarification of its commencement and how it affects past decisions is required.

The amendment will be deemed to have commenced with the Act on 28 August 2006. It will also be provided that past action to automatically cancel a parole order for a sentence of imprisonment to the rising of the court is valid. Equally, where action was not taken to automatically cancel the parole order this will also be deemed valid. This will provide certainty for offenders and ensure that it is not necessary to review past decisions.

For parole board decision making a provision is included to the effect that past decisions made by the parole boards, under both the Corrective Services Act 2006 and the Corrective Services Act 2000, are valid. This will ensure that past decisions to release offenders or refuse parole made more than 120 days after the application was received will not be able to be called into question. This will provide certainty for offenders who have been released to parole where the decision was made more than 120 days after their application was received. However, where a court has made a ruling as to the validity of a parole board decision this will not be affected.

The amendment to prisoner trust accounts also has a retrospective operation. Action taken by the chief executive on or after 20 June 2008 will be taken to be valid as if it were done under the new sections 311 and 311A. This will ensure that action taken by Queensland Corrective Services to manage trust accounts in accordance with the procedure that commenced on 20 June 2008 is valid.

37. Further, in respect of the removal of resettlement and reintegration leave of absence from the Corrective Services Act, the explanatory notes provide:50 The Bill amends the Act to remove both forms of leave of absence. Prisoners with programs of resettlement leave that have already been approved will be permitted to complete the program. The power to issue individual resettlement leave of absences will be preserved in relation to these programs. No new programs will be able to be approved. Where an order granting reintegration leave of absence has been issued that order continues to have effect. No new orders will be able to be issued.

38. Clause 39 would insert transitional provisions and would have retrospective operation.

39. In relation to each proposed element of the transitional provisions, the explanatory notes to the bill suggest that the legislation has sufficient regard to rights and liberties of individuals.

40. The committee refers to Parliament the question whether the proposed retrospective operation of clause 39 is justified in all the circumstances of the bill.

49 At 6.

50 At 3-4.


Chapter 3 Page 28

Alert Digest No 01 of 2009 Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008

Chapter 4 Page 29

4. CRIMINAL PROCEEDS CONFISCATION AND OTHER ACTS AMENDMENT BILL 2008

Background

1. The Honourable Kerry Shine MP, Attorney-General and Minister for Justice and Minister Assisting the Premier in Western Queensland, introduced into the bill into the Legislative Assembly on 2 December 2008.

Acts to be amended

2. The bill is to amend the: • Criminal Proceeds Confiscation Act 2002; • Fair Trading Act 1989; • Security Providers Act 1993; and • Trusts Act 1973.

Reasons for bill

3. The explanatory notes state:51 The objective of the Bill is to make amendments to the following Acts administered by the Attorney-General and Minister for Justice and Minister Assisting the Premier in Western Queensland -

• The Criminal Proceeds Confiscation Act 2002 (CPC Act), following a review of the Act, to ensure its continued effectiveness in achieving its objects;

• The Fair Trading Act 1989 (FT Act) to remove the capacity for exemptions from the prohibited hours of door-to-door trading;

• The Security Providers Act 1993 (SP Act) to improve industry standards through establishing a requirement that security firms belong to an approved industry association and to amend existing provisions to reflect the Commonwealth’s greater role in industrial relations regulation; and

• The Trusts Act 1973 (Trusts Act) to enable bodies which are deductible gift recipients, such as the State Library and the Queensland Art Gallery, to receive donations from ‘Prescribed Private Fund’ (PPF) and ancillary fund donors without compromising the donors’ tax-exempt status.




51 At 1.


Chapter 4 Page 30

♦ various provisions

5. Various provisions of the bill would create new offences. The proposed new offences, together with respective maximum penalties, are set out below.

Clause New section Offence Maximum Penalty

Criminal Proceeds Confiscation Act

12 38(2) Contravention of administration order made under section 37

100 pu ($10 000) or two years’ imprisonment

21 42A Contravention of property particulars order 100 pu ($10 000) or two years’ imprisonment

37 130(2) Contravention of administration order made under section 129

100 pu ($10 000) or two years’ imprisonment

46 134A Contravention of property particulars order 100 pu ($10 000) or two years’ imprisonment

55 Replacement 249(6)

Unauthorised disclosure of information by particular officer

10 pu ($1000)

56 249C Prohibited disclosure regarding notice to financial institution

100 pu ($10 000)

56 249E Failure by financial institution to comply with notice 100 pu ($10 000)

Security Providers Act

75 21A Failure by security industry association to give notice of persons whose membership has ended

20 pu ($2000)

6. Clause 57 of the bill provides for an alteration in the penalty for the offence of money laundering under section 250 (Money laundering) of the Criminal Proceeds Confiscation Act: Currently, section 250(1) provides that a person who engages in money laundering commits a crime. Clause 57 would replace the maximum penalty, 3000 penalty units or 20 years’ imprisonment, with: Maximum penalty— (a) for knowingly engaging in money laundering—3000 penalty units or 20 years imprisonment; or (b) for recklessly engaging in money laundering—1500 penalty units or 10 years imprisonment.

7. In his second reading speech, the Attorney stated:52 Currently the offence of money laundering requires proof that the offender knew or ought reasonably to have known that the property he or she dealt with was tainted property, for example, the proceeds of criminal activity.

The bill amends this offence to cover the situation where a person deals with tainted property and is reckless as to whether it is tainted property.

52 Hon Kerry Shine MP, Second Reading Speech, Queensland Parliamentary Debates (Hansard), 2 December 2008, 3964.


Chapter 4 Page 31

This brings Queensland’s offence into line with other jurisdictions including the Commonwealth, New South Wales, Tasmania and Victoria, by providing a lower level offence for reckless money laundering.

8. Various provisions of the bill would create new offences.

9. Clause 57 would alter the penalty for the offence of money laundering under section 250 (Money laundering) of the Criminal Proceeds Confiscation Act.

10. The committee refers to Parliament the question whether the offences and/or the respective proposed maximum penalties have sufficient regard to rights and liberties of individuals.

♦ clauses 20, 45 and 56

11. Clauses 20, 45 and 56 would affect rights to privacy and confidentiality.

12. Clauses 20 and 45 (new sections 41A(2) and 133A(2)) would amend the Criminal Proceeds Confiscation Act to allow the dissemination and use of information provided during a compulsory examination:53 Subsection (2) provides that the dissemination of information, its use to obtain derived evidence or the admissibility of derived evidence is unaffected by the fact that examinations are conducted in private, any duty of confidentiality owed to the examinee, or the purpose for which information was obtained. These are issues were raised in the Hatfield case and the case discussed therein - Johns v Australian Securities Commission (1993) 178 CLR 408.

13. The explanatory notes imply that the amendments state clearly the parliamentary intent regarding the provision (that is, investigators are enabled to obtain full details of a person's property and financial dealings allowing, in turn, appropriate action towards the property to be taken under the legislation). A further implication is that this justifies any interference with rights to privacy and confidentiality.

14. Clause 56 would insert a new chapter 8, part 2, division 3 into the Criminal Proceeds Confiscation Act. The new division would require a financial institution, upon receipt of a written notice issued by either a police officer of minimum rank of inspector or authorised commission officer, to advise whether a nominated person holds an account with the institution.

15. In justification of the proposed requirements regarding disclosure of private or confidential information, the explanatory notes state:54 This provision is narrower than other Australian jurisdictions, such as the Commonwealth and South Australia, under which more extensive information is compellable. The information which is compelled under the amendments [is] limited to the minimum required to obtain a warrant. Also, a police officer or commission officer can only compel the disclosure of this information if they reasonably believe that the information is required (a) to determine whether to take any action under the Act; or (b) in relation to proceedings under the Act.


54 At 6-7.


Chapter 4 Page 32

16. Clauses 20, 45 and 56 would affect rights to privacy and confidentiality.

17. The committee refers to Parliament the question whether clauses 20, 45 and 56 have sufficient regard to rights and liberties of individuals.


18. Section 4(2)(a) requires legislation to have sufficient regard to rights and liberties of individuals and section 4(3)(f) provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation provides appropriate protection against self-incrimination.

19. Section 10 of the Evidence Act 1977 (Privilege against self incrimination) expressly preserves the common law privilege against self-incrimination which provides that:55 No one is bound to answer any question or produce any document if the answer or the document would have a tendency to expose that person to the imposition of a civil penalty or to conviction for a crime.


20. The Criminal Proceeds Confiscation Act provides for the confiscation of the proceeds of crime, including by way of: • chapter 2 – confiscation without conviction; and • chapter 3 – confiscation after conviction.

21. Each chapter provides for an ‘examination order’ (defined in sections 38(1)(c) and (d) and 130 (c) and (d)) to allow an examination for the purposes of finding out the nature and location of property. Sections 40 (in chapter 2) and 132 (in chapter 3) each provide that a person examined under an examination order is not excused from answering on the ground that the response may tend to incriminate or to render the examinee liable to a forfeiture or penalty.

22. Sections 40 and 132 of the Criminal Proceeds Confiscation Act remove protection against self incrimination. In its examination of the then Criminal Proceeds Confiscation Bill 2002, the committee of the 50th Parliament considered the application to sections 40 and 132 of the fundamental legislative principle that legislation provide appropriate protection against self incrimination:56 These examination provisions are not dissimilar to powers conferred on a range of state and federal law enforcement and regulatory bodies and the Attorney would no doubt argue for their inclusion on the basis that conventional powers are inadequate to obtain full details of a person’s financial dealings and property interests. Comparable provisions can also be found in the Proceeds of Crime Act 2002 (Cth) and the Criminal Assets Recovery Act 1990 (NSW).

55 JD Heydon, Cross on Evidence, 7th ed, LexisNexis Butterworths, Sydney, 2004, [25065].

56 See AD 10/2002 at 10-11.


Chapter 4 Page 33

In return for the removal of the privilege against self incrimination, the bill confers a direct use immunity which precludes any information given during a compulsory examination from being used in any civil or criminal proceedings.

However, the bill stops short of giving the compelled answer derivative use immunity. This means that further evidence derived from or obtained as a result of the answer given or document provided remains admissible in criminal and civil proceedings against the person who provided the answer or produced the document.

23. Following enactment of the legislation, in Meredith v State of Queensland [2006] QSC 9, Byrne J construed the ‘sensible operation’ of section 40 and section 265 (regarding the transcript of answers given) as being to:57 … facilitate the identification of property – an exercise that assists in promoting the efficacy of a subsequent forfeiture order. They also authorise the use of responses to questions about property to support the State’s case in forfeiture and proceeds assessments applications that the suspect was engaged in serious criminal activity.

24. On appeal from the decision of Byrne J, the nature of the existing statutory power was considered also by the Court of Appeal in Meredith v State of Queensland [2006] QCA 465 where it was held that an examinee was not obliged to answer questions exclusively about whether he had engaged in serious criminal activity.

25. The judgments of the Court made reference to legislative intent regarding the examination powers. McMurdo P, noted the consistency of the Court’s decision with the following statement in the explanatory notes to the bill:58 The examination provisions were included in the original confiscation legislation and were introduced because normal powers were considered inadequate to obtain complete information about the affairs of a person subject to a confiscation application. The justification for the power is that it enables investigators to obtain full details of a person's property and financial dealings which in turn would allow appropriate action to be taken under the Bill to forfeit illegally obtained property or release legitimate property from restraint. The information sought could include information which is exclusively within the knowledge of the person concerned.

26. Keane JA (with whom McMurdo P and Mackenzie J concurred) referred also to the objects of the legislation:59 It is important to bear in mind that the main object of the legislation is, as s 4(1) of the Act declares, "to remove the financial gain and increase the financial loss associated with illegal activity, whether or not a particular person is convicted of an offence because of the activity". There is no hint in s 4 of the Act of any legislative intention to facilitate inquiries into criminal activity on the part of an examinee where that criminal activity has nothing to do with financial gain or financial loss. Nor is there any hint of such an intention in the Explanatory Notes to the Criminal Proceeds Confiscation Bill.

27. Clauses 20 and 45 seek to clarify parliamentary intention regarding the use that may be made of answers given and documents produced during examinations. In his second reading speech to the bill, the Attorney indicated:60

57 At [35].

58 At [2], emphasis of McMurdo P.

59 At [22].


Chapter 4 Page 34

The bill clarifies that nominated state agencies can disseminate information obtained during compulsory examination to other agencies in specified circumstances.

28. To that end, clause 20 of the bill would insert a new section 41A (Use and dissemination of examination information) into the Criminal Proceeds Confiscation Act:61 This new section provides a positive mandate for the DPP or the commission to disseminate information obtained in an examination to a corresponding entity or an entity of the State, another State or the Commonwealth (defined in subsection (4)) whose lawful function is to investigate or prosecute offences, to help the respective entity to obtain other evidence or information (derived evidence) that may be relevant to the enforcement of a corresponding law or to the investigation or prosecution of an offence.

29. Similarly, clause 45 would insert a new section 133A (Use and dissemination of examination information):62 This new section is equivalent to new section 41A and provides a positive mandate for the DPP, the commission or the commissioner for police to disseminate information obtained in an examination to an corresponding entity or an entity of the State, another State or the Commonwealth (defined in subsection (4)) whose lawful function is to investigate or prosecute offences, to help the respective entity obtain other evidence or information (derived evidence) that may be relevant to the enforcement of a corresponding law or investigation or prosecution of an offence.

30. The explanatory notes to the bill indicate that clarification of the intent of the Queensland Parliament is necessary following a decision of Hulme J in the Supreme Court of New South Wales, DPP V Hatfield:63 The Bill confirms that the CPC Act allows for dissemination of information obtained during compulsory examinations. This clarifying amendment is consistent with the legislature’s original intent which is clearly expressed in the original Act’s Explanatory Notes. This amendment is required as in the DPP v Hatfield [2006] NSWSC 195, the NSW Supreme Court considered equivalent provisions of the Commonwealth’s Proceeds of Crime Act 2002 and determined that dissemination of information disclosed in an examination to police or prosecutors to use against third parties or for use as a link to other evidence against the examinee (that is, derivative use), was not permitted under the provision as currently drafted.

31. Further, the explanatory notes state that the:64 • explanatory notes to the original bill indicated a parliamentary intention that examination

information could be used to ‘lead to further evidence, which is admissible against the person who gave the answer or produced the document’; and

• proposed amendments are consistent with a recommendation of the Parliamentary Crime and Misconduct Committee.

60 Hon Kerry Shine MP, Second Reading Speech, Queensland Parliamentary Debates (Hansard), 2 December 2008, 3964.



63 At 5.

64 At 13; see: recommendation 7, Parliamentary Crime and Misconduct Committee, Report no 71, Three Year Review of the Crime and Misconduct Commission,-tabled 9 October 2006, available at: www.parliament.qld.gov.au/pcmc. The explanatory notes to the bill refer to recommendation 10 rather than recommendation 7.


Chapter 4 Page 35

32. As for its examination of the Auditor-General Bill 2008 in chapter 1, the committee notes that Australian courts have recognised the power of the Parliament to abrogate the privilege against self incrimination, but that the courts have indicated a reluctance to give a wide interpretation to such provisions.65

33. In its consideration whether the bill provides appropriate protection against self-incrimination, the committee notes that it is necessary to draw a distinction between the: • nature of the statutory power conferred under chapters 2 and 3 of the Criminal Proceeds

Confiscation Act to conduct an examination; and • use/s that may be made of information provided during such an examination.

34. Clauses 20 and 45 do not seek to alter the former, but to clarify and possibly extend the latter. In this context, the committee notes that courts construe narrowly, in accordance with statutory objects and statements of parliamentary intent, legislation to confer a power of examination.66

35. In the context of legislation conferring powers to require the disclosure of information, the High Court has indicated a narrow interpretation of legislation:67 A statute conferring compulsory powers of examination is strictly construed. It is construed as authorising only those actions which are necessary to give effect to the purpose for which the power is conferred and whatever is reasonably incidental to that purpose.

36. In addition, the Court of Appeal decision in Meredith V State of Queensland was expressly stated to be ‘consistent with the important and well established principle of statutory interpretation’ that ‘statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect’.68

37. Regarding the uses that may be made of information and evidence gathered during the exercise of powers of examination, the committee notes that:69 … when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred. In other words, the purpose for which a power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated.

38. Accordingly, current provisions of the Criminal Proceeds Confiscation Act abrogate common law and statutory protections against self incrimination. As observed by Byrne J in State of Queensland v Meredith, the relevant provisions of the Act demonstrate a clear intention to interfere with the fundamental right for limited and specified purposes.70

65 See, for example: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543.

66 John v Australian Securities Commission (1992-3) 178 CLR 408.

67 John v Australian Securities Commission (1992-3) 178 CLR 408 per McHugh J at 467.

68 Per McMurdo P at [3], Daniels Corp v ACCC (2002) 213 CLR 543 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at 553.

69 John v Australian Securities Commission (1992-3) 178 CLR 408 per Brennan J at 423-4.

70 [2006] QSC 9 at [28].


Chapter 4 Page 36

39. Clauses 20 and 45, however, would state a parliamentary intention to allow the Director of Public Prosecutions or the Crime and Misconduct Commission to disseminate ‘a statement, disclosure document or other thing’ to an entity with ‘a function of investigating or prosecuting offences to help the identity to obtain other evidence or other information that may be relevant to the investigation or prosecution of an offence’. In short, as drafted, amendments to be effected by clauses 20 and 45 may not confine the use of examination information to the investigation and prosecution of offences directly relevant to the property and financial dealings the subject of the evidence. The abrogation of the protection against self incrimination in existing provisions of the Criminal Proceeds Confiscation Act may be given a wider effect, allowing use of information and evidence in respect of a wider range of offences.

40. Clauses 20 and 45 of the bill would allow for dissemination by the Director of Public Prosecutions or Crime and Misconduct Commission of information obtained during compulsory examinations and may not confine use of the information to the investigation and prosecution of offences directly relevant to the property and financial dealings the subject of the compulsory examination.

41. The committee refers to Parliament the question whether clauses 20 to 45 have sufficient regard to rights and liberties of individuals and, in particular, whether clauses 20 and 45 provide appropriate protection against self-incrimination.



♦ part 2

43. Various provisions in part 2 of the bill, to amend the Criminal Proceeds Confiscation Act, would ‘strengthen provisions which allow for the restraint and forfeiture of proceeds of illegal activity and tainted property as well as enabling property to be restrained and ultimately substituted for tainted property in certain circumstances’.71

44. Justification for any breach of fundamental principles is provided by the explanatory notes to the bill:72 These amendments are justified by the policy against unjust enrichment. Generally the Act contains the following safeguards (a) a person can apply to exclude property from an order if it is shown that the person’s interest in the property is not illegally acquired; and (b) provisions which assist in protecting the rights and interests of third parties.

45. The committee notes the statements made by the committee of the 50th Parliament regarding similar provisions of the then bill:73


72 At 5.

73 Alert Digest 10/2002 at 8-9.


Chapter 4 Page 37

The bill is clearly designed to take away property rights without providing compensation in the case of serious crime derived property but there is a scheme of compensation to be paid to address the adverse effect on innocent third parties.

All forfeiture laws, whether civil or criminal, interfere with the basic right of an individual to peaceful enjoyment of property, but it has never been questioned that the confiscation of the proceeds of crime is justified as a matter of principle in the public interest or that no one should be allowed to retain - whether at the expense of someone else or the community as a whole - the proceeds of crime or other unjust enrichments.

46. Various provisions in part 2 of the bill would strengthen existing provisions of the Criminal Proceeds Confiscation Act allowing restraint and requiring forfeiture of both proceeds of illegal activity and tainted property.

47. The committee refers to Parliament the question of whether part 2 of the bill has sufficient regard to rights and liberties of individuals whose property may be affected.

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

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

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

♦ clause 21

50. Clause 21 (new section 38A(c)) would amend the Criminal Proceeds Confiscation Act to provide that once the State had established that a respondent had been involved in a serious crime related activity, the respondent would be required to prove the lawful derivation of increased wealth and expenditure sought to be recovered under the proceeds assessment application.

51. The explanatory notes state:74 This is consistent with the overall intent of the civil confiscation scheme and was recommended by the Parliamentary Crime and Misconduct Committee. The Scrutiny of Legislation Committee has recognised that reverse onus mechanisms are central to the capacity of civil based forfeiture schemes to achieve their purpose.

52. The reference in the explanatory notes to committee considerations is to Alert Digest 10/2002 at 9-10.

53. In respect of whether the legislation has sufficient regard to the rights and liberties of individuals and, in particular, whether the legislation reverses the onus of proof in criminal proceedings without adequate justification, the committee notes that the relevant proceedings are not criminal in nature.

74 At 6.


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Section 8 of the Criminal Proceeds Confiscation Act provides that confiscation proceedings are civil proceedings rather than criminal proceedings.

54. Clause 21 of the bill would reverse the onus of proof.

55. The committee refers to Parliament the question of whether, in the circumstances, clause 21 has sufficient regard to rights and liberties of individuals.



♦ clause 56

57. Clause 56 would insert a new chapter 8, part 2, division 3 into the Criminal Proceeds Confiscation Act. The new division would impose additional requirements regarding financial information upon financial institutions and would similarly extend current civil immunity provisions applying to financial institutions.

58. The proposed immunity is discussed in the explanatory notes:75 This immunity is necessary to enable a person acting under a statutory obligation to fulfil that obligation.

59. In respect of provisions conferring immunity from legal proceedings, such as clause 56, the committee draws Parliament’s attention to the fundamental tenet of a parliamentary democracy based on the rule of law that everyone is equal before the law.

60. Clause 56 of the bill would extend current civil immunity provisions under the Criminal Proceeds Confiscation Act applying to financial institutions.

61. The committee refers to Parliament for consideration the question of whether the immunity provided by clause 56 is justified.



75 At 7.


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♦ clause 76

63. Clause 76 of the bill would insert a new section 25B into the Security Providers Act, providing that: 25B Approval of security industry associations The chief executive may, under requirements prescribed under a regulation— (a) approve security industry associations for the purposes of this part; or (b) withdraw a security industry association’s approval under paragraph (a).

64. The explanatory notes identify a possible inconsistency of the new section 25B with the fundamental legislative principle requiring sufficient regard to the institution of Parliament:76 It may be argued that this pays insufficient regard to the institution of Parliament by allowing the delegation of legislative power. However, specifying detailed criteria in a regulation is appropriate given matters to be specified to reflect the diverse nature of the industry, for example, privacy issues in closed circuit television monitoring compared to the physical nature of security at licensed premises. Regulations are more appropriate for the detail required to address this diversity and the increasing use of technology in the industry. The criteria will also be subject to Parliamentary scrutiny through the tabling and disallowance process under Part 6 of the Statutory Instruments Act 1992.

65. It is suggested therefore, that new section 25B may be regarded as inappropriately delegating legislative power.

66. The committee notes the justification for clause 76 provided in the explanatory notes to the bill. However, the matter to be dealt with by regulation, approval requirements for security industry associations, has potential to affect rights of individuals. For these latter reasons, the Parliament may determine sufficient regard for the institution of Parliament to necessitate requirements for approval to be located in the Act rather than in regulations.

67. Clause 76 of the bill would insert a new section 25B into the Security Providers Act and may be regarded as inappropriately delegating legislative power.

68. The committee refers to Parliament the question whether the delegation of legislative power in clause 76 is appropriate.



76 At 7.


Chapter 4 Page 40


70. Clause 13 would insert a new section 38A (Investigation orders the Supreme Court may make) into the Act. The new section 38A would allow an examination order to be made without notice of the application being given to the examinee, provided it would not be conducted less than 7 days after the making of the order unless the court considered it appropriate to be conducted at an earlier time.

71. The explanatory notes to the bill indicate:77 This minimum timeframe will enable the examinee to obtain legal advice about the examination and their obligations, as well as to apply for a grant of Legal Aid.

72. Clause 22 would amend section 45 (Notice of restraining order and other orders) to provide that under existing subsection (2), the commission would not be required to give a person whose property is restrained under a restraining order a copy of, or notice of, an examination order or a property particulars order which is directed to another person.

73. The explanatory notes provide the following justification for these provisions:78 The Bill contains amendments to the CPC Act which enable the State to apply for an investigative order, such as an examination order, without notice of the application or the order being given to the person whose property is restrained unless they are the person to whom the application or order is directed. These changes are justified on the ground that these orders are significant investigative tools which can be compromised by the requirement to give notice, for example it might allow for collusion or intimidation or raise issues about witness safety. Also, the Bill includes an ability to apply for an investigation order without notice. Where an ex parte examination order is made there is a minimum timeframe of 7 days between the order being made and the examination taking place unless the court otherwise orders. This timeframe is intended to enable the examinee time to seek legal advice..

74. Natural justice requires the observance of standards and procedures regarding fairness and good administration in administrative decision-making. Breach of the required standards and procedures can lead to the invalidity of executive action.79 Parliament may, however, exclude natural justice by way of a clear statement in legislation.80

75. Clauses 13 and 22 would exclude obligations to accord natural justice.

76. The committee refers to Parliament the question whether clauses 13 and 22 have sufficient regard to rights and liberties of individuals.

77 At 12.

78 At 6.

79 See Robin Creyke, John McMillan & Rocque Reynolds, Control of Government Action, LexisNexis Butterworths, Australia, 2005, at [10.1.1].

80 Commissioner of Police v Tanos (1958) 98 CLR 383 at 396.

Alert Digest No 01 of 2009 Financial Accountability Bill 2008

Chapter 5 Page 41

5. FINANCIAL ACCOUNTABILITY BILL 2008

Background

1. On 4 December 2008, the bill was introduced into the Legislative Assembly by the Treasurer, the Honourable Andrew Fraser MP.

Act to be repealed

2. Clause 91 of the bill would repeal the Financial Administration and Audit Act 1977.

Acts to be amended

3. The bill would: • amend the Government Owned Corporations Act 1993; and • effect consequential and minor amendments to a large number of Acts, as provided in schedule

1.

Reasons for bill

4. The explanatory notes state that the bill is: A Bill to modernise the Financial Administration and Audit Act 1977 and to update references in other Acts, including the Government Owned Corporations Act 1993.

The objective of the Bill is primarily to change the focus of Queensland’s public sector financial legislation to principles-based, with accountabilities and outcomes prescribed rather than processes. The Bill also removes the provisions relating to the Auditor-General.




Alert Digest No 01 of 2009 Financial Accountability Bill 2008

Chapter 5 Page 42


6. Clauses 46 and 47 of the bill would create offences. The proposed offences, together with respective maximum penalties, are set out below.


46 Giving the Treasurer a document containing information known to be false or misleading in a material particular


47 Giving the Treasurer information known to be false or misleading in a material particular


7. Clauses 46 and 47 of the bill would create offences and would operate to affect rights and liberties of individuals.

8. The committee refers to Parliament the question whether each offence and the respective proposed maximum penalty have sufficient regard to rights and liberties of individuals.

Alert Digest No 01 of 2009 Greenhouse Gas Storage Bill 2008

Chapter 6 Page 43

6. GREENHOUSE GAS STORAGE BILL 2008

Background

1. On 3 December 2008, the bill was introduced into the Legislative Assembly by the Minister for Mines and Energy, the Honourable Geoff Wilson MP.

Reasons for bill

2. The explanatory notes to the bill state:81 The Bill will help reduce the impact of greenhouse gas emissions on the environment. The main purpose is achieved principally by facilitating the process called greenhouse gas geological storage, also called greenhouse gas storage (GHG storage).

Other purposes of this Bill are to ensure the following for the carrying out of the activities—

• minimisation of conflict with other land uses

• constructive consultation with people affected by the activities

• appropriate compensation for owners or occupiers adversely affected by the activities

• responsible land and resource management.

Application of fundamental legislative principles82

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

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

♦ clause 2

4. Clause 2 of the bill (Commencement) and the explanatory notes to the bill, in respect of the effect of clause 2, differ.

5. Clause 2 provides: Chapters 2 and 3 commence on a day to be fixed by proclamation.

81 At 1-2.

82 The committee thanks Dr William Crane for his valued advice to assist the committee’s examination of the bill.


Chapter 6 Page 44

6. However, the explanatory notes to the bill provide:83 Clause 2 provides for the commencement of this Act, which will be on assent for the listed chapters, parts and sections, and on a day fixed by proclamation for the rest of this Act.

7. The committee notes that clause 2 does not contain ambiguity regarding commencement of the legislation. The explanatory notes, however, cannot be read consistently with clause 2.

8. Clause 2 of the bill, regarding commencement, is not ambiguous and is drafted in a sufficiently clear and precise manner.

9. However, the explanatory notes to the bill cannot be read consistently with clause 2.

10. The committee requests further information in this regard from the Minister.


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


12. Clause 27 of the bill would provide that the State is, and has always taken to have been, the owner of GHG storage reservoirs on land in the State.

13. Information regarding the proposed provision is provided in the explanatory notes:84 Just because a person creates or discovers a GHG storage reservoir or petroleum on land in the State, this does not mean that the person acquires ownership of the GHG storage reservoir or the petroleum. This is also irrespective of whether the person created or discovered a GHG storage reservoir, or petroleum, on land that is freehold or other land, and despite any Act, grant, title or other document in force from the commencement of this section of this Act.

Note that ‘the State’ does not include any of the adjacent area under the Petroleum (Submerged Lands) Act 1982.

14. Clause 28 of the bill would provide that any land grants contain a reservation to the State of all GHG storage reservoirs, and that the GHG authority holders and others authorised under this Act can enter land to undertake authorised activities carried out under this Act or any other Act that relates to activities for a GHG authority.85

83 At 4.

84 At 11.

85 In the final respect, clause 4 of the bill (Facilitation of Act by Petroleum and Gas (Production and Safety) Act 2004), for example, states the overlapping operations of that Act and the bill.


Chapter 6 Page 45

15. The regulatory regime to be established by the bill is based upon the fundamental premise in clauses 27 and 28. Clause 3 of the bill (Purposes of Act and their achievement) provides: (1) The main purpose of this Act is to help reduce the impact of greenhouse gas emissions on the environment.

(2) The main purpose is achieved principally by facilitating the process called greenhouse gas geological storage, also called greenhouse gas storage (GHG storage).

(3) This Act facilitates GHG storage by—

(a) providing for the granting of authorities (called ‘GHG authorities’) to explore for or use underground geological formations or structures to store carbon dioxide, or carry out related activities; and

(b) creating a regulatory system for the carrying out of activities relating to GHG authorities.

(4) Other purposes of this Act are to ensure the following for the carrying out of the activities—

(a) minimisation of conflict with other land uses;

(b) constructive consultation with people affected by the activities;

(c) appropriate compensation for owners or occupiers adversely affected by the activities;

(d) responsible land and resource management.

16. In 2004, the committee of the 51st Parliament examined legislation similar to the bill. The committee’s report to the Parliament on the Geothermal Exploration Bill 2004 may be found in Alert Digest 02/2004 at 3. Regarding the 2004 bill, the committee observed that, at common law, there is a presumption that a landowner also owns everything on or below the surface of that land, including all minerals on or beneath the surface. The presumption was always subject to an exception in relation to ‘Royal metals’ (precious metals, particularly gold and silver).86

17. In Australia, the common law principle has been largely abolished by statute. The Crown in right of the State is now generally declared the owner of all minerals. Grants of land also routinely include express reservations to the Crown of all minerals.

18. Previously, the committee has noted increasing statutory restrictions upon the common law right of a landowner to use his or her land in the manner he or she chooses.87

19. The committee notes that, although clause 27 would grant the State proprietary rights over geological strata existing below ground, the relevant geological formations would be at a depth that would be likely to limit adverse effects on the rights of landholders. However, as stated in clause 28, under the proposed legislation, landholders (including freehold owners, lessees and holders of native title) might be subject to intrusions and detriments.

20. The explanatory notes to the bill acknowledge that clauses 27 and 28 may be inconsistent with fundamental legislative principles: • in respect of clause 27, ‘as the Bill claims as property of the State all GHG storage reservoirs

and this may be seen as adversely affecting the rights of a freehold landowner’;88 and

86 Case of Mines (1567) 75 ER 472.

87 See: AD 01/2004 at 18-19 and AD 02/2004 at 4-5.

88 At 11.


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• in respect of clause 28, ‘as the Bill deems, in all existing or future tenures, a reservation to the State of GHG storage reservoirs and of the right of the State to carry out, and regulate, activities concerning them (called ‘GHG storage activities’)’.89

21. Justification for any inconsistency is provided:90 At common law, there is a presumption that a landowner also owns everything on or below the surface of that land (including all minerals on or beneath the surface) subject to an exception for the ‘royal metals’. Also, there is a general common law right of an owner of freehold land to use his or her land in whatever manner he or she thinks fit.

In Queensland however, the holder of freehold land does not hold an allodial title but a tenurial title based on the Torrens system, which is subject to a number of reservations to the State. The Parliament has already reserved petroleum and geothermal energy in this manner and is entitled to reserve GHG storage reservoirs.

22. Clause 27 of the bill would provide that the State is, and has always taken to have been, the owner of GHG storage reservoirs on land in the State.

23. Clause 28 of the bill would provide that any land grants contain a reservation to the State of all GHG storage reservoirs and that the GHG authority holders and others authorised under this Act can enter land to undertake authorised activities carried out under this Act or any other Act that relates to activities for a GHG authority.

24. The committee refers to Parliament the question whether the legislation and, in particular, clauses 27 and 28 of the bill, has sufficient regard to the rights of landholders.

♦ clause 336

25. Clause 336(1) of the bill would provide that authorised activities for a GHG authority may be conducted, irrespective of the rights of an owner or occupier of the land on which the activities are conducted. However, clause 337 would then impose general restrictions on the right to carry out authorised activities.

26. Clause 336 would, therefore, allow for the rights of landholders to be overridden:91 However, the Bill, while creating certain rights of access to private land, also contains numerous checks and balances to minimise and control land use conflict issues arising from this access. These provisions include a duty of care, compensation and restitution provisions, notification requirements, restrictions on activities that can be undertaken and penalties for contravening these requirements.

The provision of access is essential for the exploration and development of GHG storage sites to be able to proceed. Given the number of checks and balances provided, the minimal number of tenure likely to be involved, the relatively small “footprint” of GHG storage sites and the sparsely populated nature of the area of prime interest, this should not, however, be a significant issue.

89 At 12.

90 At 11 and repeated at 12.



Chapter 6 Page 47

It should also be noted that Parliament has already considered, and allowed, access of this nature to mineral, petroleum geothermal energy explorers, miners and developers under other legislation.

27. Clause 336 of the bill would allow authorised activities for a GHG authority to be conducted, irrespective of the rights of an owner or occupier of the land on which the activities are conducted.

28. The committee refers to Parliament the question whether clause 336 of the bill has sufficient regard to the rights of landholders.

♦ clause 361

29. Chapter 5, part 15 of the bill would allow a person authorized by the chief executive to enter land and do all things necessary to ensure a remedial requirement was complied with.

30. Clause 361 would provide that, when exercising remedial powers and a thing is removed, the thing would become the property of the State, allowing the State to deal with it by destroying it, giving it away, or selling it.

31. The explanatory notes to the bill provide justification for interference with the property rights of individuals affected:92 [I]t is envisaged that provisions in this Act (General provisions for conditions and authorised activities) will be the first legislative step taken by the Minister when requiring the former GHG authority holder to enter land previously within the area of the GHG authority or access land, to remove equipment and improvements from the subject land.

It is also envisaged that the second legislative step will be for the chief executive to give authority to a person to decommission a GHG well or pipeline, or remove equipment and improvements from the subject land.

The exercise of these remedial powers on the subject land is to keep good faith with the landholders of Queensland; they having some legislative guarantee that if, where the previous GHG authority holder has failed to decommission a GHG well or pipeline, or remove equipment and improvements, that the chief executive can authorise someone to rectify this failure.

Neither the State, nor the landholder, should be expected to cover the costs of this remediation, which may be more than the amount of the security that is held for the subject GHG authority. Consequently, the thing removed should become the property of the State, so that the costs of removal and sale may be recovered at no expense to the landholder or the State.

Nonetheless, this clause still provides for the return of the proceeds of the sale, less the costs of the remediation and the sale, to the former owner of the thing.

32. The committee notes that clause 361 would contain a number of safeguards protecting rights of individuals and would be of benefit to the landholder and to the environment.

92 At 110-111.


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33. Clause 361 would allow interference with the property rights of individuals.

34. The committee notes that clause 361 would contain a number of safeguards protecting rights of individuals and would be of benefit to the landholder and to the environment.

35. The committee refers to Parliament the question whether clause 361 has sufficient regard to the rights and liberties of individuals.

♦ clauses 87, 169 and 178

36. Various provisions of the bill would create liability to penalties for failure to comply with requirements of the legislation. The proposed provisions, together with respective maximum penalties, are set out below.


87 Non-payment of annual rent by GHG permit holder 15% of the rent

169 Non-payment of annual rent by GHG leaseholder 15% of the rent

178 Failure to comply with requirement for further report or work for surrender of GHG lease

500 penalty units ($50 000)

37. Various provisions of the bill would create liability for civil penalties.

38. The committee refers to Parliament the question whether each provision and respective penalty or maximum penalty has sufficient regard to rights and liberties of individuals.



♦ clause 425

40. Clause 9 of the bill (Act does not affect other rights or remedies) makes general provision regarding proceedings and prosecutions: • clause 9(1) - subject to sections 269 and 425 of the Act, the legislation would not affect or limit a

civil right or remedy that otherwise existed, whether at common law or otherwise; • clause 9(2) - compliance with the legislation would not necessarily show that a civil obligation

otherwise existing had been satisfied or had not been breached; • clause 9(3) - a breach of an obligation under the Act would not of itself give rise to an action for

breach of statutory duty or another civil right or remedy; and


Chapter 6 Page 49

• clause 9(4) – the Act would not limit a court’s powers under the Penalties and Sentences Act 1992 or another law.

41. Clause 269 would state who would be responsible for a GHG well upon decommissioning.

42. Clause 425(1) would provide that when a ‘designated person’ (an official, a public service officer or employee, a contractor carrying out activities relating to the administration of the Act, or a person required to comply with a serious situation direction given under the Act) might, in specified circumstances, be protected from civil liability for an act done, or omission made, honestly and without negligence under the Act. Where civil liability did not attach to a ‘designated person’, liability would instead attach to the State (clause 425(3)).

43. Clause 425(4) gives a definition of ‘civil liability’ for the purposes of the provision.

44. The committee recognises that one of the fundamental tenets of the law is that everyone is equal before the law. Consistent with this principle, the committee considers legal liability should be the same for the government, its officials and its entities as it is for private citizens. In respect of clause 425, however, the committee notes that civil liability may instead attach to the State:93 It may be considered that this provision offends the fundamental tenent of equality before the law. However, given that shifting of the liability to the State, nobody’s interests are adversely affected by this provision.

45. In specified circumstances, clause 425 would provide a ‘designated person’ with protection from civil liability for an act done, or omission made, honestly and without negligence under the Act. Under clause 47, civil liability may instead attach to the State.

46. If civil liability did not attach to a ‘designated person’, liability would instead attach to the State.

47. The committee refers to Parliament the question of whether the immunity to be provided by clause 425 is justified.




49. Various provisions of the bill may be inconsistent with principles regarding procedural fairness.



Chapter 6 Page 50

50. Chapter 2, part 2, division 3 of the bill would provide for decisions regarding tenders for GHG permits. Clause 43 of the bill would require that, at the conclusion of the tender process, notice be given to unsuccessful tenderers, providing closure of the tender.

51. The explanatory notes to the bill indicate:94 It may be considered that there is a breach of a fundamental legislative principle triggered by this clause, as there is no appeal process under this Act, provided to the unsuccessful tender applicant.

A tender process for the grant of a GHG permit ensures that the best possible outcome can be obtained in relation to the management of the State’s resources. The grant of the GHG permit is a decision made by the Minister as the steward of the State’s resources. The unsuccessful applicants have no right to the grant of a GHG permit. Therefore, an appeal against this decision is not considered appropriate.

It is also envisaged that the advertisement calling for tenders for a GHG permit will detail information about the criteria that will be used to decide competitive tender applications. Further, it is envisaged that the whole competitive tender assessment process will be transparent and publicly available to all potential tender applicants prior to the applicants submitting their tenders.

Note that the Judicial Review Act 1991, in particular section 32 ‘Request for statement of reasons’, applies to the decision making process about which this notice is given.

52. Chapter 1, part 5, division 3 identifies mandatory conditions regarding GHG permits. Clause 90 would require a holder who has received an extension of time to comply with a work program and who has not completed the work at the end of the extension to relinquish a part of the original sub-blocks of the GHG permit (the part corresponding to the amount of the work not finished). Accordingly, clause 90 would provide for the compulsory taking by the State of part of the original GHG permit holding corresponding to the amount of work unfinished after receiving an extension of time to comply with the approved work program. If the holder were to fail to give notice under clause 90(2), the Minister would be authorised to take action under clause 379(1) which, in turn, could trigger Ministerial action under clauses 381 to 385.

53. The committee notes that, while the holder may have a right to seek judicial review, as provided by the Judicial Review Act 1992, no appeal rights are set out in chapter 6, division 2 or 3.

54. The explanatory notes to the bill acknowledge a possible inconsistency with the fundamental legislative principle:95 It may be considered that there is a breach of a fundamental legislative principle triggered by this clause in that it does not provide for an appeal in relation to the penalty relinquishment. The holder in applying for an extension to complete the work program has already obtained a benefit not available to a tenure holder where there has been no change in holder. Therefore it is appropriate for there to be a penalty relinquishment in proportion of the work not completed in time. An appeal in these circumstances is not warranted.

55. Chapter 3, part 2, division 2 of the bill would regulate decisions regarding permit-related applications for GHG injection and storage leases. Clause 122 would provide an applicant with a right to appeal a decision refusing the grant of a GHG lease, but clause 123 restricts the right to appeal to the refusal of

94 At 17.

95 At 29.


Chapter 6 Page 51

the grant. Rights to appeal do not extend to appeal regarding any conditions imposed by the Minister on a grant.

56. The explanatory notes provide justification for the limited appeal right:96 The Minister setting conditions is consistent with the Minister’s initial approval of the work program and the Minister’s role as the custodian of the State’s resources.

57. In relation to clauses 122 and 123, the committee again notes that the provisions do not appear to exclude judicial review under the Judicial Review Act.97

58. Chapter 2, part 3 relates to obtaining a GHG lease by competitive tender. In respect of clause 127 which would enable the Minister to publish at any time a gazette notice terminating a tender process, the explanatory notes state:98 The ability to terminate the tender process has the potential to reduce the possibility of conflict of land use arising. The tender process may take several months, during which an issue may arise that would result in a conflict with GHG exploration and storage. The preference is to be able to terminate the tender process rather than allowing of the conflict to arise. The tender process is a means of allocating the right to explore and use the State’s resources. Compensation is not to be payable as no allocation of the State’s resources has occurred.

59. However, justification is provided for failure to accord natural justice:99 It may be considered that there is a breach of a fundamental legislative principle triggered by this clause. The grant of a GHG lease is the State exercising its rights in respect of managing the State’s GHG storage reservoirs.

The ability to terminate a call for tenders is required to protect the State’s interest in the management of those resources. Up until an application for a GHG lease in response to a call for tenders is granted, the applicant has no rights to the tenure. Therefore, the termination of the previously advertised call for tenders in no way affects the rights of the applicant, as the applicant is aware of the risk associated with any tender process prior to submitting the tender application. It should be noted that in commercial practice, tenders may be cancelled at any time. The tender process for GHG leases is no different.

60. In respect of clause 127, the committee notes that the possibility that a tender, under conditions which do not constitute a ‘legal’ offer, could be terminated during the currency of the tender process would be within the scope of normal commercial risk.

61. Clause 133 would then require a notice be given to unsuccessful tenderers, but that the giving of the notice would close tender process for the unsuccessful tenderer. Again, the explanatory notes indicate a possible inconsistency with the fundamental legislative principle:100

96 At 38.

97 Including on grounds as to ‘unreasonableness’: in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, the United Kingdom’s Court of Appeal accepted that ‘unreasonableness’ could found an independent ground on which to challenge the legality of a government decision, where a decision ‘is so unreasonable that no reasonable authority could ever have come to it’.

98 At 40.

99 At 40.

100 At 42.


Chapter 6 Page 52

A tender process for the grant of a GHG lease ensures that the best possible outcome can be obtained in relation to the management of the State’s resources. The grant of the GHG lease is a decision made by the Minister as the steward of the State’s resources. The unsuccessful applicants have no rights to the grant of a GHG lease. Therefore, an appeal against this decision is not considered appropriate.

It is also envisaged that the advertisement calling for tenders for a GHG lease will detail information about the criteria that will be used to decide competitive tender applications. Further, it is envisaged that the whole competitive tender assessment process will be transparent and publicly available to all potential tender applicants prior to the applicants submitting their tenders.

Note that the Judicial Review Act 1991, in particular section 32 ‘Request for statement of reasons’, applies to the decision making process about which this notice is given.

62. Again, the committee notes that the process regarding notice to be given to unsuccessful tenderers, to be provided by clause 133, is in line with commercial practice. As stated in the explanatory notes, a statement of reasons may be requested.

63. Chapter 5, part 1 would regulate GHG injection and storage data acquisition authorities. Clause 237 relates to the refusal of an application for a ‘data acquisition authority’ to carry out geophysical surveys on land contiguous to a GHG tenure. The granting of such authority would be additional to rights already granted to the holder under an existing permit. Clause 237 would require notice of a decision to refuse a GHG data acquisition application to be given to an applicant for a GHG data acquisition authority.

64. The explanatory notes to the bill acknowledge a possible inconsistency with the fundamental legislative principle:101 It may be considered that there is a breach of a fundamental legislative principle triggered by this clause. The holder of a GHG tenure may apply to the Minister for a GHG data acquisition authority, the granting of which would allow the applicant to conduct geophysical surveys on land contiguous to their GHG tenure. The proviso is that the contiguous land is not to be subject to another GHG tenure. The GHG tenure holder only has rights, provided for under this Act, in relation to land that is considered part of their GHG tenure. This is except where the Minister has granted a GHG data acquisition authority. The GHG tenure has no rights, provided under this Act, to land outside the boundary of their GHG tenure to conduct the key authorised activities detailed for GHG tenure under this Act.

The ability to acquire geophysical survey data is intended to assist in providing full data coverage up to the boundary of the GHG tenure in question, both to assist the GHG tenure holder and eventually, to form part of the data collected by the State.

The grant of a GHG data acquisition authority is to be made by the Minister in relation to the State’s resources and, because it does not limit any authorised activity within the GHG tenure already held by the applicant, it is not considered appropriate for an appeal to apply.

65. The committee notes, however, that an applicant would not be entitled to reasons for the refusal, although the availability of reasons: • would be relevant to whether clause 237 has sufficient regard to rights and liberties of

individuals; and • may forestall prospective legal proceedings.

101 At 70.


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66. The committee examines legislation to ensure that it accords with principles of natural justice which requires the observance of standards and procedures regarding fairness and good administration in administrative decision-making. Breach of the required standards and procedures can lead to the invalidity of executive action.102

67. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 93, McHugh J observed that, ‘The common law rules of natural justice … are taken to apply to the exercise of public power unless clearly excluded’. Accordingly, the legislature can exclude the obligation to accord natural justice. Express words are generally required.

68. The committee notes that the provisions identified above may exclude obligations to accord natural justice. In each case, justification is provided in the explanatory notes to the bill. However, the committee refers to Parliament the question whether each provision has sufficient regard to rights and liberties of individuals.

69. Various provisions of the bill would exclude obligations to accord natural justice.

70. The committee refers to Parliament the question whether the relevant clauses have sufficient regard to rights and liberties of individuals.



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

♦ clauses 393 and 409(2)

73. Two proposed provisions would reverse the onus of proof. These are: • clause 393 (Executive officers must ensure corporation complies with Act); and • clause 409 (Conduct of representatives).

74. Clause 393(1) would require executive officers of a corporation to ensure the corporation complied with the prescribed provisions of the legislation. Where an offence was committed, each executive officer of the corporation would be deemed to have committed the offence of failing to ensure compliance by the corporation (clause 393(2)). The maximum penalty for which the executive officers would be liable would be the penalty for the contravention of the offence by the individual. Clause

102 See Robin Creyke, John McMillan & Rocque Reynolds, Control of Government Action, LexisNexis Butterworths, Australia, 2005, at [10.1.1].


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393(3) would state that evidence that a corporation had been convicted of an offence under the Act would be evidence that each executive officer failed to ensure the corporation complied with the designated provisions the Act. Clause 393(4) would provide defences for an executive officer of a corporation.

75. Clause 409 of the bill would apply to a proceeding for an offence under the legislation if it would be relevant to prove a person’s state of mind. It would be an evidentiary provision obviating the need to prove ‘corporate intent’. Clause 409(2) would provide that, in those circumstances, it would be enough for the prosecuting body to show: • the conduct was engaged in by a representative of the person within the scope of the

representative’s actual or apparent authority; and • the representative had the state of mind.

76. The committee notes that in previous Alert Digests it has provided, for consideration by the Parliament, matters relevant to its consideration of whether provisions establishing the derivative liability have sufficient regard to rights and liberties of individuals.103

77. Where legislation infringes the fundamental legislative principle regarding reversal of the onus of proof, the committee refers to the Explanatory Notes for information regarding justification of the breach. In respect of clause 393, the explanatory notes provide justification for the breach of fundamental legislative principle:104 Of the offences listed, apart from those in chapter 6, part 2 (General offences), it could be said that they confine executive officer responsibility to ensuring the corporation complies with specific operational or administrative requirements such as the lodging of required reports. Of the general offences, it might be said that the elements of the offences are all matters that require proof of the offence and should fall within the executive officer's knowledge or responsibility.

It may be considered that there is a breach of a fundamental legislative principle triggered by this clause, as there is a reversal of onus of proof. However, this provision is a standard clause in many pieces of legislation, including the Child Care Act 2002, Property Agents and Motor Dealers Act 2000, and the Environmental Protection Act 1994. It is appropriate that an executive officer, who is in a position to influence the conduct of the corporation, should be accountable for offences committed against provisions of this Act by the corporation. However, it should be noted that there are standard defences within this provision relating to whether the executive officer was in a position to influence the corporation’s conduct in relation to the offence or, if the executive officer was in this position, that the officer exercised reasonable diligence to ensure the corporation complied with the provision.

78. In respect of clause 409(2), the explanatory notes state:105 It may be considered that there is a breach of a fundamental legislative principle triggered by this clause, as there is a reversal on the onus of proof. However, it is appropriate that a person, who is in a position to influence the conduct of their representative, should be accountable for offences committed against provisions of this Act by the representative. However, it should be noted that there are defences within this provision relating to whether the person was in a position to influence the representative’s conduct in relation to the

103 See: AD 06/2008 at 13 and 43 to 46.

104 At 119-120.

105 At 123.


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offence or, if the person was in this position, that the person exercised reasonable diligence to ensure the representative complied with the provision.

79. The committee notes the justification provided in relation to each proposed provision. The committee notes also that clauses 393 and 409 are in the same terms as provisions in, for example, the Environmental Protection Act 1994.

80. The committee notes that clauses 393 and 409(2) of the bill would reverse the onus of proof and would impose derivative liability for offences.

81. The committee refers to Parliament the question of whether, in the circumstances, clauses 393 and 409(2) have sufficient regard to the rights and liberties of individuals.



♦ clause 172

83. Chapter 3, part 6 of the bill would state mandatory conditions for GHG leases. Clause 172 would require the holder of a GHG lease to submit a later development plan at specified times and on specified occasions. Clause 172(2) would require a later development plan to be accompanied by ‘a relevant fee’. Clause 172(6) defines a ‘relevant fee’ as, in effect, the fee set by regulation.106

84. Where legislative power is to be delegated to allow fees to be set, the committee considers the manner in which the fees are to be set and, in particular, whether the fees would be prescribed by regulation or administratively. In the past, the committee has considered also the objectives of fees to be imposed, including for recovery of: • administrative costs in respect of certain aspects of the administration of a legislative scheme; • all administrative costs of a legislative scheme; or • all administrative costs of a legislative scheme, together with an additional impost.

85. In each case, the committee has stated that the imperatives identified above are, essentially, a matter of policy. However, the committee has suggested that the legislation should identify the applicable policy imperative.

86. In this regard, the explanatory notes to the bill indicate:107


107 At 52.


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It may be considered that there is as a breach of a fundamental legislative principle triggered by this clause. The late lodgement fee is proposed to encourage the timely submission of later development plans, by GHG lease holders, for Ministerial approval. The time for lodgement of a later development plan has been determined with a view to completing the necessary work of assessing, and approving or rejecting the later development plan before the expiry of the current development plan approved for the GHG lease. The late lodgement of the later development plan greatly reduces the time for this. To discourage the late lodgement of later development plans, and to reduce unnecessary increases in the Minister’s and administering department’s work loads, an application fee greater than the lodgement fee is proposed.

The GHG lease holder has 40 to 100 business days, before the end of the current approved development plan period, to submit the later development plan without incurring the proposed larger application fee. This is a reasonable timeframe for lodgement, considering the GHG lease holder has known of this date since the approval of the current development plan.

87. The committee notes the information provided. It appears to indicate that rather than being required to pay a ‘fee’, a lease holder may be liable for the payment of a civil penalty. The penalty would be ten times the prescribed fee. It may be regarded by the Parliament as excessive. In addition, when regarded as a penalty, rather than a ‘fee’, the amount to be paid might be considered more appropriately a liability to be set by way of the exercise of legislative, rather than administrative, power.

88. Clause 172(2) would require a GHG leaseholder lodging a later development plan to pay ‘a relevant fee’.

89. The committee refers to Parliament the question whether the bill allows the delegation of legislative power only in appropriate cases and to appropriate persons.




91. Clause 335 of the bill would confer powers on a holder or former holder of a GHG authority to enter relevant land subject to the provisions of chapter 5, part 12, division 2, or to cross other land to enter the relevant land, so that the holder or former holder may comply with the legislation.

92. The committee notes the justification for breach of fundamental legislative principles by clause 335 provided in the explanatory notes. They state:108 It may be considered that there is a breach of fundamental legislative principles triggered by this clause, as there is a power to enter without warrant and the effect this entry has on the rights of owners or occupiers.

However, although there is no warrant required to enter the land, the occupier or owner of the land generally instigates the procedure for the removal of equipment and improvements and is not too concerned about the

108 At 101.


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procedure for allowing entry onto their land, providing the end result is the removal of the offending equipment or improvements from the subject land. This right of entry is balanced by application of the private land, public land and compensation provisions of this Act.

If the former holder intends to enter the land and any occupier of the land is present at the land, the former holder also must show, or make a reasonable attempt to show, the occupier the former holder’s authorisation under this section.

It should also be noted that the there are two safeguards against any unnecessary effect upon the rights of the occupier or owner drafted in this Act for this clause. First, the Minister’s power under this clause does not extend to allowing entry to a structure, or a part of a structure, used for residential purposes, without the consent of the occupier of the structure or part of the structure. Second, every attempt must be made by the former holder, who has the entry authorisation, to show the occupier or owner the former holder’s authorisation.

93. Clause 356 of the bill would confer an authorized person (authorized by the chief executive) with entry and post-entry powers in respect of the enforcement of end of authority and area reduction obligations. An authorized person would be able to enter land and do all things necessary to ensure a remedial requirement was complied with and to enter any other land to gain access to relevant land.

94. The committee notes that certain safeguards of individual rights and liberties are included in the legislation, including that the authorized person may not enter residential structures without the consent of the occupier (clause 356(3)).

95. Further safeguards are included in the explanatory notes:109 It may be considered that there is a breach of fundamental legislative principles triggered by this clause, as there is a power to enter without warrant, and the effect this entry has on the rights of owners or occupiers.

However, although there is no warrant required to enter the land, the occupier or owner of the land generally instigates the procedure for the decommissioning of a GHG well or pipeline, or removal of equipment and improvements, and will not generally be concerned about the procedure for allowing entry onto their land, providing the end result is the decommissioning of the GHG well or pipeline, or removal of the offending equipment or improvements from the subject land.

There are two safeguards against any unnecessary effect upon the rights of the occupier or owner drafted in this Act for this clause. First, the chief executive’s power under this clause does not extend to allowing entry to a structure, or a part of a structure, used for residential purposes, without the consent of the occupier of the structure or part of the structure. Second, every attempt must be made, by the authorised person who has the entry authorisation, to show the occupier or owner the authorisation.

It should also be noted that each owner and occupier of the subject land is to be given a detailed notice about the entry to the subject land 10 days before the actual entry is to occur.

96. Clauses 335 and 356 would confer authorised persons with powers of entry and post-entry powers.

97. The committee refers to the Parliament the question whether clauses 335 and 356 have sufficient regard to rights and liberties of individuals.

109 At 109, regarding clause 357.


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Is the legislation constitutionally valid?

98. Section 4(1) of the Legislative Standards Act requires legislation to have accord with the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.

♦ clause 379

99. Chapter 6 of the bill (Enforcement, offences and proceedings) would provide, in part 1, for non-compliance action regarding GHG authorities. Clause 379 of the bill is intended to allow the Minister to take certain ‘noncompliance’ actions. The nature of the noncompliance action would depend on the GHG authority type and would include: • reducing the term of a GHG permit or GHG data acquisition authority; • amending or imposing conditions; • suspension or cancellation of the GHG authority; • acting in relation to a GHG permit, so as to reduce the permit area or withdraw the work

program approval; and • imposing a monetary penalty to be used in place of other actions.

100. The explanatory notes to the bill indicate:110 This clause provides a head of power that may be construed as being quasi-judicial.

While this may be argued, procedural fairness (due process) to the holder before such a decision is made, has been provided for in this Act. Any penalties imposed by the Minister will be commensurate with the severity of the noncompliance and will be considered in the context of the grounds for which such an action has been taken.

101. The committee notes that the Constitution of Queensland 2001 does not contain any statement that the judicial power of the State is vested exclusively in its courts. Nor have Australian courts recognised any doctrine requiring a separation of judicial and non-judicial power derived from any State Constitution.111 Therefore, the committee suggests, that clause 379 accords with the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.

102. Clause 379 of the bill would confer the Minister with powers that may be regarded as having the incidents of judicial power.

103. The committee suggests that clause 379 accords with the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.

110 At 115.

111 See, eg, Clyne v East (1967) 68 SR (NSW) 385 and Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.


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

104. Section 4(3)(c) of the Legislative Standards Act 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 power only in appropriate cases and to appropriate persons.

♦ clause 426

105. Clause 426 would allow the Minister or chief executive to delegate respective powers under the legislation to ‘an appropriately qualified public service officer or employee’. The term ‘employee’ is not defined for the purposes of the legislation but, as persons employed under the Public Service Act are ‘public service officers’, ‘employee’ is likely to mean a private contractor.

106. Indeed, the explanatory notes indicate that the ability to delegate would extend to delegation to ‘an appropriately qualified contractor carrying out activities for the department’. However, clause 426 does not state that powers may be delegated to a contractor.

107. The committee is not aware of previous legislation delegating administrative power as proposed in clause 426. The committee raises, for the consideration of Parliament, a concern that the delegation of powers and functions, conferred by statute on the Minister, upon a private contractor would raise significant issues regarding accountability for the exercise of such powers and functions.

108. However, the explanatory notes to the bill state:112 It may be considered that there is a breach of a fundamental legislative principle triggered by this clause, as it may be perceived that it is not appropriate to delegate the Minister’s or chief executive’s powers to a contractor. However, there are restrictions in this clause that require the contractor to be appropriately qualified and be carrying out activities pursuant to the administration of this Act for the department. It is envisaged that the Minister’s or chief executive’s powers will be delegated to a contractor in rare and unusual circumstances, such as when a public service officer or employee, is not considered suitably qualified to be delegated such powers.

109. Clause 426 would allow the Minister or chief executive to delegate respective powers under the legislation to an appropriately qualified public service officer or employee.

110. The explanatory notes indicate that the ability to delegate would extend to delegation to ‘an appropriately qualified contractor carrying out activities for the department’.

111. The committee requests information from the Minister regarding the people to whom powers may be delegated under clause 426.

112 At 128.


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Alert Digest No 01 of 2009 Mineral Resources Amendment Bill 2008

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7. MINERAL RESOURCES AMENDMENT BILL 2008

Background

1. Together with the Mineral Resources Amendment Bill (No. 2) 2008, the bill was introduced into the Legislative Assembly on 26 November 2008 by Mr Ronan Lee MP, Member for Indooroopilly. The bill is a private member’s bill.

Acts to be amended

2. The bill would amend the Mineral Resources Act 1989.

3. The explanatory notes to the bill indicate the necessity of consequential amendment to the Environmental Protection Act 1994.113 However, the bill does not provide for the consequential amendment.

Reasons for bill

4. In his second reading speech to the bill, the Member for Indooroopilly stated:114 This Bill makes a number of amendments to the Mineral Resources Act 1989 to achieve the objective of banning uranium exploration.

5. Accordingly, the bill prohibits ‘the issuing of exploration permits and mineral development licences for uranium’.115


6. The committee has examined the bill and considered the application of fundamental legislative principles to the bill.

7. The committee does not identify, for the consideration of the Parliament, any matters regarding the application of fundamental legislative principles.

8. The committee does not identify any matters regarding the application of fundamental legislative principles to the bill.

113 At 2.

114 Mr Ronan Lee MP, Second Reading Speech, Queensland Parliamentary Debates (Hansard), 26 November 2008, 3773.


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Alert Digest No 01 of 2009 Mineral Resources Amendment Bill (No.2) 2008

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8. MINERAL RESOURCES AMENDMENT BILL (NO.2) 2008

Background

1. Together with the Mineral Resources Amendment Bill 2008, the bill was introduced into the Legislative Assembly on 26 November 2008 by Mr Ronan Lee MP, Member for Indooroopilly. It is a private member’s bill.

Acts to be amended

2. The bill would amend the Mineral Resources Act 1989.

Reasons for bill

3. In his second reading speech to the bill, the Member for Indooroopilly stated:116 This Bill makes a number of amendments to the Mineral Resources Act 1989 to achieve the objective of banning uranium mining.

4. The bill would, therefore, prohibit ‘the issuing of mining leases for the mining of uranium’.117


5. The committee has examined the bill and considered the application of fundamental legislative principles to the bill.

6. The committee does not identify, for the consideration of the Parliament, any matters regarding the application of fundamental legislative principles.

7. The committee does not identify any matters regarding the application of fundamental legislative principles to the bill.

116 Mr Ronan Lee MP, Second Reading Speech, Queensland Parliamentary Debates (Hansard), 26 November 2008, 3774.


Alert Digest No 01 of 2009 Mineral Resources Amendment Bill (No.2) 2008

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Alert Digest No 01 of 2009 Planning (Urban Encroachment-Milton Brewery) Bill 2008

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9. PLANNING (URBAN ENCROACHMENT-MILTON BREWERY) BILL 2008

Background

1. On 27 November 2008, the bill was introduced into the Parliament by the Honourable Paul Lucas MP, Deputy Premier and Minister for Infrastructure and Planning.

Reasons for bill

2. The explanatory notes state:118 The purpose of the Planning (Urban Encroachment—Milton Brewery) Bill 2008 (the Bill) is to ensure clarity and certainty in an environment of increasing development and intensification, therefore creating an enabling environment for development in the area...

The Bill confers immunity from criminal (local law) and civil proceedings, for releasing contaminants in the atmosphere, noise and light emissions based nuisance complaints in relation to certain development where the Brewery is operating within its licence conditions.




♦ clauses 7 and 8

4. Part 3 of the bill (clauses 7 and 8) would affect rights and liberties of individuals. Affected in particular would be the rights and liberties of residents to adequate housing, to the use and enjoyment of their properties and to seek restitution for infringement of rights and liberties.

5. Clause 8 of the bill provides for the limitation of civil or criminal proceedings that might be taken by an affected person against Milton Brewery. Clause 8(1) identifies the class of individuals whose rights and liberties may be affected by the legislation; namely those who would be: • an ‘affected person’, defined in clause 8(5) to mean the owner (and successors in title of an

owner), occupier or lessee of premises the subject of a relevant development application for a material change of use or lot reconfiguration;119

• entitled to claim that an act at the Milton Brewery was, or will be, an unreasonable or likely interference with an environmental value;

118 At 1-2.

119 Clause 5 defines a ‘relevant development application for the purposes of the Act. Although a development application for a material change of use of premises or reconfiguring a lot applies, certain types of buildings are not caught by the Act.


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• where the act was, or was caused by, the emission of light or noise or the release of contaminants into the atmosphere.

6. Clause 8(2) would then prescribe the circumstances in which an affected person’s rights would be limited:120 [Subsection 8(2)(a) would provide that] The brewery registration certificate, (as defined in the dictionary in the schedule) allows Milton Brewery to carry out chapter 4 activities. If Milton Brewery is complying with the brewery registration certificate, an affected person cannot bring civil or criminal proceedings against the Brewery relating to the development conditions of the Brewery’s development approval and any code of environmental compliance applying to the relevant act. The inability of an affected person to litigate in these circumstances applies despite any other Act providing to the contrary.

Subsection 8(2)(b) provides that an affected person cannot bring civil or criminal proceedings against the Brewery if the relevant act was, or caused by, the emission of light and the emission was not more than the intensity of light emitted at any time before the commencement of this section.

7. Clauses 7 and 8 would make provision for the protection of rights of individuals in specified circumstances. Part 3 of the legislation would not apply to a relevant development application: • made prior to the commencement of clause 7 of the bill (clause 7(1)(a)); • made before commencement of clause 7 regarding which a decision notice had not been given

to the applicant prior to that time (clause 7(1)(b)); • approved but for which no certificate of classification has been issued (as provided in the

Building Act 1975, schedule 2); or • amended or replaced by an newly-issued development approval or registration certificate

authorizing greater emissions of light, noise or release of contaminants into the atmosphere (clause 8(4)).

8. Further, clauses 10 and 11 also contain safeguards of individual rights. Clause 9 of the bill would require an applicant for a relevant development application to request that the registrar record the application in the appropriate register. Clauses 10 and 11 would operate to protect rights of prospective buyers by providing a right to end a contract for sale of relevant premises where: • an applicant failed to notify the registrar as required by clause 9 (clause 10); and • a seller of a property in respect of which a relevant development application has been approved

fails to notify in writing, and prior to entering into a contract, a prospective buyer of the limitations imposed under part 3 of the legislation (clause 11).

9. While protecting rights of prospective purchasers, however, clauses 10 and 11 would affect rights of individuals who were developers or vendors.

10. The explanatory notes to the bill provide justification for the proposed impact on rights and liberties of individuals:121

120 Explanatory notes at 5-6.

121 At 3.


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The common law rights of residents of existing development will not be overridden as protection will apply to new development after the date of enactment.

As the criteria includes development applications already lodged but no decision made, or approved but no certificate of classification issued, the legislation may apply to a small group of people, if any, who may have already purchased properties (e.g. off the plan) prior to the commencement of the legislation. Urgent introduction of the proposed Bill will ensure as few people as possible, if any, are impacted by this component.

The proposed Bill also allows for a person to end a contract to purchase affected premises if the applicant for a relevant development application has failed to advise the registrar to place a notice on the title (section 10), or any seller of relevant premises has failed to advise the purchaser (section 11). While this affects the developer’s or seller’s contractual rights, there is in these circumstances, a greater and over-riding need to protect the purchaser’s rights. Other common law rights remain available to all relevant parties.

11. The committee notes, first, that the protections of individual rights and liberties to be provided by clause 7 of the bill would operate in respect of relevant development applications made prior to the commencement of clause 7. Clause 2 of the bill provides for commencement of the legislation on a day to be fixed by proclamation. The committee understands that a reference to the commencement of ‘parts 7 and 8’ which do not appear in the bill is a drafting error.

12. The committee notes also that the rights of individuals to adequate housing and health extend to rights to protection from environmental threats to health, peace and dignity.122 In Queensland, the Environmental Protection Act 1994 and the Integrated Planning Act 1997 provide statutory protection of rights of Queenslanders to an adequate standard of living. However, the bill would allow urban encroachment in the Milton Brewery precinct to impact upon rights of individuals in specified ways.

13. Part 3 of the bill (clauses 7 and 8) would allow urban encroachment in the Milton Brewery precinct to impact upon rights and liberties of individuals in specified ways.

14. However, provisions of the bill would provide some safeguards for rights and liberties of individuals.

15. The committee refers to Parliament the question whether clauses 7 and 8 of the bill have sufficient regard to rights and liberties of individuals.

♦ clauses 9 to 11

16. Clauses 9 to 11 of the bill would create liability to penalties for failure to comply with requirements of the legislation. The proposed provisions, together with respective maximum penalties, are set out below.


9(1) Failure to ask the registrar to keep a record that the Act applies to premises or a lot


9(3) Failure to ask the registrar to remove a record that the Act applies to premises or a lot


122 See: Article 25 of the Universal Declaration of Human Rights and Articles 11 and 12 of the International Covenant on Economic, Social and

Cultural Rights.


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10(4) Failure to refund to buyer any deposit paid under contract for sale ended under section 10


11(6) Failure to refund to buyer any deposit paid under contract for sale ended under section 11


17. Clauses 9 to 11 of the bill would create liability to penalties for failure to comply with requirements of the legislation and would operate to affect rights and liberties of individuals.

18. The committee refers to Parliament the question whether each provision and respective maximum penalty has sufficient regard to rights and liberties of individuals.



♦ clause 8

20. Clause 8 of the bill would limit civil or criminal proceedings that could be taken by an ‘affected person’ against Milton Brewery (‘affected person’ is defined by clause 7).

21. In relation to clause 8, the explanatory notes to the bill indicate that:123 The proposed Bill impacts on the rights and liberties of individuals, particularly in relation to the right of a landowner to the use and enjoyment of his or her land, through conferred immunity for the Brewery from proceedings or prosecution…

Under the proposed Bill, no criminal proceedings under local laws or civil proceedings may be taken against the Brewery with respect to emission of noise, releasing contaminants into the atmosphere within its current licence conditions; or with respect to light emissions of no more intensity than that emitted at any time before commencement of the Bill. The legislation is subject to five-yearly reviews.

22. One of the fundamental tenets of the law is that everyone is equal before the law. Consistent with this principle, the committee considers that legal liability should be the same for the government, its officials and its entities as for private citizens.

23. In this context, the committee notes the incidents of the immunity to be conferred by the bill; that is, immunity: • from local laws containing offences and from civil proceedings; • for environmental nuisance resulting from the release of contaminants into the atmosphere and

noise and light emissions; and

123 At 3-4.


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• conferred upon the registered operator of a brewery, Castlemaine Perkins Pty Ltd, at the commencement of the legislation.

24. However, the committee notes also that the immunity would be conferred only where the Milton Brewery operated within its licence conditions.

25. In respect of specified development, clause 8 would confer the Milton Brewery operating within its licence conditions with immunity from criminal (local law) and civil proceedings for any releasing contaminants in the atmosphere, noise and light emissions based nuisance complaints.

26. The committee refers to Parliament for consideration the question of whether the immunity to be provided by clause 8 is justified.


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Alert Digest No 01 of 2009 Property Law (Mortgagor Protection) Amendment Bill 2008

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10. PROPERTY LAW (MORTGAGOR PROTECTION) AMENDMENT BILL 2008

Background

1. On 3 December 2008, the bill was introduced into the Legislative Assembly by the Honourable Kerry Shine MP, Attorney-General and Minister for Justice and Minister Assisting the Premier in Western Queensland. Later that day, following suspension of Standing Orders, the bill was passed as an urgent bill. It received assent on 4 December 2008.

Act amended

2. The Property Law (Mortgagor Protection) Amendment Act 2008 amended section 85 of the Property Law Act 1974.


3. The committee has not considered the application of fundamental legislative principles to the Property Law (Mortgagor Protection) Amendment Act 2008.

4. Section 103(1) of the Parliament of Queensland Act 2001 confers the committee with responsibility to consider the application of fundamental legislative principles to particular bills and particular subordinate legislation.

5. A bill, although passed by Parliament at a third reading, remains a bill until it receives the Governor’s assent. Upon receiving the Governor’s assent, legislation becomes an Act. Accordingly, the committee’s responsibility regarding a bill ceases upon assent.

6. The bill was passed as an urgent bill and received assent on 4 December 2008.

7. The committee has not considered the application of fundamental legislative principles to the Property Law (Mortgagor Protection) Amendment Act 2008 as committee responsibility regarding a bill ceases upon assent.

Alert Digest No 01 of 2009 Property Law and Another Act Amendment Bill 2008

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11. PROPERTY LAW AND ANOTHER ACT AMENDMENT BILL 2008

Background

1. On 25 November 2008, the bill was introduced into the Parliament by the Hon Kerry Shine MP, Attorney-General and Minister for Justice and Minister Assisting the Premier in Western Queensland.

Acts to be amended

2. The bill would amend the: • Property Law Act 1974; and • Duties Act 2001.

Reasons for bill

3. The explanatory notes state: The objectives of this Bill are to:

• amend the Property Law Act 1974 (PLA) to clarify the relationship and operation of Part 19 of the PLA with the Family Law Act 1975 (FLA), following the Commonwealth Parliament’s acceptance of the referral of power from the Queensland Parliament for financial matters arising from the breakdown of de facto relationships; and

• amend the Duties Act 2001 (DA) to clarify the relationship and operation of the DA with the FLA, following the Commonwealth Parliament’s acceptance of the referral of power from the Queensland Parliament for financial matters arising from the breakdown of de facto relationships.

Currently, de facto couples who separate in Queensland must access two different jurisdictions to have disputes resolved. Disputes about the division of property are dealt with in Queensland courts under Part 19 of the PLA and disputes about children are dealt with in Federal family law courts under the FLA. In addition, separating de facto couples in Queensland, do not have the opportunity to seek spousal (as contrasted to parental) maintenance, seek orders to divide superannuation or access the counselling and mediation services supporting the Federal family law jurisdiction.




♦ the bill generally

5. In 2003, the Queensland Parliament passed the Commonwealth Powers (De Facto Relationships) Act 2003. The Act referred to the Commonwealth the power regarding financial matters arising from the dissolution of a de facto relationship and commenced on 24 October 2008.


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6. The Commonwealth Government has accepted the referrals of such power from all States (except Western Australia and South Australia who have not yet referred powers to the Commonwealth). Legislation to amend the Commonwealth Family Law Act (Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)) was passed by the Commonwealth Parliament on 10 November 2008. It is expected that legislation will commence in early 2009.124

7. The explanatory notes to the bill currently before the Queensland Parliament indicate:125 The key effect of the Commonwealth taking up the referral from Queensland will be that upon the commencement of the amendments to the FLA, the Queensland legislation relating to financial matters arising from a de facto relationship breakdown (most of Part 19 of the PLA) will be excluded from operation. De facto partners whose relationship breaks down after the amendments to the FLA commence, must apply for a property division under the FLA and can no longer apply under the PLA. However, if the relationship breaks down before the amendments to the FLA commence, the parties may opt into the FLA scheme if both parties agree.

8. The amendments to the Commonwealth’s Family Law Act will cover the field in relation to financial matters following dissolution of a de facto relationship, so that most of the provisions in the Property Law Act will not operate to regulate rights and interests in this regard.

9. In relation to the consistency of the bill with fundamental legislative principles, the explanatory notes to the bill indicate that:126 There are minor differences between the provisions of the PLA and FLA that may amount to a slight reduction in the rights of Queensland de facto couples (for example, stricter procedural requirements to make a binding financial agreement). However, it is considered the significant advantages for de facto couples to access the Federal family law jurisdiction greatly outweigh these minor differences.

Given that Part 19 of the PLA will continue to apply to those de facto relationships not covered by the amendments to the FLA, there will not be any reduction in the rights of Queenslanders.

10. The bill may, in certain respects, effect ‘a slight reduction’ in rights of individuals in relation to financial matters following dissolution of a de facto relationship.

11. The committee refers to Parliament the question whether the bill generally has sufficient regard to rights and liberties of individuals.

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

12. Section 4(2)(b) of the Legislative Standards Act requires legislation to have sufficient regard to the institution of Parliament and section 23(i) requires that explanatory notes identify a bill which is substantially uniform or complementary with legislation of the Commonwealth or another State and provide a brief explanation of the legislative scheme.

124 Explanatory notes to bill at 2.

125 At 2.

126 At 3-4.


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13. As stated in the explanatory notes to the bill, the bill proposes to amend the Property Law Act and the Duties Act ‘to clarify the relationship and operation’ of the Queensland legislation following acceptance by the Commonwealth Parliament of a referral of power from the Queensland Parliament. The relevant referral was effected by the Referral Act in 2003.

14. Further, the explanatory notes to the bill indicate:127 The PLA and the DA are not Acts that are uniform or complementary with the Commonwealth or another State’s legislation.

15. The bill does not effect any referral of power from the Queensland Parliament.

16. The bill is not substantially uniform or complementary with legislation of the Commonwealth or another State.

17. The committee makes no further comment regarding whether the legislation has sufficient regard to the institution of Parliament.

127 At 4.

Alert Digest No 01 of 2009 Resorts and Other Legislation Amendment Bill 2008

Chapter 12 Page 75

12. RESORTS AND OTHER LEGISLATION AMENDMENT BILL 2008

Background

1. On 2 Decmber 2008, the bill was introduced into the Legislative Assembly by the Honourable Paul Lucas MP, Minister for Infrastructure and Planning.

Acts to be amended

2. The bill is to amend the: • Integrated Resort Development Act 1987; • Mixed Use Development Act 1993; and • Sanctuary Court Resort Act 1985.

Reasons for bill

3. The explanatory notes provide the following information regarding the objectives of the bill:128 The policy objective of the Bill is to address immediate equity and procedural issues in the resorts legislation and related Acts, while introducing the resort communities to the concepts underlying a broader reform.

The Bill will:

• in both the SCRA and the IRDA, include provisions to improve transparency and equity in the conduct of the bodies corporate including body corporate representation, use of proxies, dispute resolution, limits on the length of body corporate management contracts and financial disclosure.

• include provision in the SCRA of a process, similar to the process already existing in IRDA, that will allow for amendment of land uses to modernise uses established 22 years ago, and facilitate scheme amendment without the need for legislative amendment

• in the IRDA, enable limited site boundary adjustment, to facilitate minor boundary realignments between resort land and adjacent sites to achieve improved planning outcomes

• in the SCRA, the IRDA and the Mixed Use Development Act 1993 (MUDA), include provisions for the developer to submit an address plan with the relevant local government authority for new developments (e.g. subdivision) and changes to addressing.




128 At 1-2.

Alert Digest No 01 of 2009 Resorts and Other Legislation Amendment Bill 2008

Chapter 12 Page 76

♦ clauses 16, 20, 53 and 59

5. Four clauses of the bill provide for new offences. Each of the new offences relates to a proscribed exercise of a proxy or a purported exercise of a vote. The relevant provisions of the bill, together with respective maximum penalties, are identified below.

Clause New section Maximum Penalty

16 133F Integrated Resort Development Act 100 penalty units ($10 000)

20 168F Integrated Resort Development Act 100 penalty units ($10 000)

53 47G Sanctuary Cove Resort Act 100 penalty units ($10 000)

59 91G Integrated Resort Development Act 100 penalty units ($10 000)

6. Clauses 16, 20, 53 and 59 of the bill provide for new offences and would operate to affect rights and liberties of individuals.

7. The committee refers to Parliament the question whether each offence and the respective proposed maximum penalty has sufficient regard to rights and liberties of individuals.

Alert Digest No 01 of 2009 Adult Proof of Age Card Bill 2008

Chapter 13 Page 77

PART I - BILLS

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE

13. ADULT PROOF OF AGE CARD BILL 2008

Background

1. On 12 November 2008, the bill was introduced into the Parliament by the Hon John Mickel MP, Minister for Transport, Trade, Employment and Industrial Relations. The committee notes that this bill was passed, without amendments, on 2 December 2008.

2. The committee commented on this bill in its Alert Digest No 13 of 2008 at pages 1 to 6. The Minister’s response to those comments is referred to in part below and reproduced in full in Appendix A of this Digest.





4. Provisions of the bill would affect the privacy and confidentiality of personal information provided by individuals.

5. The committee noted that the specified purposes for which the information collected may be used extend well beyond ‘proof of age’ purposes.

6. The committee referred to Parliament the question whether the provisions of the bill have sufficient regard to rights and liberties of individuals.


7. Various provisions of the bill create new offence provisions and would operate to affect rights and liberties of individuals.

8. The committee referred to Parliament the question whether each offence provision and maximum penalty proposed has sufficient regard to the rights and liberties of individuals potentially subject to the offences.

Alert Digest No 01 of 2009 Adult Proof of Age Card Bill 2008

Chapter 13 Page 78



♦ clause 47

10. Clause 47 would confer immunity against civil liability in connection with the exercise of functions under the Act.

11. Under clause 47, civil liability may instead attach to the State.

12. The committee referred to Parliament for consideration the question of whether the immunity to be provided by clause 47 is justified.

13. The Minister’s response was: The Committee’s has noted that the Bill contains a number of potential breaches of fundamental legislative principles and has referred them to Parliament. It has also identified material in the accompanying explanatory notes justifying potential breaches.

14. The committee notes the Minister’s response.

Alert Digest No 01 of 2009 Animal Management (Cats and Dogs) Bill 2008

Chapter 14 Page 79

14. ANIMAL MANAGEMENT (CATS AND DOGS) BILL 2008

Background

1. The bill was introduced into the Parliament by Mr Warren Pitt MP, Minister for Main Roads and Local Government, on 11 November 2008. The committee notes that this bill was passed, without amendments, on 3 December 2008.






4. The committee noted that the bill imposed significant obligations on the keepers of regulated dogs.

5. The obligations largely mirror obligations already in the Local Government Act and are intended to enhance responsible animal ownership.

6. The committee referred to Parliament the question whether the bill generally has sufficient regard to rights and liberties of individuals.

7. The Minister’s response was: The Bill imposes significant obligations on the keepers of regulated dogs. The obligations largely mirror obligations already in the Local Government Act 1993 (LGA) and are intended to enhance responsible ownership. The committee referred to Parliament the question of whether the Bill generally has sufficient regard to rights and liberties of individuals.

It is true the Bill imposes significant obligations on the keepers of regulated dogs. However, as the committee has noted, the keeping conditions largely reflect those currently provided for in the LGA and, given the potential for regulated dogs to inflict serious injury upon people or animals, the obligations are considered to appropriately balance individual and community interests.

These provisions are considered necessary in order to provide a means of controlling existing dogs, while progressing toward the ultimate goal of reducing populations of declared dangerous and restricted dogs in the State. Any imposition on the rights and liberties of the individual through obligations to keep a regulated dog are balanced with the rights of individuals to live safely in their community.


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♦ clause 172

8. Clause 172 of the bill would allow public inspection of registers kept by the chief executive of the department and chief executives of local government.

9. The committee referred to Parliament the question whether clause 172 has sufficient regard to rights and liberties of individuals.

10. The Minister’s response was: Under the Bill the chief executive of the Department and the chief executive officer of each local government must keep certain registers.

As the Committee noted, the Bill allows for only limited access to the regulated dog registry kept by the chief executive of the Department. Those people entitled to gain access to the regulated dog registry are people with a particular role in maintaining the integrity of the register or who have a role in fulfilling the requirements of the Bill.

Each local government must keep its cat and dog registry open to inspection, however, personal information about the owner of a cat or dog is not open to public inspection.

The Bill provides protection to the privacy of the owner's information in both instances.



♦ clause 111

12. Clause 111 would confer powers of entry without a warrant or consent to authorised persons in certain specified circumstances.


14. The Minister’s response was: While the Bill provides certain powers of entry, it recognises the principle that the power to enter premises should generally be permitted only with the occupier's consent or under a warrant issued by a judge or magistrate.

The Bill provides powers of entry to authorised persons to investigate offences without the occupier’s agreement or without a warrant, but exercising this power is restricted to entering a public place when it is open to the public or enabling an authorised person to ask for the occupier’s agreement to enter the land or a building or a structure on the land.

The Bill also enables an authorised person to enter a building or other structure used for residential purposes to monitor authorisations, notices and to process applications without a warrant, but only if the authorised person is accompanied by the occupier or if the occupier has been given reasonable notice of the authorised person’s intention to enter and the occupier is unavailable or unwilling to accompany the authorised person.


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The Bill also provides powers of entry to authorised persons without a warrant under an approved inspection program but only following provision of an appropriate notice of the inspection program provided for under the Bill. The power does not extend to a building or structure used for residential purposes.


15. Clause 112 and 125 would give an authorised person power under certain circumstances to enter a place without a warrant and seize a dog.

16. The committee noted that the Local Government Act currently contains similar provisions.

17. The committee referred to Parliament the question whether clauses 112 and 125 have sufficient regard to the rights and liberties of individuals and are justified in the circumstances.

18. The Minister’s response was: Clauses 112 and 125 give an authorised person power under certain circumstances to enter a place without a warrant and seize a dog. Provisions that confer power to enter premises and search for or seize property without a warrant depart from fundamental legislative principles. However, these powers are necessary to ensure the legislation is enforced and to protect the public from dogs that demonstrate a risk to community health and safety.

In exercising the power to enter a place, an authorised person may use necessary and reasonable force (under specified circumstances). This ability currently exists under section 1105 of the LGA.

The Bill provides powers for authorised persons, under certain circumstances, to enter a place without a warrant and seize a dog. This is a significant departure from fundamental legislative principles, particularly as these powers extend to residential property. They are, however, not without precedent, given Chapter 17A of the LGA currently contains similar provisions. The circumstances in which these powers may be exercised relate primarily to incidents of non-compliance with keeping conditions for regulated dogs or when there is an imminent risk to community health and safety.

It should be noted that the Bill’s entry and seizure powers contain appropriate checks and balances, including:

• entry and seizure are limited to specific circumstances;

• procedural requirements must be maintained and followed, such as producing an identity card, telling the occupier the purpose of the entry and advising that it is permitted without the occupier’s consent or a warrant under specific circumstances; and

• a receipt for a seized dog must be produced.




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♦ clause 41

20. Clause 41 would provide protection from civil and criminal liability to a person who has complied with the legislation and deals with a cat or dog in a way that is adverse to the owner, where the pet’s owner is unknown.


22. The Minister’s response was: This provision is considered necessary to protect pound and shelter staff from civil and criminal liability should an animal be scanned, no microchip located, the owner unable to be identified and the cat or dog, because it is considered ownerless, then found a new home or destroyed. Under clause 40, an operator must ensure the animal is scanned within three days of entry to the pound or shelter (unless scanning the animal would endanger the health of anyone attempting to scan the animal) before protection from civil and criminal liability applies.

For the protection from criminal liability to apply, the person's actions in relation to the cat or dog must be actions that would have been lawful had they been carried out, or omitted from being carried out, by the owner. This ensures that criminal protection is not provided if the person acted in a way that an owner could not lawfully act. The overall effect of the provision is that a person who acts without negligence in his or her duties is protected from civil and criminal liability.




24. Clause 33 and 166 would exclude obligations to accord natural justice in respect of the suspension of implanters and licencees.

25. The committee referred to Parliament the question whether clauses 33 and 166 have sufficient regard to rights and liberties of individuals.

26. The Minister’s response was: Natural justice requires standards and procedures regarding fairness and good administration in administrative decision-making and immediate suspension is not considered to meet this criterion. Clause 33 gives the chief executive the ability to suspend an authorised implanter immediately if the grounds exist to suspend or prohibit a person from implanting PPIDs and it is necessary to suspend the person immediately because there is an immediate and serious harm to the effectiveness of the identification of cats and dogs.

Clause 166 gives the chief executive the ability to suspend a PID registry licence immediately if the grounds exist to suspend or cancel the licence and it is necessary to suspend the person immediately because there is an immediate and serious harm to the effectiveness of the identification of cats and dogs.

While the authorised implanter or the licensee may be suspended immediately, the chief executive must provide the implanter or licensee with a show cause notice and the implanter or licensee may make written


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representations about the show cause notice to the chief executive in the period provided. The chief executive can cancel the remaining period of the suspension.

Any imposition on the rights and liberties of the individual in clauses 33 and 166 are balanced by the need to maintain animal welfare and to ensure the integrity of the PID system.



♦ clause 142

28. Clause 142 of the bill may be inconsistent with the fundamental legislative principle that legislation provide for the acquisition of property only with fair compensation.

29. The committee referred to Parliament the question whether clause 142 of the bill has sufficient regard to the rights and liberties of individuals.

30. The Minister’s response was: Under clause 142, compensation cannot be claimed or ordered to be paid for loss or expense caused by the seizure or destruction of a regulated dog. The seizure and destruction powers under chapter 5 (Investigation, monitoring and enforcement) of the Bill are necessary for the enforcement of the regulatory framework in the interests of public health and safety.

The circumstances in which these powers may be exercised relate primarily to incidents of non compliance with the requirements about regulated dogs in chapter 4 (Regulated dogs) or when there is a risk to community health and safety. Providing compensation to owners in these circumstances is not considered appropriate.




♦ clause 101

33. Clause 101 would reverse the onus of proof for a regulated dog owner in response to an offence under chapter 4 of the bill.


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34. The committee referred to Parliament the question of whether clause 101 has sufficient regard to the rights and liberties of individuals.

35. The Minister’s response was: Clause 101 provides that it is a defence for an owner, in response to an offence under chapter 4 of the Bill, to prove that another person also owns the dog (or owned the dog when the subject of the proceeding happened) and the other owner has been convicted of the same offence and paid the penalty imposed for the conviction.

The reversal of the onus of proof is justified in this instance because the defendant is better positioned to provide evidence in his or her defence, while a local government would have difficulty in providing this evidence or even knowing that it exists.

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

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

♦ clause 89

37. Clause 89 of the bill would operate to exclude rights to seek review of decisions made under the legislation.

38. The committee referred to Parliament the question whether clause 89 has sufficient regard to the rights and liberties of the individuals affected.

39. The Minister’s response was: Clause 89 provides that a local government may declare a dog to be a restricted dog based on an expert opinion from a veterinary surgeon about the breed of the dog. This provision currently exists under the LGA. If an expert opinion is used, the owner of the dog is unable to have the decision reviewed and subsequently appeal against the review decision through chapter 8 (Reviews and appeals) of the Bill. If a local government does not obtain an expert opinion, the owner may have the decision reviewed and subsequently appeal against the review decision within a certain timeframe.

If a local government has relied upon the professional expertise of a veterinary surgeon in making its decision, the same right of appeal is not considered appropriate. However, in these circumstances an owner could seek a review of the decision under the Judicial Review Act 1991. In addition, the council will have to give the owner the right to respond to its assessment before a declaration is made. This provides an opportunity for an owner to demonstrate that the dog is not a restricted dog.

♦ clause 132

40. Clauses 132 and 172 of the bill confer certain specified administrative powers upon the chief executive and local government authorised persons.


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41. The committee referred to Parliament the question whether the legislation makes individual rights and liberties dependent on administrative power that is subject to appropriate review.

42. The Minister’s response was: Clause 132 gives a local government authorised person power to issue compliance notices if non compliance with the requirements of chapter 4 (Regulated dogs) is reasonably suspected. While an owner of a regulated dog may not have the decision to issue a compliance notice reviewed or appealed under chapter 8 (Reviews and appeals) of this Bill, a 'reasonable excuse' defence against non-compliance with the notice is provided in clause 134 (Failure to comply with notice).

There may be circumstances in which immediate action by an owner of, or responsible person for, a regulated dog is needed in the interests of public health and safety. In this regard, the use of compliance notices provides an effective enforcement tool. Provision of review and appeal rights in such circumstances would not achieve the desired outcome.



Chapter 14 Page 86

Alert Digest No 01 of 2009 Health and Other Legislation Amendment Bill 2008

Chapter 15 Page 87

15. HEALTH AND OTHER LEGISLATION AMENDMENT BILL 2008

Background

1. The Hon S Robertson MP, Minister for Health, introduced the bill on 12 November 2008.






4. Various provisions of the bill have the potential to affect rights to privacy of personal information.

5. The committee referred to Parliament the question whether each provision has sufficient regard to rights and liberties of individuals.


6. Various clauses of the bill would insert new offence provisions regarding materially false information or documents in Acts to be amended by the bill.

7. The committee referred to Parliament the question whether the proposed offence provisions and the related maximum penalties have sufficient regard to rights and liberties of individuals.





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♦ clause 180

10. Clause 180 of the bill would insert a new part 2BA into the Tobacco and Other Smoking Products Act, including new sections: • 26VD, declaring the proof of a particular matter to be a defence; and • 26VE, an evidentiary provision casting an evidential burden on a person charged with an

offence in new section 26VC.

11. The committee referred to Parliament the question of whether, in the circumstances, clause 180 has sufficient regard to the rights and liberties of individuals.



♦ clause 2

13. Clause 2 provides for the retrospective commencement, on 16 January 2006, of new sections 163 and 165(2) of the bill.

14. The committee referred to Parliament the question whether the proposed retrospective operation is justified.

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

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

♦ part 22

16. Part 22 of the bill envisages that the chief executive will issue a workers’ compensation certificate protocol.

17. The committee referred to Parliament the question whether part 22 has sufficient regard to the institution of Parliament.

18. The Minister’s response was: I note the Committee has referred to Parliament the question of whether various provisions of the Bill have sufficient regard to the rights and liberties of individuals. In particular, the Committee has commented that in respect of the proposed clause 180 of the Bill, the explanatory notes do not address the issue of the reversal of


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the onus of proof, in the proposed section 26VD (amendments to the Tobacco and Other Smoking Products Act 2008).

Section 26VD provides that it is a defence to a charge (of smoking in a motor vehicle with a person under 16 years of age) if the defendant can prove that they honestly and reasonably believed that no person in the vehicle was under the age of 16 years. A relevant example may be where a parent picks up their 17 year old child from sports practice and also gives a lift to the child’s friend who is in the same-aged sports team. Parents will not be required to ask for proof of age, however the reversal of the onus of proof in section 26VD, means that the parent will be able to provide a defence where they can demonstrate that they honestly and reasonably believed that no person in the vehicle was under the age of 16 years.

The proposed provision is similar to the existing section 24 of the Tobacco and Other Smoking Products Act 2008, which provides for a defence to a charge where the age of the person is material. As the proposed provisions are designed to protect children from the harmful effects of environmental tobacco smoke, they are necessary and justifiable.



Chapter 15 Page 90

Alert Digest No 01 of 2009 Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008

Chapter 16 Page 91

16. HEALTH PRACTITIONER REGULATION (ADMINISTRATIVE ARRANGEMENTS) NATIONAL LAW BILL 2008

Background

1. On 29 October 2008, the bill was introduced into the Parliament by the Hon Stephen Robertson MP, Minister for Health. The committee notes that this bill was passed, without amendments, on 13 November 2008.



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

3. Section 4(2)(b) of the Legislative Standards Act requires legislation to have sufficient regard to the institution of Parliament and section 23(i) requires that explanatory notes identify a bill which is substantially uniform or complementary with legislation of the Commonwealth or another State and provide a brief explanation of the legislative scheme.


4. The bill is the first stage of the implementation of national scheme legislation as it is the template legislation which is to be adopted or copied by other jurisdictions.

5. The committee noted that the bill raised concerns regarding national scheme legislation: • the authority of a State government to respond to, or the capacity to distance itself from, the

actions of a joint Commonwealth and State regulatory authority; and • the effect of executive pressure upon the Parliament to merely ratify the legislation without

question.

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

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



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♦ clause 5

8. Clause 5 of the bill would displace the application of the Acts Interpretation Act to the legislation.

9. The committee referred to Parliament the question whether the legislation is unambiguous and drafted in a sufficiently clear and precise manner.



♦ clause 8

11. Clause 8 of the bill would allow a Ministerial Council, in anticipation of the national scheme commencing, to approve health profession standards for any health profession within the national scheme.

12. The health profession standards would not be ‘subordinate legislation’ and, therefore, not subject to possible parliamentary disallowance under section 50 of the Statutory Instruments Act.

13. Justification for any inconsistency with fundamental legislative principles is provided in the explanatory notes.

14. The committee referred to Parliament the question whether clause 8 has sufficient regard to the institution of Parliament.



♦ clause 53

16. Clause 53 would create liability, with a maximum penalty of $3000, for a breach of a duty of confidentiality.



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♦ clause 54

19. Clause 54 would protect certain people from personal liability for acts or omissions done in good faith in exercising a function under the national law, or in the reasonable belief that the act or omission was the exercise of a function of the national law.


21. The Minister’s response was: The Committee’s comments are appreciated and have been noted.



Chapter 16 Page 94

Alert Digest No 01 of 2009 Local Government Bill 2008

Chapter 17 Page 95

17. LOCAL GOVERNMENT BILL 2008

Background

1. The bill was introduced into the Legislative Assembly by the Hon Warren Pitt MP, Minister for Main Roads and Local Government, on 28 October 2008.



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



4. The general powers and law making powers of each local government are defined respectively by clauses 9 and 28 of the bill in general and very wide terms.

5. The committee drew the attention of Parliament to the wide and general conferral of power in clauses 9 and 28, as opposed to the more specific requirement in clause 4 for regard to ‘local government principles’.

6. The Minister’s response was: In paragraph 18 the committee observed that no express reference is found in clauses 9 and 28 to the “local government principles” that are articulated in clause 4(1). In paragraph 19 the committee noted that while the local government principles must be observed by the councillors who constitute a local government, “it is not clear whether they are intended also to be observed by the local government itself.” Consequently, the committee referred the attention of Parliament to the wide and general conferral of power to local governments in clauses 9 and 28 of the Bill as opposed to the more specific requirement in clause 4 for regard to “local government principles”.

In referring to the Bill’s wide and general conferral of power to local governments the committee noted legislative, judicial and historical precedents for such conferral. It also noted the various caveats provided under the Bill which restrict the power of local governments. Such caveats constitute an important check and balance on the exercise of power by local governments and are consistent with community expectations with respect to accountability, transparency and personal integrity of public officials.

Clause 4 is a particularly important mechanism for ensuring accountability, transparency and personal integrity of elected local government representatives and local government employees. The intent of the Bill is for clause 4 to inform the making of any decision or discharging any responsibility (including a function) under the Bill such as with respect to general powers under clause 9 and law making powers under clause 28.


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It is important to note that the purpose of principles-based legislation is to allow practitioners to focus on outcomes and develop their own operational procedures and processes. It does not mean that the Bill will be less enforceable. In fact, principles-based legislation is intended to achieve higher levels of compliance. By requiring entities to comply with the spirit rather than the letter of the law, they must come to terms with the reasons behind a law.129

Clause 9 and 28, when read in conjunction with the Bill as a whole and the principles in clause 4, provide local governments with choices about processes to suit their size, location and administrative circumstances, as long as the processes are rational, justifiable and transparent. Local laws that are made in accordance with clause 28 will of necessity reflect the local government principles articulated under clause 4. A local law that is not made in accordance with the local government principles may be suspended or revoked by the Minister (clause 121).

In paragraph 14 the committee referred to clause 28 of the Bill which provides that a local government may make and enforce any local law that is “necessary or convenient” for the good rule and local government of its local government area. The committee subsequently noted that there is a body of case law and statutory interpretation around this particular phrase which essentially confines the exercise of the local law making power to “matters of local government”. Certainly, the intent of the Bill is for the phrase to be interpreted in this respect.




8. The bill provides certain mechanisms of consultation and ministerial review.

9. The committee referred to Parliament the question whether the bill has sufficient regard to rights and liberties of individuals.

10. The Minister’s response was: In paragraph 27 the committee suggested that “consultation is required under clause 29(3) only with relevant government entities about the overall State interest. No provision is made for prior public consultation.” It should be noted that the local law making process under clause 29 is required to be consistent with the local government principles (clause 4) as well as other requirements under clause 29 such as consulting with relevant government entities. The local government principles include democratic representation, social inclusion and meaningful community engagement. Therefore, any local law making process under the Bill is required to include a community engagement process. Furthermore, it is implicit that public notification in accordance with clause 29(4) and (5) will have been preceded by a genuine community engagement process. However, as one size does not fit all, individual councils have the discretion under the Bill to determine the type/s of community engagement that best suit their particular communities.

Regarding paragraph 28 in which the committee referred to the power of the Minister to suspend or revoke any local government decision that is contrary to any of the Local Government Acts (clause 121), it is important to note that such a power is consistent with the constitutional responsibility of the State for local government.

129 Ter Kim Cheu, From “Fussy” To “Fuzzy”: The Principles-Based Approach to Legislative Drafting, p. 3. Available at:

http://www.agc.gov.my/agc/agc/rev/agcjc/2nd/pdf/session3/Singapore.pdf


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Furthermore, as the explanatory notes point out, any exercise of such power will be preceded by a show cause process to ensure transparency.


11. Approximately 51 provisions of the bill would create offences and, therefore, would operate to affect rights and liberties of individuals.

12. The committee referred to Parliament the question whether the offence provisions and maximum penalties have sufficient regard to rights and liberties of individuals potentially subject to the offences.

13. The Minister’s response was: In paragraph 31 the committee noted that there are a number of offence provisions in the Bill. Throughout the review of the Local Government Act 1993 (1993 LGA), penalties were reviewed with a view to maintaining consistency with similar offence provisions across the statute book. It is important in local government regulation for there to be appropriate enforcement mechanisms, in the form of penalties. The use of penalties has been limited as far as possible.

A significant number of the penalty provisions contained in the Bill apply to local government owned corporations (LGOCs). As other corporations legislation does not apply to LGOCs, these penalties are consistent with the penalties for company directors under Commonwealth corporations legislation, to ensure a consistent legislative approach.

Furthermore, a number of penalties from the 1993 LGA that were applicable to councillors have been removed. In reviewing these provisions, it was determined that in order to have regard to the rights and liberties of individuals it was more appropriate to have a maximum penalty of removal of a councillor for breaches of the Act committed as a councillor. This provides a better regard to individual rights as it does not impose a financial penalty for a councillor’s breach of duty.

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

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

15. Section 36 of the Acts Interpretation Act 1954 provides that, in an Act: Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships; and

Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships.


16. Various provisions of the bill raise issues regarding Aboriginal tradition and Island custom.


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17. The committee referred to Parliament the question whether the bill has sufficient regard to Aboriginal tradition and Island custom.

18. The Minister’s response was: In paragraphs 43, 44, 46 and 48 the committee referred four issues for Parliament’s consideration regarding the Bill and Aboriginal tradition and Island custom.

With respect to the committee’s comment in paragraph 43, the overall policy regarding Aboriginal and Torres Strait Island local governments has not changed from the 1993 LGA. When the relevant provisions were inserted into the 1993 LGA via the Local Government and Other Legislation (Indigenous Regional Councils) Amendment Act 2007 (IRC Act), the committee noted:

“Clearly, the bill has regard to Aboriginal tradition and Island custom. The committee considers that, generally, the provisions of the bill significantly enhance Aboriginal custom and Island tradition. It is noted that its provisions should ensure protection of Indigenous cultural values and allow Indigenous peoples in the Torres Strait and Northern Peninsula Area Regions to actively participate in local governance.”130

Extensive and specific consultation was undertaken with the affected Aboriginal and Torres Strait Island communities as part of the development of the IRC Act. The governance framework established by the IRC Act amendments has been operating since March 2008.

With respect to the committee’s comment in paragraphs 44 and 45, further detail about the process for input in trust change proposals will be incorporated in regulations, as with other processes for local government operational and administrative matters.

With respect to the committee’s comment in paragraph 46, the non-entitlement of remuneration for community forum members is in recognition that the community forum is an advisory body only. The decision was made in order to avoid creating a second tier of decision making, to maintain clarity about the different roles of the Indigenous Regional Councils and the community forums. This provision is consistent with that which was inserted into the 1993 LGA under the IRC Act.

With respect to the committee’s comment in paragraph 48, the committee noted the lack of provision for removal from office of a member of a community forum. Due to the intent to streamline and create a more manageable local government Act, most process provisions are to be moved into regulations or more relevant legislation. In this case it is anticipated the community forum election provisions (currently contained in the Local Government (Community Forums) Regulation 2008) will be incorporated into new local government electoral legislation to be developed during 2009.


19. Section 4(2)(a) of the Legislative Standards Act requires legislation to have sufficient regard to rights and liberties of individuals and section 4(3)(f) provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation provides appropriate protection against self-incrimination.

20. The common law privilege against self-incrimination may be stated as follows:131 No one is bound to answer any question or produce any document if the answer or the document would have a tendency to expose that person to the imposition of a civil penalty or to conviction for a crime.

130 Alert Digest No. 12 of 2007.



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♦ clause 56

21. Clause 56 would remove any entitlement of a person being examined under order of a court made under the new Local Government Act to remain silent or to refuse to answer a question on a ground of self-incrimination privilege.

22. The committee referred to Parliament the question whether clause 56 of the bill has sufficient regard to rights and liberties of individuals.

23. The Minister’s response was: In paragraph 56 the committee noted that clause 56 and the explanatory notes for that clause appear to be at odds. I thank the committee for bringing this to my attention.

The removal of the right to silence or refusal to answer a question on a ground of self-incrimination is similar to the Government Owned Corporations Act 1993, which applies sections 85-87 of the Financial Administration and Audit Act 1977 to Government Owned Corporations. Clause 56 similarly applies only to LGOCs. As discussed above, the provisions for LGOCs have been aligned, as much as possible, with those in other relevant Corporations legislation.

A person may only be directed to be examined under clause 55 if that person is able to give particular information relating to a corporate entity's management, administration or affairs, or may be guilty of fraud or malpractice. In addition, clause 56 provides an indemnity against the use of any incriminating answers as evidence in any further proceedings. The only exception to this indemnity is for a proceeding against clause 56 or in relation to the falsity of the answer. There are no conditions which a person must fulfil in order to have this indemnity apply.

♦ clause 127

24. Enactment of clause 127 would create a statutory exception to the right to silence.

25. The committee referred to Parliament the question whether the clause 127 has sufficient regard to rights and liberties of individuals.

26. The Minister’s response was: In paragraphs 60 to 63 the committee noted that clause 127 would create a statutory exception to the common law right to silence. However, the committee also noted that this right has been modified in some respects by the Police Powers and Responsibilities Act 2000 and some other Queensland Acts. Given public safety considerations clause 127 is another appropriate exception to the common law right to silence as for it to be invoked, the authorised officer must find the person committing an offence or suspect on reasonable grounds that an offence has been committed by the person. Furthermore, the requirement is only for the person to provide their name and address and no other particulars, and allows for the effective enforcement of the legislation. As such, the clause provides sufficient regard to individuals’ rights whilst also allowing for the effective operation of the legislation.


27. Section 4(3)(e) of the Legislative Standards Act provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation confers power to


Chapter 17 Page 100

enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer.


28. Clauses 142 to 145 would confer powers on a local government worker to enter premises other than with a warrant and some post-entry powers.

29. The committee referred to the Parliament the question whether clauses 142 to 154 have sufficient regard to rights and liberties of individuals.

30. The Minister’s response was: In paragraphs 67 to 71 the committee raised concerns that clauses 142 to 145 confer powers of entry for local government workers without a warrant, and some post-entry powers. These clauses are consolidated from the existing powers of entry under the 1993 LGA and are necessary to ensure a local government can properly carry out its duties.

Clause 142 provides for entry under a remedial notice. The explanatory notes make it clear that this is a matter of public safety, where the owner or occupier has been given reasonable notice to remedy a situation and has failed to do so. Therefore the entry without permission does have justifiable grounds.

Clause 143 requires reasonable written notice and is intended to allow a local government to fulfil its requirements under legislation. The clause limits the exercise of power such that no damage could occur to any structure.

Clause 144 allows for entry to plan, install, repair and maintain local government facilities. The clause does not authorise entry to a home or structure on the property. These powers are modelled on the powers of an electricity worker under the Electricity Act 1994 (Chapter 6, Part 1 Operational powers).

Clause 145 provides for entry for urgent action. This clause would only be used if public health and safety concerns justified its use.



♦ clause 122

32. Clause 122 would exclude obligations to accord natural justice in respect of the removal of a councillor.


34. The Minister’s response was: The committee noted that clause 122 provides a potential exemption for the obligations to accord natural justice when removing a councillor in two ways: by allowing the Minister to dispense with a show cause notice in certain circumstances, and also by excluding the decision from judicial review.


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The potential for the Minister to dispense with the show cause process in limited circumstances is included in the legislation to strike a balance between the principles of natural justice and the need for expediency of decision making where councillors, as elected representatives are concerned. The power for the Minister to remove a councillor and dispense with the show cause process is limited in its scope under clause 120. It is imperative that the Minister have the flexibility to act in an expedient way in these circumstances given the State’s responsibility under the Constitution of Queensland 2001 for local governments.

With respect to the exclusion from judicial review, the committee has noted in paragraph 78 that express wording is generally required in the legislation to do this. In 2007, the Queensland Supreme Court held that the statutory process for the dissolution of the former Johnstone Shire Council was a Parliamentary function rather than an administrative matter. As such, the outcome could be determined by the Minister based on policy considerations rather than factual circumstances.

Consequently the judge held that the principles of natural justice apply through the show cause process but also that the decision of the show cause process cannot be the subject of review under the Judicial Review Act 1991 because of its parliamentary nature. Accordingly, the Bill provides clarity around this matter.




36. Clause 57 would allow a court to relieve an employee of a corporate entity of liability for ‘malpractice’.

37. Clause 238 of the bill would protect from civil liability ‘constituters of local government’ and State and local government administrators who act honestly in the performance of duties

38. The committee referred to Parliament for consideration the question of whether the potential immunity to be provided by clause 57 is justified.

39. The Minister’s response was: In paragraphs 83 and 84 the committee noted that clause 57 would allow a court to relieve an employee of a corporate entity from liability for malpractice. Clause 57 supports the natural justice principle that liability should not generally be strictly applied. While the wording and phrasing has been updated in accordance with modern drafting standards, it has the same intent as section 697 of the 1993 LGA.

When section 697 was originally inserted via the Local Government Legislation Amendment Act 1997, the committee commented that it was:

“…pleased to note that proposed s. 458IT gives the court power to grant relief from liability if it appears to the court that, although the person may be liable for the negligence, default or breach of trust/duty, the person acted honestly and ought fairly to be excused.”132

Clause 238 mirrors similar provisions in other statutes protecting, for example, employees of the Crown and members of Parliament from civil liability when performing their duties without negligence. In the 1993 LGA,

132 Alert Digest No. 5 of 1997.


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there are a number of sections protecting councillors, council staff and other individuals from civil liability.133 As part of the streamlined structure of the Bill, these have been consolidated into one clause.


133 See, for example:

• s 240 Indemnity for councillors; • s 1144 Indemnity for local government employees; • s 811 Protection from liability of referee or person assisting referee; • s 733 Local governments and certain officers not directors etc; • s 643 Appointment of councillors as shareholder’s delegates; • s 250ZI Indemnity for persons giving information to a conduct review panel; and • s 250ZH Indemnity for panel members.

Alert Digest No 01 of 2009 Penalties and Sentences and Other Acts Amendment Bill 2008

Chapter 18 Page 103

18. PENALTIES AND SENTENCES AND OTHER ACTS AMENDMENT BILL 2008

Background

1. The bill was introduced into the Parliament by the Honourable Kerry Shine MP, Attorney-General, Minister for Justice and Minister Assisting the Premier in Western Queensland on 12 November 2008. The committee notes that this bill was passed, without amendments, on 26 November 2008.





♦ clause 3

4. Clause 3 would increase the monetary value of a penalty unit.




♦ clause 3

7. Clause 3 (new section 5(1)(b)) would, for the purposes of local laws, allow the amount of a penalty unit to be prescribed under a regulation.

8. The explanatory notes suggest that new section 5(1)(b) may authorise the amendment of an Act by subordinate legislation.

9. However, the committee suggested clause 3 has sufficient regard to the institution of Parliament.

Alert Digest No 01 of 2009 Penalties and Sentences and Other Acts Amendment Bill 2008

Chapter 18 Page 104

10. The Minister’s response was: In relation to clause 3 of the Bill which increases the monetary value of the penalty unit from $75 to $100, I note that the Committee has questioned whether this increase has sufficient regard to rights and liberties of individuals.

The penalty unit for infringement notice penalties has not increased since 1999 and for other offences it has not increased since 1995 with the result that the penalty unit has not kept up with the Consumer Price Index. The amendments reflect movements in the Consumer Price Index since 1999 and will also bring Queensland into line with the penalty unit amounts in other states. The value of the penalty unit needs to be increased from time to time to ensure that the impact of fines remains a strong punishment and deterrent to breaking the law.

Clause 3 amends section 5(1)(b) of the Penalties and Sentences Act 1992 to provide that for a local law the amount of the penalty unit is to be prescribed under a regulation. I note that the Committee suggests clause 3 has sufficient regard to the institution of Parliament.


Alert Digest No 01 of 2009 Residential Tenancies and Rooming Accommodation Bill 2008

Chapter 19 Page 105

19. RESIDENTIAL TENANCIES AND ROOMING ACCOMMODATION BILL 2008

Background

1. On 28 October 2008, the bill was introduced into the Parliament by the Hon Robert Schwarten MP, Minister for Public Works, Housing and Information and Communication Technology. The committee notes that this bill was passed, with amendments, on 2 December 2008.





♦ clause 543

4. Clause 543 of the bill provides for the continuation of existing agreements in force at the commencement of the legislation and will affect the rights and obligations of parties to existing agreements.


6. The Minister’s response was: Transitional arrangements for continuing tenancies

Issue: The Committee identified that Clause 543 of the Bill provides for the continuation of existing agreements in force at the commencement of the legislation, and the parties will not have to enter into a new written agreement. However, any processes started under the previous legislation will continue under that legislation until completed.

Response: The proposed transitional arrangements outlined in the clause were strongly supported by the sector, who argued against the need for unnecessary paperwork and duplication of providing new tenancy agreements. Tenants will not be disadvantaged because the new Act provides greater protection for them, and the changes do not significantly disadvantage lessors. The sector considers it unreasonable to require a new agreement to be entered into part way through the term of an existing agreement, and that this would impose significant costs, particularly to large agencies including the Department of Housing. The sector supports the Residential Tenancies Authority (RTA) providing generic education and information to tenants, lessors, agents, providers and residents about the changes to their agreements. The Committee notes that the certainty created by Clause 543, together with the removal of the need to create new agreements, provides justification for any potentially adverse effects. Therefore, Clause 543 has sufficient regard to rights and liberties of individuals.


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7. Clauses 205 and 206 would affect the privacy and confidentiality of personal information.

8. The committee referred to Parliament the question whether requirements regarding personal information in clauses 205 and 206 are justified in the circumstances of the bill.

9. The Minister’s response was: Providing personal information about the parties

Issue: The Committee identified that Clauses 205 and 206 would affect the rights and liberties of individuals, including rights to privacy and confidentiality of personal information. Clause 205 requires a tenant to provide a truthful name or place of employment when asked by the lessor, and requires a tenant to provide the lessor or agent with their new residential address at the end of a tenancy if asked to do so in writing. Clause 206 requires a lessor or agent to advise the tenant in writing of any changes to the lessor’s/agent’s name or address for service.

Response: It is the essence of a contractual relationship that both parties are aware of the contact details for the other party. In tenancy arrangements, there is a need for the parties to be able to contact each other, in some cases after the agreement has ended, to finalise matters such as rental bonds. Dispute resolution processes, including Tribunal hearings, require the parties to be able to provide current contact information of the other parties to pursue outstanding matters. The discloser of personal information is necessary for the contract to be effective and it is reasonable in the circumstances. Therefore, Clauses 205 and 206 have sufficient regard to rights and liberties of individuals.


10. Clauses 370 and 375 may have insufficient regard to rights and liberties of residents in rooming accommodation.

11. The committee sought information from the Minister regarding justification for the powers to be conferred by proposed sections 370 and 375.

12. The Minister’s response was: Immediate terminations of rooming accommodation agreements

Issue: Clauses 370 and 375 provide that an accommodation provider can immediately terminate a rooming accommodation agreement because of a serious breach by the resident, and allow an accommodation provider to use reasonable force (but not bodily harm) in a police officer’s presence to remove a resident and their property where the agreement had ended but the resident had not left.

Response: These provisions were taken directly from the current Residential Services (Accommodation) Act and had not been changed. In terms of immediate termination, the RTA investigated whether a practical alternative, such as providing police with a power to require a resident to leave the premises for 24 hours, was possible, similar to the Residential Tenancies Act provisions for moveable dwelling parks. However, no practical alternative was feasible. The retention of the provision is strongly supported by operator representatives and some individual tenants on the basis of communal safety, but strongly opposed by tenant advocates. However, retention of the provision is important to ensure the interests of the majority of residents in communal-style accommodation are safeguarded.


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The Accommodation Act allows a service provider to remove a resident who refuses to leave after the termination of the agreement and, if necessary, to use reasonable force if a police officer is present. Unlike the Tenancies Act, a Warrant of Possession issued by the Small Claims Tribunal is not required. Further work was undertaken, however, no practical alternative was feasible. It was established that any process would take between three to six weeks before a Warrant of Possession could be issued and executed. Operators of low-cost accommodation have argued that undue delays jeopardise the viability of such accommodation, while tenant advocates strongly oppose the provision. There have been very few reported cases of these provisions being used by service providers.

The difference between rooming accommodation and general tenancies is reflected throughout the Bill with different processes, and shorter timeframes and notice periods than general tenancies. The nature of communal living requires the rights of the majority who share significant areas of their accommodation with other residents. The provisions were developed in recognition of the impact the behaviour of others can have on individuals and the need for the accommodation provider to ensure a safe and secure environment for all residents. There are added protections in that agreements can only be terminated immediately for serious breaches, and the use of force requires police presence. Residents can also dispute the termination. Therefore, Clauses 370 and 375 have sufficient regard to rights and liberties of residents in rooming accommodation.




♦ clause 513

15. Clause 513 would reverse the onus of proof and would impose liability for offences committed by a corporation on its executive officers.

16. The committee referred to Parliament the question of whether clause 513 has sufficient regard to the rights and liberties of individuals.

17. The Minister’s response was: Reversal of onus of proof in criminal proceedings

Issue: The Committee identified that Clause 513 would reverse the onus of proof and create ‘derivative liability’. In particular, it requires the executive officers of a corporation to ensure the corporation complies with the Act.

Response: Clause 513 introduces derivative liability for executive officers and a reversal of the onus of proof in situations where a corporation is found guilty of an offence under the legislation. In practice, this provides a significant incentive for executive officers to take positive steps to ensure the corporation complies with the legislation. Given the profile of the consumer group, it is important to emphasise this responsibility.

Similar provisions are found in other Queensland legislation, including the current Residential Tenancies Act 1994 (section 276) and the Residential Services (Accommodation) Act 2002 (section 131), and successful


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prosecutions have been undertaken by the RTA under section 276. As per the current provisions, Clause 513 does not impose any additional obligations on executive officers, and reasonable defences are included to protect officers. Overall, the provision is considered reasonable and necessary to maintain compliance in the sector in order to protect relatively vulnerable tenants and residents occupying their place of residence.


Alert Digest No 01 of 2009 Revenue and Other Legislation Amendment Bill (No.2) 2008

Chapter 20 Page 109

20. REVENUE AND OTHER LEGISLATION AMENDMENT BILL (NO.2) 2008

Background

1. The bill was introduced into the Parliament by the Treasurer, the Honourable Andrew Fraser MP, on 12 November 2008. The committee notes that this bill was passed, with amendments, on 4 December 2008.





♦ clause 2

4. Clause 2 of the bill would provide for the retrospective operation of parts and provisions of the bill. Further parts may have retrospective operation if the bill is not passed prior to 1 January 2009.


6. The Minister’s response was: Clause 2 - Commencement Part 2, divisions 2 to 7

It is noted that the Scrutiny of Legislation Committee (the Committee) comments that, in relation to the retrospectivity of Part 2 of the bill, the explanatory notes indicate that sufficient regard is had to rights and liberties of individuals due to the fact that these amendments are beneficial to taxpayers, in most cases have been publicly announced and are currently operating under administrative arrangements.

Part 4 – clause 49

It is considered that, in relation to the retrospectivity of clause 49, that sufficient regard is had to rights and liberties of individuals due to the fact that these amendments are beneficial to home buyers, have been publicly announced and are currently operating under an administrative arrangement

Part 2 - division 9 & Part 4 – clauses 46 to 48 & 51

The Committee notes that these subsections of clause 2 provide for commencement on 1 January 2009 and, should the bill receive assent after this date, would operate retrospectively.


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Part 2, division 9 provides for an extension of the home transfer duty and home mortgage duty concession and is, therefore, beneficial for taxpayers. This amendment has also been publicly announced.

Part 4, clauses 46 to 48 limits payment of the first home owner grant to eligible transactions valued under $1 million. This amendment was publicly announced in June 2008 in the 2008-09 State Budget.

Part 4, clause 51 provides that a court can order a person to repay a first home owner grant and also order a person to pay twice the grant amount in certain circumstances. This provision applies where a person is convicted by a court of a contravention of certain sections of the First Home Owner Grant Act 2001 and may apply where a person is convicted for an offence under the new capping provisions which commence on 1 January 2009. Accordingly, it was necessary for this amendment to also commence on that date. This provision only applies where a prosecution is made under the First Home Owner Grant Act 2001, and such prosecutions are rare. In any case, should the date of assent be after 1 January 2009, the court can still only apply the provision in relation to cases in action as at or after the date of assent.

Parts 9, 10, 14 and 15 (Amendment of Liquor Act 1992, Liquor and Other Acts Amendment Act 2008, South Bank Corporation Act 1989 and South Bank Corporation By-law 2004)

The matters addressed in Parts 9, 10, 14 and 15 are not intended to operate retrospectively. Accordingly, if the Bill is not debated and passed by the current proposed date of commencement for the relevant clauses (1 January 2009), amendments would be sought during the passage of the Bill to avoid retrospectivity.

♦ clause 71

7. Clause 71 would effect a retrospective amendment to the Land Tax Act.


9. The Minister’s response was: Clause 71 – Insertion of new s 62A It is considered that sufficient regard is had to rights and liberties of individuals due to the fact that new section 69, which provides an exemption for aged care facilities, is beneficial to taxpayers and was publicly announced in June 2008 in the 2008-09 State Budget. Consultation with the industry shows it strongly supports the amendment to be retrospective.

♦ clause 90

10. Clause 90 would have a retrospective operation. It would affect amendment to the Racing Act.


12. The Minister’s response was: Clause Number 90 – Insertion of new ch 3, pt 6 New section 113E(5) which is to be inserted into the Racing Act 2002, provides that if an applicant for a race information authority has used Queensland race information for the conduct of the applicant’s wagering business for the relevant code of racing at any time during the period from 1 September 2008 to the day of issue of the authority to the applicant, a condition may be imposed that the holder of the authority pay a fee for the use of the information during the period.


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The retrospective operation of the provision is necessary to address the loss of revenue the control bodies have suffered due to the enactment, or intended enactment, of corresponding legislation in other States. An applicant for an authority would be applying for the authority with the full knowledge that a fee could be imposed retrospectively for the use of the information. The issue of the retrospective operation of the provision was highlighted in my media release of 4 October 2008 prior to the introduction of the Bill, and again in my media release of 12 November 2008. It should be noted that the governments of South Australia and Western Australia have also indicated that they intend to introduce legislation that will operate retrospectively from 1 September 2008.



♦ clause 35

14. Clause 35 would provide that liability to pay an amount of duty owed under the Duties Act would not be discharged until the amount is paid to the commissioner. The proposed provision would operate even if payment had been made to an agent.


16. The Minister’s response was: Clause 35 – Insertion of new s 471EA It is considered that the proposed change is appropriate as it does not represent a change of practice. The Commissioner of State Revenue (the Commissioner) has always administered the Act on the basis that self assessors act as agents for the parties and the parties are liable for the duty until the money was paid to the Commissioner. The proposed amendment is for the purpose of removing any doubt.

A taxpayer can choose to either lodge an instrument with the Commissioner for assessment and pay duty directly to the Commissioner or to engage a self assessor as their agent. Where a self assessor defaults in making payment to the Commissioner, the taxpayer has the right to take action against their agent, the self assessor. Most self assessors are legal practitioners and, accordingly, their clients may claim against the Legal Practitioners Fidelity Fund if they are unable to recover the moneys from their agent.

♦ clause 48

17. Clause 48 would require repayment of a First Home Owner grant in specified circumstances.


19. The Minister’s response was: Clause 48 – Insertion of new s 22A The Committee states that justification is provided by the explanatory notes regarding consistency of clause 48 with fundamental legislative principles (FLPs). However, the passage from the explanatory notes that is quoted


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actually relates to clause 53 which provides the Commissioner with the power to request evidence of value and recover the cost of obtaining a valuation.

It is not considered that clause 48 raises any issues concerning FLPs. Clause 48 is consistent with section 22 of the First Home Owner Grant Act 2000, which requires an applicant to notify the Commissioner and repay the grant if certain conditions regarding the occupation of the home are not satisfied. The amendment under clause 48 operates in a similar manner where a grant is paid before completion of the transaction and, upon completion of the transaction, the applicant is ineligible for the grant because the value of the home is $1 million or above.

Clause 53 is consistent with a similar provision in the Duties Act 2001. The inclusion of a $1 million cap on the value of homes makes it necessary for the Commissioner to obtain evidence of value in certain circumstances. For the vast majority of transactions, the Commissioner will be able to rely upon the consideration stated in the contract and, therefore, will not require evidence of value. However, in certain circumstances such as where a transaction is between related parties or where a home is built by an owner-builder, the Commissioner may require evidence of value. A market appraisal by a real estate agent would generally be acceptable evidence of value. It is not considered that this is an onerous requirement for the small proportion of applicants affected. In extremely rare cases where the Commissioner would have a property valued, valuation costs will not be passed onto the applicant unless the value obtained is substantially higher than any evidence of value provided by the applicant. This is consistent with long-standing duties practice.

♦ clause 51

20. Clause 51 would allow a court to impose, in respect of specified offences under the First Home Owner Grant Act, a penalty that is arguably disproportionate to the offence.


22. The Minister’s response was: Clause 51 – Insertion of a new s 51A The Committee comments that clause 51 provides a penalty that is arguably disproportionate to the offence.

Clause 51 is consistent with a similar provision in the Taxation Administration Act 2001 (section 137) which provides that a court may order a person to pay twice the amount of liability where the court is satisfied that the offence was committed for the purpose of avoiding a tax law liability. This provision was not identified as raising any FLP issues in relation the Taxation Administration Bill 2001. It is also consistent with a penalty in the Land Tax Act 1915 which requires a taxpayer to pay twice the difference between the amount of land tax that ought to have been paid and the amount that has been paid.

Clause 51 provides a court with the power to order a person to pay twice the grant amount only where:

• the person is convicted of a contravention of sections 22(5), 22A(2), 23(4), 42(1) or 43(1) of the First Home Owner Grant Act 2000; and

• the circumstances of the contravention involves a scheme to circumvent limitations or requirements affecting eligibility for a first home owner grant.

Sections 22(5) and 22A(2) require a person to notify the Commissioner and repay the grant if certain conditions for the payment of the grant are not satisfied. Section 23(4) provides that a person must not, without reasonable excuse, fail to comply with a condition imposed by the Commissioner under the Act. Sections 42(1) and 43(1) provide that a person must not provide false or misleading documents or make false or misleading statements to the Commissioner.

In order for a person to be required to pay twice the grant amount they will firstly have to be convicted of a contravention of one of the above provisions and, secondly, the court must consider that the offence occurred in


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the context of a scheme or arrangement to falsely obtain a first home owner grant. It is considered that the penalty provided in these circumstances is not disproportionate to the offence and that the penalty is consistent with existing penalty provisions in the Taxation Administration Act 2001 and the Land Tax Act 1915.

♦ clauses 52, 57, 65 and 127

23. Clauses 52, 57, 65 and 127 may affect rights of individuals to privacy and confidentiality of information.

24. The committee referred to Parliament the question whether the proposed provisions have sufficient regard to rights and liberties of individuals.

25. The Minister’s response was: Clause 52 – Amendment of s 68 (Offence to disclose confidential information) Clause 57 – Amendment of s 141 (Confidentiality of information) Clause 65 – Amendment of s 4A (Secrecy) Clause 127 – Amendment of s 111 (Disclosure of confidential information) The Committee comments that clauses 52, 57, 65 and 127 may affect the rights of individuals to privacy and confidentiality.

The proposed amendments provide a specific power for the Commissioner to disclose confidential information to the Queensland police or the Federal police about an offence or suspected offence. The confidentiality provisions of the First Home Owner Grant Act 2000, Fuel Subsidy Act 1997, Land Tax Act 1915 and Taxation Administration Act 2001 provide a general power for the Commissioner to provide confidential information to the police (and others) where such disclosure is necessary to perform the Commissioner’s functions in relation to the administration or enforcement of a law administered by the Commissioner. While these amendments represent an extension of the Commissioner’s power of disclosure to the police, the amendments are considered appropriate for the following reasons:

• The Commissioner can still only disclose information obtained or held in the course of administering a law administered by the Commissioner; and

• The Commissioner would only disclose confidential information to the police that involves or is suspected to involve an offence that the police are empowered to investigate (i.e. a criminal offence).



♦ clause 29

27. The committee notes that clause 29 would allow the definition of ‘prescribed period’ to be extended by regulation.

28. The committee suggests that clause 29 may be regarded as an appropriate delegation of legislative power.


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29. The Minister’s response was: It is noted that the Committee considers that this amendment, which allows the definition of “prescribed period” for vehicle registration duty purposes to be extended by regulation, is an appropriate delegation of legislative power.

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

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

♦ clause 105

31. Clause 105 of the bill would prevent review under the Judicial Review Act of a decision of the Coordinator-General regarding a significant project.


33. The Minister’s response was: Clause Number 105 – New section of the State Development and Public Works Organisation Act 1971 s 27AD Application of the Judicial Review Act 1991 It is proposed that the Coordinator-General’s decisions relating to significant projects under Part 4 will not be subject to the Judicial Review Act 1991 (JRA).

Previously the Coordinator-General’s decisions under Part 4 have not been subject to the JRA as there were no final decisions of an administrative character that would attract the operation of the JRA. As the amendments to include fees have introduced a formal application and decision stage for significant project declarations and change proposals, in order to maintain the status quo it is necessary to exclude these decisions from the jurisdiction of the JRA.

Section 4(3)(b) of the Legislative Standards Act 1992 provides that legislation should be consistent with principles of natural justice. Natural justice principles are derived from the common law and includes the right to be heard, an absence of bias and procedural fairness.

In relation to the question of natural justice under the FLPs it is important to note that:

• A decision of the Coordinator-General to refuse to make a significant project declaration does not affect the ability of the proponent to progress the project under primary legislation. For example, a proponent is not prevented from lodging a development application under the Integrated Planning Act 1997 (the IP Act) and going through the standard Integrated Development Assessment System (IDAS) process. What the proponent will not be able to do is to take advantage of the modified assessment rules afforded by the environmental impact statement (EIS) process that follows from a ‘significant project’ declaration under the State Development and Public Works Organisation Act 1971 (the SDPWO Act). Given that the decision to declare a project to be a ‘significant project’ is a procedural entitlement only, it is not considered that a Coordinator-General’s decision to refuse to make a significant project declaration should be subject to the JRA.

• The Coordinator-General’s decisions in relation to a declared significant project are not determinative for a project and do not oust natural justice rights, including rights to appeal, under primary legislation. For


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example, while the Coordinator-General’s report may direct an assessment manager to refuse a development application under the IP Act the proponent is not prevented from lodging an appeal against the assessment’s manager’s refusal. This principle applies equally to any conditions the Coordinator-General imposes in a Coordinator-Generals report. Given that full natural justice rights are maintained under the primary legislation it is not considered necessary for the Coordinator-General’s decisions to be subject to the JRA.

• The proposed amendments require the Coordinator-General to provide reasons to a proponent whose application for a significant project declaration, or change proposal, is refused. This will ensure that appropriate administrative processes are applied to the Coordinator-General’s decisions under Part 4. In addition the proposed provisions only remove the right to judicial review under the JRA. They do not affect the Supreme Court’s inherent jurisdiction. As such, the proposed provisions do not exhaust the proponent’s right to request a review of a decision. The requirement to provide the reasons for a refusal will facilitate any action that a proponent may wish to take in the Supreme Court.

The purpose of ‘significant project’ declarations is to identify projects of particular economic or environmental importance or significance to the State and to provide an alternative assessment methodology that recognises the complex issues that arise with such projects.

Before making a ‘significant project declaration’ the Coordinator-General must consider a wide range of issues under section 27 of the SDPWO Act including:

- detailed information about the project given by the proponent in an initial advice statement;

- relevant planning schemes or policy frameworks, including those of a relevant local government or of the State or the Commonwealth;

- the project’s potential effect on relevant infrastructure;

- the employment opportunities that will be provided by the project;

- the potential environmental effects of the project;

- the complexity of local, State and Commonwealth requirements for the project;

- the level of investment necessary for the proponent to carry out the project; and

- the strategic significance of the project to the locality, region or the State.

When evaluating an EIS, submissions and other material about a project and preparing the Coordinator-General’s Report, the Coordinator-General considers the broad, and often competing, State interests affected by the project and delivers a whole of government evaluation of the project.

It is considered that the nature of these decisions are not readily susceptible to the limited scope of inquiry afforded by judicial review under the JRA. Such review is more appropriately undertaken under primary legislation once the Coordinator-General’s recommendations have been implemented by the decision maker under the primary legislation.



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Alert Digest No 01 of 2009 Summary Offences and Other Acts Amendment Bill 2008

Chapter 21 Page 117

21. SUMMARY OFFENCES AND OTHER ACTS AMENDMENT BILL 2008

Background

1. The Honourable Judy Spence MP, Minister for Police, Corrective Services and Sport introduced the bill on 11 November 2008. The committee notes that this bill was passed, without amendments, on 25 November 2008.





♦ clause 4

4. Clause 4 of the bill (new section 7 of the Summary Offences Act) would create a separate offence of ‘urinating in a public place’.

5. The new section 7 would be an offence of strict liability.





♦ clause 4

9. Clause 4(2) is an evidentiary provision and would reverse the onus of proof.

Alert Digest No 01 of 2009 Summary Offences and Other Acts Amendment Bill 2008

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10. The committee referred to Parliament the question of whether clause 4(2) has sufficient regard to the rights and liberties of individuals.

11. The Minister’s response was: Clause 4 creates a new offence of ‘urinating in a public place’. This clause results from the Crime and Misconduct Commission’s recommendations arising from the ‘Policing Public Order: A review of the public nuisance offence’ report. In dealing with people who commit an offence under this provision, police officers will still be able to utilise their discretion in deciding whether or not to take action, and if action is warranted, the nature of that action.

Furthermore, while it is not the intention of this Government to provide specific defences to an offence of urinating in a public place, as highlighted by the Committee, the defences of Chapter 5 of the Criminal Code are available in exceptional circumstances.

Additionally, an evidentiary provision is provided to ensure that liquid purported to be urine does not require testing to prove its content. Any necessity to collect and test urine would be impractical and unhygienic standards.


Alert Digest No 01 of 2009 Transport (New Queensland Driver Licensing) Amendment Bill 2008

Chapter 22 Page 119

22. TRANSPORT (NEW QUEENSLAND DRIVER LICENSING) AMENDMENT BILL 2008

Background

1. The bill was introduced into the Parliament by the Honourable John Mickel MP, Minister for Transport, Trade, Employment and Industrial Relations, on 12 November 2008. The committee notes that this bill was passed, without amendments, on 2 December 2008.






4. The bill would affect the privacy of individuals holding proposed ‘smartcard’ products such as driver licences.

5. The committee referred to Parliament the question whether the provisions of the bill have sufficient regard to rights and liberties of individuals.


6. Various provisions of the bill create new offence provisions and would operate to affect rights and liberties of individuals.

7. The committee referred to Parliament the question whether each offence provision and maximum penalty proposed has sufficient regard to the rights and liberties of individuals potentially subject to the offences.

8. The Minister’s response was: The Committee’s has noted that the Bill contains a number of potential breaches of fundamental legislative principles and has referred them to Parliament. It has also identified material in the accompanying explanatory notes justifying potential breaches.


Alert Digest No 01 of 2009 Amendments to Bills

Chapter 22 Page 120

PART I - BILLS

SECTION C – AMENDMENTS TO BILLS134

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

134 On 8 February 2007, Parliament resolved as follows:

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

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

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

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

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

PART I - BILLS

APPENDIX

MINISTERIAL CORRESPONDENCE

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

PART II

SUBORDINATE LEGISLATION

Alert Digest No 01 of 2009 Index of Subordinate Legislation about which Committee has Concluded Its Inquiries

Page 121

PART II – SUBORDINATE LEGISLATION

SECTION A – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCERNS135

Sub-Leg No. Name

Date concerns first

notified (dates are

approximate)

206 / 07 Statutory Instruments Amendment Regulation (No. 2) 2007 29/10/07

283 / 08 Workplace Health and Safety Regulation 2008 25/11/08

336 / 08 Commission for Children and Young People and Child Guardian Amendment Regulation (No.2) 2008

25/11/08

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

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


Page 122


SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES136 (INCLUDING LIST OF CORRESPONDENCE)

Sub-Leg No. Name

Date concerns first notified (dates are approximate)

287 / 08 Collections Regulation 2008 07/10/08

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

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

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


Page 123

This concludes the Scrutiny of Legislation Committee’s 1st report to Parliament in 2009.

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

Carryn Sullivan MP

Chair

10 February 2009


APPENDIX

CORRESPONDENCE

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

scrutiny of legislation committee · ms tamara vitale, executive assistant scrutiny of legislation...

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