scrutiny of legislation committee · the act contains fundamental changes to the law of negligence....

SCRUTINY OF LEGISLATION COMMITTEE

ALERT DIGEST

Tabled and Ordered to be Printed 25 March 2003

Issue No 3 of 2003

SCRUTINY OF LEGISLATION COMMITTEE

MEMBERSHIP

50TH PARLIAMENT, 1ST SESSION

Chair: Mr Warren Pitt MP, Member for Mulgrave

Deputy Chair: Mr Peter Wellington MP, Member for Nicklin

Ms Bonny Barry MP, Member for Aspley

Mr Vaughan Johnson MP, Member for Gregory

Ms Margaret Keech MP, Member for Albert

Ms Rosa Lee Long MP, Member for Tablelands

Mrs Carryn Sullivan MP, Member for Pumicestone

Legal Advisers to the Committee: Mr Tim Carmody SC

Professor Gerard Carney

Mr Robert Sibley

Ms Margaret Stephenson

Committee Staff: Mr Christopher Garvey, Research Director

Ms Anita Sweet, Principal Research Officer

Ms Jennifer Martin, Senior Research Officer (part-time)

Ms Carolyn Heffernan/Ms Lynn Knowles, Executive Assistants

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 3 of 2003 Table of Contents

TABLE OF CONTENTS

TERMS OF REFERENCE .............................................................................................................. iv

FUNDAMENTAL LEGISLATIVE PRINCIPLES ....................................................................... iv

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

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

1. Civil Liability Bill 2003 ..................................................................................................... 1 Background.......................................................................................................................... 1 Does the legislation have sufficient regard to the rights and liberties of individuals?....... 1

♦ The bill generally .......................................................................................................1 Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ................................................................................................................... 3

♦ Clause 2......................................................................................................................3 Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons?........................................................................................................... 4

♦ Clause 76....................................................................................................................4

2. Criminal Code (Palliative Care) Amendment Bill 2003 ................................................ 5 Background.......................................................................................................................... 5 Does the legislation have sufficient regard to the rights and liberties of individuals?....... 5

♦ Clause 4......................................................................................................................5

3. Governors (Salary and Pensions) Bill 2003..................................................................... 7 Background.......................................................................................................................... 7 Does the legislation have sufficient regard to the institution of Parliament?..................... 7 Overview of the bill............................................................................................................. 7

♦ Clause 3......................................................................................................................7

4. Indy Car Grand Prix and Other Legislation Amendment Bill 2003 ............................ 9 Background.......................................................................................................................... 9 Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons?........................................................................................................... 9

♦ Clause 15....................................................................................................................9

5. Local Government (Robina Central Planning Agreement) Amendment Bill 2003 .. 11 Background........................................................................................................................ 11

6. Prohibition of Human Cloning Bill 2003....................................................................... 12 Background........................................................................................................................ 12

7. Regulation of Research Involving Human Embryos and Assisted Reproductive Technology Bill 2003 ....................................................................................................... 13 Background........................................................................................................................ 13

i


8. Sports Drugs Testing Bill 2003....................................................................................... 14 Background........................................................................................................................ 14 Does the legislation have sufficient regard to the rights and liberties of individuals?..... 14

♦ Clauses 6 and 8 ........................................................................................................14 Does the legislation have sufficient regard to the institution of Parliament?................... 15

♦ The bill generally .....................................................................................................15

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE.................................................................................................... 17

9. Local Government Legislation Amendment Bill 2002 ................................................. 17 Background........................................................................................................................ 17 Does the legislation have sufficient regard to the rights and liberties of individuals?..... 17

♦ Clauses 73 and 82 ....................................................................................................17

10. Natural Resources and Other Legislation Amendment Bill 2003............................... 18 Background........................................................................................................................ 18 Background........................................................................................................................ 18 ILLEGAL TREE CLEARING............................................................................................. 18 Does the legislation have sufficient regard to the rights and liberties of individuals?..... 18 Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification? ......................................................................................... 18 Does the legislation provide appropriate protection against self-incrimination?............ 18 Does the legislation confer power to enter premises and to search for or seize documents or other property without a duly issued warrant?............................................................. 19

♦ Clauses 25 (proposed ss.400A - 400Y), and cls.60 - 65 inclusive...........................19

11. Research Involving Human Embryos and Prohibition of Human Cloning Bill 2003 ................................................................................................................................... 20 Background........................................................................................................................ 20 Does the legislation make individual rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review? .............................................................................................................................. 20

♦ Clause 40..................................................................................................................20

12. Workplace Health and Safety and Another Act Amendment Bill 2002..................... 22 Background........................................................................................................................ 22 Does the legislation have sufficient regard to the rights and liberties of individuals?..... 22

♦ Clause 11 and Schedule, item 5 ...............................................................................22 Does the legislation provide appropriate protection against self-incrimination?............ 23

♦ Clause 27 (proposed s.121(6)) and Schedule, items 10 and 11 ...............................23

SECTION C – AMENDMENTS TO BILLS ....................................................................... 24

APPENDIX ................................................................................................................................ i

PART II – SUBORDINATE LEGISLATION ....................................................... 26

ii


SECTION A – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCERNS................................................................................. 26

SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES (including list of correspondence)................................................................................................................ 27

APPENDIX ............................................................................................................................. 29

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

iii

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

Alert Digest No 3 of 2003 Terms of Reference and Fundamental Legislative Principles

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.

iv

Alert Digest No 3 of 2003 Terms of Reference and Fundamental Legislative Principles

(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.

v

PART I

BILLS

Alert Digest No 3 of 2003 Civil Liability Bill 2003

PART I - BILLS

SECTION A – BILLS REPORTED ON

1. CIVIL LIABILITY BILL 2003

Background

1. The Honourable R J Welford MP, Attorney-General and Minister for Justice, introduced this bill into the Legislative Assembly on 11 March 2003.

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

To further facilitate the ongoing affordability of insurance through clarification of some basic principles within the substantive law and sustainable awards of damages for personal injury.

The Act contains fundamental changes to the law of negligence.

Does the legislation have sufficient regard to the rights and liberties of individuals?3

♦ The bill generally

3. This bill is the fourth in a series introduced into the Parliament since June 2002, dealing with reform of the law relating to civil liability.

4. The Personal Injuries Proceedings Bill 2002 was introduced on 18 June 2002 and enacted the following day.4 That legislation was then amended by the Personal Injuries Proceedings Amendment Bill 2002, which was introduced on 30 July 2002 and enacted on 21 August 2002.5 A private member’s bill, the Voluntary Assumption of Risk Bill 2002, was introduced on 5 September 2002, but failed at the second reading stage on 27 November 2002.6

5. All three earlier bills dealt with personal injuries claims.

6. The current bill is broader in scope, and applies to any civil claim for damages for harm (cl.4). By virtue of the definitions of “claim” and “harm” in the Dictionary to the bill, it covers claims based on liability not only for personal injury, but for property damage and economic loss, and applies whether the claim was based on tort, contract or another form of action including breach of statutory duty.

7. Clause 5 specifically excludes certain claims for personal injury from the ambit of the bill.

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

individuals. 4 Due to the passage of bill as an urgent bill, the committee was unable to report on it: see Alert Digest No. 6 of 2002 at page 37. 5 The committee reported on this bill in its Alert Digest No. 7 of 2002 at pages 19-20. 6 The committee reported on this bill in its Alert Digest No. 8 of 2002 at pages 24-25.

Chapter 1 Page 1


8. The bill contains a large number of legislative initiatives all of which, in the words of the Explanatory Notes, are intended to “further facilitate the ongoing affordability of insurance”. The initiatives include some which are described as “clarification(s) of basic principles within the substantive law”, whilst others are specific provisions relating to various aspects of the law and practice of civil proceedings.

9. The bill’s initiatives are too numerous and varied to be dealt with in detail. They include matters such as:

• General statements relating to the principles of negligence law (general standard of care and causation) (cls.9–12).

• More specific provisions relating to various aspects of the law of negligence, including assumption of risk, dangerous recreational activities, duty of professionals and contributory negligence (cls.13–24).

• Conditional indemnities for persons rendering first aid or assistance, subject to certain conditions (cls.25-27).

• Limitation of the liability of multiple defendants to the proportion of damages each is held liable to pay, subject to various exclusions (cls.28-33).

• Provisions about the liability of public and other authorities (including a time-limited restoration of the traditional immunity of road authorities) (cls.34-37).

• A conditional immunity for volunteers (cls.38-44).

• Restrictions on the capacity of persons to recover damages if they are engaged in the commission of an indictable offence, are intoxicated, or rely on the care or skill of a person known to be intoxicated (cls.45-49).

• Provisions relating to the assessment of damages for personal injury (including offset of collateral benefits, award of exemplary and similar damages, assessment of damages and assignment of an “injury scale value” (cls.50-63).

• Structured settlements (cls.64-68).

• Expressions of regret (cls.69-73).

• Exclusion of jury trials in certain circumstances. (cl.74)

10. Whilst some of the initiatives are described as “clarifications” of the law, most of the bill’s provisions are expressly designed to narrow the range of circumstances in which damages may be recovered in civil proceedings, and to reduce the amounts recoverable. As mentioned earlier, the Attorney attributes the provisions of the bill to current difficulties associated with the provision of public liability insurance.

11. Some of the provisions of the bill, the committee notes, are being transferred to it from the current Personal Injuries Proceedings Act 2002.

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12. The appropriateness or otherwise of the various provisions of the bill is of course, a matter for Parliament to consider.

13. The committee notes that the bill introduces a range of measures designed to narrow the range of circumstances in which damages may be recovered by civil proceedings, and to reduce amounts recoverable.

14. The Attorney and the Explanatory Notes argue in favour of the provisions of the bill on the basis of a necessity to facilitate the ongoing affordability of public liability insurance.

15. The committee refers to Parliament the question of whether the bill has sufficient regard to the rights of persons who, by virtue of its provisions, may be deprived of the capacity to claim damages, may be limited in the amount of damages they may recover, or may in some other way be disadvantaged.

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively?7

♦ Clause 2

16. Clause 2 of the bill provides that, with the exception of various provisions which are being transferred from the Personal Injuries Proceedings Act 2002, the provisions of the bill are “taken to have commenced on 2 December 2002”. The committee notes that date is 3 days before a consultation draft of this bill was tabled in the Parliament. It may be that 2 December was the date upon which the contents of the draft bill, or the intention to introduce it, were publicly announced by the Government.

17. The committee always takes care when examining legislation that commences retrospectively or could have effect retrospectively to evaluate whether there are any adverse effects on rights and liberties or whether obligations retrospectively imposed are undue. In making its assessment on whether the legislation has “sufficient regard”, the committee typically has regard to the following factors:

• Whether the retrospective application is adverse to persons other than Government;

• Whether individuals have relied on the legislation and have legitimate expectations under the legislation prior to the retrospective clause commencing.

18. Although the committee does not promote the practice of “legislation by press release”, the practice of publicly announcing a change in legislation prior to making the change serves to forewarn affected individuals and to decrease reliance on the existing legislation. As noted earlier, a draft copy of this bill was tabled in Parliament on 5 December 2002.

19. Given the contents of the bill, there is no doubt that its application as from 2 December 2002 will disadvantage many persons injured in accidents between that date and the commencement of the bill.

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

of individuals depends on whether, for example, the legislation does not affect rights and liberties, or impose obligations, retrospectively.

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20. In relation to this matter, the Explanatory Notes state:

The potential adverse affect on individuals must be balanced against the interests of the community in achieving the affordability of insurance to enable the ongoing provision of heath care to injured persons, and the affordability of public liability insurance generally.

21. The committee notes that most of the provisions of the bill are, by virtue of cl.2, taken to have commenced on 2 December 2002. The bill therefore has retrospective effect, and will be adverse to a number of claimants and potential claimants.

22. The committee notes, however, that a consultation draft of the bill was tabled in the Parliament very shortly after the date of the retrospective commencement.

23. The committee refers to Parliament the question of whether, in the circumstances, the retrospective operation of this bill has sufficient regard to the rights of persons whose claims or potential claims will be adversely affected by its provisions.

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons?8

♦ Clause 76

24. Clause 76 confers power to make transitional regulations for “any matter for which (the bill) does not make provision or sufficient provision”. A regulation made under the clause may have retrospective operation, although only to a date not earlier than the commencement of the bill. Moreover, cl.76(3) contains a “Henry VIII clause”, in that it effectively provides that the provisions of the bill may be displaced by regulations made under cl.76.9 On the other hand, regulations made under the clause may only be made for a period of 2 years after commencement of the bill, and expire after a period of 1 year from the commencement. The clause itself is to expire 3 years after its commencement.

25. The committee notes that proposed s.76 confers broad transitional regulation-making powers, including a “Henry VIII clause” and the capacity for retrospective operation. However, the clause and regulations made under it are both “sunsetted”.

26. The committee refers to Parliament the question of whether the provisions of cl.76, in the circumstances, are appropriate.

8 Section 4(4)(a) of the Legislative Standards Act 1992 provides that whether a bill has sufficient regard to the institution of

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

9 In its January 1997 report on The Use of “Henry VIII Clauses” in Queensland Legislation, the committee stated it considered that “Henry VIII clauses” may sometimes be acceptable in certain circumstances including the facilitation of transitional arrangements.

Chapter 1 Page 4

Alert Digest No 3 of 2003 Criminal Code (Palliative Care) Amendment Bill 2003

2. CRIMINAL CODE (PALLIATIVE CARE) AMENDMENT BILL 2003

Background

1. Mr Peter Wellington MP, Member for Nicklin, introduced this bill into the Legislative Assembly on 12 March 2003 as a private member’s bill.


to clarify the obligations of doctors treating terminally–ill patients and to ensure that doctors, including those that follow their orders, who administer palliative care to such patients for the purpose of relieving pain and suffering, are not held under threat of prosecution because an incidental effect of the treatment is to shorten the life of the patient.


♦ Clause 4

3. This bill replaces the Care of Terminally Ill Patients Bill which the Member introduced as a private member’s bill on 19 June 2002. In introducing the current bill, the member withdrew the earlier bill.

4. The committee reported on the earlier bill in its Alert Digest No. 6 of 2002 at pages 3-5.

5. In his Second Reading Speech in relation to the current bill, the Member states:

The object of this bill is in substance the same as that contained in (the earlier bill). The major difference between the two bills is in the drafting.

6. Having compared the two bills, the committee considers this statement is essentially correct.

7. Whereas the earlier bill contained a discrete set of provisions, the current bill inserts the substance of those provisions into the Criminal Code via a new s.282A - Palliative care.

8. Of the relatively minor differences between the two bills, two of the more significant are referred to in the Member’s speech. Firstly, the current bill does not expressly refer to the need for the patient or a representative to consent to the treatment. However, as the Member states, this requirement is now subsumed into the stipulation that the palliative care must be reasonable in the context of “good medical practice”. This will necessarily invoke a requirement for the obtaining of relevant consents.

9. As the Member also mentions, the current bill does not expressly limit its application to “terminally ill’ patients. This distinction, in the opinion of the committee, is not of major significance.


individuals.

Chapter 2 Page 5

Alert Digest No 3 of 2003 Criminal Code (Palliative Care) Amendment Bill 2003

10. In the circumstances, the committee refers readers to its report on the earlier bill, which essentially encapsulates its views with respect to the current bill. In short, those views are as follows.

11. The committee considers that this bill enhances the rights of individuals in the following ways:

• subject to the conditions stipulated in the bill, it authorises medical treatment which assists patients to avoid having to endure excessive pain.

• it significantly assists medical practitioners and other health professionals to administer medical treatment, subject to appropriate consents and other conditions, with minimal doubt as to the legality of that treatment.

12. However, the bill has potential negative implications in terms of a patient’s right to continue living.

13. In considering this bill, Parliament will need to take account of the bill’s ramifications for patients and health professionals, as well as of the public interest in ensuring that medical treatment provided to patients is compatible with general community standards.

14. The committee notes that cl.4 of the current bill will permit persons (including medical practitioners and other health professionals) to provide palliative care (which would include the administration of large doses of pain-relieving drugs), subject to conditions stipulated in the bill, even though an incidental effect of providing the care is to hasten the other person’s death.

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

Chapter 2 Page 6

Alert Digest No 3 of 2003 Governors (Salary and Pensions) Bill 2003

3. GOVERNORS (SALARY AND PENSIONS) BILL 200311

Background

1. The Honourable P D Beattie MP, Premier and Minister for Trade, introduced this bill into the Legislative Assembly on 12 March 2003.

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

to (modernise and restate) Acts relating to the salary and pension of the Governor, and (accommodate) the removal by the Commonwealth of a vice-regal income tax exemption.

Does the legislation have sufficient regard to the institution of Parliament?12

Overview of the bill

3. The Parliament of Queensland consists of the Legislative Assembly and the Queen, whose representative in Queensland is the Governor (see Constitution of Queensland 2001, s.6, and Constitution Act 1867, ss.2A and 11A).

4. As this bill deals with an important aspect of the office of Governor, it has potential significance in terms of the institution of Parliament.

5. The bill deals with two subjects which are presently provided for in the Governor’s Salary Act 1872 and the Governor’s Pensions Act 1977, both of which are to be repealed by the bill. These are, as the titles of those Acts indicate:

• the salary of the Governor during the Governor’s term of office; and

• pension entitlements of the Governor and surviving partners of deceased Governors.

6. The provisions of the bill are, as the Premier in his Second Reading Speech and the Explanatory Notes both indicate, designed in part to address the repeal of the previous income tax exemption in relation to the official salaries of vice-regal officers.

♦ Clause 3

7. Clause 3 of the bill provides that “a salary is payable to the Governor at the rate prescribed under a regulation”.

8. Given the nature and role of the office of Governor in a Westminster-style system of government such as applies in Queensland, it is obviously essential that the incumbent, remains free to perform the responsibilities of the office in accordance with established Westminster conventions.

11 The committee thanks Professor Gerard Carney, School of Law, Bond University, for his valued advice in relation to the scrutiny

of this bill. 12 Section 4(2)(b) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to the institution of Parliament.

Chapter 3 Page 7

Alert Digest No 3 of 2003 Governors (Salary and Pensions) Bill 2003

9. One issue which is clearly relevant in this regard is the setting of the incumbent’s salary. In particular, a Governor should not face even the theoretical prospect of having his or her salary reduced in consequence of performing governmental duties in a manner unpopular with the Executive government of the day.

10. One option for avoiding this scenario would of course be to expressly incorporate in the bill a provision declaring that whatever salary is payable to the Governor during his or her term, that salary shall under no circumstances be reduced.

11. The committee notes that s.3 of the Commonwealth Constitution provides, in part, that “the salary of a Governor-General shall not be altered during his continuance in office”. This was presumably inserted to address the issue mentioned above, although it prohibits increases as well as reductions in salary.

12. However, the committee notes that under the provisions of this bill, the Governor’s salary is to be prescribed by regulation. As the Premier in his Second Reading Speech indicates, the Legislative Assembly may disallow any such regulation that it finds unacceptable, and may therefore in practice prevent the Governor’s salary from being either increased or decreased during his or her term of office.

13. By placing this power within the hands of Parliament itself, the bill appears to adequately address the issues mentioned above.

14. The committee notes that whilst the bill does not directly prohibit reduction of a Governor’s salary during his or her term of office, any changes to the rate of salary must be made by regulation, which Parliament may disallow.

15. In the circumstances, the committee considers the bill has sufficient regard to the institution of Parliament.

Chapter 3 Page 8

Alert Digest No 3 of 2003 Indy Car Grand Prix and Other Legislation Amendment Bill 2003

4. INDY CAR GRAND PRIX AND OTHER LEGISLATION AMENDMENT BILL 2003

Background

1. The Honourable T M Mackenroth MP, Deputy Premier, Treasurer and Minister for Sport, introduced this bill into the Legislative Assembly on 11 March 2003.


To amend the Indy Car Grand Prix Act 1990 (the Act) to provide legislation for the conduct of an annual motor racing event on the Gold Coast.

The Bill aims to improve the staging of motor racing events on the Gold Coast by addressing deficiencies in the existing legislation and removing redundant provisions and to reflect current drafting practices.

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons?13

♦ Clause 15

3. The bill amends the Indy Car Grand Prix Act 1990, which it retitles as the Gold Coast Motor Racing Events Act 1990 (“the Act”).

4. Clause 15 of the bill inserts into the Act Part 3 – Authorised Persons (proposed ss.16-22), Part 4 – Access to Declared Area (proposed ss.23-31), Part 5 – Conduct in Declared Area (proposed ss.32-38) and Part 6 – Power of Authorised Persons (proposed ss.39-40). These provisions provide for the appointment by the promoter of “authorised persons”, set out a substantial body of rules in relation to access to the declared area and to various parts of that area, and to various forms of behaviour within the area. They also confer extensive powers upon “authorised persons”.

5. These provisions are clearly very significant in terms of their impact upon the rights and liberties of persons within the declared area and other persons to whom they may apply.

6. However, as the Minister and the Explanatory Notes both stress, the provisions already exist in substantially identical form in the Indy Car Grand Prix Regulation 1990, having been made under the authority of current s.24 of the Act and the schedule to the Act, which expressly authorise regulations dealing with the relevant subjects.

7. The relevant regulations are to be repealed at the same time as this bill comes into force.

8. The net effect of the bill is therefore, as the Minister and the Explanatory Notes both point out, simply to transfer the relevant provisions from regulations into the Act itself. As they

13 Section 4(4)(a) of the Legislative Standards Act 1992 provides that whether a bill has sufficient regard to the institution of

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

Chapter 4 Page 9

Alert Digest No 3 of 2003 Indy Car Grand Prix and Other Legislation Amendment Bill 2003

assert, this is an entirely appropriate step to take. There is essentially no change to the content of the current law.

9. The committee notes that cl.15 of the bill transfers into primary legislation an extensive range of enforcement provisions which are presently, by authority of the Act, contained in regulations. The content of the relevant provisions is essentially unchanged.

10. The committee considers the relocation of these provisions into primary legislation is entirely appropriate.

11. The committee accordingly makes no further comment in relation to this aspect of the bill.

Chapter 4 Page 10

Alert Digest No 3 of 2003 Local Government (Robina Central Planning Agreement) Amendment Bill 2003

5. LOCAL GOVERNMENT (ROBINA CENTRAL PLANNING AGREEMENT) AMENDMENT BILL 2003

Background

1. The Honourable J I Cunningham MP, Minister for Local Government and Planning, introduced this bill into the Legislative Assembly on 11 March 2003.


To include a series of changes to the planning intentions for the Robina central planning area in the Robina Central Planning Agreement (RCPA), that have been proposed by the Gold Coast City Council, the Robina Land Corporation and Robina Properties (the parties); and

•

• To replace the RCPA amendment process in the Local Government (Robina Central Planning Agreement) Act 1992 (LGRCPA Act) with the Integrated Planning Act 1997 (IPA) Schedule 1 process for making or amending planning schemes.

3. The committee considers that this bill raises no issues within the committee’s terms of reference.

Chapter 5 Page 11

Alert Digest No 3 of 2003 Prohibition of Human Cloning Bill 2003

6. PROHIBITION OF HUMAN CLONING BILL 2003

Background

1. As the Explanatory Notes to this bill state, the bill originally formed part of another bill, the Research Involving Human Embryos and Prohibition of Human Cloning Bill 2003, introduced into the Legislative Assembly by the Honourable P D Beattie MP, Premier and Minister for Trade, on 25 February 2003. By resolution of the House, that bill was divided into two bills, namely, this bill and the Regulation of Research Involving Human Embryos and Assisted Reproductive Technology Bill 2003.

2. The divided bills were dealt with by way of a cognate debate and in accordance with the resolution, as both bills were passed without amendment, the two bills were reconsolidated back into the original Research Involving Human Embryos and Prohibition of Human Cloning Bill 2003 as it stood prior to being divided.

3. The committee reported on the original bill in its Alert Digest No. 2 of 2003 at pages 15 to 19.

4. In the circumstances, it is not necessary for the committee to report upon the current bill.

Chapter 6 Page 12

Alert Digest No 3 of 2003 Regulation of Research Involving Human Embryos and Assisted Reproductive Technology Bill 2003

7. REGULATION OF RESEARCH INVOLVING HUMAN EMBRYOS AND ASSISTED REPRODUCTIVE TECHNOLOGY BILL 2003

Background

1. As the Explanatory Notes to this bill state, the bill originally formed part of another bill, the Research Involving Human Embryos and Prohibition of Human Cloning Bill 2003, introduced into the Legislative Assembly by the Honourable P D Beattie MP, Premier and Minister for Trade, on 25 February 2003. By resolution of the House, that bill was divided into two bills, namely, this bill and the Prohibition of Human Cloning Bill 2003.

2. The divided bills were dealt with by way of a cognate debate and in accordance with the resolution, as both bills were passed without amendment, the two bills were reconsolidated back into the original Research Involving Human Embryos and Prohibition of Human Cloning Bill 2003 as it stood prior to being divided.

3. The committee reported on the original bill in its Alert Digest No. 2 of 2003 at pages 15 to 19.

4. In the circumstances, it is not necessary for the committee to report upon the current bill.

Chapter 7 Page 13

Alert Digest No 3 of 2003 Sports Drugs Testing Bill 2003

8. SPORTS DRUGS TESTING BILL 2003

Background

1. The Honourable T M Mackenroth MP, Deputy Premier, Treasurer and Minister for Sport, introduced this bill into the Legislative Assembly on 11 March 2003.

2. The object of the bill, as indicated by the Treasurer’s Second Reading Speech, is:

To provide a legislative framework for the conduct of testing of state level athletes for the use of scheduled drugs or doping methods, by conferring powers on the Australian Sports Drug Agency (ASDA) to test state competitors.

The bill provides a platform for the Queensland Government to extend its proactive commitments to reducing the use of performance-enhancing drugs.


♦ Clauses 6 and 8

3. The primary purpose of this bill is to confer upon the Australian Sports Drug Agency (ASDA), which is established under the Australian Sports and Drug Agency Act 1990 (Commonwealth)(“the Commonwealth Act”), the same functions, in relation to Queensland sportspeople, as it performs under its own Act in relation to their Commonwealth counterparts (see cl.7).

4. An examination of the Commonwealth Act reveals that ASDA may request the categories of sportspersons to whom it applies to provide a sample15 (s.4, Commonwealth Act). The information gained from analysis of the sample given, or the fact that the person refused to provide a sample, may both be disclosed by ASDA to appropriate sporting administration bodies. As was recently illustrated by the case of Shane Warne, functions performed by ASDA have the potential to impact very significantly upon the future sporting careers of sportspersons.

5. As the Treasurer in his Second Reading Speech, and the Explanatory Notes, both assert, the Commonwealth Act incorporates a number of safeguards for the sportspersons to whom it applies. These include:

• power to seek a review of ASDA decisions by the Commonwealth Administrative Appeals Tribunals and ultimately the Federal Court;


individuals. 15 “Sample” is defined in s.2 of the Commonwealth Act as:

• Any human biological fluid • Any human biological tissue (whether alive or otherwise) • Any human breath.

Chapter 8 Page 14


• the fact that ASDA is required to discharge its functions in a secure and confidential manner, using only accredited laboratories;

• the fact that ASDA may disclose information only to authorised sporting organisations and relevant government agencies;

• the fact that ASDA may only conduct testing for the purpose of ascertaining whether a competitor has used a prohibited substance or doping method; and

• the fact that ASDA does not report test results to the police.

6. However, from the committee’s viewpoint the most important provision is probably s.4(2) of the Commonwealth Act, which provides that:

Nothing in this Act is taken to imply that a person becomes subject to any criminal or civil liability merely because the person has failed to comply with a request to provide a sample.

7. In other words, whilst ASDA’s activities can have a very severe impact upon the careers of sportspersons, ASDA cannot compel a sportsperson to provide a sample for testing. Failure to do so is not accompanied by any penalty, other than the likelihood that ASDA will inform the sporting administration body controlling the person’s sport, and that that body may impose a penalty upon the person in respect of the person’s future participation in their sport, based on the refusal to supply a sample.

8. It does not appear to the committee to be unreasonable that persons wishing to participate in elite sporting activities should, as a condition of such participation, effectively be required to submit to the ASDA testing and reporting regime.

9. The committee notes that the bill makes applicable to Queensland, certain Commonwealth legislation providing for the testing of elite athletes for drugs and the conveying of information about such tests to the relevant sporting administration bodies. The legislation, however, provides no criminal or civil liability for refusal by a person to comply with a request for the provision of a sample.

10. The committee also notes that the bill incorporates a number of safeguards for sportspersons who are subject to its provisions.

11. In the circumstances, the committee considers the bill has sufficient regard for the rights and liberties of the relevant Queensland sportspersons.

Does the legislation have sufficient regard to the institution of Parliament?16

♦ The bill generally

12. This bill is similar to legislation introduced in the other mainland Australian states and in the Australian Capital Territory (Explanatory Notes, page 2).

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

Chapter 8 Page 15


13. However, it does not appear from either the Treasurer’s speech or the Explanatory Notes that the bill is the result of an intergovernmental agreement. Rather, it appears that a series of states have voluntarily adopted the Commonwealth legislation.

14. In the circumstances, the bill probably does not form part of national scheme legislation in terms of the definition of that concept adopted by the committee.17

15. Accordingly, the concerns which national schemes of legislation cause both the committee and its interstate and Commonwealth counterparts are not strictly relevant in this case.

16. However, as the Explanatory Notes state (see page 5), the bill does potentially raise another concern sometimes associated with national scheme legislation, namely, the application of legislation from another jurisdiction as Queensland law. Although this bill does not expressly do that, it may effectively achieve that result. However, the committee notes that under cl.9(1) of the bill, ASDA may only perform its functions and exercise its powers in Queensland if it has entered into an agreement with the Treasurer.

17. The committee notes that although this bill similar to legislation recently adopted by other States and Territories, it does not appear to arise out of an inter-governmental agreement, and is not therefore national scheme legislation.

18. The committee further notes that the bill may in effect apply the legislation of another jurisdiction, as in force from time to time, as a law of Queensland. However, the bill requires ministerial agreement be given before that can occur.

19. In the circumstances, the committee makes no further comment on this aspect of the bill.

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

Scrutiny of Legislation Committees throughout Australia, October 1996.

Chapter 8 Page 16

Alert Digest No 3 of 2003 Local Government Legislation Amendment Bill 2002

PART I - BILLS SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE

9. LOCAL GOVERNMENT LEGISLATION AMENDMENT BILL 2002

Background

1. The Honourable J I Cunningham MP, Minister for Local Government and Planning, introduced this bill into the Legislative Assembly on 3 December 2002. The committee notes that this bill was passed, without amendment, on 25 February 2003.

2. The committee commented on this bill in its Alert Digest No 1 of 2003 at pages 15 to 16. The Minister’s response to those comments is referred to in part below and reproduced in full in Appendix A to this Digest.


♦ Clauses 73 and 82

3. The committee noted that cls.73 and 82 insert into the Local Government (Chinatown and The Valley Malls) Act 1984 and the Local Government (Queensland Street Mall) Act 1981 respectively, provisions enabling unauthorised vehicles within the relevant mall areas to be seized and removed and, if not subsequently reclaimed, to be sold.

4. The committee considered that whilst these provisions impacted on the rights of owners of the relevant vehicles the conferral of the powers, given the purpose of the malls, was not unreasonable.

5. The Minister made the following comments:

I note the Committee has concluded that the amendments in relation to the removal of illegally parked vehicles in Brisbane City Council’s pedestrian malls will impact on the rights of owners of the relevant motor vehicles, but in the circumstances it would appear appropriate for Brisbane City Council to have these powers of removal.

You will note an appeal regime was included in the amendments. Where a person is dissatisfied with the decision of the town clerk to refuse to deliver possession of a vehicle to the person, they may appeal to the decision to a Magistrates Court. If the town clerk refuses an application, a written notice must be given to the applicant stating the reasons for the decision and advising the applicant they can appeal the decision to a Magistrates Court within 28 days. With the inclusion of the appeal provisions, it is considered that any possible Fundamental Legislative Principles issues have been adequately addressed.

6. The committee notes the Minister’s response.


individuals.

Chapter 9 Page 17

Alert Digest No 3 of 2003 Natural Resources and Other Legislation Amendment Bill 2003

10. NATURAL RESOURCES AND OTHER LEGISLATION AMENDMENT BILL 2003

Background

1. The Honourable S Robertson MP, Minister for Natural Resources and Minister for Mines, introduced this bill into the Legislative Assembly on 25 February 2003. As at the date of publication of this digest the bill had not been passed.


Background

ILLEGAL TREE CLEARING

Does the legislation have sufficient regard to the rights and liberties of individuals?19 Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?20 Does the legislation provide appropriate protection against self-incrimination?21

3. The committee noted that the bill strengthens a range of current enforcement and deterrent provisions, and introduces various new provisions, in relation to illegal tree clearing. The committee referred to Parliament the question of whether these amendments have sufficient regard to the rights of persons against whom the provisions may be invoked.

4. The Minister made the following comment: I note the Committee’s comments on whether the amendments have sufficient regard to the rights of persons against whom the provisions have been invoked. I consider that the Explanatory Notes provide an adequate explanation of the purpose of and reasons for the clauses. The provisions only affect those who clear vegetation illegally. The provisions do not change what constitutes illegal clearing. In considering these provisions, the community’s interest in protecting vegetation must be weighed against the individuals right to privacy. Where proposed provisions infringe fundamental legislative principles, safeguards have been included to protect the individual.



individuals. 20 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.

21 Section 4(3)(f) 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 provides appropriate protection against self-incrimination.

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Alert Digest No 3 of 2003 Natural Resources and Other Legislation Amendment Bill 2003

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

♦ Clauses 25 (proposed ss.400A - 400Y), and cls.60 - 65 inclusive

6. The committee noted that cls.25 (proposed ss.400A - 400Y), and 60 - 65 inclusive of the bill confer an extensive range of entry and post-entry powers under the Land Act in relation to statutory tree clearing provisions, and expand the corresponding provisions of the Vegetation Management Act. The committee drew to the attention of Parliament the nature and extent of these powers (and additional powers) conferred by the bill.

7. The Minister provided the following comment:

I note the Committee’s comments on Clause 25. The amendments concerning entry and post entry powers under the Land Act 1994 as identified, are generally in line with those available under the Vegetation Management Act 1999. The majority of the powers require a warrant. The additional powers are very explicit in allowing entry without a warrant are limited to the serving or giving of a compliance notice, checking compliance with a development approval, or checking compliance with a compliance notice. A number of safeguards are included in the provision and include:

the power to enter is limited to places that are not residential dwellings; •

•

•

•

the power is limited to the purposes referred to above and to a reasonable time. If the entering is for a different purpose, including obtaining documents, entry of the place is only by the occupier’s consent or by warrant;

in relation to the giving of the compliance notice, the authorised officer must reasonably suspect an offence has or is occurring; and

no power of seizure accompanies warrantless entry.


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

of individuals depends on whether, for example, the legislation confers power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer.

Chapter 10 Page 19

Alert Digest No 3 of 2003 Research Involving Human Embryos and Prohibition of Human Cloning Bill 2003

11. RESEARCH INVOLVING HUMAN EMBRYOS AND PROHIBITION OF HUMAN CLONING BILL 2003

Background

1. The Honourable P D Beattie MP, Premier and Minister for Trade, introduced this bill into the Legislative Assembly on 25 February 2003. The committee notes the bill was passed, without amendment, 12 March 2003.


Does the legislation make individual rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review?23

♦ Clause 40

3. The committee noted that the review process established under cl.40 of the bill, in relation to various substantive decisions made under the bill, is dependent upon the making of a Commonwealth regulation. The committee sought information from the Premier as to whether there is any possibility such a regulation will not be made.

4. The Premier provided the following information:

I note your letter referred a number of concerns to Parliament. However, I note the one matter you have referred to me for response concerns: “whether the review process established under Clause 40 of the Bill, in relation to the various substantive decisions made under the Bill, is dependent upon the making of a Commonwealth regulation.”

The Committee’s concerns raised in relation to Clause 40 are the same as those raised by the Honourable Peter Wellington MP, Member for Nicklin, during parliamentary debate on the Research Involving Human Cloning and Prohibition of Human Cloning Bills. I submit for the Committee’s information the response I provided to Parliament on 12 March 2003 in relation to this matter (please refer Attachment One).

Attachment One

The Commonwealth through the Council of Australian Governments (COAG) has made a commitment to putting in place a nationally consistent regulatory framework. As part of demonstrating that commitment, the Commonwealth has worked closely with the States to put in place the Commonwealth Acts and is consulting with states on relevant draft regulations.

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

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

Chapter 11 Page 20

Alert Digest No 3 of 2003 Research Involving Human Embryos and Prohibition of Human Cloning Bill 2003

I am confident the Commonwealth fully intends to establish the regulatory framework as prescribed in the Acts. The Commonwealth has reflected this in the provisions allowing for a reviewable State decision to be prescribed in the regulations. Consistent with the Council of Australian Government’ (COAG) decision to have a national scheme, should regulations not be enacted in a reasonable time frame the state government would be making representations together with other jurisdictions to the Prime Minister.

If that proves to be unsuccessful, then Queensland can amend the legislation to provide for review of those decisions in Queensland in line with judicial review principles. Ultimately, the worst consequence of not having review regulations in place is that Queensland based scientists that are not corporations would need to seek review of any National Health and Medical Research Council (NHMRC) licensing committee decisions under existing judicial review procedures in the Queensland Judicial Review Act instead of the Administrative Appeals Tribunal.

5. The committee thanks the Premier for this information.

Chapter 11 Page 21

Alert Digest No 3 of 2003 Workplace Health and Safety and Another Act Amendment Bill 2002

12. WORKPLACE HEALTH AND SAFETY AND ANOTHER ACT AMENDMENT BILL 2002

Background

1. The Honourable G. R. Nuttall MP, Minister for Industrial Relations, introduced this bill into the Legislative Assembly on 3 December 2002.



♦ Clause 11 and Schedule, item 5

3. The committee noted that cl.11 and the Schedule, item 5, increase the levels of maximum penalties associated with workplace health and safety obligations and electrical safety obligations. The committee drew these increased penalties to the attention of Parliament.


The Committee makes comments regarding Clause 11 and Schedule, item 5 of the Bill, which relates to penalties for breaches of the Act.

Appropriate penalties act as a deterrent to obligation holders in deciding whether to comply with legal obligations. The level and scope of the penalty regime reflects the seriousness of the offence and community expectations.

The Government recently considered the appropriate level of fines for offences under the Dangerous Goods Safety Management Act 2001. It is important that penalties under the Workplace Health and Safety Act 1995 and the Electrical Safety Act 2002 mirror other legislation designed to ensure health and safety.

The amendment will increase the penalty for a breach resulting in death from $300,000 to $375,000, and similar increases for lesser offences resulting in bodily harm or exposure to substances to death or bodily harm. In addition, the amendment will introduce a penalty for multiple deaths up to a maximum of $750,000 for a corporation consistent with the Dangerous Goods Safety Management Act 2001.

The change will signal to the community and the courts the seriousness of the offences under the Act and the consistency of penalties for offences under general workplace safety legislation.

The Committee’s assertion that the Bill increases the penalty in the Electrical Safety Act 2002 for a breach causing death or grievous bodily harm is misinformed. Schedule, item 4 renumbers paragraphs (a), (b) and (c) of S.27 of the Electrical Safety Act 2002. The Bill then


individuals.

Chapter 12 Page 22

Alert Digest No 3 of 2003 Workplace Health and Safety and Another Act Amendment Bill 2002

inserts a new paragraph (a), which introduces a new penalty for breaches causing multiple deaths.

5. The committee notes the Minister’s response. The committee concedes that, whilst the bill inserts a new penalty in the Electrical Safety Act in relation to multiple deaths, the remaining penalties in s.27 of that Act are unchanged. The amendments to penalties in relation to s.24 of the Workplace Health and Safety Act are as stated in the committee’s report.

Does the legislation provide appropriate protection against self-incrimination?

♦ Clause 27 (proposed s.121(6)) and Schedule, items 10 and 11

6. The committee noted that cl.27 and Schedule, items 10 and 11, all insert provisions which remove the protection of the self-incrimination rule in relation to a restricted range of documents. The committee referred to Parliament the question of whether this is reasonable in the circumstances.


The Committee’s assertion that the amendments insert provisions that remove the protection of the self-incrimination rule in relation to a restricted range of documents (and that the Explanatory Note dealing with this clause is incorrect) appears misinformed.

The proposed new s.121 gives an inspector power of inquiry if an inspector becomes aware, or reasonably suspects, that a workplace incident (as defined) has happened. An inspector may require persons to give information or to produce documents to assist in the investigation. This requirement is subject to the customary privilege against self-incrimination, except for “a document required to be kept by the person under this Act.” These documents are, however, subject to that same privilege against self-incrimination, as set out in s.122(3).

Item 10 of the schedule provides the privilege in relation to information or documents, other than documents required to be kept for the purposes of the Electrical Safety Act 2002. Section 158 of that Act gives an inspector access to the latter type of documents, which are subject to the same privilege, as set out in the section.

Item 11 of the schedule inserts into the Electrical Safety Act 2002, an identical provision (s.157A) to the proposed s.121.

When all of these provisions are looked at as a whole, the privilege against self-incrimination is not denied to any person.

As such, the explanatory note in relation to Clause 27 is appropriate.

The committee’s interest in the amendment to the definition of ‘decision’ is noted.

8. The committee notes the Minister’s response. The committee reiterates the view which it has previously expressed in relation to this matter.

Chapter 12 Page 23

Alert Digest No 3 of 2003 Amendments to Bills

PART I - BILLS

SECTION C – AMENDMENTS TO BILLS25 BODY CORPORATE AND COMMUNITY MANAGEMENT AND OTHER LEGISLATION AMENDMENT BILL 2002

1. The committee reported on this bill, as originally introduced, in its Alert Digest No 1 of 2003 at pages 1-4. During the committee stage of debate, Parliament agreed to amendments proposed by the Minister sponsoring the bill, the Honourable S Robertson, Minister for Natural Resources and Minister for Mines. The bill was subsequently passed, with the amendments proposed by the Minister incorporated in it, on 27 February 2003.

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

SEXUAL OFFENCES (PROTECTION OF CHILDREN) AMENDMENT BILL 2002

1. The committee reported on this bill, as originally introduced, in its Alert Digest No 11 of 2002 at pages 17-21. During the committee stage of debate, Parliament agreed to amendments proposed by the Minister sponsoring the bill, the Honourable R J Welford, Attorney-General and Minister for Justice. The bill was subsequently passed, with the amendments proposed by the Minister incorporated in it, on 26 February 2003.

2. Of the amendments proposed by the Minister, two raised issues within the committee’s terms of reference.

3. Firstly, new cl.2B inserted provisions prohibiting the awarding of costs in bail applications. This was prompted by a recent Court of Appeal decision in which such costs were awarded for the first time. The amendment was to apply to bail proceedings even if started prior to the bill’s commencement.

4. The Attorney, in moving this amendment, argued that it had never previously been the practice for costs to be awarded in bail applications, and that for a variety of reasons it was inappropriate that costs be granted in criminal matters. (The Court’s decision was apparently based on the view that, despite their occurring within the criminal law process, bail applications were in most cases technically civil proceedings.)

25 On Wednesday 7 November 2001, 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.

On 18 February 2002 the committee resolved to commence reporting 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.

Chapter 12 Page 24

Alert Digest No 3 of 2003 Amendments to Bills

5. Without having given detailed consideration to the matter, it appears to the committee that in the circumstances the amendment may not be unreasonable.

6. Secondly, new cls.2C to 2E insert provisions validating actions and convictions since 2002 in relation to the offence of failing to appear, when the person had been released on Magistrates Court bail. It appears that, in the 2002 amendments, the offence had been made technically applicable only in relation to the Supreme and District Courts.

7. It appears to the committee that the result produced by this technical defect is both unexpected and anomalous, and that the amendment is therefore not unreasonable.

WORKPLACE HEALTH AND SAFETY AND ANOTHER ACT AMENDMENT BILL 2002

1. The committee reported on this bill, as originally introduced, in its Alert Digest No 1 of 2003 at pages 24-27.

2. On 21 March 2003 the Minister sponsoring the bill, the Honourable G R Nuttall MP, Minister for Industrial Relations, provided the committee with a copy of amendments which the Minister proposes to move during the committee stage of debate, plus Explanatory Notes to the proposed amendments. The Minister also offered to make departmental staff available to brief the committee on the proposed amendments at the committee’s meeting on Monday, 24 March 2003, which offer the committee accepted.

3. The committee thanks the Minister in relation to both these matters.

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

Chapter 12 Page 25

PART I - BILLS

APPENDIX

MINISTERIAL CORRESPONDENCE (in the electronic version of the Alert Digest, this

correspondence is contained in a separate document)

PART II

SUBORDINATE LEGISLATION

Alert Digest No 3 of 2003 Index of Subordinate Legislation about which Committee has Concerns

PART II – SUBORDINATE LEGISLATION

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

Sub-Leg No. Name

Date concerns

first notified

260 Electrical Safety Regulation 2002 22/10/02

267 Nature Conservation Legislation Amendment and Repeal Regulation (No.1) 2002

25/2/03

343 Education (Queensland Studies Authority) Amendment Regulation (No.1) 2002

11/3/03

353 Food Production (Safety) Regulation 2002 25/3/03

255 The Drugs Misuse Amendment Regulation (No.1) 2002 29/11/02

378 Water Resource (Barron) Plan 2002 11/3/03

379 Water Resource (Pioneer Valley) Plan 2002 11/3/03

∗ Where the committee has concerns about a particular piece of subordinate legislation, it conveys them 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.

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Alert Digest No 3 of 2003 Index of Subordinate Legislation about which Committee has Concluded Its Inquiries

PART II – SUBORDINATE LEGISLATION SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES∗∗ (INCLUDING LIST OF CORRESPONDENCE)

Sub-Leg No. Name

Date concerns

first notified

274 Wagering Amendment Rule (No.1) 2002 • • •

Letter to the Minister dated 27 February 2003 Letter from the Minister dated 7 March 2003 Letter to the Minister dated 24 March 2003

25/2/03

351 Primary Industries Legislation Amendment Regulation (No.2) 2002 • • •

Letter to the Minister dated 11 March 2003 Letter from the Minister dated 18 March 2003 Letter to the Minister dated 24 March 2003

11/3/03

355 Introduction Agents Regulation 2002 • • •

Letter to the Minister dated 11 March 2003 Letter from the Minister dated 17 March 2003 Letter to the Minister dated 24 March 2003

11/3/03

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

∗∗ This Index lists all subordinate legislation about which the committee, having written to the relevant Minister conveying its

concerns, has now concluded its inquiries. The nature of the committee’s concerns, and of the Minister’s responses, are apparent from the copy correspondence contained in the Appendix which follows this index.

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Alert Digest No 3 of 2003 Index of Subordinate Legislation about which Committee has Concluded Its Inquiries

This concludes the Scrutiny of Legislation Committee’s 3rd report to Parliament in 2003.

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. Warren Pitt MP Chair

25 March 2003

Page 28

PART II – SUBORDINATE LEGISLATION

APPENDIX

CORRESPONDENCE (in the electronic version of the Alert Digest, this

correspondence is contained in a separate document)

scrutiny of legislation committee · the act contains fundamental changes to the law of negligence....

Documents