SCRUTINY OF LEGISLATION COMMITTEE OF LEGISLATION COMMITTEE MEMBERSHIP 52nd PARLIAMENT, 1ST SESSION...

SCRUTINY OF LEGISLATION COMMITTEE

ALERT DIGEST

Tabled 28 October 2008

Issue No 11 of 2008

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 11 of 2008 Table of Contents

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TABLE OF CONTENTS

TERMS OF REFERENCE..................................................................................................................................vi

FUNDAMENTAL LEGISLATIVE PRINCIPLES.................................................................................................vi

PART I - BILLS...................................................................................................................................................2

SECTION A – BILLS REPORTED ON.....................................................................................................2

1. Coroners and Other Acts Amendment Bill 2008...........................................................................2 Background .......................................................................................................................................2 Acts to be amended ..........................................................................................................................2 Reasons for bill .................................................................................................................................2 Application of fundamental legislative principles ...............................................................................3 Is the legislation unambiguous and drafted in a sufficiently clear and precise way? .........................3

♦ clauses 5 and 8.......................................................................................................................3

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

♦ clauses 13, 19, 21, 24 and 27.................................................................................................5

♦ clause 48 ................................................................................................................................9

♦ clause 15 ................................................................................................................................9

♦ clauses 15, 17, 21, 26, 42, 43 45 and 54 ..............................................................................10

♦ clauses 16 and 45.................................................................................................................12

Is the legislation consistent with the principles of natural justice? ...................................................12

♦ clauses 34 and 36.................................................................................................................12

Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?.....................................................................................................................13

♦ clause 45 ..............................................................................................................................14

Does the legislation have sufficient regard to Aboriginal tradition and Island custom? ...................14

♦ the bill generally ....................................................................................................................15

♦ clause 28 ..............................................................................................................................15

♦ clause 61 ..............................................................................................................................16

2. Emergency Services Legislation Amendment Bill 2008 ............................................................19 Background .....................................................................................................................................19 Acts to be amended ........................................................................................................................19 Reasons for bill ...............................................................................................................................19


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Application of fundamental legislative principles .............................................................................19 Is the legislation unambiguous and drafted in a sufficiently clear and precise way? .......................19

♦ clauses 8 and 21...................................................................................................................19

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

♦ various provisions .................................................................................................................24

♦ clause 11 ..............................................................................................................................25

♦ clauses 7 and 20...................................................................................................................27


♦ clauses 7, 9 and 20...............................................................................................................28

Does the bill allow the delegation of administrative power only in appropriate cases and to appropriate persons? ......................................................................................................................29

♦ clauses 6 and 20...................................................................................................................29

Does the legislation confer immunity from proceeding or prosecution without adequate justification?30

♦ clause 6 ................................................................................................................................30

Content of explanatory note ............................................................................................................30

3. Guide, Hearing and Assistance Dogs Bill 2008 ..........................................................................33 Background .....................................................................................................................................33 Acts to be amended ........................................................................................................................33 Reasons for bill ...............................................................................................................................33 Application of fundamental legislative principles .............................................................................33 Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?.....................................................................................................................33

♦ clause 13 ..............................................................................................................................34

♦ clause 104 ............................................................................................................................34


♦ clauses 15, 57 and 58...........................................................................................................35


Is the legislation consistent with the principles of natural justice? ...................................................38

♦ clauses 26 and 45.................................................................................................................38

Does the legislation confer immunity from proceeding or prosecution without adequate justification?39

♦ clause 113 ............................................................................................................................39



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♦ part 8, division 3....................................................................................................................40

4. Mines and Energy Legislation Amendment Bill 2008.................................................................43 Background .....................................................................................................................................43 Acts to be amended ........................................................................................................................43 Reasons for bill ...............................................................................................................................43 Application of fundamental legislative principles .............................................................................44 Does the legislation have sufficient regard to the institution of Parliament?....................................44

♦ clause 104 ............................................................................................................................44

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................44

♦ clause 71 ..............................................................................................................................45

Does the bill have sufficient regard to the rights and liberties of individuals?..................................46

♦ the bill generally ....................................................................................................................46

♦ clauses 105 to 109................................................................................................................47

Is the legislation unambiguous and drafted in a sufficiently clear and precise way? .......................47

♦ clauses 75 and 77.................................................................................................................47

5. Transport and Other Legislation Amendment Bill 2008.............................................................51 Background .....................................................................................................................................51 Acts to be amended ........................................................................................................................51 Reasons for bill ...............................................................................................................................51 Application of fundamental legislative principles .............................................................................52 Does the legislation have sufficient regard to the institution of Parliament?....................................52

♦ part 4, division 2 and part 2, division 3..................................................................................52




♦ clauses 11 and 95.................................................................................................................56

♦ clause 222 ............................................................................................................................57

♦ clause 223 ............................................................................................................................58

♦ clauses 280 and 294.............................................................................................................60


♦ clauses 15, 37 and 98...........................................................................................................61


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♦ clause 173 ............................................................................................................................62

♦ clauses 107 and 162.............................................................................................................64

♦ clause 242 ............................................................................................................................65

♦ clause 250 ............................................................................................................................66

Does the legislation provide for the acquisition of property with fair compensation?.......................67

♦ clause 251 ............................................................................................................................67

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................68

♦ clause 17 ..............................................................................................................................68



6. Water (Commonwealth Powers) Bill 2008 ...................................................................................71 Background .....................................................................................................................................71 Legislation to be amended ..............................................................................................................71 Reasons for bill ...............................................................................................................................71 Application of fundamental legislative principles .............................................................................71 Does the legislation have sufficient regard to the institution of Parliament?....................................71

♦ part 2.....................................................................................................................................72

Is the legislation constitutionally valid?............................................................................................73

♦ clause 5 ................................................................................................................................74

PART I - BILLS.................................................................................................................................................75

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE............................75

NO COMMITTEE RESPONSES TO MINISTERIAL CORRESPONDENCE ARE INCLUDED IN THIS ALERT DIGEST..............................................................................................................................75

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

SECTION C – AMENDMENTS TO BILLS..............................................................................................77

PART II – SUBORDINATE LEGISLATION ......................................................................................................79

SECTION A – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCERNS....................................................................................................................................79

SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES (including list of correspondence) .............................................80

APPENDIX


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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 10 of 2008 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.

Alert Digest No 10 of 2008 Terms of Reference and Fundamental Legislative Principles

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

1. rights and liberties of individuals; and

2. the institution of Parliament.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(d) amends statutory instruments only; and

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

(i) in appropriate cases and to appropriate persons; and

(ii) if authorised by an Act.

PART I

BILLS

Alert Digest No 11 of 2008 Coroners and Other Acts Amendment Bill 2008

Chapter 1 Page 2

PART I - BILLS

SECTION A – BILLS REPORTED ON

1. CORONERS AND OTHER ACTS AMENDMENT BILL 2008

Background

1. The Honourable Kerry Shine MP, Attorney-General, Minister for Justice and Minister Assisting the Premier in Western Queensland, introduced the bill into the Legislative Assembly on 7 October 2008.

Acts to be amended

2. The bill would amend the: • Coroners Act 2003; • Births Deaths and Marriages Registration Act 2003; • Cremations Act 2003; and • Residential Services (Accreditation) Act 2002.

3. The explanatory notes indicate:3 The main objective of the Bill is to amend the Coroners Act 2003 … to improve operational efficiency in the coronial regime. The Bill also makes:

• a coronial related amendment to the Births Deaths and Marriages Registration Act 2003; and

• consequential amendments to the Cremations Act 2003.

In addition, the Bill makes amendments to the Residential Services (Accreditation) Act 2002, which are not related to the coronial regime, to clarify that this legislation is intended to cover the aged rental scheme sector of the residential services industry.

Reasons for bill

4. In respect of amendments proposed to the Coroners Act, the explanatory notes state:4 When the Act came into force in 2003, it established a new coronial regime focussed on finding the truth of what occurred in order to prevent deaths from similar causes happening in the future. This represented a marked departure from the repealed Coroners Act 1958 which gave the coronial process an undue focus on criminal liability.

The Department of Justice and Attorney-General (DJAG) has conducted an operational review of the Act to identify any necessary amendments to enhance administrative efficiency and to clarify the scope and operation of the Act.

3 At 1.

4 At 1.


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5. In respect of amendments proposed to the Residential Services (Accreditation) Act, the Explanatory Notes provide:5 Although it was always intended that aged rental schemes be covered by the RSA Act, currently there is ambiguity as to whether or not the RSA Act covers aged rental schemes. It is now apparent that at the time of drafting there was not a full appreciation of the ownership and management structures being used by the businesses involved in these schemes.

Consequently, the definitions for ‘residential service’ and ‘service provider’ were designed to cover business entities in which the accommodation and food services are provided by the same person, not different persons.

Application of fundamental legislative principles

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

6. 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.

♦ clauses 5 and 8

7. Currently, section 8(3)(d) of the Coroners Act provides that a death is a ‘reportable death’ if ‘the death was not reasonably expected to be the outcome of a health procedure’. The explanatory notes refer to matters regarding the current provision raised in the report of the Queensland Public Hospitals Commission of Inquiry (the Davies Report)6 and by the State Coroner:7 The Davies Report identified specific aspects of the current section 8(3)(d) which make it difficult to apply in practice and which could contribute to the under-reporting of medical deaths. The State Coroner has also raised issues regarding the language and interpretation of the section. In particular, the Davies Report commented on the difficulty in identifying “whose expectation” is relevant in determining whether a death would be reasonably expected and to what standard the outcome must have been unreasonable.

8. The need for reform was identified in the Davies Report in the following way:8 In my view, the present position under s8(3)(d) of the Coroner’s Act 2003 whereby, in effect, a single medical practitioner decides whether a death, particularly one arising from elective surgery in a public hospital, was a reasonably expected outcome of a health procedure, is in need of amendment. Obviously, deaths which are, or might be caused or contributed to by medical error or neglect, should be investigated by a coroner and … at present the reporting of such deaths may be able to be avoided.

9. Accordingly, clause 5 of the bill would replace section 8(3)(d) to require reporting if ‘the death was a health care related death’. Clause 8 would insert a new section 10AA (Health care related death

5 At 1-2.

6 See: Hon Geoffrey Davies AO, Queensland Public Hospitals Commission of Inquiry Report, November 2005, 530-533, available at: www.qphci.qld.gov.au/

7 At 7-8 and see also 2.

8 At [7.30].


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defined), providing a lengthy definition of a ‘health care related death’. The proposed definition is explained in the following way in the explanatory notes:9 The new definition provides that a death will be a health care related death if a person dies at any time after receiving health care that either caused or was likely to have caused, or contributed or was likely to have contributed to the death and immediately before receiving the health care an independent person would not have reasonably expected that the health care would cause or contribute to the person’s death. An independent person is an independent person appropriately qualified in the relevant area of health care who has had regard to all relevant matters. These include the deceased person’s state of health as it was thought to be when the health care was started or sought and the clinically accepted range of risk associated with the health care. The section also expressly captures not only the provision of health care, but failure to provide health care where the failure either caused or is likely to have caused, or contributed to, or is likely to have contributed to the death.

10. Clause 8 would further define ‘health care’ (new section 10AA(5)) to mean: • any health procedure; or • any care, treatment, advice, service or goods provided for or purportedly for the benefit of

human health.

11. The committee notes that the relevant provisions of the Coroners Act have the potential to affect rights and liberties of individuals. The committee has considered, therefore, whether clauses 5 and 8 of the bill are unambiguous and drafted in a sufficiently clear and precise manner. In this context, the committee notes the definition of ‘health care’ in proposed section 10AA(5) is broad in scope. While ‘health procedure’ is defined in schedule 2 to the Coroners Act, other terms used in the second limb of the definition are not. Due to use of a number of terms general in meaning, such as ‘care’, ‘advice’, ‘service’ and ‘goods’, together with a reference to provision ‘for or purportedly for the benefit of human health’, the scope of the second limb of the proposed definition may be wide. Clearly, it would extend beyond the issue identified in the Davies Report. The committee notes, however, the statement in that report that:10 Reforms need to be broad enough and robust enough to capture all cases of medical errors, neglect and misconduct leading to death by health service practitioners.

12. Further, while clause 8 would require a nexus between relevant health care and a death, the scope of the proposed meaning of a ‘health care related death’ would extend to a death that occurred ‘at any time’ after a person sought or received health care. Accordingly, in this respect also, clause 8 goes beyond the recommendation of the Davies Report; namely, for an additional category of reportable death regarding ‘a death that happens within a certain time of an elective procedure’. The Davies Report suggested such a requirement would remove ‘the dependence presently placed upon a single doctor to decide whether a death was reasonably expected’.11

9 At 8.

10 At 7.32.

11 At [7.38].


Chapter 1 Page 5

13. In his second reading speech to the bill, the Attorney stated:12 The Davies Report did not specifically recommend amendment of the section but identified ambiguities which made it difficult to apply in practice and which could lead to under-reporting of medical deaths.

In particular, the Report commented on the difficulty of identifying whose expectation is relevant in determining whether a death would be reasonably expected and to what standard the outcome must have been unreasonable.

The bill addresses this by making it clear that it is the expectation of an independent person appropriately qualified in the relevant area of health care that is relevant in determining whether a death would be reasonably expected.

The amendments also identify the factors that may be taken into account in making the determination.

14. Clause 5 of the bill would replace a current requirement to report a death ‘not reasonably expected to be the outcome of a health procedure’ with a new requirement to report a ‘health care related death’. Clause 8 would define a ‘health care related death’.

15. The committee notes that the definition of a `health care related death’ in clause 8: • may be so broadly defined as to lead to ambiguity; and • extends to a death ‘at any time’ after a person sought or received relevant health care.

16. The committee refers to Parliament the question whether the legislation is unambiguous and drafted in a sufficiently clear and precise manner.

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

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

♦ clauses 13, 19, 21, 24 and 27

18. ‘Body’ is defined in schedule 2 of the Coroners Act as a human body or part of a human body. In turn, ‘human body’ is defined as including the body of a stillborn child. Further, ‘tissue’ is defined as meaning: • an organ, blood or part of a body or foetus; or • a substance extracted from an organ, blood or part of a body or foetus.

19. Provisions of the bill would raise issues regarding rights to bodies after death and to excised body parts and tissue.

20. First, clause 13(2) of the bill would amend the Coroners Act by inserting a new section 13(3) (Coroner’s powers of investigation). Existing subsections would be renumbered. The new subsection would clarify the powers of a coroner investigating a death. It would allow a coroner to authorize a

12 Hon KG Shine MP, Attorney-General and Minister for Justice and Minister Assisting the Premier in Western Queensland, Second Reading

Speech, Queensland Parliamentary Debates (Hansard), 07 October 2008, 2846.


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doctor or nurse to take a sample of a deceased person’s blood for testing for the purposes of coronial investigation. The explanatory notes indicate:13 An example of where this might occur would be where blood samples may need to be taken urgently to assist in the diagnosis of death from anaphylactic shock.

21. Second, clause 19 would insert a new section 18A (Arrangements for and guidelines about assessing suitability of body for Transplantation and Anatomy Act 1979). New section 18A would address arrangements for assessing the suitability of a body for the removal of tissue for the Transplantation and Anatomy Act. In respect of clause 19, the explanatory notes indicate:14 If a prescribed tissue bank is a party to an arrangement under section 54AA to access section 7(4) reports, the tissue bank (or a person acting on its behalf) may conduct an external examination of the body for the purpose of assessing whether the body is suitable for the removal of tissue under the Transplantation and Anatomy Act 1979. This “donor screening” process cannot occur if the State Coroner, the coroner investigating the death or a person acting for the tissue bank is aware that the deceased had objected during his or her lifetime to the removal of tissue from his or her body. The person who conducts the examination must comply with any directions of the coroner and any guidelines issued by the State Coroner about the conduct of the process. If the examination indicates a suitable donor, the tissue bank must obtain the consent of the coroner and the next of kin before any retrieval of tissue can proceed (as is required under the Transplantation and Anatomy Act 1979).

22. Third, clause 20 would replace existing section 21 (Observing an autopsy). The new section 21 would provide for: • attendance at autopsies to observe; and • participation, by certain persons, in autopsies.

23. The operation of the new section 21 is outlined in the explanatory notes to the bill:15 The amendments clarify there are three distinct regimes for attendance. The coroner and investigating police officer may attend as of right. If the coroner considers it appropriate, a person may attend for vocational or clinical education or training. This takes account of the contemporary structure of medical training under which observation at autopsies is no longer a compulsory component. An attending doctor would be an example of a person who may be allowed to attend for clinical educations and training purposes. The coroner may also allow a person with sufficient interest to attend. However, even if a person demonstrates sufficient interest, the coroner has a discretion to permit their attendance at the autopsy. In exercising this discretion, the coroner must take into account whether the person’s attendance would compromise the integrity of the investigation and if practicable consult with a family member of the deceased and the doctor conducting the autopsy.

24. Fourth, clause 24 of the bill would amend existing section 24 (Removing tissue for autopsy testing). Currently, section 24 provides for removal of human tissue for testing, its retention and review of the retention. Amendments to be effected by clause 24 seek to clarify the operation of section 24 in three respects: • the ‘tissue’ to which section 24 relates; • requirements regarding release of a body from which tissue has been removed; and

13 At 9.

14 At 9-10.

15 At 10.


Chapter 1 Page 7

• release of tissue to a ‘family member’ (see paragraph 28).

25. The three respects in which the operation of section 24 is to be clarified are addressed in the explanatory notes:16 While “tissue” is defined to include part of a body or foetus, the current sections 24(2) and 24(5) use inconsistent terminology and are expressed to apply only to a whole organ or foetus. Hands (for fingerprinting) and jaws (for forensic odontology) are the body parts most commonly removed and the amendments ensure these are covered by the retention and review regime. In addition, section 24(4) currently provides that if the organ or foetus has been removed, the coroner must not order the release of the body unless satisfied that, if practicable, a family member has been informed of the removal, and the retention of the tissue is necessary for the investigation of the death. There is currently no express provision to “close off” this process by providing the pathologist must return the items to the body if the matters under section 24(4)(a) and (b) are not satisfied. There are minor amendments to address this.

There are also minor amendments to section 24(8)(a) which provides for release of tissue to a family member if the coroner has ordered disposal of the tissue. The amendments clarify that the tissue may be released to the family for testing, some other lawful purpose or burial.

26. Fifth, clause 27 would amend existing section 26 (Control of body). Currently, section 26(1) provides that, except where a person’s death is reported after burial, the coroner gains control of a person’s body when the coroner starts investigating the person’s death. New section 26(2) then identifies the point at which the coroner ceases to have control of the body.

27. The aim of the amendments to be effected by clause 27 is to allow another coroner to release a body where appropriate and necessary:17 The section is currently structured in terms of the investigating coroner having control of the body. On some occasions, the investigating coroner may be absent or otherwise unavailable to order the release of the body for burial when it first becomes practicable to do so and this creates unnecessary delay and distress to the family. The amendments will allow another coroner to order the release of the body in such situations where this is appropriate.

28. Sixth, clause 61 would replace with a new definition the existing definition of ‘family member’ in schedule 2 to the act. The explanatory notes indicate the new meaning would ‘ensure that documentary evidence of the deceased person’s wishes as to whom should be the “family member” for the purposes of the Act can be taken into account’.18

29. The committee outlines, for the information of the Parliament, regarding whether the legislation has sufficient regard to rights and liberties of individuals, common law recognition of rights to bodies after death and to excised body parts and tissue.

30. Historically, while it was long accepted that there was no ‘property’ in the body of a dead person,19 the few matters on which the courts were asked to provide a determination produced differing judgments

16 At 11.

17 Explanatory notes at 12.

18 At 17.

19 PDG Skegg; ‘The Removal and Retention of Cardaveric Body Parts: Does the Law Require Parental Consent?’ [2003] Otago Law Review 8, note 12.


Chapter 1 Page 8

regarding ownership and control of bodies, body parts and tissue. More recently, courts have recognised human tissue is property, for some purposes at least.20

31. Legislative provision regarding use of deceased human bodies, body parts and tissue for forensic and therapeutic purposes often addresses, therefore, the issue of who should have the right of control:21 A particularly lively area of concern is whether the body can be seen “as property”. This is seen most acutely in the context of arguments about the accessibility of the body for therapeutic purposes. Through the practical arguments about the utility of the body for the living is also interlaced the philosophical question of the nature and status of the corpse itself. These are intriguing, challenging questions, in which there is not necessarily one answer for all questions at the one time. When the focus is on disputes among family members, the subjective, or subject-ness of the body, is the driving focus: the deceased person is seen as family, not as corpse. Managing “remembering” within the family is a key aspect of the legal framework in this context.

32. In Queensland, these competing interests are regulated by legislation including the Coroners Act and the Transplantation and Anatomy Act. With respect to forensic interests, the coroner’s responsibility is to determine the cause of death and, where relevant, identity of the deceased. With respect to therapeutic interests, regulated by the Transplantation and Anatomy Act, the committee notes that relevant issues are currently being examined by a select committee of the Queensland Parliament examining organ donation.22

33. Accordingly, in respect of a body, body parts and tissue, the provisions of the bill constitute a statutory attempt to balance:23 • any right of relatives to possession for burial or cremation; • rights where body parts or tissue of a deceased person are to be used for purposes other than

burial or cremation; and • statutory authority for a coroner to investigate specified deaths, including by way of removing

body parts and tissue.

34. Provisions of the bill would alter rights to bodies after death and to excised body parts and tissue.

35. The committee refers to Parliament the question whether these provisions have sufficient regard to the rights and liberties of individuals.

20 L Skene, ‘Proprietary Rights in Human Bodies, Body Parts and Tissue: Regulatory Contexts and Proposals for New Laws’ (2002) 22 Legal

Studies 102, 103.

21 RF Croucher, ‘Disposing of the dead: Objectivity, subjectivity and identity’ in I Freckelton and K Petersen (eds), Disputes and Dilemmas in Health Law, Federation Press, Australia, 2006, 325. See also: R Taylor, ‘Human Property: Threat or Saviour’, (2002) 9 Murdoch University Electronic Journal of Law; L Skene, ‘Proprietary Rights in Human Bodies, Body Parts and Tissue: Regulatory Contexts and Proposals for New Laws’ (2002) 22 Legal Studies 102; L Skene ‘Arguments Against People Legally `Owning’ their own Bodies, Body Parts and Tissue’, (2002) 2 Macquarie Law Journal 165.

22 See: www.parliament.qld.gov.au/view/committees/ORGAN.asp

23 L Skene, ‘Proprietary Rights in Human Bodies, Body Parts and Tissue: Regulatory Contexts and Proposals for New Laws’ (2002) 22 Legal Studies 102, 115-122.


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♦ clause 48

36. The operation of amendments to be effected by clause 48 would affect the rights of owners otherwise entitled to the return of property held by a coroner as ‘physical evidence’.

37. Existing section 60 (Returning physical evidence) would be amended by clause 48. Currently, section 60(1) requires a coroner to order that physical evidence be returned to its owner as soon as the coroner decides the evidence is no longer required. Section 60(2) contains an exception; namely, where it is not lawful for the owner to possess the physical evidence. Clause 48 would provide a further exception in section 60(2); that is, ‘if under the guidelines issued by the State Coroner, it is not desirable that the physical evidence be returned to its owner because of its nature, condition and value’. Clause 48 provides an example of such physical evidence, ‘a cracked safety helmet that a deceased person was wearing when killed’.

38. The explanatory notes indicate, in respect of such evidence not returned:24 If the coroner does not order the return of the physical evidence because it is not lawful for the owner to posses the evidence or because, under the State Coroner’s guidelines, it is not desirable it be returned because of its nature, condition and value, the evidence is forfeited to the State and may be dealt with in accordance with the State Coroner’s Guidelines.

39. Clause 48 would amend section 60 of the Coroners Act regarding rights of owners entitled to the return of property held by a coroner as ‘physical evidence’.

40. The committee refers to Parliament the question whether clause 48 has sufficient regard to the rights and liberties of individuals.

♦ clause 15

41. Clause 15 would amend section 16 of the Coroners Act. The existing section confers a coroner with the power to compel the giving of information relevant to a coronial investigation unless a person has a reasonable excuse. The amendment in clause 15 is to confer power to require the production of a document or thing.

42. The committee notes that clause 15 would modify an existing statutory exception to the right to silence.

43. At common law, the right to remain silent and to refuse to answer if questioned by police is a basic right. The common law right is upheld, but modified in some respects, by the Police Powers and Responsibilities Act 2000. The right is also subject to other exceptions found in Queensland legislation, including statutory requirements to provide personal information or answer certain questions.

24 At 15.


Chapter 1 Page 10

44. Clause 15 would modify an existing statutory exception to the right to silence.

45. The committee refers to Parliament the question whether the clause 15 has sufficient regard to rights and liberties of individuals.

♦ clauses 15, 17, 21, 26, 42, 43 45 and 54

46. Eight provisions of the bill might affect rights to privacy of personal information. The relevant provisions, together with any justification for breach of the fundamental legislative principle regarding sufficient regard to rights and liberties of individuals, are identified in the table below.

Clause Section of act to be amended

Effect of amendment Information from explanatory notes (page)

15 16 (Duty to help investigation)

Empowering the coroner to compel the giving of information relevant to the coronial investigation unless a person has a reasonable excuse

The amendment will ensure that the requirement to give information includes the production of a document or thing (9).

17 17 (Disclosure of confidential information to Coroners Court)

Providing for disclosure of information to the Coroners Court if the relevant legislation allows for the release of confidential information to a court of a party to a proceeding in a court

The amendments will enable the disclosure of this information to a coroner during the coronial investigation preceding the constitution of the Coroners Court. It preserves a right to non-disclosure if the legislation allows a person to refuse or requires consent before information is released (9).

21 22 (Autopsy testing)

Allowing a coroner or doctor to require provision of certain medical evidence, including after the conduct of an autopsy

The section does not currently take account of the fact that these may be required after the doctor has conducted the autopsy. The amendments will rectify this anomaly (10).

26 25 (Autopsy reports)

Requiring a doctor who conducts an autopsy to provide both the autopsy notice and autopsy certificate to the coroner who ordered the autopsy

Clause 25 makes amendments to section 24A to reflect in the legislation what is currently the common practice … This will apply in addition to the current requirement to provide [the notice and certificate] to the Registrar-General under the Births Deaths and Marriages Registration Act 2003 (11).

42 52 (Documents that cannot be accessed)

Ensuring information about test results can be provided to an applicant under new section 23A (Applying for an order for autopsy testing); clarifying an ambiguity in section 52(1)(c)

Clause 42 amends section 52 to take account of section 23A which allows applications to be made to the coroner for testing of a deceased person for infectious or notifiable conditions. The amendment ensures that information about the test results can be provided to the applicant. It also clarifies an ambiguity in the wording of the current section 52(1)(c) to ensure it is not interpreted to apply when a coroner has made findings. It ensures that access can be given to investigation documents containing information about a living or dead person’s personal affairs if the information is relevant to a matter about which a coroner can make findings, whether or not the coroner has made the findings (14).


Chapter 1 Page 11

Clause Section of act to be amended

Effect of amendment Information from explanatory notes (page)

43 53 (Access to investigation documents for research purposes)

Allowing access to documents:

• during an investigation if the State Coroner considers it appropriate, having regard to the importance of the research and the public interest; and

• on an ongoing basis for research.

Clause 43 amends section 53 to improve access to investigation documents for research purposes. The amendments will allow access while an investigation is on foot if the State Coroner considers it appropriate having regard to the importance of the research and the public interest in allowing access before the investigation is finished. The amendments also allow the State Coroner to approve access by a genuine researcher to specified types of documents on an ongoing basis, until approval is revoked (14).

45 New section 54AA (Access to information in section 7(4) report by prescribed tissue banks)

Allowing the State Coroner to enter into arrangements with ‘prescribed tissue banks’ to provide access to reports of deaths by police officers to the coroner

The section provides safeguards for privacy by making it an offence for a person to disclose the information other than in performance of a function under the Transplantation and Anatomy Act 1979 or unless the disclosure is permitted or required by legislation. The amendment also reflects the current practice by providing that access does not include giving the tissue bank a copy of the document (15).

54 77 (Annual report)

Requiring inclusion in the annual report of the State Coroner of the names of genuine researchers given access to investigation documents

47. The explanatory notes to the bill provide specific justification regarding clause 45, indicating that it ‘raises an issue of specific regard for a person’s privacy’:25 The amendment does not extend the current scope of access to this information but simply allows it to be provided more expeditiously to ensure opportunities for tissue retrieval are not lost through delay. The timeframe in which to retrieve tissue for transplantation is very short (within 24 hours of death). Currently, tissue banks must access this information under the general document access regime which means they must first obtain the consent of the investigating coroner.

The amendments provide appropriate safeguards for confidentiality by making it an offence for a person to disclose the information other than in performance of a function under the Transplantation and Anatomy Act 1979 or unless the disclosure is permitted or required by legislation. The amendment also reflects the current practice by providing that access does not include giving the tissue bank a copy of the document.

48. The committee notes that, potentially, various provisions of the bill would affect the privacy rights of individuals. Justification for any inconsistency with fundamental legislative principles is provided in the explanatory notes - generally, the provisions seek to safeguard privacy while nevertheless meeting forensic imperatives.

25 At 4.


Chapter 1 Page 12

49. Eight provisions of the bill have the potential to affect rights to privacy of personal information.

50. The committee refers to Parliament the question whether each provision has sufficient regard to rights and liberties of individuals.

♦ clauses 16 and 45

51. Clauses 16 and 45 would insert new offence provisions in the Coroners Act.

52. New section 16A (Tampering with a document or thing relevant to an investigation) (clause 16) would provide: A person must not tamper with a document or thing that the person knows or ought reasonably to know may be relevant to an investigation by a coroner into a person’s death.

53. The proposed maximum penalty for the offence in clause 16 is 100 penalty units ($7500).

54. Clause 45 would create an offence (new section 54AA(7)) regarding disclosure of information in section 7(4) reports. The proposed maximum penalty for the offence would be 100 penalty units ($7500). It reverses the onus of proof, and is examined further in paragraphs 67 to 71.

55. Clauses 16 and 45 of the bill would create new offence provisions.

56. The committee refers to Parliament the question whether clauses 16 and 45 have sufficient regard to rights and liberties of individuals.

Is the legislation consistent with the principles of natural justice?

57. 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.


58. Section 36 of the Coroners Act (Right to appear etc) would be amended by clause 34 of the bill. Section 36(1)(c) provides that a person the Coroners Court considers has a sufficient interest in an inquest may appear, examine witnesses and make submissions at an inquest. An example is ‘a specialist advocacy group with particular expertise in a matter on which a coroner may comment under section 46(1)’.

59. New section 36(2) and (3) would then provide that if the Coroners Court considered a person had a sufficient interest only because it was in the public interest for him or her to have the right to appear etc, that person: • would not be entitled to examine witnesses at the inquest without leave; and • may make submissions only on matters on which the coroner had power to comment (see

s46(1)).


Chapter 1 Page 13

60. Section 43 (Excluding persons from inquest) would be amended by clause 36 to extend the coroner’s power to make an exclusion order to a pre-inquest conference.

61. Clauses 34 and 36 may, therefore, be inconsistent with principles of natural justice. In respect of clause 34, the explanatory notes acknowledge this, but explain:26 The Bill amends the Coroners Act to clarify standing in inquests for public interest interveners who have specialist expertise in matters on which the coroner may make comments under the Act (eg public health or safety). In one sense, the Bill extends the rights of such persons because it is currently unclear whether they qualify for standing under the “sufficient interest” test.

At the same time, the Bill limits the right of appearance to making submissions on matters on which the coroner can make comments under section 46(1) and examination of witnesses only with the leave of the coroner. This raises an issue regarding restriction of a person’s rights in relation to standing. This can be justified on the basis that it is in the public interest that hearings are not unnecessarily protracted and the purpose of granting standing to public interest interveners is appropriately served by the right to make submissions on the areas in which they have special expertise. Transitional provisions ensure that the restriction will not apply to a person whom the court may have already considered has a sufficient interest in a particular inquest but who has not yet exercised the person’s right to appear.

62. The explanatory notes do not address any breach of the fundamental legislative principle by clause 36.

63. Clauses 34 and 36 of the bill may be inconsistent with principles of natural justice. Respectively, the proposed amendments to the Coroners Act:

• clarify the range of people with ‘sufficient interest’ in an inquest to have standing due to reasons of public interest and consistent with the purposes of the act;

• limit rights of appearance of these people; and • extend the coroner’s power to make an order excluding a person from a pre-inquest conference.

64. The committee refers to Parliament the question whether clauses 34 and 36 have sufficient regard to the rights and liberties of individuals.

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

65. 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.

66. 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.

26 At 4.


Chapter 1 Page 14

♦ clause 45

67. Clause 45, described in paragraph 54, would reverse the onus of proof. New section 54AA(7) and (8) would provide: (7) A person who has been given access to a document under this section must not directly or indirectly disclose information in the document. Maximum penalty—100 penalty units. (8) A person does not contravene subsection (7) if the disclosure— (a) is made in the performance of a function under the Transplantation and Anatomy Act 1979, including as a person acting for a prescribed tissue bank under the arrangement; or (b) is permitted or required under this or another Act.

68. Accordingly, to the extent that proof of the matters identified in new section 54AA(8) would be a defence to the offence in section 54AA(7), clause 45 would reverse the onus of proof.

69. 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 new section 54AA, the explanatory notes do not address this issue, but state:27 Clause 45 inserts the new section 54AA which allows the State Coroner to enter into arrangements with prescribed tissue banks for access to the reports under new section 7(4) (ie reports of deaths by police to the coroner). The section provides safeguards for privacy by making it an offence for a person to disclose the information other than in performance of a function under the Transplantation and Anatomy Act 1979 or unless the disclosure is permitted or required by legislation. The amendment also reflects the current practice by providing that access does not include giving the tissue bank a copy of the document.

70. Clause 45 of the bill would reverse the onus of proof, providing that proof of certain matters would be a defence.

71. The committee refers to Parliament the question of whether, in the circumstances, clause 45 has sufficient regard to the rights and liberties of individuals.

Does the legislation have sufficient regard to Aboriginal tradition and Island custom?28

72. 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.

73. 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

27 At 15.

28 The committee thanks Ms Nicole Watson for her advice with regard to the application of this fundamental legislative principle.


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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.

♦ the bill generally

74. The explanatory notes to the bill state that a large body of stakeholders were consulted in relation to the bill. However, the committee notes that neither Aboriginal and Torres Strait Islander legal services nor Aboriginal and Torres Strait Islander medical services appear to have been consulted. Given that such organisations commonly provide assistance to Aboriginal people and Torres Strait Islanders who have contact with the coronial system, their insight may be of value.

75. The explanatory notes indicate that Aboriginal people and Torres Strait Islanders and groups representing people who identify as Aboriginal or Torres Strait Islander were not within groups consulted regarding the bill.

♦ clause 28

76. Clause 28 provides a new category of reportable death, with the effect that all deaths in custody would be subject to a mandatory inquest requirement.

77. The Royal Commission into Aboriginal Deaths in Custody was established in 1989 to investigate the deaths of 99 Aboriginal people and Torres Stait Islanders in police custody and corrective institutions. A critical finding of the RCIADIC was that:29 1.3.1 The work of the Commission has established that Aboriginal people in custody do not die at a greater

rate than non-Aboriginal people in custody.

1.3.2 However, what is overwhelmingly different is the rate at which Aboriginal people come into custody, compared with the rate of the general community. The degree of over-representation in police custody, as measured by the Commission's study of police cell custody in August 1988, is twenty-nine times. In Chapters 5 to 9 those matters and their implications are discussed in detail. The ninety-nine who died in custody illustrate that over-representation and in a sense are the victims of it.

78. The RCIADIC recommended that all deaths in custody should be required by law to be the subject of an inquest,30 and that the coroner’s role should be expanded to include making recommendations with a view to preventing further custodial deaths.31

79. Clause 28 is likely to effect an increase in the number of deaths that are subject to a coronial investigation. Coronial recommendations on systemic issues will be likely to be of value to Aboriginal

29 RCIADIC, National Report, Volume 1, 1.3 The Disproportionate Numbers Of Aboriginal People In Custody, available at: www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/

30 RCIADIC, National Report, [4.7.4], recommendation 11.

31 RCIADIC, National Report, recommendation 13.


Chapter 1 Page 16

and Torres Strait Islander communities and to the police. Therefore, the committee suggests that clause 28 does not evince a lack of regard for either Aboriginal tradition or Islander custom.

80. Clause 28 of the bill would provide a new category of ‘reportable death’ for the purposes of the Coroners Act.

81. The committee suggests clause 28 of the bill has sufficient regard to Aboriginal tradition and Island custom.

♦ clause 61

82. Clause 61 would amend the dictionary of the current act, including by omitting the current definition of 'indigenous burial remains'; namely, 'burials to which the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 ... applies'. The amendment would reflect replacement of the Cultural Record Act by the Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003.

83. The Aboriginal Cultural Heritage Act and the Torres Strait Islander Cultural Heritage Act respectively have provisions analogous to section 34 of the Cultural Record (Landscapes Queensland and Queensland Estate) Act. The Aboriginal Cultural Heritage Act provides that, ‘Aboriginal human remains’: (a) includes burial objects and associated material; but (b) does not include human remains – (i) buried under the authority of the law of Queensland or another State; or

(ii) in or from a place recognised as a burial ground for interment of human remains buried under the authority of the law of Queensland or another State.

84. An analogous definition of Torres Strait Islander human remains is contained in the schedule to the Torres Strait Islander Cultural Heritage Act.

85. Accordingly, following amendment, the term ‘indigenous burial remains’ would mean: • Aboriginal human remains as defined in the Aboriginal Cultural Heritage Act 2003; or • Torres Strait Islander human remains as defined in the Torres Strait Islander Cultural Heritage

Act 2003.

86. As a consequence of the above provisions and clause 61 of the bill, burial objects and associated materials would be encompassed in the definition of ‘indigenous burial remains’ in the Coroners Act, whereas previously they were not. This change is unlikely to affect the exercise of rights under the Aboriginal Cultural Heritage Act and Torres Strait Islander Cultural Heritage Act. Furthermore, the new cultural heritage legislation does not itself appear to have impacted upon the procedures for dealing with Indigenous burial remains contained in 2003 Guidelines of the State Coroner prescribing


Chapter 1 Page 17

procedures for dealing with Indigenous burial remains.32 The committee suggests, therefore, that clause 61 does not evince a lack of regard for either Aboriginal tradition or Islander custom.

87. Clause 61 of the bill would replace the definition of ‘indigenous burial remains’ in the Coroners Act.

88. The committee makes no comment regarding whether clause 61 of the bill has sufficient regard to Aboriginal tradition and Island custom.

32 See: /www.nrw.qld.gov.au/cultural_heritage/pdf/hr_remains_guideline.pdf


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Alert Digest No 11 of 2008 Emergency Services Legislation Amendment Bill 2008

Chapter 2 Page 19

2. EMERGENCY SERVICES LEGISLATION AMENDMENT BILL 2008

Background

1. The Honourable Neil Roberts MP, Minister for Emergency Services, introduced the Emergency Services Legislation Amendment Bill 2008 into the Legislative Assembly on 7 October 2008.

Acts to be amended

2. The bill would amend the: • Ambulance Service Act 1991; and • Fire and Rescue Service Act 1990.

Reasons for bill

3. The explanatory notes state:33 The purpose of the Emergency Services Legislation Amendment Bill 2008 (the Bill) is to make various amendments to the Ambulance Service Act 1991 and the Fire and Rescue Service Act 1990.

The amendments to the Ambulance Service Act 1991 are to bring into effect the recommendations of the Queensland Ambulance Service Audit Report, deal with inappropriate use of resources through a framework for addressing false calls, and clarify confidentiality requirements for Ambulance employees.

The amendments to the Fire and Rescue Service Act 1990 are to abolish the Rural Fire Advisory Council and to deal with false calls in a consistent manner by reflecting the framework for addressing false calls established in the Ambulance Service Act 1991.

The Bill also provides for other minor amendments to be made to both Acts.





5. Clauses 8 and 21 of the bill would replace existing ‘false call’ offences in the Ambulance Service Act and Fire and Rescue Service Act.

33 At 1.


Chapter 2 Page 20

6. Currently, section 47 (False calls) of the Ambulance Service Act provides, in essence, that: A person must not … falsely and with knowledge of the falsity represent that circumstances exist that result in the utilization of any resources of the service. Maximum penalty—50 penalty units.

7. Section 47 would be amended by clause 8 of the bill. Following amendment, section 47(1) would state: A person must not request that the service provide an ambulance service for a person (the patient), unless the patient is sick or injured and requires an ambulance service. Maximum penalty—100 penalty units or 1 year’s imprisonment.

8. New section 47(2) would provide that a request within the terms of new section 47(1) may be made orally, in writing or by conduct. The term ‘ambulance service’ is defined in schedule 2 to the act. Under new section 47(3), an investigation officer would be empowered to issue an infringement notice under the State Penalties Enforcement Act 1999 if satisfied, following investigation of any lawful excuse of a person who made a request that came within new section 47(1), that the person did not have a lawful excuse.

9. Currently, existing section 147(f) (Offences) of the Fire and Rescue Service Act contains the offence of wilfully giving a false alarm of fire. The maximum penalties are: • if the offence is committed during a state of fire emergency at a place to which the declaration of

emergency applies—250 penalty units or 1 year’s imprisonment; or • otherwise—100 penalty units or 6 months’ imprisonment.

10. Clause 21 of the bill would replace section 147(f) with an offence provision equivalent to the offence in clause 8. New section 146A(1) (False calls) of the Fire and Rescue Service Act would provide: (1) A person must not—

(a) request that the service provide a fire and rescue service at a place unless a fire and rescue service is required at the place; or

(b) give a false alarm of fire. Maximum penalty— (a) if the offence is committed during a state of fire emergency at a place to which the declaration of

emergency applies—250 penalty units or 1 year’s imprisonment; or (b) otherwise——100 penalty units or 1 year’s imprisonment.

11. New section 146A(2) states that a request may be made orally, in writing or by conduct. An example is provided – ‘activation of a break-glass fire alarm’. In addition, new section 146A(4) defines ‘fire and rescue service’ to mean protection or rescue by the service of: • persons, property and the environment from fire and hazardous materials emergencies; or • persons trapped in a vehicle or building or otherwise endangered.

12. As for the Ambulance Service Act, under new section 146A(3) an investigation officer would be empowered to issue an infringement notice under the State Penalties Enforcement Act 1999 if


Chapter 2 Page 21

satisfied, following investigation of any lawful excuse of a person who made a request that came within new section 146A(1), that the person did not have a lawful excuse.

13. A person found guilty of a false call may be ordered to pay to the ambulance service a reasonable amount for the expenses, including incidental expenses, for provision of the service requested by the false call.34

14. In respect of clauses 8 and 21, the explanatory notes to the bill do not identify a possible breach of the fundamental legislative principle that legislation be unambiguous and drafted in a sufficiently clear and precise manner.35 However, the explanatory notes do contain advice that, when consulted regarding the bill, the Department of Justice and the Queensland Police Service expressed concern regarding the proposed false call offences:36 The Department of Justice (JAG) notes that the proposed false call offences retain some elements of subjectivity and are concerned to ensure that clear and transparent guidelines are developed to assist officers in determining whether to issue an infringement notice. The QAS and QFRS agree that such guidelines will be necessary and undertake to include JAG in the development process.

The Queensland Police Service (QPS) also notes the subjectivity of the offence provisions and supports the development of guidelines for administering officers. QPS have also sought to be informed on an ongoing basis of the prosecution of false calls in order to identify serial false callers across all departments and this proposal is supported.

15. The concerns of the Department of Justice and the Queensland Police Service are addressed in the explanatory notes. In respect of clause 8, the explanatory notes state that, as amended, the new section 47 would be:37 … framed in a way that makes it amenable to infringement notices by removing the requirement to know the offender’s state of mind (previously “falsely and with knowledge of the falsity”).

The provisions now specify that a person must not request that a service be provided where one is not required. An element of subjectivity remains in the offence provision in that, for a call to be valid, a patient must be sick or injured and require an ambulance service. A subjective determination of whether an ambulance was required must be made. Additionally, it may be a matter of debate whether a person is actually sick.

In order to overcome this issue, it is proposed to develop guidelines for administering officers that will outline that the false call provisions are aimed only at false calls. There is no intention to use these provisions against people who have a genuine belief that the ambulance service is needed, even if that belief is not borne out by the actual severity of the illness or injury.

The guidelines will also state that, in making a decision about whether to issue an infringement notice, the particular circumstances of people with an intellectual or psychological impairment should be taken into consideration. This consideration would include whether there are other appropriate ways to address false calls from people who officers believe may have such an impairment.

The maximum penalty has been increased to 100 penalty units or 1 year’s imprisonment to reflect the seriousness with which this offence is viewed and to bring it into alignment with the similar penalty existing in the Fire and Rescue Service Act 1990.

34 Clause 10, new section 50C. This provision is currently located in section 47 of the Ambulance Service Act.

35 The explanatory notes to the bill do not identify any potential breaches of fundamental legislative principles: see paragraph 62ff.

36 At 3.

37 At 8-9.


Chapter 2 Page 22

At (2) the section specifies that a request under the section may be made orally, in writing or by conduct. This acknowledges that, in many cases, callers do not specifically ask for a service to be provided but rather provide information and behave in such a manner that would lead a reasonable person to believe that a patient requires an ambulance service.

At (3) the section provides that, before an infringement notice can be issued, any lawful excuse of the alleged offender must be investigated and the investigation officer must be satisfied that the person does not have a lawful excuse. This provides protection for genuine but mistaken callers.

16. In respect of clause 21, the explanatory notes provide similar information regarding new section 146A(2) and (3) and indicate further:38 Clause 21 inserts a new section 146A that establishes a false call offence in a similar vein to that established under the Ambulance Service Act 1991. The clause makes requesting a fire and rescue service when one is not required an offence. This includes requests for attendance at non fire related incidents such as road crashes, entrapments and hazardous materials responses where no fire and rescue service is required.

146A is now framed in a way that makes it amenable to infringement notices.

Existing penalties have been retained.

17. The committee identifies, for the consideration of the Parliament, a number of issues regarding whether clauses 8 and 21 are drafted in a sufficiently clear and precise manner.

18. In respect of clause 8, it would no longer be an element of the offence that a person ‘falsely and with knowledge of the falsity’ indicated a need for an ambulance service. However, while the offence provision in new section 47(1) is framed in more objective terms, it contains a number of words, general in nature, which may raise doubts as to whether clause 8 is drafted in a sufficiently clear and precise manner. These terms, ‘sick or injured’ and ‘requires’ are not defined for the purposes of new section 47.

19. When interpreting an ambiguous penal provision, so as to determine its application to a given set of facts, the approach of the courts is to attempt to ascertain the legislature’s wishes as best it can in order to carry out those wishes.39 This approach was enunciated by Isaacs J in Scott v Cawsey (1907) 5 CLR 132 at 154-5: When it is said that penal Acts or fiscal Acts should receive a strict construction I apprehend it amounts to nothing more than this. Where Parliament has in the public interest thought fit in the one case to restrain private action to a limited extent and penalise a contravention of its directions, and in the other to exact from individuals certain contributions to the general revenue, a Court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed.

38 At 17. The notes wrongly indicate, as set out below, that existing section 147(f) is preserved by the bill, but this provision is repealed by clause 22:

The clause [clause 21] also retains the existing offence of giving false alarm of a fire (to encompass, for example, those circumstances in which a person may falsely raise the alarm of a fire, causing community concern, without requesting the response of the service.

39 DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis, Australia, 2006, [9.9].


Chapter 2 Page 23

20. Accordingly, where the denotation of the language in a penal provision is ambiguous or obscure, a court ‘will endeavour to resolve ambiguity by the application of the various aids to construction that are applicable to all statutes’.40 In respect of new section 47(1), aids to construction would include: • new section 47(3) which provides that an infringement notice may be issued for a contravention

of new section 47(1) only if an investigation officer has investigated any lawful excuse of the person who may have made a false call and is satisfied the person acted without a lawful excuse;

• the heading to new section 47, ‘False calls to ambulance service’; and • the explanatory notes to the bill, which may be used to provide an interpretation of an otherwise

ambiguous or obscure provision,41 the relevant parts of which acknowledge ambiguity in the proposed provision, as set out in paragraph 15 of this chapter.

21. The explanatory notes further indicate that, in the administration of the act, investigation officers will be assisted by guidelines which will ‘outline that the false call provisions are aimed only at false calls’, but a court construing section 47(1) to determine liability under an infringement notice could not receive similar assistance from the guidelines. Section 14B of the Acts Interpretation Act provides for the use of extrinsic materials as an aid to construction. However, guidelines, developed administratively after the enactment of the relevant act are not within the scope of section 14B.

22. On this basis, the committee notes that the new offence in proposed section 47(1) of the Ambulance Service Act is objective but broad and general in nature due to the use of terms such as ‘sick or injured’ and ‘requires an ambulance’. While a significant number of people might potentially be liable under the provision, the operation of new section 47(3) would be likely to mean a markedly smaller number of infringement notices issued following: • the likely ability of a person who might otherwise have contravened section 47(1) to satisfy an

evidential onus as to a ‘lawful excuse’; • investigation by an investigation officer of the lawful excuse; and • satisfaction on the part of the investigation officer that the person did indeed have a lawful

excuse.

23. Accordingly, under clause 8, it would appear that the state of mind of the person making the ‘false call’ would no longer be an element of section 47(1). It would, however, be an element of any lawful excuse raised by the person who had requested a service. An example of such an excuse would be ‘mistake of fact’ in section 24 of the Criminal Code.

24. Finally, the committee notes that similar issues arise regarding the construction of clause 21, new section 146A(1) of the Fire and Rescue Service Act, which is drafted in similar terms to clause 8.

40 DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis, Australia, 2006, [9.9].

41 See Acts Interpretation Act, s14B(e).


Chapter 2 Page 24

25. Clauses 8 and 21 to the bill raise issues regarding the fundamental legislative principle that legislation be drafted in a sufficiently clear and precise manner. Ambiguity may arise due to the scope of respective new ‘false calls’ offences to be inserted in the Ambulance Service Act and the Fire and Rescue Service Act.

26. The committee refers to Parliament the question whether clauses 8 and 21 have sufficient regard to rights and liberties of individuals.



♦ various provisions

28. A number of clauses in the bill provide for new offences. The proposed new offences, together with their maximum penalties, are set out below.

Clause New section

Offence Maximum Penalty ($)

Ambulance Service Act 1991 6 41G Failure to return identify card 10 pu ($750) 7 44 Failure to help investigation officer 10 pu ($750) 45 Failure to answer questions 10 pu ($750) 45A Failure to give name or address 10 pu ($750) 45B False or misleading statements 10 pu ($750) 45C False or misleading documents 10 pu ($750) 8 47 False calls for ambulance service 100 pu ($7500) or 1 year’s

imprisonment 9 49 Unauthorised disclosure of confidential information by a designated

officer 50 pu ($3750)

49A Unauthorised disclosure of confidential information by an informed person

50 pu ($3750)

Fire and Rescue Service Act 1990 20 60L Failure to help investigation officer 10 pu ($750) 60M Failure to answer questions 10 pu ($750) 60O Failure to give name or address 10 pu ($750) 60P False or misleading statements 10 pu ($750) 60Q False or misleading documents 10 pu ($750) 21 146A False calls 100 pu ($7500) or 1 year’s

imprisonment


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29. Various provisions of the bill create new offence provisions and would operate to affect rights and liberties of individuals.

30. The committee refers 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.

♦ clause 11

31. Clause 11 may affect rights of individuals to the privacy of personal information. New sections 50G to 50R of the Ambulance Service Act, to be inserted by clause 11, would operate to regulate the disclosure of ‘confidential information’. The term is defined in new section 50D to mean: information a person has because of being a designated officer that identifies a person as a person who is receiving, or has received, an ambulance service.

32. The operation of the new part 7, division 1 of the Ambulance Service Act, together with any justification provided in the explanatory notes, is outlined in the table below.

New section

Operation Information from explanatory notes (page)

50G Disclosure to family, close friends and carers

This reflects the variety of caring relationships that exist in today’s society. The designated officer retains discretion over whether the person’s interest is sufficient to warrant disclosure. Additionally, the person to whom the confidential information relates may request that the information not be released, in which case the exemption does not apply (10).

50H Health professionals to whom confidential information can be provided

The intention is for the full range of doctors, nursing staff and allied health professionals to be included. Hospital admissions staff have also been added to this section to reflect the reality of ambulance operations. It is intended to ensure that disclosures can be made at the point of handing the care of a patient over to another person. This is most commonly between officers of the service, to another service or to staff within a hospital or other medical facility (10).

50I Disclosure of information regarding general condition of a person

The person to whom the confidential information relates may request that this information not be released, in which case the exemption does not apply (11).

50J Disclosure to police or corrective services officers

(1)(a) provides for the range of circumstances in which paramedics and police officers share information both on scene and later, in relation to patients who may have been either victims or witnesses to crimes. The QAS works closely with the Queensland Police Service and this amendment the QAS commitment to timely information sharing that is appropriate in the circumstances. (1)(b) addresses coronial recommendations related to the provision of information to police in circumstances where a patient does not require transportation to hospital but where they may require observation subsequent to being taken into the custody of police. (1)(c) provides a similar exemption for disclosures related to patients who are in custody in some form of correctional facility or otherwise in the custody of the chief executive (corrections) (11).


Chapter 2 Page 26

New section

Operation Information from explanatory notes (page)

50K Disclosure for administering, monitoring or enforcing compliance with the Act

Under the terms of the Act, the Commissioner may issue codes of practice regarding a broad range of service related matters. Failure to comply with a code of practice is grounds for disciplinary action. 50K(c) provides an exemption for disclosures made in the course of investigating or determining such a failure to comply. It is intended that the exemption be available to disclosures made to any entity that has been appropriately authorised by the chief executive, Commissioner or delegate, including, but not limited to, internal bodies such as the Ethical Standards Unit and independent consultants (11).

50L Disclosure to Commonwealth, another State or Commonwealth or State entity

50L covers disclosures that may be made to facilitate the operation of agreements between government entities, both State and Commonwealth. Such agreements include those established for funding purposes. Eligible agreements must be prescribed under a regulation (11).

50M Disclosure to Health Quality and Complaints Commission

This amendment directly reflects the exemption provided under the Health Services Act 1991 (11-12).

50N Disclosure to Australian Red Cross Society

50N continues the existing exemption for disclosures to the Australian Red Cross Society (12).

50O Disclosure to person performing function under Coroners Act 2003

50O covers those disclosures routinely made by designated officers in submissions to, or at the request of the Coroner. It is intended that the exemption extend to material provided to anyone who requires the information to perform a function under the Coroners Act 2003. This amendment directly reflects the exemption provided under the Health Services Act 1991 (12).

50P Disclosure authorised by chief executive

50P encompasses those circumstances in which there is an overriding public interest or where the life, health or safety of a person would be at risk if the disclosure was not made. Such disclosures may only be made with the written approval of the chief executive. Only the chief executive may give an approval and the function may not be delegated. As an additional safeguard and to ensure due regard is given to the seriousness of the decision, the chief executive must report those instances in which such approval has been given. The section also continues the existing exemption for approved research however removing the reference to identification of individual patients which was meaningless in the context of the confidentiality requirement (ie only relates to identification of individuals). The requirement for chief executive approval of disclosures regarding research has been added as an additional safeguard to ensure disclosures are made to appropriate research bodies and that agreements can be put in place for the treatment of disclosed information (12).

50Q Necessary or incidental disclosure

50Q provides an exemption for those disclosures that are necessary or incidental to otherwise permitted disclosures. It is intended to cover primarily those matters that are of a routine or administrative nature. This amendment reflects the exemption provided under the Health Services Act 1991 (12).

50R Application of provisions to former designated officers

50R ensures that the relevant exemptions remain in place after a person has ceased to be a designated officer. Under section 49 the duty of confidentiality continues indefinitely. This section provides that, for example, persons who are no longer employed within the service may continue to provide evidence to a court, tribunal or disciplinary hearing (12).


Chapter 2 Page 27

33. Accordingly, the committee notes that a new part 7, division 1 of the Ambulance Service Act would make provision for the authorised disclosure of confidential information, including the personal information of individuals. As identified in the explanatory notes, the bill includes measures seeking to safeguard the information privacy rights of individuals. Further, the explanatory notes provide information regarding the balance struck by the legislation to accommodate competing rights.

34. Clause 11 (new part 7, division 1 of the Ambulance Service Act) may affect rights of individuals to the privacy of personal information.

35. The committee notes that the bill includes measures seeking to safeguard the information privacy rights of individuals and the explanatory notes provide information regarding the balance struck by the legislation to accommodate competing rights.

36. The committee refers to Parliament the question whether clause 11 has sufficient regard to the rights of individuals.


37. Proposed provisions conferring power on investigation officers to request information are contained in the bill. Clauses 6 and 20, to the extent that they would require people to provide information to investigation officers, would form statutory exceptions to the right to silence recognised at common law. Relevant provisions of the bill include: • clause 7, new section 45 (Failure to answer questions) of the Ambulance Service Act; • clause 7, new section 45A (Failure to provide name and address) of the Ambulance Service

Act; • clause 20, new section 60M (Failure to answer questions) of the Fire and Rescue Service Act;

and • clause 20, new section 60O (Failure to give name or address) of the Fire and Rescue Service

Act.

38. At common law, the right to remain silent and to refuse to answer if questioned by police is a basic right. The common law right is upheld, but modified in some respects, by the Police Powers and Responsibilities Act 2000. The right is also subject to other exceptions found in Queensland legislation, including statutory requirements to provide personal information or answer certain questions.

39. The committee notes that enactment of the proposed provisions would create further statutory exceptions to the right to silence.

40. Enactment of clauses 7 and 20 would create statutory exceptions to the right to silence.

41. The committee refers to Parliament the question whether the proposed provisions in clauses 7 and 20 have sufficient regard to rights and liberties of individuals.


Chapter 2 Page 28




♦ clauses 7, 9 and 20

44. New provisions to be inserted into the Ambulance Service Act and the Fire and Rescue Service Act would reverse the onus of proof. These are: • clause 7 – new sections 44 (Failure to help investigation officer), 45 (Failure to answer

questions), 45A (Failure to give name or address), 45B (False or misleading statements) and 45C (False or misleading documents) of the Ambulance Service Act (maximum penalty for each new offence – 10 penalty units);

• clause 9 – new sections 49 (Unauthorised disclosure of confidential information by a designated officer) and 49A (Unauthorised disclosure of confidential information by an informed person) of the Ambulance Service Act (maximum penalty for each new offence – 50 penalty units); and

• clause 20 – new sections 60L (Failure to help investigation officer), 60M (Failure to answer questions), 60N (Power to require name and address), 60O (Failure to give name or address), 60P (False or misleading statements) and 60Q (False or misleading documents) of the Fire and Rescue Service Act (maximum penalty for each new offence – 10 penalty units).

45. 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 new section 45A of the Ambulance Service Act and 60O of the Fire and Rescue Service Act, the explanatory notes state:42 No offence is deemed to have been committed under this section if it is subsequently proved that the person did not commit the offence they were suspected of committing.

46. The explanatory notes do not address a reversal of the onus in respect of the other provisions.

47. In this context, the committee notes also that the offence in new section 45B is an absolute offence, imposing liability for a breach of the statutory offence regardless of intention or knowledge that conduct will constitute a breach.43

42 At 8.

43 See: Sweet v Parsley [1970] AC 132 and He Kaw Teh v R (1985) 60 ALR 449.


Chapter 2 Page 29

48. Clauses 7, 9 and 20 of the bill contain various proposed provisions which would reverse the onus of proof. One of the provisions, new section 45B, would be an absolute offence.

49. The committee refers to Parliament the question of whether, in the circumstances, clauses 7, 9 and 20 have sufficient regard to the rights and liberties of individuals.

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

50. 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.


51. Clauses 6 and 20 provide, in respect of each of the Ambulance Service Act and the Fire and Rescue Service Act, a new part regarding investigation offices. In each case, the new part creates the role and specifies the functions of investigation officers – the investigation of ‘false calls’ – and creates offences relevant to false calls.

52. New sections 41H and 41J of the Ambulance Service Act and 60I and 60J of the Fire and Rescue Service Act would provide powers of entry to non-public places only if the occupier of the place consents to the entry. However, once entry was effected: • investigation officers would have significant post-entry powers; and • failure to assist an investigation officer, including failure to answer questions without a

reasonable excuse, would create liability for an offence.

53. The committee notes that safeguards regarding the exercise of post-entry powers include: • functions of officers are confined to investigating false call offences; • provision for identity cards to be carried by investigation officers; and • a requirement to warn a person that, under the act, it would be an offence to fail to state his or

her name or address when required unless he or she had a reasonable excuse.

54. However, the committee notes also that investigation officers would be conferred with significant investigatory powers under the respective acts, to be exercised upon entry to premises. Powers of this nature are more commonly conferred upon people such as police officers who have received lengthy investigative training, including education regarding the exercise of statutory powers in accordance with relevant legislation and the common law. Persons who may be appointed as investigation officers are: • public service employees; • ambulance and fire service officers; and • persons prescribed under a regulation.


Chapter 2 Page 30

55. Clauses 6 and 20 would permit officers investigating false calls – public service employees, service officers and persons prescribed by regulation – to enter non-public places with consent and would confer significant post-entry investigative powers.

56. The committee refers to Parliament the question whether the legislation allows the delegation of administrative power only in appropriate cases and to appropriate persons.

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

57. 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.

♦ clause 6

58. Clause 6 of the bill would provide protection from liability for investigation officers undertaking functions conferred by the Ambulance Service Act. The proposed immunity is discussed in the explanatory notes:44 This protection only applies to investigation officers carrying out their role in accordance with the Act, in good faith and without negligence.

59. In respect of provisions conferring immunity from legal proceedings, such as clause 6, the committee generally draws Parliament’s attention to one of the fundamental tenets of a parliamentary democracy based on the rule of law; namely, that everyone is equal before the law.

60. Clause 6 of the bill would provide protection from liability for investigation officers undertaking functions conferred by the Ambulance Service Act.

61. The committee refers to Parliament for consideration the question of whether the immunity provided by clause 6 is justified.

Content of explanatory note

62. The Parliament of Queensland Act confers the committee with responsibility to monitor generally the operation of part 4 of the Legislative Standards Act, regarding explanatory notes.

63. Within part 4, section 23(1)(f) of the Legislative Standards Act requires that an explanatory note for a bill must include, in clear and precise language, a brief assessment of the consistency of the bill with fundamental legislative principles and, if it is inconsistent with fundamental legislative principles, the reasons for the inconsistency.

64. On 7 October 2008, the Minister for Emergency Services circulated to members of the Legislative Assembly an explanatory note for the bill.

44 At 7.


Chapter 2 Page 31

65. In discharge of the statutory requirement in section 23(1)(f) of the Legislative Standards Act, the explanatory note stated:45 The Bill has been drafted with regard to fundamental legislative principles as defined in section 23 of the Legislative Standards Act 1992.

66. A number of issues arise regarding the consistency of the bill with fundamental legislative principles have been identified in this chapter of the committee’s Alert Digest. In accordance with its responsibility to monitor generally the operation of part 4 of the Legislative Standards Act, the committee notes that the explanatory notes to the bill did not, in most cases, provide the Parliament with a brief assessment of the consistency of the bill with relevant fundamental legislative principles nor provide reasons for any inconsistency.

67. The Parliament of Queensland Act confers the committee with responsibility to monitor generally the operation of part 4 of the Legislative Standards Act, regarding explanatory notes.

68. In accordance with the responsibility, the committee has noted that generally the explanatory notes to the bill have not provided the Parliament with a brief assessment of the consistency of the bill with relevant fundamental legislative principles or provided reasons for any inconsistency.

45 At 3.


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Alert Digest No 11 of 2008 Guide, Hearing and Assistance Dogs Bill 2008

Chapter 3 Page 33

3. GUIDE, HEARING AND ASSISTANCE DOGS BILL 2008

Background

1. The Honourable Lindy Nelson-Carr MP, Minister for Communities, Minister for Disability Services, Minister for Aboriginal and Torres Strait Islander Partnerships, Minister for Multicultural Affairs, Seniors and Youth, introduced the bill into the Legislative Assembly on 7 October 2008.

Acts to be amended

2. The bill would repeal the: • Guide Dogs Act 1972; and • Legacy Trust Fund Act 2001.

3. The bill would amend the Anti-Discrimination Act 1991 and effect consequential amendments to the: • Body Corporate and Community Management Act 1997; • Building Units and Group Titles Act 1980; • Commercial and Consumer Tribunal Act 2003; • Criminal Code; • Motor Racing Events Act 1990; • Recreation Areas Management Act 2006; and • South Bank Corporation Act 1989.

Reasons for bill

4. The main objectives of the bill are to:46 • assist people with a disability who rely on guide, hearing or assistance dogs to have

independent access to the community; and • ensure the quality and accountability of guide, hearing and assistance dog training services.



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

46 Explanatory notes at 1.


Chapter 3 Page 34


♦ clause 13

7. Clause 13(1)(a), (b) and (c) create three offences, each with maximum penalties of 100 penalty units ($7500). It would be an offence for a person exercising control of a public place or public passenger vehicle to: • refuse entry to, or permission to be in, the place to an accompanied handler complying with the

‘identification procedure’ (see new section 12(1)); • refuse service to an accompanied handler complying with the identification procedure; or • impose a term that would result in a person with a disability being separated from a guide,

hearing or assistance dog relied upon for support.

8. Clause 13(2) provides that it would be a defence to one of the offences in new section 13(1) for the person exercising control to prove that contravention of section 13(1) was reasonable in the circumstances and did not relate to: • for one of the first two offences, the handler being accompanied by a guide, hearing, assistance

or trainee support dog; or • for the third offence, the person with a disability being accompanied by a guide, hearing or

assistance dog.

9. Clause 13 potentially breaches the fundamental legislative principle that legislation should not reverse the onus of proof in criminal proceedings without adequate justification, since under the law a person generally cannot be found guilty of an offence unless he or she has the necessary intent. The explanatory notes state that:47 Establishing a defence will require the defendant to prove, on the balance of probabilities, the elements of the defence. However, placing the onus of satisfying the elements of the defence on the defendant is considered justified as it relates to matters that are peculiarly within the defendant’s knowledge.

10. Clause 13 of the bill potentially breaches the fundamental legislative principle that legislation should not reverse the onus of proof in criminal proceedings without adequate justification.

11. The committee refers to Parliament the question of whether, in the circumstances, this reversal of onus is justified.

♦ clause 104

12. Clause 104 of the bill provides that each executive officer of a corporation commits an offence if the corporation commits an offence, and provides defences of reasonable diligence and not being in a position to influence the conduct of the corporation.

47 At 6.


Chapter 3 Page 35

13. New section 104 would, therefore, impose the evidentiary burden of proving relevant matters on an officer charged with an offence.

14. 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. The explanatory notes to the bill provide the following information:48 Although this clause reverses the onus of proof it is considered justified as the Bill deals with vulnerable people and reasonable defences have been included.

15. The committee notes that while ‘defences’ are provided by the bill, an executive officer would incur derivative liability even where the corporate failing was in no way attributable to his or her actions and where she or he had no knowledge of the acts or omissions giving rise to liability.

16. In chapter 8 of Alert Digest 6 of 2008, the committee set out the findings of a report of the Australian Government’s Corporations and Markets Advisory Committee, Personal Liability for Corporate Fault.49 In the context of whether clause 27 has sufficient regard to the rights and liberties of individuals, the committee notes again that the Parliament’s consideration may be assisted by the recommendations made in that report.50

17. Clause 104 of the bill would reverse the onus of proof and impose liability for offences committed by a corporation on its executive officers.

18. The committee refers to Parliament the question of whether, in the circumstances, clause 104 has sufficient regard to the rights and liberties of individuals and, in particular, whether sufficient justification exists for the:

reversal of onus; and imposition of ‘derivative liability’.




20. Clauses 15 and 57 of the bill require an approved or employee trainer to disclose his or her criminal history to the chief executive. Clause 58 requires an approved trainer or employee trainer to notify the chief executive if there is a change in his or her criminal history.

48 At 10.

49 September 2006, available at: www.camac.gov.au.

50 Alert Digest 6/2008, 44-46.


Chapter 3 Page 36

21. The explanatory notes explain:51 People with a disability can be more vulnerable to abuse, neglect or exploitation than other members of the community.

The provision of the criminal history information is designed to assist the chief executive in deciding whether an approved trainer or training institution is, or continues to be, suitable to work with people with a disability or animals.

22. The bill incorporates the following safeguards:52 • before using the information about a person’s criminal history, the chief executive must disclose

the information to the person and allow the person a reasonable opportunity to make written representations (clause 61);

• the person has a right of review to the chief executive (clause 67); • the person has a right of appeal to an external tribunal on an adverse finding by the chief

executive (clause 70); • the bill does not override the Criminal Law (Rehabilitation of Offenders) Act 1986; • the chief executive must develop guidelines for dealing with criminal history information (clause

63), to ensure natural justice is present and only relevant information is used in assessing the suitability of a person to work with people with a disability or animals; and

• there are strict controls on the use of, and access to, any police information gained by Disability Services Queensland through criminal history screening. In particular, it will be an offence for a person to disclose or give access to this information to anyone other than for the purposes of the Act or as required by another law (clause 64).

23. Clauses 15, 57 and 58 of the bill have implications in terms of individual rights to privacy.

24. However, the committee notes that the bill contains a number of appropriate safeguards to ensure fairness to affected individuals. The committee further notes that the provisions were brought about in order to protect people with a disability.

25. The committee makes no further comment regarding clauses 15, 57 and 58.



Clause Offence Maximum Penalty

13(1)(a) and (b)

person exercising control of a public place or public passenger vehicle to refuse entry to, or permission to be in, or service to an accompanied handler who is complying with the identification requirement

100 pu

51 At 6-7.

52 Explanatory notes at 7-8.


Chapter 3 Page 37

Clause Offence Maximum Penalty

13(1)(c) person exercising control to impose a term that would result in the person with a disability being separated from their guide, hearing or assistance dog

100 pu

64 public service employee who has acquired information or gained access to a document about a person’s criminal history under part 6, to disclose that information

100 pu or 2 years imprisonment

32(2)

approved training institution to fail to give the chief executive a consent to a criminal history check from a new employee trainer within 14 days of employing the trainer

20 pu

33 person who is not an approved trainer or approved training institution to hold out, or attempt to hold out, to be approved by the chief executive for training guide, hearing or assistance dogs

100 pu

49 handler to fail without reasonable excuse to immediately return their identity card to the chief executive if the card is cancelled or the dog to which the card relates, dies or is retired

2 pu

53 approved trainer whose approval has been cancelled or surrendered to fail without reasonable excuse to return the trainer’s identity card to the chief executive within 7 days

20 pu

57 employee trainer not to disclose to the chief executive whether or not the trainer has a criminal history, and if so, the trainer’s complete criminal history

20 pu

58 approved or employee trainer not to immediately disclose to the chief executive details of a change in the criminal history of the trainer

20 pu

64 public service employee who has acquired information or gained access to a document about a person’s criminal history under part 6, to disclose that information, or give access to that document to anyone else

100 pu or 2 years imprisonment

80 person who ceases to be an authorized officer to fail without reasonable excuse to return their identity card to the chief executive within 21 days after ceasing to be an authorised officer

20 pu

84 person required under clause 83(3)(e) to give reasonable help to the authorised officer to fail to comply unless they have a reasonable excuse

50 pu

85 person required under clause 83(3)(f) to answer questions to fail to comply unless they have a reasonable excuse

50 pu

87 offence not to comply with clause 86 without a reasonable excuse 50 pu 93 person to state anything to the chief executive or an authorised officer that the person

knows is false or misleading 100 pu

94 person to provide a document to the chief executive or an authorised officer containing information that the person knows is false or misleading

100 pu

95 obstruct an authorised officer, in the exercise of a power, unless the person has a reasonable excuse

100 pu

96 pretend to be an authorised officer 100 pu 111 person who gains access to confidential information (other than information

mentioned in clause 64(1)) because of their involvement in the Bill’s administration, to disclose that information to anyone else except as provided in sub clause (4)

100 pu




Chapter 3 Page 38

Is the legislation consistent with the principles of natural justice?

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


30. The bill would confer on the chief executive the power to suspend immediately: • the approval of an approved trainer or approved training institution if a ground exists for doing

so and it is necessary to immediately suspend the approval to prevent or control harm happening to a person or animal (clause 26); and

• a handler’s identity card if a ground exists for doing so and it is necessary to immediately suspend the card to prevent or control harm happening to a person or animal (clause 45).

31. The explanatory notes provide justification for these clauses, and identifies safeguards of the rights of individuals, as follows:53 In view of the need for urgent action, the chief executive is not required to provide the person or training institution with an opportunity to be heard before making a decision pursuant to these clauses.

This power of the chief executive arguably breaches the principles of natural justice. However, it is defensible on the ground that action may only be taken if there is an imminent risk of harm to a person or animal.

The Bill provides safeguards by providing that if the chief executive immediately suspends an approval or identity card, the suspension cannot operate for longer than three months. In addition, if the chief executive proceeds to cancel the approval or identity card, the chief executive must give the person a right to make representations as to why the cancellation should not happen (clauses 27 and 46). The person or training institution also has a right of review to the chief executive and a right of appeal to an external tribunal against a decision to immediately suspend or cancel the approval or card.

32. Natural justice requires the observance of standards and procedures regarding fairness and good administration in decision-making. 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’.

33. One traditional element of natural justice is the ‘prior hearing rule’. This principle requires that before a decision is made adversely affecting a person’s right, interest or legitimate expectation, a decision-maker will give the person prior notice that the decision may be made, the information (particularly adverse information) on which the decision may be based and his or her right to make a submission in reply.54

53 At 8.

54 Robin Creyke, John McMillan & Rocque Reynolds, Control of Government Action, LexisNexis Butterworths, Australia, 2005, at [10.1.3].


Chapter 3 Page 39

34. However, the obligation to observe the ‘prior hearing rule’ may be displaced by other matters, including the need for an urgent decision to be made. The legislature can exclude the obligation to accord natural justice. Express words are generally required.55

35. The committee has previously stated that principles of natural justice require that legislation provide for notice to be given to people affected by significant decisions. Without notice, people affected may be deprived of an effective opportunity to be heard.

36. Clauses 26 and 45 clearly exclude the obligation to accord natural justice as a chief executive is conferred with wide, peremptory powers to suspend the approval of a trainer or institution and a handler’s identity card. However, the committee also notes the main purpose of the bill as set out in clause 3. The explanatory notes indicate that the exclusion of natural justice is an appropriate measure in order to achieve this purpose, and action may be taken only if there is an imminent risk of harm to a person or animal.

37. Clauses 26 and 45 would confer on the chief executive powers of immediate suspension and clearly exclude the obligation to accord natural justice.

38. The committee identifies, for the consideration of Parliament, the exclusion by clauses 26 and 45 of the obligation to accord natural justice.

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

39. 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.

♦ clause 113

40. Clause 113 would protect officials and those acting under their direction from civil liability for acts or omissions made honestly and without negligence under the act. Instead, the civil liability would attach to the State.

41. In respect of provisions conferring immunity from legal proceedings, such as clause 113, the committee generally expresses the view that one of the fundamental tenets of the law is that everyone is equal before the law. However, the committee notes that, as liability would attach to the State, individuals would not be deprived of a remedy.

42. Clause 113 would protect Commission officials from civil liability for acts or omissions made honestly and without negligence under the Act. Instead, the civil liability would attach to the State.

55 Commissioner of Police v Tanos (1958) 98 CLR 383


Chapter 3 Page 40

43. The committee refers to Parliament for consideration the question of whether the immunity provided by clause 113 is justified.



♦ part 8, division 3

45. Part 8, division 3 of the bill would provide authorised officers with strengthened investigative powers. Clauses 81 and 82 would confer authorised officers with the power to enter premises of trainers and others with consent or when the premises are open for entry.

46. Other provisions in division 3 would confer authorised officers with significant post-entry powers. The powers would be exercisable to monitor compliance with the bill and investigate offences against the bill. In the latter case, powers would include powers to search or inspect premises, inspect records and ask questions.

47. The explanatory notes indicate:56 These are considered necessary to allow thorough investigation of alleged offences so that relevant reliable evidence can be obtained for presentation to a court in a prosecution for an offence against the Bill.

48. Powers to monitor compliance with the bill are outlined by the explanatory notes in the following way:57 The powers for monitoring an approved trainer’s or approved training institution’s compliance with the Bill includes power to ask an approved trainer or approved training institution to give particular information about the provision of a training service by the trainer or institution, including information about a matter dealt with in the prescribed requirements; to make a document available for inspection by the authorised officer, or produce a document to the authorised officer for inspection, at a nominated time and place. The authorised officer can also require a person to make available for inspection by the authorised officer, or produce to the authorised officer for inspection, at a reasonable time and place nominated by the authorised officer—(a) a document issued to the person under the Bill; or (b) a document required to be kept by the person under the Bill. Failure to comply without a reasonable excuse will be grounds to suspend or cancel a trainer’s or institution’s approval. Self-incrimination will be a reasonable excuse.

49. In respect of both types of power to be conferred by division 3, the explanatory notes provide justification for inconsistency with fundamental legislative principles: The potential fundamental legislative principle breach is justified to ensure that the matters with which approved trainers or approved training institutions must comply and the offences in the Bill are able to be monitored and enforced effectively.

56 At 9.

57 At 9.


Chapter 3 Page 41

50. The committee notes the significant investigatory powers to be conferred upon authorised officers by part 8, division 3 of the bill, together with the justification for any breach of fundamental legislative principles provided in the explanatory notes.

51. As noted in other chapters of this Alert Digest, powers of this nature are more commonly conferred upon police officers following lengthy training, including education regarding the exercise of statutory powers in accordance with relevant legislation and the common law. By contrast, clause 74(1) provides for the appointment by the chief executive of a public service employee as an authorised officer. It is noted, though, that the chief executive may appoint a public service employee only if satisfied the employee is qualified for appointment because the employee has necessary expertise or experience.

52. Part 8, division 3 of the bill would provide authorised officers with strengthened investigative powers.



Chapter 3 Page 42

Alert Digest No 11 of 2008 Mines and Energy Legislation Amendment Bill 2008

Chapter 4 Page 43

4. MINES AND ENERGY LEGISLATION AMENDMENT BILL 2008

Background

1. The bill was introduced the bill into the Legislative Assembly on 7 October 2008 by the Honourable Geoff Wilson MP, Minister for Mines and Energy.

Acts to be amended

2. The bill would amend the: • Coal Mining Safety and Health Act 1999; • Electricity Act 1994; • Energy Ombudsman Act 2006; • Mineral Resources Act 1989; • Mining and Quarrying Safety and Health Act 1999; • Petroleum Act 1923; and • Petroleum and Gas (Production and Safety) Act 2004.

Reasons for bill

3. To achieve its policy objectives, the bill:58 • prohibits the exploration and development of the McFarlane oil shale deposit for 20 years to protect that

region’s high environmental values and provides a legislative framework to implement the Queensland Government’s oil shale policy;

• legislatively enshrines the Queensland Government’s guaranteed assistance package for Collingwood Park landowners whose properties have been affected by subsidence damage and creates a legislative mechanism for the noting of that guaranteed assistance package in the freehold land register maintained under the Land Title Act 1994;

• amends the due date for rental payments for mining claims, mining leases and mineral development licences from 31 December to 31 August;

• provides regulation powers to meet national gas safety certification and labelling requirements;

• amends the regulatory framework applying to street lighting customers in the contestable retail market for electricity;

• clarifies the status of mining leases granted under the Special Agreement Acts and change the rental due date for these mining leases; and

• clarifies and improves administration and operation provisions of the mining, petroleum and electricity regulatory frameworks.

58 Explanatory notes at 1-2.


Chapter 4 Page 44

Application of fundamental legislative principles59

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

4. 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.

♦ clause 104

5. Clause 104 would insert a new section 669A in the Petroleum and Gas (Production and Safety) Act to allow for the making of regulations in relation to the certification and labelling of gas devices and fittings with respect to energy efficiency requirements.

6. In respect of clause 104, the explanatory notes indicate generally:60 Amendments to provide regulation powers to support the adoption of a nationally agreed ‘gas mark’ attached to approved gas appliances will ensure that appliances available to Queensland consumers meet certified safety standards.

Amendments to provide for the placement of energy efficiency labels on approved gas appliances which fall under the proposed national energy efficiency labelling scheme reflect a national regulatory agenda for consistency and best practice for certification of gas appliances in Australia.

7. The committee notes that the objective of national consistency to be achieved by regulations made under clause 104 is outlined in the explanatory notes.

8. Clause 104 would amend the Petroleum and Gas (Production and Safety) Act to allow for the making of regulations to ensure consistency with nationally-agreed standards.

9. The committee makes no further comment in respect of the bill being consistent with the fundamental legislative principle requiring sufficient regard to the institution of Parliament.

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

10. 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.

59 The committee thanks Dr William Crane for his advice regarding the bill.

60 At 3.


Chapter 4 Page 45

♦ clause 71

11. Clause 71 would insert into the Mineral Resources Act a new section 318ELAA (Application of pt 7AAB). Under the new section 318ELAA(1), new part 7AAB of the act (Provisions for McFarlane Oil shale deposit), a moratorium would apply to: • land in the area of mineral development licence 202; • land in the area of exploration permits 3520 and 16668; • land the subject of exploration permit application 16748; and • ‘land (prescribed land) in the area of an oil shale mining tenement prescribed under a

regulation’.

12. Under new section 318ELAA(2), land may be prescribed by regulation under subsection(1) only if it is a contiguous parcel of land.

13. In respect of clause 71, the explanatory notes to the bill state:61 The amendments about oil shale are generally consistent with fundamental legislative principles set out in section 4 of the Legislative Standards Act 1992. One departure from these principles relates to the proposed moratorium for the McFarlane oil shale deposit in that it affects the rights of nominated tenure holders. The amendment is necessary to implement the overriding public interest to provide certainty with regard to the impacts of these activities on the environment. The 20 year moratorium is considered essential in protecting that region’s high environmental values.

It fulfils the Queensland Government’s commitment to properly assessing the appropriateness and desirability of exploring for and mining the McFarlane oil shale resources before these resources are further developed. The proposed amendments will still allow limited, low impact activities for the purposes of rehabilitation and environmental management, environmental monitoring and improvement restoration.

The regulation making provision of proposed section 318ELAA may be considered to depart from the fundamental legislative principle of sufficient regard for the institution of Parliament in that it allows an extension of the area subject to moratorium by regulation. The regulation making power is however constrained by requiring any additional area to be contiguous to the area defined in the provision. This is consistent with the Government’s policy for development of oil shale resources in this region.

14. The committee notes that clause 71 would enable the making of a regulation to extend the area of land subject to moratorium. Although only contiguous parcels of land could be prescribed by regulation (subsection (d)), it is conceivable that the contiguous parcels may be held by different tenement holders. Consequently, as provided in new section 318ELB(2), the rights of these tenement holders (which may be in respect of another mineral) could be abrogated without reference to specific legislation authorised by Parliament.

15. Clause 71 would enable the making of a regulation to extend the area subject to a proposed moratorium for the McFarlane oil shale deposit.

16. The committee refers to Parliament the question whether clause 71 contains an appropriate delegation of legislative power.

61 At 6.


Chapter 4 Page 46

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

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

♦ the bill generally

18. The committee notes that enactment of the bill would, inter alia, affect rights of corporate entities, including enactment of: • clause 71, new section 318ELAE (Suspension of oil shale activities) of the Mineral Resources

Act; • clause 75, new part 19, division 1AA (Transitional provisions for Act No. 10 of 1998) of the

Mineral Resources Act; and • clause 77, new part 19, division 11 (Transitional provision for Mines and Energy Legislation

Amendment Act 2008) of the Mineral Resources Act.

19. Matters of this nature have been addressed: • in the explanatory notes to the bill (at 7 to 9); and • in submissions regarding the bill received, detailed at paragraph 32.

20. However, section 4(2)(a) of the Legislative Standards Act, requiring that legislation have sufficient regard to the rights and liberties, limits the requirement for sufficient regard to ‘individuals’. Section 36 of the Acts Interpretation Act 1954 states that ‘individual’ means ‘a natural person’. Further, section 32D makes a distinction between a ‘corporation’ and an ‘individual’.

21. In meeting its statutory responsibilities and in particular the responsibility under section 4(2)(a), the committee has determined consistently that its responsibility regarding whether legislation has sufficient regard to rights and liberties is confined to rights and liberties of natural persons. Accordingly, the committee has confined its consideration of the bill to its statutory responsibilities regarding individuals, including in respect of possible issues regarding the proposed retrospective operation of provisions of the bill.

22. However, in the context of rights that may be affected by the bill, the committee notes statements of concern in the submissions regarding pre-legislative ‘consultation’ of entities potentially affected by the bill.

23. Section 4(2)(a) of the Legislative Standards Act, requiring that legislation have sufficient regard to rights and liberties, limits the requirement for sufficient regard to ‘individuals’.

24. The committee has confined its consideration of the bill to its statutory responsibilities regarding rights and liberties of individuals.


Chapter 4 Page 47

♦ clauses 105 to 109

25. Five clauses of the bill would either provide for new offences or replace existing offences. The relevant offences, together with their maximum penalties, are set out below.

Clause Amendment Offence Maximum Penalty ($) 105 New offence

replacing existing s726(3)

Direction to worker to carry out gas work relating to a gas device (type A) in a way that contravenes a relevant safety requirement

500 penalty units ($37 500)

106 New offence inserted as s727(3)

Direction to worker to carry out gas work relating to a gas device (type B) in a way that contravenes a relevant safety requirement


107 Replacement offence in s733(1)

Sale, installation or use of an uncertified gas device or gas fitting


108 Replacement offence in s734(3)

Contravention of requirements for gas system installation


109 New offence in new s734A

Failure to observe safety obligations of gas system installer

• Failure to give notice - 300 penalty units ($22 500)

• Failure to avoid, eliminate or minimize risk - 300 penalty units ($22 500)

• Failure to report risk by telephone - 100 penalty units ($7500)

26. Clauses 105 to 109 of the bill regarding new or amended offences would operate to affect rights and liberties of individuals.





29. Clause 75 of the bill would insert a new part 19, division 1AA into the Mineral Resources Act. Clause 77 would insert a new division 11 into part 19 of the Mineral Resources Act.

30. In his second reading speech, the Minister outlined the intended operation of these proposed amendments to the Mineral Resources Act:62

62 Hon GJ Wilson MP, Minister for Mines and Energy, Second Reading Speech, Queensland Parliamentary Debates (Hansard), 07 October 2008,

2837.


Chapter 4 Page 48

When the Mineral Resources Act 1989 commenced, it included transitional provisions relating to the Special Agreement Acts. These transitional provisions were subsequently repealed by the Offshore Minerals Act 1998. The repeal of the transitional provisions was never intended to affect the declaratory effect of those provisions. Unfortunately, it appears that the repeal has caused some confusion about whether a lease originally granted under a Special Agreement Act should be renewed under that Act or under the Mineral Resources Act 1989.

This uncertainly is untenable as it potentially affects some of Queensland’s earliest and largest mines. The Bill therefore includes amendments which clarify that the leases are to be renewed under the Mineral Resources Act 1989 and provide that any lease renewed under a Special Agreement Act since the commencement of the Mineral Resources Act 1989 is taken to have been renewed under the Mineral Resources Act 1989.

31. The explanatory notes to the bill further indicate, in respect of the Special Agreement Acts:63 The amendments are generally consistent with fundamental legislative principles set out in section 4 of the Legislative Standards Act 1992. The Mineral Resources Act 1989, when it commenced in 1 September 1990, included transitional provisions relating to the "Special Agreement Acts" (Alcan Queensland Pty. Limited Agreement Act 1965, Aurukun Associates Agreement Act 1975, Central Queensland Coal Associates Agreement Act 1968, Commonwealth Aluminium Corporation Pty. Limited Agreement Act 1957, Mount Isa Mines Limited Agreement Act 1985, Queensland Cement & Lime Company Limited Agreement Act 1977, Queensland Nickel Agreement Act 1970 and Thiess Peabody Mitsui Coal Pty. Ltd. Agreements Act 1962).

The transitional arrangements operated to bring existing tenure grants made under the Special Agreement Acts, as well as future renewals of tenure, under the Mineral Resources Act 1989. The transitional provisions were repealed by the Offshore Minerals Act 1998. This repeal, which was never intended to affect their operation, resulted in some confusion about whether the Mineral Resources Act 1989 or a particular Special Agreement Act applied to the renewal of a lease, or an approval for a lease, originally granted under the Special Agreement Act. Among other things, the proposed amendments will retrospectively revive the original transitional provisions that were repealed in 1998 and clarify the intention of the transitional provisions for mining leases originally granted under the Special Agreement Acts. While this particular amendment will operate retrospectively, no rights are affected by the amendment. This retrospective application is necessary to achieve the required clarification.

32. The committee received three written submissions regarding the bill from: • Mr Neal O’Connor, Director and Company Secretary, Mount Isa Mines Limited; • Mr Alistair Field, Chief Operating Officer, Rio Tinto Alcan; and • Mr Ross Willims, Vice President, Commercial Relations, BHP Billiton Mitusbishi Alliance.

33. The committee has, in accordance with section 50(2) of the Parliament of Queensland Act, authorised the tabling and publication of the submissions. Copies are available from the Queensland Parliament’s tabled papers site at: www.parliament.qld.gov.au/view/legislativeAssembly/tabledPapers.asp

34. Each submission suggests that the effect of clauses 75 and 77 is ambiguous and goes beyond merely clarifying the earlier provisions.

35. The committee notes that it is a basic rule of statutory interpretation that when any act is amended by a later act, the two are to be regarded as one connected and combined statement of the will of the

63 At 7.


Chapter 4 Page 49

Parliament.64 The later act will be regarded as amending the earlier act by a court if it is satisfied that the intended effect of the later act is to bring about an alteration in the operation of the earlier act.65

36. The committee suggests that read together, the bill, second reading speech and explanatory notes indicate a clear parliamentary intention to amend and clarify the effect of earlier legislation. However, the committee notes the concerns expressed in submissions and invites the Minister to provide further information if considered necessary.

37. Clauses 75 and 77 of the bill would insert new parts into the Mineral Resources Act.

38. The committee suggests that read together, clauses 75 and 77 of the bill, the second reading speech and explanatory notes indicate a clear parliamentary intention to amend and clarify the effect of earlier legislation.

39. However, the committee notes concerns regarding possible ambiguity of clauses 75 and 77 expressed in submissions received by the committee. The committee invites the Minister to provide further information if considered necessary.

64 Sweeney v Fitzhardinge (1906) 4 CLR 716 at 735 per Isaacs J.

65 DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis, Australia, 2006, [7.22] to [[7.32].


Chapter 4 Page 50

Alert Digest No 11 of 2008 Transport and Other Legislation Amendment Bill 2008

Chapter 5 Page 51

5. TRANSPORT AND OTHER LEGISLATION AMENDMENT BILL 2008

Background

1. The Honourable John Mickel MP, Minister for Transport, Trade, Employment and Industrial Relations, introduced the bill into the Legislative Assembly on 9 October 2008.

Acts to be amended

2. The bill would amend the:

• Anzac Day Act 1995;

• Building and Construction (Portable Long Service Leave) Act 1991;

• Police Powers and Responsibilities Act 2000;

• Tow Truck Act 1973;

• Transport Infrastructure Act 1994;

• Transport Operations (Marine Pollution) Act 1995;

• Transport Operations (Marine Safety) Act 1994;

• Transport Operations (Passenger Transport) Act 1994;

• Transport Operations (Road Use Management) Act 1995;

• Transport Planning and Coordination Act 1994; and

• Workers’ Compensation and Rehabilitation Act 2003.

Reasons for bill

3. In his second reading speech to the Parliament, the Minister described the reasons for the bill in the following way: This bill proposes changes to eight pieces of legislation administered by my portfolio and two pieces of legislation jointly administered with the Hon. Warren Pitt, the Minister for Main Roads and Local Government. Together, these legislative changes will bring about a number of reforms to improve the transport and industrial relations sectors.

The bill also makes administrative amendments to a range of acts not administered by my portfolio as a result of Queensland Rail’s name change and the formation of two new subsidiaries. The most significant amendments in this bill are the introduction of new powers for TransLink transit officers, the implementation of reforms related to the safe transport of dangerous goods and open roads amendments. The bill also makes minor changes to transport legislation to ensure the delivery of the government’s transport infrastructure program and to improve or clarify legislation.


Chapter 5 Page 52




♦ part 4, division 2 and part 2, division 3

5. Part 4, division 2 of the bill would amend the Transport Operations (Road Use Management) Act to clarify regulation of the operation of heavy vehicles under the act. The explanatory notes indicate the amendments are required to fully implement reforms to nationally consistent legislation:66 The amendments to the Transport Operations (Road Use Management) Act 1995 will clarify a number of provisions relating to the adoption in Queensland of national model legislation developed by the National Transport Commission. That model legislation deals with heavy vehicle driver fatigue and with mass, dimension and loading requirements for vehicles. The objective of these reforms is to regulate certain aspects of the operation of heavy vehicles in a nationally consistent manner.

6. Similarly, part 2, division 3 of the bill contains amendments to the Transport Operations (Road Use Management) Act directed to implementing model legislation to be adopted nationally:67 The policy objective of the Bill is to implement the national model legislation approved by the Australian Transport Council for the transport of dangerous goods, as found in the National Transport Commission (Model Legislation – Transport of Dangerous Goods by Road or Rail) Regulations 2007 (Cth) which supports the introduction of 7th edition of the Code.

7. The committee notes that the relevant provisions of the bill would be substantially uniform or complementary with legislation of the Commonwealth and other States and that the explanatory notes provide a brief explanation of the respective legislative schemes.

8. Part 4, division 2 and part 2, division 3 of the bill relate to nationally consistent legislation.

9. A brief explanation of the respective legislative schemes is provided in the explanatory notes.




66 At 8. See also explanatory notes at 15-16.

67 Explanatory notes, at 9.


Chapter 5 Page 53



Clause New section

Offence Maximum penalty

15 458B Consignment of goods too dangerous to be transported

(a) if the contravention results in death or grievous bodily harm to a person—1320 penalty units or 2 years imprisonment; or (b) otherwise—665 penalty units or 1 year’s imprisonment.

28 126JA Tampering with equipment that has been made inoperable without an authorised person’s written approval

200 pu

31 126NB Contravention of dangerous situation notice (a) if the contravention results in death or grievous bodily harm to a person—270 penalty units; or (b) otherwise—135 penalty units.

31 126NC Non-compliance with oral direction before dangerous situation notice is served

(a) if the contravention results in death or grievous bodily harm to a person—270 penalty units; or (b) otherwise—135 penalty units.

70 49A Non-compliance with direction to provide information to the officer about the heavy vehicle or any load or equipment, or to provide information to the officer about the dangerous goods

60 pu

87 153A Contravention of condition of exemption

135 penalty units or 6 months imprisonment.

97 161C Contravention of improvement notice the maximum penalty for the contravention of the provision about which the notice is given

97 161D Removal of an improvement notice attached to a vehicle without compliance with the notice

135pu

97 161G Removal of a dangerous situation notice from a vehicle before the steps stated in the notice are taken.

135pu

97 161I Contravention of a dangerous situation notice 135pu 97 161J Non-compliance with an oral direction before a

dangerous situation notice is served (a) if the contravention results in death or grievous bodily harm to a person—270 penalty units; or (b) otherwise—135 penalty units.

97 161L Failure to provide information or document (a) if the contravention results in death or grievous bodily harm to a person—270 penalty units; or (b) otherwise—135 penalty units.

97 161Q Transportation of goods too dangerous to be transported

(a) if the contravention results in death or grievous bodily harm to a person—1320 penalty units or 2 years imprisonment; or (b) otherwise—665 penalty units or 1 year’s imprisonment.


Chapter 5 Page 54

Clause New section


218 111J Disclosure of information acquired as an employee 200pu 219 113A Non-return of uniform worn as transit officer once

ceased employment 10pu

223 129X Failure to comply with Part 4A 60pu 223 129ZG Contravention of exclusion order 40pu or 6 months imprisonment 240 38A Failure to keep a shipboard marine pollution

emergency plan for noxious liquid substances on board ship

850pu

243 50A Operation of ship without appropriate sewage system

850pu

244 55AA Failure to display a placard complying with subsection (2) on a ship that is at least 12m in length overall

850pu

264 335AB Management of busway by non-accredited person 160pu 264 335AG Non-compliance with conditions of a person’s

accreditation as the busway manager for a busway 40pu

264 335AH Non-compliance with notice regarding conditions of a person’s accreditation as the busway manager for a busway

60pu




15. Further clauses of the bill would amend existing offence provisions, as identified in the table below.

Clause Amended section


6 443 Non-compliance with any conditions on which an exemption was granted.

130pu or 6 months imprisonment

10 451 Non-compliance with duties when transporting dangerous goods

(a) if the contravention results in death or grievous bodily harm to a person—1320 penalty units or 2 years imprisonment; or (b) otherwise—665 penalty units or 1 year’s imprisonment

11 452 Contravention of an exclusion order prohibiting involvement in the transport of dangerous goods by rail

665pu or 2 years imprisonment

19 112 A person who ceases to be an authorised person must, as soon as practicable, return the identity card to the chief executive, unless the person has a reasonable excuse for not returning it.

40pu


Chapter 5 Page 55



22 123 Failing to obey an authorised officer’s signal to stop a vehicle or not to move it in order to allow the authorised officer to enter, or failing to give reasonable help to an authorised person who requires help to board

100pu

23 124 A person, required by an authorised person, must take the vehicle to a stated reasonable place by a stated reasonable time

100pu

26 126H(5) Railway operator’s failure to comply, without reasonable excuse, with an authorized person’s requirement to hold, or stop and hold, a rail vehicle

200pu

29 126K Non-compliance with remedial notice the maximum penalty for the contravention of the provision about which the notice is given

33 130 Stating false or misleading information to the chief executive

200pu

34 131 Giving false, misleading or incomplete documents to the chief executive

200pu

35 136 Impersonating an authorised person 100pu 52 33(4) Non-compliance with direction to move heavy

vehicle 120pu

61 38 Non-compliance with direction not to drive a vehicle 120pu 62 39(1) Non-compliance with requirement to help an

authorised officer to enable the officer to effectively exercise a power under the Act in relation to a vehicle

(a) for a power exercised in relation to a private vehicle other than a suspected dangerous goods vehicle—60 penalty units; or (b) for a power exercised in relation to a suspected dangerous goods vehicle, a prescribed heavy vehicle or the transport of dangerous goods—120 penalty units

78 55 Pretending to be an authorised officer 134pu 88 154(3) and

(4) Failing to hold licences required under a dangerous goods regulation for transporting dangerous goods

existing penalty, or 2 years imprisonment

88 154(6) Consignment of dangerous goods for transport 135pu 90 156(2) Contravention of the Act if the person knew, or

reasonably ought to have known, that the contravention would be likely to endanger a person’s safety, property or the environment.

(a) if the contravention results in death or grievous bodily harm to a person—1320 penalty units or 2 years imprisonment; or (b) otherwise—665 penalty units or 1 year’s imprisonment

240 38(1) Failure to have on board a procedures and arrangements manual on a ship certified to carry noxious liquid substances category X, Y or Z

350pu

240 38A Failure to have a shipboard marine pollution emergency plan for noxious substances on board a prescribed ship

850pu


Chapter 5 Page 56



263 329 A person must not, without reasonable excuse, be on a busway unless the person has permission of the chief executive

40pu

266 377 Trespass on light rail land or light rail transport infrastructure

40 pu

285 46 Contravention or tampering with a restricted road use notice

200 pu

16. Various provisions of the bill would amend existing offence provisions.



18. Two provisions of the bill would use extended definitions of ‘criminal history’ which are stated to operate despite the Criminal Law (Rehabilitation of Offenders) Act 1986.

19. First, clause 11 would replace existing section 452 (Prohibition on involvement in the transportation of dangerous good by rail) of the Transport Infrastructure Act with a new section 452 (Exclusion orders prohibiting involvement in the transport of dangerous goods by rail). New section 452 would allow a court which had convicted a person of an offence against chapter 14 of the act to make an order prohibiting the person from involvement in the transport of dangerous goods by rail for a specified period. In making the order, the court would consider factors such as the person’s record in the transport of dangerous goods by rail, prior convictions, circumstances surrounding the commission of the offence and any other matters the court considers appropriate.

20. Second, clause 95 would replace existing section 160 (Prohibition on involvement in the transportation of dangerous good by road) of the Transport Operations (Road Use Management) Act with a new section 160 (Exclusion orders prohibiting involvement in the transport of dangerous goods). The powers of the court would be in similar terms to the new section 452 of the Transport Infrastructure Act.

21. Despite sections 6, 8 and 9 of the Criminal Law (Rehabilitation of Offenders) Act, clauses 11 and 95 define ‘criminal history’ to mean: • every conviction of the person for an offence, in Queensland or elsewhere, and whether before

of after commencement of this provision; and • every charge made against the person for an offence, in Queensland or elsewhere, and

whether before or after the commencement of this provision.

22. The committee notes that, by contrast, the Criminal Law (Rehabilitation of Offenders) Act defines ‘criminal history’ to mean: ‘in relation to any person, the convictions recorded against that person in respect of offences’. Accordingly, clauses 11 and 95, extend the definition to past charges for


Chapter 5 Page 57

offences, not merely convictions, as provided in the Criminal Law (Rehabilitation of Offenders) Act. It would be a statutory modification of the fundamental right to be presumed innocent until proven guilty.

23. Further, the provisions of the Criminal Law (Rehabilitation of Offenders) Act to be expressly excluded by clauses 11 and 95 relate to: • section 6 – non-disclosure of convictions upon expiration of the ‘rehabilitation period’ (defined in

section 3); • section 8 – generally, a statutory right to deny convictions once the rehabilitation period has

expired; and • section 9 – a statutory duty imposed to disregard certain convictions once the rehabilitation

period has expired.

24. The committee does note, however, that an order made under clause 11 or 95 would be a court order and would be made following consideration of a number of factors, only one of which would be a person’s ‘criminal history’. In addition, extensive justification for the proposed provisions is set out in the explanatory notes to the bill:68 Any departure from the established scheme of criminal rehabilitation requires justification. The extended definition of "criminal history" (amendment of section 160 of the Transport Operations (Road Use Management) Act 1995 and section 452 of the Transport Infrastructure Act 1994) may be considered a breach of this fundamental legislative principle.

However, there is no requirement for the court to take into account a person's spent convictions or charges. It is only if the court considers those matters relevant to making an exclusion order that they may be considered. As the court is making an order for the complete exclusion of a person from the industry, it is a serious matter which could impact on the person's ability to earn their livelihood. As such, it is imperative that the court can examine a person's conduct over a lengthy period of time to see if the person has established a pattern of behaviour which necessitates the making of the order. The court will be in the best position to determine if spent convictions and charges are relevant to the making of the order and retains discretion to ignore them if it is appropriate to do so.

25. Clauses 11 and 95 would use extended definitions of ‘criminal history’, to operate despite sections 6, 8 and 9 of the Criminal Law (Rehabilitation of Offenders) Act 1986. These provisions relate to non-disclosure of convictions upon expiration of the relevant rehabilitation period.

26. The committee notes that the definition of ‘criminal history’ in clauses 11 and 95 would also allow consideration of past charges for offences.


♦ clause 222

28. Clause 222 would insert a new chapter 11, part 2A into the Transport Operations (Passenger Transport) Act to establish drug and alcohol testing requirements for transit officers. New section 116

68 At 42-43.


Chapter 5 Page 58

(Chief executive may require a transit officer to undergo alcohol or drug test) would allow a transit officer to be tested by a doctor in specified circumstances, such as if the transit officer had been involved in an incident in which a person being detained suffered an injury.

29. Clause 222 would allow a chief executive officer to require a transit officer to undergo alcohol and drug testing in specified circumstances.

30. The committee refers to Parliament the question whether clause 222 has sufficient regard to rights and liberties of individuals.

♦ clause 223

31. Clause 223 would insert a new chapter 11 parts 4A and 4B into the Transport Operations (Passenger Transport) Act establishing respectively: • the functions and powers of transit officers protecting safety of persons or property; and • the powers of courts to make exclusion orders for protecting the public or property.

32. New parts 4A and 4B would, therefore, affect rights and liberties of individuals.

33. First, part 4A is considered additionally at paragraphs 96 to 99 regarding delegation of administrative power. In respect of the fundamental legislative principle regarding sufficient regard for the rights and liberties of individuals, though, part 4A would confer transit officers with significant powers to detain and handcuff people. The powers would be exercisable for protecting safety of persons or property. In this context, the committee notes the operation of new sections: • 129A (Power to detain person who has committed a ‘detainable offence’) – a ‘detainable

offence’ is defined in clause 231 to mean an offence involving assault occasioning bodily harm, involving assault of another person for the purpose of stealing, against chapter 32 (rape and sexual assault) of the Criminal Code, or involving wilful damage of property on or in ‘public transport infrastructure’;69

• 129B (Power to detain person to prevent continuation of detainable offence); • 129C (Power to detain person to prevent contravention of exclusion order); • 129D (Handcuffs may be used for detaining person); and • 129E (Period of detention).

34. New division 3 contains provisions about detaining children or persons with impaired capacity. New division 4 would confer additional powers after a person was detained, including in new section 129O (Power to require detained person to remove outer garment etc). New section 129O(2) would allow a transit officer to inspect a person's belongings, remove one or more outer garments and allow inspection of the garments, remove all articles from the person's clothing and inspect the clothing and to frisk search the person.

69 ‘Public transport infrastructure’ is also defined by clause 231.


Chapter 5 Page 59

35. In respect of part 4A, the explanatory notes acknowledge a breach of fundamental legislative principles, but suggest that sufficient regard is had to the rights and liberties of individuals:70 It is recognised that detaining a person is a significant breach of the fundamental legislative principle regarding rights and liberties. However while the Bill provides transit officers with the power to detain an individual and require such individuals to remove outer clothing or submit to a frisk search in certain circumstances, there are a number of specific counterbalancing provisions to protect the rights and liberties of the detained individual as much as possible. Counter-balancing requirements include:

• high level screening (including a rigorous criminal history check process) to assess a person's suitability to be a transit officer;

• high level police commissioner approved training that targets the specific duties of transit officers. For example: de-escalating situations, when and how to use force, when and how to use handcuffs, how to deal with children and other vulnerable people, and how to frisk search a person;

• transit officers being subject to the provisions of the Crime and Misconduct Act 2001 and the Public Sector Ethics Act 1994;

• detention powers only being used if transit officers reasonably believe the person has committed or is committing assault occasioning bodily harm, assault involving stealing, offences relating to rape or sexual assault, or wilful damage or is contravening an exclusion order;

• transit officers having to follow a 'due process' before exercising detention powers. This includes considering whether it would be more appropriate for the individual to leave the public transport (depending on the circumstances), whether or not the person will repeat the offence immediately or soon after, and the safety and the security of other passengers;

• transit officers only undertaking a search of the detained person in accordance with strict guidelines. These include respecting the dignity of the individual by providing as much privacy during the search as possible and same-sex frisk searching;

• transit officers informing the person responsible for a child/impaired person, who has been detained, of the detention and having regard to the principles of the Juvenile Justice Act 1992 when detaining a child.

36. New part 4B would establish the powers of courts to make orders, applying to use of the public transport network, restricting or excluding use by certain people who have committed offences. Such an order may be in addition to any penalty or sentence imposed by the court (new section 129ZA(2)). In respect of new part 4B, the explanatory notes indicate:71 The court's power to make exclusion orders is the other significant new measure which may breach the fundamental legislative principle regarding the rights and liberties of an individual. However, an exclusion order can only be issued by a court which has been able to consider all the facts and circumstances of the particular case.

As well, all such orders are intended to maximise the welfare of public transport users and protect public transport infrastructure. Further, the exclusion orders are only applicable to those who have offended on public transport. And in addition, the court will be asked to give careful regard to the rights of the offender and to take into account any undue hardships such an order may impose. The exclusion order can also be varied depending on changing circumstances; for example, so that the offender is not unfairly restricted in employment opportunities.

70 At 30.

71 At 31.


Chapter 5 Page 60

37. New parts 4A and 4B of the Transport Operations (Passenger Transport) Act would respectively: confer transit officers with significant powers, including to detain and handcuff people, exercisable

for protecting safety of persons or property; and allow courts to make orders, applying to use of the public transport network, restricting or excluding

use by certain people who have committed offences.

38. The committee refers to Parliament the question whether new parts 4A and 4B, contained in clause 223, have sufficient regard to the rights and liberties of individuals.


39. Further provisions of the bill, while not explicitly overriding the Criminal Law (Rehabilitation of Offenders) Act, provide for criminal history checks to be made of certain people. These provisions would operate to affect information privacy rights.

40. Amendments to the Tow Truck Act would clarify that the criminal history of an executive officer could be used by the chief executive in a determination whether a corporation was an appropriate body to hold or continue to hold a tow truck licence. The bill would provide that criminal histories might be considered not only when assessing an application for the grant of an approval under the Tow Truck Act but also at the time of renewing those approvals.

41. The bill would amend the Transport Operations (Road Use Management) Act to clarify that, where a corporation applies for or holds an approval under the act, criminal history checks could be conducted on executive officers. The bill would also provide for criminal history checks to be conducted on: • an officer nominated by a Q-Ride Registered Service Provider to sign declarations verifying that

participants have successfully completed Q-Ride motorbike training; and • a nominee for an Approved Inspection Station where vehicle safety inspection certificates are

issued.

42. The bill would amend both the Tow Truck Act and the Transport Operations (Road Use Management) Act to ensure that the chief executive could institute show cause proceedings against an approval holder where an executive officer, nominated officer or nominee had been convicted of an offence against the act or a corresponding law in another jurisdiction, or convicted of a disqualifying offence. The bill would also amend these acts to ensure the commissioner of police could advise of any change to the criminal history of an executive officer, nominated officer or nominee.

43. Extensive justification for any breach of the principle that legislation should have sufficient regard to rights and liberties of individuals is set out in the explanatory notes at pages 38 to 40 stating, in part:72 The power to undertake criminal history checks on applicants for and holders of approvals under those Acts is essential to ensure that only appropriate people are authorised by Queensland Transport to perform specific industry roles. These people conduct business with members of the community and are involved in determinations of some considerable significance.

72 At 38.


Chapter 5 Page 61

The amendments will ensure that criminal history checks can be conducted on executive officers of corporations that apply for the grant or renewal of an approval to operate a tow truck licence or to act as a Q-Ride Registered Service Provider or Approved Inspection Station. Checks can already be conducted on ‘applicants’ for these approvals.

44. The committee notes that clauses 280 and 294 of the bill, allowing criminal history checks to be made regarding certain people, would operate to affect rights to privacy.

45. The committee refers to Parliament the question whether these provisions have sufficient regard to the rights and liberties of individuals.





48. Proposed provisions to be enacted by clauses 15, 37 and 98 would reverse the onus of proof and create ‘derivative liability’.

49. First, new section 154AD of the Transport Operations (Passenger Transport) Act would provide that if an act was done or omitted to be done by a representative of a person within the scope of the person’s representatives’ actual or apparent authority then the act or omission would be taken also to have been committed by the person, unless the person proved he or she could not by the exercise of reasonable diligence have prevented the act or omission (clause 37).

50. In respect of clause 37, the explanatory notes indicate:73 This potential breach is made less objectionable as it is a defence for the person to prove that the officer exercised reasonable diligence to ensure their representative complied with the provision.

Similar executive officer liability provisions exist in the Workplace Health and Safety Act 1995, the Transport Operations (Road Use Management) Act 1995 and many other Queensland Acts, including other safety-related legislation.

51. Second, clauses 15 and 98 of the bill would respectively create offences regarding the consignment of ‘goods too dangerous to be transported’ in section 458B of the Transport Infrastructure Act) and section 161Q of the Transport Operations (Road Use Management) Act. The meaning of ‘consignor’ is

73 At 44.


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contained in the dictionary to the bill and includes a person who is a loader, even though he or she may not normally be considered to be the ‘consignor’ of the goods.

52. The explanatory notes outline the operation of this definition and provide a justification:74 The definition of “consignor" is a cascading definition and a "loader" will only be a "consignor" if no other person within the higher categories can be found for the particular offence. In most cases, the consignor will be the person named as the consignor in transport documentation, the prime contractor for the load or the person with possession or control of the goods prior to their transport. If none of these people can be identified, then it may be appropriate to proceed against the loader in circumstances where the loader was the person who made the decision to consign the load of goods too dangerous to be transported. These provisions are based on the national model legislation.

53. Proposed provisions to be enacted by clauses 15, 37 and 98 would reverse the onus of proof and create ‘derivative liability’.

54. The committee refers to Parliament the question of whether clauses 15, 37 and 98 have sufficient regard to the rights and liberties of individuals.

♦ clause 173

55. Clause 173 of the bill would insert a new section 57H (Criminal Code, s 24 does not apply to particular offences) into the Transport Operations (Road Use Management) Act. The new section 57H would provide that section 24 of the Criminal Code would not apply to a person charged with specified offences, generally falling into the following categories: • heavy vehicle driver fatigue or mass, dimension or loading offences - the person charged would

not have access to section 24 of the Criminal Code but could utilise the ‘reasonable steps defence’ (new section 57H(1)(a), (d) and (e) and the ‘reasonable steps defence’ is provided in section 57D of the act);

• an offence against a fatigue management regulation committed by a person in control of a fatigue regulated heavy vehicle driving the vehicle while impaired by fatigue (new section 57H(1)(b)); and

• an offence against a fatigue management regulation committed by a person failing to take reasonable steps to ensure another person does not drive a fatigue regulated vehicle in a contravening way (new section 57H(1)(c)).

56. In respect of fatigue management offences, the explanatory notes provide information regarding the justification for exclusion of defence provisions in the Criminal Code:75 Fatigue has long been identified as a major safety concern in the road freight industry. In recognition of the significant impact of crashes of heavy vehicles on the community as a whole, it is proposed, in line with the national model legislation, that a defendant will not have access to the defence of 'mistake of fact' that currently exists in the Queensland’s Criminal Code, section 24. These heavy vehicle driver fatigue reforms place a positive duty on all parties within the supply chain to take proactive measures to manage their fatigue risks. To

74 At 44-45.

75 At 34-35.


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successfully exercise their duties, all parties from drivers through to others in the chain of responsibility are reasonably expected to have sufficient knowledge on how to minimise their fatigue risk. This knowledge and understanding is obtained through a combination of training and practical experience. Allowing parties to utilise an 'honest and reasonable but mistaken belief' substantially undermines the ability of the reforms to deliver the road safety benefits promised to the community.

For example, under section 28 of the model legislation, if a person driving a heavy vehicle is shown to be impaired by fatigue then they should not be able to avoid liability simply because they mistakenly believed they were safe to drive. This position aligns with the current position in relation to a person charged with a drink driving offence under the Transport Operations (Road Use Management) Act 1995. In that regard, it is worth noting that research has shown that driving while fatigued can entail a risk which is similar to driving while adversely affected by alcohol. For these reasons, it is believed to be appropriate to exclude the operation of the Queensland’s Criminal Code, section 24, for these fundamental offences.

Parties in the chain of responsibility on whom a duty is imposed to take all reasonable steps to ensure that relevant fatigue offences are not committed, will need to ensure that they act with due diligence and care by taking proactive steps to ensure that heavy vehicle driver fatigue offences are prevented.

This position has been deliberately aligned with the current position under Queensland's Workplace Health and Safety Act 1995 in relation to a person's failure to discharge a workplace health and safety obligation.

In the context of adequately taking into account fundamental legislative principle considerations it is important to note that the prosecution has the onus of proving beyond a reasonable doubt that the relevant parties failed to take all reasonable steps to ensure that relevant fatigue offences are not committed.

For a number of offences, while the person charged will not have access to section 24 of Queensland’s Criminal Code, they will be granted the benefit of the “reasonable steps defence”. This defence will help to ensure that fundamental legislative considerations are taken into account in the legislation. A person charged with an offence relating to a filled-up, destroyed, lost or stolen work diary, a malfunctioning odometer or a record-keeping requirement will have the benefit of this defence. That defence will also be available to a driver or a party in the chain of responsibility when a driver is charged with a work/rest hours offence. The defence will apply where the defendant can prove that:

• s/he did not know, and could not reasonably be expected to have known, of the breach of the relevant fatigue management requirement; and

• either s/he took all reasonable steps, or there were no steps that could have been taken, to prevent the breach.

57. In addition, in respect of offences regarding failure to comply with mass, dimension or loading requirements, the explanatory notes state:76 Queensland has adopted provisions from the national model legislation relating to mass, dimension and loading of heavy vehicles. The mass of a vehicle, its dimensions and the way in which its load is restrained are critical factors in determining its safety. Poor loading and over-mass and over-dimensional vehicles have contributed to a number of crashes and pose a significant risk to the community.

It is believed that the exclusion of the Criminal Code, section 24, for certain mass, dimension and loading offences is justified on the basis of the need to ensure that all relevant parties act with due diligence and care by taking proactive steps to ensure that these offences are not committed. This justification is similar to that provided above in relation to the heavy vehicle driver fatigue reforms. Due to the risk that non complying heavy vehicles may pose to the community, it is appropriate that the 'honest and reasonable but mistaken belief' defence be excluded …

76 At 36.


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However, fundamental legislative principles have been taken into account, as persons charged with these offences will have access to the reasonable steps defence as explained above under the heavy vehicle driver fatigue section.

58. The committee notes that the Criminal Code states, in section 24(2), that the operation of section 24 may be ‘excluded by express or implied provisions of the law’.

59. Clause 173 (new section 57H of the Transport Operations (Road Use Management) Act) would exclude the operation of section 24 of the Criminal Code.

60. The committee refers to Parliament the question of whether clause 173 has sufficient regard to rights and liberties of individuals.


61. Clauses 107 and 162 would both reverse the onus of proof and extend liability to those within a ‘chain of responsibility’.

62. Clause 107 would amend schedule 4 (Dictionary) of the Transport Operations (Road Use Management) Act. Definitions to be amended include definitions of: • ‘accreditation record requirement’; and • ‘fatigue management requirement’.

63. Clause 162 would amend the definition of ‘influencing person’ in section 57AB of that act.

64. The explanatory notes detail the way in which these amendments would be inconsistent with the fundamental legislative principle that legislation should not reverse the onus of proof in criminal proceedings:77 Under the heavy vehicle driver fatigue management legislation, operators may be granted two types of accreditation – a Basic Fatigue Management accreditation or an Advanced Fatigue Management accreditation. Heavy vehicle drivers for the operators of the holders of these accreditations will be accorded more flexible driving hours than under the “standard hours” as set out in the legislation. In order to be granted such accreditations, operators must demonstrate that their business practices adequately manage fatigue risks and otherwise comply with the relevant operating standards. The legislation also allows the chief executive to grant an exemption to allow drivers to operate under different maximum periods of work and minimum periods of rest than would otherwise apply under the legislation.

The effect of the amendment to the definition in section 57AB, and the definitions of “accreditation record requirements” and “fatigue management requirement” is that a failure by the person in control of a heavy vehicle to carry a copy of the relevant Basic Fatigue Management accreditation documents or exemption notice (as applicable) is an extended liability offence as defined in section 57AB of the Act. This means that under section 57B, if the driver fails to carry these documents, then an influencing person is taken to have committed the offence unless the influencing person establishes the reasonable steps defence, or they were not in a position to influence the conduct of the driver.

77 At 37.


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65. In addition, the explanatory notes provide lengthy justification for any inconsistency. This is set out at pages 37 to 38 and concludes: The potential breach of the fundamental legislative principle is considered to be justified as these amendments are important measures to ensure people in the chain of responsibility take responsibility for their actions in so far as they contribute to breaches of these important document carrying requirements.

66. The committee has considered, on a number of occasions, proposed amendments to the Transport Operations (Road Use Management) Act which would reverse the onus of proof.78 The first occasion on which committee considered the ‘chain of responsibility’ provisions in the Transport Operations (Road Use Management) Act effecting a reversal of the onus of proof was in Alert Digest No 11 of 1997. In relation to these provisions, the committee was of the view that, although defences were provided for a person charged with one of the chain of responsibility offences, that person would be presumed guilty unless and until he or she could raise an effective defence.

67. In respect of clauses 107 and 162, as on the previous occasions on which the committee has considered such provisions, the committee appreciates the difficulties regarding proof of liability in certain circumstances. However, the committee reaffirms that, generally, it does not approve of provisions in legislation which effectively reverse the onus of proof. In respect of clauses 107 and 162, the committee draws attention to the increase in the ‘length’ of the chain of responsibility which would result from the enactment of these clauses.

68. Clauses 107 and 162 would reverse the onus of proof and extend liability to those within a ‘chain of responsibility’.


♦ clause 242

70. Clause 242 would amend section 48A (Ship with fixed toilet operating in prescribed nil discharge waters to be able to hold or treat sewage) of the Transport Operations (Marine Pollution) Act. This amendment is to: • renumber section 48A(3) as section 48A(4); and • insert a new section 48A(3), providing for a reversal of the onus of proof in criminal

proceedings, as it would state, ‘this section applies despite the Criminal Code, sections 23 and 24’.

71. The effect of the amendment would be that defences ordinarily available would be excluded, creating offences of strict liability. Intent or mistake could not be relied upon as a defence and the Crown would not need to establish intent as an element of the offence.

78 For example: AD 10/2007, at page 11; and AD 1/2007, at page 24.


Chapter 5 Page 66

72. 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. The explanatory notes indicate:79 This amendment merely continues the exclusion of the operation of the Criminal Code, sections 23 and 24, which was also the position before the amendment was drafted. The same scheme can be found in the other offence provisions in the Transport Operations (Marine Pollution) Act 1995.

The Act is part of a national scheme of legislation implementing MARPOL. The convention similarly prohibits discharges of pollutants unless it is a permitted operational discharge. The Transport Operations (Marine Pollution) Act 1995 also provides for similar defences.

The abhorrence of ship sourced marine pollution is reflected in the convention and the large number of countries which have implemented MARPOL into their domestic legislation.

Queensland with its proximity to the Great Barrier Reef and Torres Strait, has a particular interest in preventing ship sourced marine pollution and successful prosecutions will be a powerful deterrent. The legislature has previously deemed that it is appropriate to exclude the operation of the Criminal Code, sections 23 and 24, in the offence provisions of the Act and it is consistent with the remainder of the Act that this scheme is continuing.

73. Clause 242 would exclude the operation of sections 23 and 24 of the Criminal Code.


♦ clause 250

75. Clause 250 of the bill would amend the Transport Operations (Marine Safety) Act to insert a new section 167A (Power to require production of marine safety equipment). New section 167A(1) would confer a shipping inspector with power to require production of prescribed safety equipment. Under new section 167A(4), failure to produce such safety equipment without reasonable excuse may be used as evidence: • that the ship is not so equipped; and • in a proceeding for an offence under section 44(1) of the Transport Operations (Marine Safety)

Act 1994, that the ship is not equipped with the safety equipment.

76. The explanatory notes indicate the objective of the amendment:80 Previously the Transport Operations (Marine Safety) Regulation 1995 included a provision requiring the master of a ship to produce safety equipment to a shipping inspector. When the regulation was remade in 2004, the provision was removed as it was more suitable for primary legislation. A recent court case demonstrated that without such a provision it is very difficult to prove that the required safety equipment is not on board the ship.

This amendment is in accordance with the Transport Operations (Marine Safety) Regulation 2004, sections 19, 26 and 28.

79 At 28.

80 At 140-141.


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77. In respect of any inconsistency with the fundamental legislative principle regarding reversal of the onus of proof, it is further indicated that:81 The amendment potentially breaches the fundamental legislative principle that legislation should not reverse the onus of proof without adequate justification. The proposed amendment permits a failure to produce safety equipment on demand to be taken as evidence that the ship is not equipped with the relevant equipment. The provision does not remove the ability of the owner or master to later testify or otherwise prove that the ship was equipped with safety equipment despite being unable to comply with the request.

The request is appropriate because the location of the equipment is a matter peculiarly within the person's knowledge and the owner or master is well positioned to comply with the request in all reasonable circumstances. Without this provision a thorough search of a ship would be required to be conducted by the intercepting officers. As every ship is different and many interceptions occur in a seaway, there are significant practical and safety issues involved with conducting a thorough search in many circumstances.

Further, the policy objective of having safety equipment appropriately stowed and quickly accessible in case of emergency is promoted by this provision by requiring the owner or master to be able to locate the equipment upon request.

78. Clause 250 would effect a reversal of the onus of proof as it would permit a failure to produce safety equipment on demand to be taken as evidence that the ship is not equipped with the relevant equipment.


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

80. 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 251

81. Clause 251 of the bill would insert three new sections into the Transport Operations (Marine Safety) Act. New sections 183GA, 183GB and 183GC would make it clear that the District Court may make orders allowing an applicant to carry out a previous enforcement order and take direct action about a ship. The new sections would provide that: • the District Court may make orders allowing an applicant such as Maritime Safety Queensland

to carry out a previous enforcement order and take direct action about a ship (new s183GA); • the State may recover any expenses incurred from carrying out the authorised action (new

s183GB); and • another person may recover damages in particular circumstances (new s183GC).

81 At 28-29.


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82. The explanatory notes outline the purpose of the proposed amendment:82 The compliance provisions currently found in Part 13A of the Transport Operations (Marine Safety) Act 1994 do not clearly authorise the court to order Maritime Safety Queensland or another person, other than the person in breach of the enforcement order to take direct action to achieve compliance. Therefore if the recipient of the enforcement order still fails to comply, the District Court is not authorised under the Act to make an order enabling Maritime Safety Queensland to take action. This amendment will reduce the risk posed by such ships that may otherwise be a threat to the marine environment through pollution or present a navigation hazard. It will also enable unseaworthy ships to be managed more effectively.

83. In addition, in respect of a possible breach of the fundamental legislative principle that legislation provide for the compulsory acquisition of property only with fair compensation, it is indicated that:83 This provision only operates after it has been proven in a District Court that there is an ongoing breach of marine safety legislation, and that a District Court has made an enforcement order in relation to that breach and that order has been contravened.

This provision operates to allow a court to make such further orders as are appropriate to remedy the contravention of marine safety legislation. It is considered that this judicial oversight provides a robust safeguard against the infringement of the person's rights. In this respect the amendment simply clarifies the intent of the Transport Operations (Marine Safety) Act 1994, section 183E, and gives greater efficiency to the civil enforcement regime set out in Part 13A of that Act. In addition, experience has demonstrated that a person who fails to meet their obligations under legislation is likely to ignore an enforcement order. This amendment will allow action to be taken when no other course exists.

84. The committee notes the justification provided for inconsistency with fundamental legislative principles.

85. Clause 251 of the bill may be inconsistent with the fundamental legislative principle that legislation provide for the compulsory acquisition of property only with fair compensation.

86. The committee refers to Parliament the question whether clause 251 of the bill has sufficient regard to the rights and liberties of individuals.

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

87. 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 17

88. Clause 17 would effect a number of amendments to the definitions of particular terms used in legislation to be amended by the bill and would allow for matters to be determined by regulation (for example, amounts of dangerous goods to be carried in exempt or concessional loads, details of

82 At 141.

83 At 27.


Chapter 5 Page 69

transport documentation and types of licences). The explanatory notes indicate generally in this regard:84 This is an appropriate delegation of legislative power as the matters to be determined by regulation are administrative in nature and many of them are matters of technical detail which are determined in accordance with the 7th edition of the Code.

89. More specifically, in respect of the definition of ‘participating dangerous goods jurisdiction’ as it is to be amended, the explanatory notes state:85 The definition of "participating dangerous goods jurisdiction" allows a regulation to provide that a State is not a participating dangerous goods jurisdiction. This is a provision that would only be invoked in the highly unlikely situation that the law of another jurisdiction varied so significantly from the model legislation that it could no longer be considered to be part of the national scheme legislation and therefore, its decisions, approvals and licences in relation to dangerous goods should not be recognised. In the context of national scheme legislation, declaratory regulations are common.

90. 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.

91. In January 1997, the committee reported to the Parliament on Henry VIII clauses.86 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.

92. Where provisions fall within the scope of those considered ‘Henry VIII’ provisions, the committee examines whether the provision would represent an inappropriate delegation of legislative power. The committee notes that clause 17 would enable the definitions of words to be extended by regulation. Generally, the committee accepts that provisions enabling definitions of terms to be extended by regulation are not Henry VIII clauses, but the committee considers also whether such provisions appropriately delegate legislative power. In this context, the committee suggests that the justification provided in the explanatory notes indicates that the delegations of legislative power regarding definitions may be regarded as appropriate.

84 At 43.

85 At 43.

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


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93. Clause 17 would allow the definition of certain terms to be extended by regulation.

94. The committee refers to Parliament the question whether the respective delegations of legislative power may be appropriate in the circumstances to be addressed by the bill.




96. Various provisions of the bill would confer significant powers on officers acting under legislative authority, as provided or as amended, under the provisions of the bill. Relevant provisions include: • part 2, division 2 – to amend the Transport Operations (Passenger Transport) Act to confer new

powers on authorised persons regarding entry of railway vehicles and related post-entry powers;

• clause 70 – to insert a new section 49A into Transport Operations (Road Use Management) Act to confer an authorised officer with power to require information regarding certain vehicles, their loads and equipment;

• clause 189 – amending existing powers in section 51G of the Transport Operations (Road Use Management) Act regarding the chief executive ordering the moving or removal of abandoned or stationary vehicles on prescribed roads; and

• clause 223, conferring power, in new part 4A of the Transport Operations (Passenger Transport) Act for transit officers to detain individuals regarding offences committed on public transport (see paragraphs 31 to 38).

97. The committee notes the significant powers to be conferred upon persons authorised by legislation. As noted elsewhere in this Alert Digest, powers of this nature are more commonly conferred upon police officers following lengthy training, including education regarding the exercise of statutory powers in accordance with relevant legislation and the common law. The committee notes, however, that various safeguards in respect of the exercise of the significant powers are contained in the bill. In respect of clause 223 of the bill, for example, clause 218 would require transit officers to undergo certain training.

98. Various provisions of the bill would confer authorised persons with significant powers.


Alert Digest No 11 of 2008 Water (Commonwealth Powers) Bill 2008

Chapter 6 Page 71

6. WATER (COMMONWEALTH POWERS) BILL 2008

Background

1. The Honourable Craig Wallace MP, Minister for Natural Resources and Water and Minister Assisting the Premier in North Queensland, introduced the bill into the Legislative Assembly on 7 October 2008.

Legislation to be amended

2. The bill would repeal the Murray-Darling Basin Act 1996. It would amend the: • Water Act 2000; • Water Resource (Border Rivers Plan) 2003; • Water Resource (Moonie River Plan) 2003; • Water Resource (Warrego, Paroo, Bulloo and Nebine) Plan 2003; • Land Act 1994; and • Land Title Act 1994.

Reasons for bill

3. The policy objectives of the bill are outlined in the explanatory notes:87 The primary object of this Bill is to refer certain matters about water management relating to the Murray-Darling Basin to the Commonwealth Parliament, so as to enable the Commonwealth Parliament to make laws about those matters. The proposed Act will be enacted for the purposes of section 51 (xxxvii) of the Commonwealth Constitution, which enables State Parliaments to refer matters to the Commonwealth Parliament.

The Bill operates by reference to the text of Schedule 1 to the Commonwealth Water Amendment Bill 2008 so as to enable the enactment and future amendment of provisions set out in that Schedule that are to be included in the Commonwealth Water Act 2007 Commonwealth Water Act). The Bill also repeals the Murray–Darling Basin Act 1996.

The Bill also makes, not related to the referral of powers, necessary operational amendments to the Water Act 2000 (Water Act), Land Act 1994 (Land Act) and Land Title Act 1994 (Land Title Act).




87 At 1.


Chapter 6 Page 72

♦ part 2

5. Part 2 of the bill would refer certain matters to the Parliament of the Commonwealth. The matters to be referred are identified in clause 4 of the bill and are outlined in paragraph 7.

6. In respect of the matters to be referred, the explanatory notes indicate generally:88 The referral of powers provides for new water management arrangements in the Murray-Darling Basin including the:

• Establishment, membership, voting and functions of the new Ministerial Council and Basin Officials Committee.

• Transfer of the existing Murray-Darling Basin Commission duties, functions and powers to the Murray-Darling Basin Authority established under the Commonwealth Water Act and the Basin Officials Committee established under the Murray-Darling Basin Agreement.

• Enabling the Basin Plan, developed under the Commonwealth Water Act, to provide for critical human water needs.

• Strengthening the role of the ACCC by extending the application of water market rules and water charge rules to cover, respectively, all bodies that charge regulated water charges and all irrigation infrastructure operators, and by providing for any State to ‘opt in’ such that the water charge rules and water market rules apply to water resources outside the Murray-Darling Basin.

7. More specifically, the explanatory notes identify two references of matters to the Commonwealth Parliament: (a) The first reference (the initial reference) refers in effect the matter of the Commonwealth including in the

Commonwealth Water Act provisions in the terms, or substantially in the terms, set out in Schedule 1 of the tabled text. The tabled text is a reference to Commonwealth Water Amendment Bill 2008 as tabled by the Minister for the River Murray in the House of Assembly of South Australia on 23 September 2008.

(b) The second reference (the amendment reference) relates to the following defined subject matters:

(i) the powers, functions and duties of Commonwealth agencies that:

i. relate to Basin water resources, and

ii. are conferred by or under the Murray-Darling Basin Agreement,

(ii) the management of Basin water resources to meet critical human water needs,

(iii) water charging in relation to Basin water resources (other than for urban water supply after the removal of the water from a Basin water resource),

(iv) the transformation of entitlements to water from a Basin water resource to enable trading in those water entitlements,

(v) the application, in relation to water resources that are not Basin water resources, of provisions of the Commonwealth Water Act dealing with the subject-matters specified in paragraphs (iii) and

(iv) (being an application of a kind that is authorised by the law of this State),

(vi) the transfer of assets, rights and liabilities of the Murray-Darling Basin Commission to the Murray-Darling Basin Authority established by the Commonwealth Water Act, and other transitional matters relating to the replacement of that Commission.

88 At 2-3.


Chapter 6 Page 73

The amendment reference is only to the extent of making ‘express amendments’ to the Commonwealth Water Act. The expression express amendments are defined as the direct amendment of the text of Schedule 1 to be included in the Commonwealth Water Act. The amendment reference is intended to enable the Commonwealth Parliament to amend all aspects of the tabled text from time to time.

8. Finally, the explanatory notes identify a relevant intergovernmental agreement:89 The Bill is underpinned by an intergovernmental agreement (the Referral Agreement), to which the Commonwealth and the Basin States are parties. The Referral Agreement establishes a process for amending the tabled text to be included in the Commonwealth Water Act by which any changes proposed by the Commonwealth to the provisions of the tabled text require approval from the Ministerial Council established under the Murray-Darling Basin Agreement.

9. The committee notes that the bill and the explanatory notes to the bill provide the Parliament with significant detail regarding matters to be referred to the Parliament of the Commonwealth and identify the relevant intergovernmental agreement.

10. Part 2 of the bill refers certain matters to the Parliament of the Commonwealth.

11. The bill and the explanatory notes to the bill provide the Queensland Parliament with significant detail regarding matters to be referred to the Parliament of the Commonwealth and identify the relevant intergovernmental agreement.


Is the legislation constitutionally valid?

13. 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.

14. The committee considers and provides information regarding the likely constitutional validity of a bill relevant to whether the bill accords with principles relating to legislation that underlie a parliamentary democracy based on the rule of law. In report no 26, Scrutiny of Bills for Constitutional Validity, the committee stated:90 The committee considers it would be a breach of the FLPs for Parliament to enact laws which are clearly constitutionally invalid. Such cases, however, are likely to be comparatively rare. On the other hand, there will be a much larger number of cases in which there might simply be an element of doubt (even significant doubt) about a bill. In the committee’s view, it would not generally be a breach of the FLPs for Parliament to enact bills of the latter type…

[T]he general approach of past and present committees to the issue of constitutional validity has been not to conduct a detailed examination of that aspect of bills, but to consider and report on it only where it is readily apparent such an issue exists.

89 At 4.

90 See: www.parliament.qld.gov.au/SLC.


Chapter 6 Page 74

♦ clause 5

15. Clause 5 of the bill allows for the termination, on a day fixed by the Governor by proclamation, of both of the references specified in clause 4 or only the ‘amendment reference’ (identified in paragraph 7).

16. Section 51(xxxvii) of the Commonwealth Constitution provides the Parliament of the Commonwealth with power to make laws with respect to: Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.

17. While the Commonwealth Constitution does not confer on the States a power of referral, the power to refer a matter must fall within the general legislative power of the States to make laws for the peace, welfare and good government of the State. Referral must occur by way of enactment of a State Parliament. The referral can be made on conditions, including a limitation on the period of the referral.91

18. In this latter respect, the committee notes an aspect of the reference power which is not entirely settled at law. The uncertainty in this area has been identified in: Robert S French, ‘The Referral of State Powers’ (2003) 31 University of Western Australia Law Review 19 at 33; Anne Twomey, The Constitution of New South Wales, Federation Press, Sydney, 204 at 808; and Gerard Carney, The Constitutional Systems of the Australian States and Territories, Cambridge University Press, Melbourne, 2006 at 15 -16. It is described in the following way by Professor Carney:92 Several aspects of the reference power are not entirely settled. For instance, whether a State can revoke its referral of power at any time, by enactment, irrespective of the period of the referral, and what is the effect of that revocation on the Commonwealth enactment made pursuant to the referral. It is arguable that the States can revoke the referral, given their incapacity to abdicate legislative power. It is also arguable that the effect of a revocation is not only to terminate the referral of power to the Commonwealth, but it also terminates the operation of any Commonwealth law enacted in reliance on that referral. An alternative argument is that State legislation revoking the reference would be rendered ineffective by s 109 for being inconsistent with the Commonwealth legislation enacted pursuant to the original reference. Even where the Executive is statutorily authorised to revoke the referral, an Executive act is similarly liable to s 109 inconsistency. To avoid these difficulties, State referrals of power should usually be for a specified period of time, with the Executive empowered to extend the referral by proclamation.

19. The operation of clause 5 of the bill may be affected by an aspect of the reference power which is not entirely settled at law.

20. The committee raises, for the consideration of Parliament, possible difficulties which might arise regarding the operation of clause 5.

91 Carney, [1.2.3.1].

92 Carney, [1.2.3.1].

Alert Digest No 11 of 2008 NO COMMITTEE RESPONSES TO MINISTERIAL CORRESPONDENCE ARE INCLUDED IN THIS ALERT DIGEST

Chapter 0 Page 75

PART I - BILLS

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE

NO COMMITTEE RESPONSES TO MINISTERIAL CORRESPONDENCE ARE INCLUDED IN THIS ALERT DIGEST

Alert Digest No 11 of 2008 NO COMMITTEE RESPONSES TO MINISTERIAL CORRESPONDENCE ARE INCLUDED IN THIS ALERT DIGEST

Chapter 0 Page 76

Alert Digest No 11 of 2008 Amendments to Bills

Chapter 0 Page 77

PART I - BILLS

SECTION C – AMENDMENTS TO BILLS93

LIQUOR AND OTHER ACTS AMENDMENT BILL 2008

1. The committee reported on this bill, as originally introduced, in its Alert Digest No 9 of 2008 at pages 39 to 48. During consideration in detail, Parliament agreed to amendments proposed by the Minister sponsoring the bill, the Honourable A Fraser, Treasurer. The bill was subsequently passed, with the amendments proposed by the Minister incorporated in it, on 10 September 2008.

2. The amendments proposed by the Minister raised no issues within the committee’s terms of reference.

AIRPORT ASSETS (RESTRUCTURING AND DISPOSAL) BILL 2008

1. The committee reported on this bill, as originally introduced, in its Alert Digest No 9 of 2008 at pages 1 to 8. During consideration in detail, Parliament agreed to amendments proposed by the Minister sponsoring the bill, the Honourable A Fraser, Treasurer. The bill was subsequently passed, with the amendments proposed by the Minister incorporated in it, on 11 September 2008.


FISHERIES AMENDMENT BILL 2008

1. The committee reported on this bill, as originally introduced, in its Alert Digest No 8 of 2008 at pages 7 to 20. During consideration in detail, Parliament agreed to amendments proposed by the Minister sponsoring the bill, the Honourable T Mulherin, Minister for Primary Industries and Fisheries. The bill was subsequently passed, with the amendments proposed by the Minister incorporated in it, on 26 August 2008.


93 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.

Alert Digest No 11 of 2008 Amendments to Bills

Chapter 0 Page 78

APPROPRIATION BILL 2008

1. The committee did not report on this bill. During consideration in detail, Parliament agreed to amendments proposed by the Minister sponsoring the bill, the Honourable A Fraser, Treasurer. The bill was subsequently passed, with the amendments proposed by the Minister incorporated in it, on 3 June 2008.


SUMMARY OFFENCES (GRAFFITI REMOVAL POWERS) AMENDMENT BILL 2008

1. The committee reported on this bill, as originally introduced, in its Alert Digest No 7 of 2008 at pages 21 to 26. During consideration in detail, Parliament agreed to amendments proposed by the Minister sponsoring the bill, the Honourable J Spence, Minister for Police, Corrective Services and Sport. The bill was subsequently passed, with the amendments proposed by the Minister incorporated in it, on 26 August 2008.


ELECTORAL AMENDMENT BILL 2008

1. The committee reported on this bill, as originally introduced, in its Alert Digest No 9 of 2008 at pages 25 to 30. During consideration in detail, Parliament agreed to amendments proposed by the Minister sponsoring the bill, the Premier. The bill was subsequently passed, with the amendments proposed by the Minister incorporated in it, on 9 September 2008.


PART II

SUBORDINATE LEGISLATION

Alert Digest No 11 of 2008 Index of Subordinate Legislation about which Committee has Concluded Its Inquiries

Page 79

PART II – SUBORDINATE LEGISLATION

SECTION A – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCERNS94

Sub-Leg No. Name

Date concerns first

notified (dates are

approximate)

206 / 07 Statutory Instruments Amendment Regulation (No. 1) 2008 10/09/08

114 / 08 Transport Operations (Road Use management – Mass Dimensions and Loading) Amendment Regulation (No. 1) 2008

10/09/08

287 / 08 Collections Regulation 2008 7/10/08

94 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 80


SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES95 (INCLUDING LIST OF CORRESPONDENCE)

Sub-Leg No. Name

Date concerns first notified (dates are approximate)

104/08 Health Legislation Amendment Regulation (No. 2) 2008 3 June 2008

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

95 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 81

This concludes the Scrutiny of Legislation Committee’s 11th report to Parliament in 2008.

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

28 October 2008


APPENDIX

CORRESPONDENCE

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

SCRUTINY OF LEGISLATION COMMITTEE OF LEGISLATION COMMITTEE MEMBERSHIP 52nd PARLIAMENT, 1ST SESSION...

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