SCRUTINY OF LEGISLATION COMMITTEE - … · Does the bill allow the delegation of legislative power...

SCRUTINY OF LEGISLATION COMMITTEE

ALERT DIGEST

Tabled 13 May 2008

Issue No 06 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 06 of 2008 Table of Contents

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TABLE OF CONTENTS

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

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

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

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

1. Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Bill 2008...................................................................................................1 Background .......................................................................................................................................1 Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? ...........................................................................................................................................1

♦ clause 5 ..................................................................................................................................2

Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?.......................................................................................................................3

♦ clauses 22 and 23...................................................................................................................3

Does the legislation have sufficient regard to the rights and liberties of individuals? ........................4

♦ amendments relating to alcohol - consultation ........................................................................5

♦ clause 16 ................................................................................................................................5

♦ various clauses .......................................................................................................................6

Does the legislation confer power to enter premises and to search for or seize documents or other property without a duly issued warrant? ............................................................................................6

♦ clauses 33 to 35, 45 and 47 to 49 ...........................................................................................7

Does the legislation have sufficient regard to Aboriginal tradition and Island custom? .....................8

♦ amendments relating to alcohol ..............................................................................................9

♦ clause 10 ................................................................................................................................9

2. Clean Energy Bill 2008..................................................................................................................11 Background .....................................................................................................................................11 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................12 Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?.....................................................................................................................12

♦ clause 27 ..............................................................................................................................12

Is the legislation consistent with the principles of natural justice? ...................................................13

♦ clause 61 ..............................................................................................................................14


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3. Corrective Services and Other Legislation Amendment Bill 2008 ............................................15 Background .....................................................................................................................................15 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................15

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

♦ part 2.....................................................................................................................................16

♦ clause 18 ..............................................................................................................................17


♦ clause 4 ................................................................................................................................18

4. Criminal Code and Other Acts Amendment Bill 2008 ................................................................19 Background .....................................................................................................................................19 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................20

♦ various provisions .................................................................................................................20

♦ part 4.....................................................................................................................................24

♦ clause 113 ............................................................................................................................25

5. Duties Amendment Bill 2008 ........................................................................................................27 Background .....................................................................................................................................27

6. Motor Racing Events (Townsville) Amendment Bill 2008..........................................................29 Background .....................................................................................................................................29

7. Transport Operations (TransLink Transit Authority) Bill 2008 ..................................................31 Background .....................................................................................................................................31 Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................31

♦ clause 7(1) ............................................................................................................................31

♦ clause 70 ..............................................................................................................................32

Does the legislation have sufficient regard to the rights and liberties of individuals? ......................33

♦ clauses 49, 51, 53, 54 and 70...............................................................................................33

♦ clause 70 ..............................................................................................................................35

♦ clause 52 ..............................................................................................................................36

Does the legislation confer immunity from proceeding or prosecution without adequate justification?37

8. Transport Security (Counter-Terrorism) Bill 2008 ......................................................................39 Background .....................................................................................................................................39 Does the legislation have sufficient regard to the institution of Parliament?....................................39

♦ the bill generally ....................................................................................................................39


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♦ clauses 43 to 45....................................................................................................................40

♦ various clauses .....................................................................................................................41

Does the legislation have sufficient regard to the rights and liberties of individuals? ......................43 Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?.....................................................................................................................43

♦ various clauses .....................................................................................................................43

♦ clause 55 ..............................................................................................................................43

9. Water Supply (Safety and Reliability) Bill 2008 ..........................................................................47 Background .....................................................................................................................................47 Does the legislation confer power to enter premises without a duly issued warrant?......................47

♦ clauses 33 to 37 and 169......................................................................................................47

♦ clauses 410 and 411.............................................................................................................49

♦ clause 438 ............................................................................................................................50

Does the legislation provide appropriate protection against self-incrimination? ..............................50

♦ clauses 163 and 270.............................................................................................................51


♦ clause 374 ............................................................................................................................52


♦ clause 434 ............................................................................................................................53


♦ clause 461 ............................................................................................................................54

♦ clauses 713 and 745.............................................................................................................54

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................56 Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ..56

♦ clause 635 ............................................................................................................................56

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................57

♦ clause 713 ............................................................................................................................57

♦ clause 360ZDA .....................................................................................................................58


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PART I - BILLS.................................................................................................................................................59

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE............................59

10. Aboriginal and Torres Strait Islander Land Amendment Bill 2008............................................59

11. Consumer Credit (Queensland) and Other Acts Amendment Bill 2008....................................61 Background .....................................................................................................................................61 Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................61

♦ clause 10 ..............................................................................................................................61

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?..........................62

♦ clause 17 ..............................................................................................................................62

12. Disability Services and Other Legislation Amendment Bill 2008..............................................63 Background .....................................................................................................................................63 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................63

♦ clauses 7 and 8.....................................................................................................................63

♦ clauses 7 and 22...................................................................................................................64


♦ clauses 7, 8 and 22...............................................................................................................66

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ..67

♦ clause 12 ..............................................................................................................................67

13. Mineral Resources (Peak Downs Mine) Amendment Bill 2008..................................................69 Background .....................................................................................................................................69 Is the legislation constitutionally valid?............................................................................................69

♦ clause 3 ................................................................................................................................69

14. National Gas (Queensland) Bill 2008...........................................................................................71 Background .....................................................................................................................................71 Does the legislation have sufficient regard to the institution of Parliament?....................................71 Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................72

♦ clause 18 ..............................................................................................................................72


♦ clause 18 ..............................................................................................................................73

Does the bill have sufficient regard to the rights and liberties of individuals?..................................74

♦ clause 14 ..............................................................................................................................74


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

SECTION C – AMENDMENTS TO BILLS..............................................................................................75 (NO AMENDMENTS TO BILLS ARE REPORTED ON IN THIS ALERT DIGEST) .........................75

APPENDIX

PART II – SUBORDINATE LEGISLATION ......................................................................................................76

SECTION A – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCERNS....................................................................................................................................76

SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES (including list of correspondence) .............................................77

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 06 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 06 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 06 of 2008 Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Bill 20082F

Chapter 1 Page 1

PART I - BILLS

SECTION A – BILLS REPORTED ON

1. ABORIGINAL AND TORRES STRAIT ISLANDER COMMUNITIES (JUSTICE, LAND AND OTHER MATTERS) AND OTHER ACTS AMENDMENT BILL 20083

Background

1. The Honourable Lindy Nelson-Carr MP, Minister for Communities, Disability Services, Aboriginal and Torres Strait Islander Partnerships, Multicultural Affairs, Seniors and Youth, introduced this bill into the Legislative Assembly on 29 April 2008.

2. The Explanatory Notes state that the main objectives of the bill are to amend relevant legislation to: (a) ensure that the full policy intent of the alcohol restrictions in discrete Indigenous communities, namely the

reduction of alcohol-related harms, can be more effectively and consistently realised; and

(b) enable community justice groups to be set up outside the discrete Indigenous communities; and

(c) enable the closure of the Aborigines Welfare Fund to enable the monies to be put in a Foundation for the benefit of young Aboriginal Queenslanders.

3. The statutes to be amended by the bill are the: • Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984;

• Liquor Act 1992;

• Local Government (Aboriginal Lands) Act 1978;

• Local Government Act 1993;

• Local Government (Community Government Areas) Act 2004; and

• Police Powers and Responsibilities Act 2000.

4. In addition, the bill would repeal the Indigenous Communities Liquor Licences Act 2002.

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

5. 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.

3 The committee thanks Ms Nicole Watson for her valued advice in relation to the scrutiny of this bill.


Chapter 1 Page 2

♦ clause 5

6. Clause 5(2) of the bill would amend section 4 of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 to insert a definition of ‘community area’. The proposed definition includes ‘another area prescribed under a regulation’.

7. The Explanatory Notes to the bill state:4 The use of regulation to declare “community areas” for the purpose of establishing CJGs under the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 could be regarded as a “Henry VIII” clause in that the Regulation is providing the extent to which the Act might operate.

8. 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.

9. In January 1997, the committee reported to the Parliament on Henry VIII clauses.5 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.

10. 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. In this context, the Explanatory Notes provide information regarding the delegation of legislative power to alter the definition of ‘community area’:6 The purpose of statutory CJGs [Community Justice Groups] in particular is to ensure that there is an Indigenous group to be consulted if Government decides to put alcohol restrictions in place in the area relevant to the CJG. To this extent, the proposed amendment does not impose unwarranted obligations or interfere with any individual’s rights. However, certain people in a community area can apply for their home to be a ‘dry place’ and breach of this is an offence. The maximum penalty has been reduced from 250 penalty units under the current dry place provisions to 25 penalty units under the new regime in this Bill which is considered to be more commensurate with the offence. It is considered that as this, too, is an enabling provision and in this context it is an appropriate provision.

11. The committee notes that the relevant provision in clause 5(2) would enable the definition of ‘community area’ to be altered by regulation and, generally, the committee accepts that provisions enabling definitions of terms to be extended by regulation are not Henry VIII clauses. However, as the

4 At 2.

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

6 At 8.


Chapter 1 Page 3

committee considers also whether such provisions appropriately delegate legislative power, the committee notes also that the definition of community area is central to the operation of part 5 the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act as amended by the bill. Importantly, as observed in the Explanatory Notes to the bill, offence provisions create liability for specified conduct within ‘community areas’. Accordingly, regulations made identifying ‘community areas’ could have a substantial effect upon the proposed legislative scheme.

12. The committee notes that the definition of ‘community area’, provided in clause 5(2) of the bill, includes ‘another area prescribed under a regulation’.

13. The committee refers to Parliament the question whether clause 5(2) of the bill allows the delegation of legislative power in an appropriate case.

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

14. 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.

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

♦ clauses 22 and 23

16. Clause 22 of the bill would amend section 168B of the Liquor Act which: • in section 168B(1), prohibits the possession of liquor in restricted areas; and • in section 168B(2) and (3), provides that section 168B(1) does not apply in specified

circumstances.

17. Clause 22(4) would insert a new section 168B(3A) into the Liquor Act. New section 168B(3A) would exempt a person from liability for breach of alcohol restrictions if: • he or she was travelling along a road or using a public facility prescribed by regulation and

possessed more alcohol than permitted in the restricted area; but • he or she could prove (see new section 168B(3B)) on the balance of probabilities (see new

section 168B(3C)) that he or she – ─ was travelling to a destination that was outside the restricted area; and ─ other than in an emergency situation, had not stopped anywhere other than a prescribed

place.


Chapter 1 Page 4

18. Clause 23 of the bill would insert a new section 168C into the Liquor Act to create an offence of attempting to take more alcohol than permitted into a restricted area. As for proposed section 168B(3A), new section 168C would provide that a person would not be liable for such an attempt if he or she could prove, on the balance of probabilities that he or she intended to travel through the restricted area (new section 168C(3)).

19. New sections 168B(3A) and 168C(3) would, therefore, impose the evidentiary burden of proving relevant matters on a person charged with an offence. These proposed provisions would breach the fundamental legislative principle that legislation should not reverse the onus of proof in criminal proceedings without adequate justification.

20. 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:7 in order to still accommodate tourist traffic and tourism which provides economic and employment opportunities for the communities, the Bill exempts a person from breach of the alcohol restrictions if the person is travelling along a road or using a public facility prescribed by regulation and has more alcohol than is permitted in the restricted area through which the road runs, provided that the person meets certain criteria.

If a person is to be exempt from the restrictions, the person is being accorded special status and should have the responsibility of showing that he or she is travelling to an area beyond the community rather than the police having to show that the person is not entitled to be exempt or is intending to travel to the community. It is necessary to balance the harms from illicit alcohol and the needs of the high volume of tourists and the economic opportunity they bring to the area.

The person will also have to show that they intended to travel through the area to a destination beyond that area to be exempted from attempting to breach the restrictions. Since the person would need to be able to prove this only a few kilometres further down the road, this should not cause the person any additional difficulties.

The Bill provides that the standard of proof for the traveller is on the balance of probabilities rather than the usual standard which the prosecution has in a criminal matter of beyond reasonable doubt. Examples of how this criterion could be met are an accommodation booking, itinerary, a phone call to a person who can confirm that they are expecting the traveller.

21. The committee notes that clauses 22 and 23 of the bill would reverse the onus of proof.

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

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

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

7 At 7.


Chapter 1 Page 5

♦ amendments relating to alcohol - consultation

24. The extent of Aboriginal and Torres Strait Islander involvement in the development of the legislation is unclear. The Explanatory Notes make reference to the Indigenous Ministerial Roundtable in February and planned visits by Senior Government Officers, the Minister and the Premier to the Meeting Challenges, Making Choices (MCMC) communities in April 2008.8 An information sheet flagging changes in the legislation was also made available to communities. However, no information has been provided about the responses by those within the MCMC communities to the legislation.

25. The committee seeks further information from the Minister regarding consultation with Aboriginal peoples, Torres Strait Islanders, and interested parties about amendments relating to alcohol to be effected by the bill.

♦ clause 16

26. Clause 16 would insert a new part 11 (new ss 86 to 92) into the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act. The new sections would be transitional provisions for the amendments regarding declarations of ‘dry places’. New sections 87 to 91 would provide generally for existing declarations, applications and appeals to lapse upon the commencement of part 11.

27. In respect of new sections 87 to 90 of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act, the Explanatory Notes indicate:9 If a tenant, lessee-occupier or owner-occupier of residential premises wishes to re-instate a dry place declaration or pursue an application for a declaration, this can be done quickly under the simplified process in new sections 28 to 30 at clause 10.

28. The committee notes that clause 16 would operate to affect rights of individuals, including existing rights to appeal decisions made under a statutory scheme. The lapsing and / or abolition of these rights may be contrasted with provision made in clause 16 (new s92 of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act) for the continuation of proceedings for offences against that Act committed prior to commencement of the bill. However, the committee notes that the Explanatory Notes provide information regarding justification for the proposed interference with existing individual rights.

29. The committee notes that clause 16 would operate to affect rights of individuals.

30. The committee refers to Parliament the question whether, in the circumstances, the proposed provision has sufficient regard to the rights and liberties of individuals.

8 At 10.

9 At 15.


Chapter 1 Page 6

♦ various clauses

31. Various clauses of the bill provide for a new offence and amend the maximum penalties for existing offences. These sections would have the effect of impacting on the rights and liberties of people liable to the offences.

32. The proposed amendment of existing offences in the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act are set out in the table below.

Clause Old Section

Offence New Penalty Existing Penalty

34 35(1) Possession or consumption of alcohol in/on a dry place

25 penalty units 250 penalty units

35 36(1) False or misleading statements 10 penalty units 60 penalty units

38 37(1) False or misleading statements 10 penalty units 60 penalty units

38 45 Offences relating to homemade alcohol (possession of home-brew kit, component, equipment, home-brew concentrate, homemade alcohol, or supply homemade alcohol)

250 penalty units 250 penalty units

33. A proposed new offence under the Liquor Act 1992 is:

Clause New Section Offence Penalty

23 168C Attempt to take liquor into restricted area: a person must not attempt to enter a relevant restricted area if the person has in possession more than the prescribed quantity of a type of liquor for the area

500 penalty units

34. The committee notes that provisions of the bill both contain a new offence and amend the maximum penalties of existing offences.

35. The committee refers to Parliament the questions whether sufficient regard to the rights and liberties of persons potentially subject to offences is had by:

the new offence in clause 23; and the proposed maximum penalties.

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

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


Chapter 1 Page 7

♦ clauses 33 to 35, 45 and 47 to 49

37. Currently, the Liquor Act confers enforcement officers with powers regarding compliance with section 168B (Prohibition on possession of liquor in a restricted area). Clauses 33, 34 and 35 would amend the Liquor Act to confer enforcement officers with similar powers in relation to the new section 168C. These clauses would amend, respectively, section 183A (Other powers of seizure), 187EA (Forfeiture of seized property to prevent commission of particular offences–investigator) and 187EB (Forfeiture of seized property to prevent commission of particular offences–chief executive).

38. Clauses 45 and 47 to 49 would amend the Police Powers and Responsibilities Act 2000. Clause 45 would amend section 30, inserting a reference to sections 168B and 168C of the Liquor Act. This would enable a police officer to search a person without a warrant where the officer held a reasonable suspicion that the person possessed evidence of a breach of the provisions of the Liquor Act.

39. Respectively, clauses 47 and 48 would amend sections 60 and 135 of the Police Powers and Responsibilities Act. These amendments would enable police to stop and search a vehicle or an animal (and a vehicle pulled by an animal) under the control of a person in relation to the enforcement of section 168C of the Liquor Act regarding attempts to enter a restricted area with illicit alcohol. Currently, sections 60 and 135 of the Police Powers and Responsibilities Act confer officers with powers to monitor and enforce an actual breach of the restrictions (s168B of the Liquor Act).

40. Clause 49 would amend section 159 of the Police Powers and Responsibilities Act by inserting a reference to sections 168B and 168C of the Liquor Act. This would confer power to enter premises if a reasonable suspicion exists: • as to evidence of a breach of the provisions of the Liquor Act; and • that the evidence may be concealed or destroyed unless the place is immediately entered and

searched.

41. About clause 49, the Explanatory Notes say, ‘This provision does not allow police to conduct random searches of people’s homes.’10

42. In relation generally to the clauses of the bill conferring powers to enter premises and to search for or seize documents or other property without a duly issued warrant, the Explanatory Notes provide the following information:11 Search of a person or premises without a warrant is a significant power which raises fundamental legislative principle concerns. However, as the evidence clearly indicates that alcohol is at least as harmful as illegal drugs in these communities, it is imperative that police have the ability to seize alcohol before it is dispersed through the community.

The power to search premises is required as private premises, including homes, are now covered by the alcohol restrictions in a community. Police will need the ability to enforce this.

The Queensland Police Service (QPS) advises that its officers obtain warrants where there is realistically time to do so. While warrants can be obtained over the phone, QPS advises that in the communities it takes at least

10 At 22.

11 At 8 to 9.


Chapter 1 Page 8

an hour to do this as there are still procedures and paperwork to be undertaken. This power is not new and is already used in the detection and seizure of illicit drugs, weapons and other offences, including summary offences. Therefore the Police Powers and Responsibilities Act 2000 already provides the safeguards for search without warrant, in particular, the police must apply to a Magistrate after the search for a post search approval order which means that they must be able to justify the appropriateness of their actions. The Police Responsibilities Code in the Police Powers and Responsibilities Regulation 2000 and the Police Operations and Procedures Manual also provide direction to officers in this situation.

Breach of the alcohol restrictions is a simple offence and the question has been asked as to whether this level of enforcement is appropriate. However, the maximum penalty is 500 penalty units for the first offence; 700 penalty units and six months imprisonment for a second offence; and 1000 penalty units and 18 months imprisonment for a third offence. These are significant consequences for a simple offence and indicates a recognition of the level of harm related to alcohol, particularly in the home and as it impacts on women and children. In this context, the police power is not inappropriate.

Consideration was given to narrowing this power by, for example, only allowing police to search for, and seize, illicit alcohol when conducting a search without a warrant as a result of a reasonable suspicion of its presence. However, this would be unacceptable as it would limit police capacity to respond to other serious concerns that may become apparent when on the premises, such as child abuse or child pornography or the presence of drugs or weapons.

43. The committee notes that clauses 33 to 35, 45 and 47 to 49 confer significant powers exercisable without the need for consent or a warrant. However, the committee notes also that the relevant provisions would operate to extend existing powers so as to achieve one of the main objectives of the bill: [to] ensure that the full policy intent of the alcohol restrictions in discrete Indigenous communities, namely the reduction of alcohol-related harms, can be more effectively and consistently realized.

44. Clauses 33 to 35, 45 and 47 to 49 of the bill would confer enforcement officers and police officers with various powers to enter premises and to search for or seize documents or other property without a duly issued warrant.

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

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

46. 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.


Chapter 1 Page 9

♦ amendments relating to alcohol

47. The bill, in attempting to address the corrosive impacts of alcohol abuse in Indigenous communities, will affect primarily remote areas. Aboriginal people and Torres Strait Islanders in urban areas will not be affected generally by the operation of the legislation. The possible inequity of concentrating efforts on remote communities was raised in the latest Social Justice Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner:12 Alcohol abuse is not just a problem for Indigenous people living in remote parts of Australia. The incidence of alcohol abuse within the national Indigenous population does not significantly vary across remote and non-remote areas. Moreover, only one in four Indigenous Australians live in remote communities. This means that the great majority of Indigenous Australians live in regional and urban areas and are therefore not subject to discrete community restrictions. This underlines the need for varied approaches to alcohol management rather than focusing solely on problems of, and solutions for, discrete Indigenous communities.

♦ clause 10

48. The committee notes that certain provisions may increase the exposure of residents of the MCMC communities to the criminal justice system. In particular, the bill amends the Liquor Act so that the prohibition of drinking in public places will apply to the MCMC communities. Together with the application of restrictions to houses and enlarged police powers, it is likely that these provisions will lead to the increased contact of Aboriginal peoples and Torres Strait Islanders with the criminal justice system. This is envisaged by the Explanatory Notes that predict ‘an initial increase in enforcement and prosecution workload.’13

49. The committee is concerned that these developments appear to be at odds with the Queensland Aboriginal and Torres Strait Islander Justice Agreement which aims to halve the rate of imprisonment of Aboriginal people and Torres Strait Islanders by the year 2011.14

50. The committee notes that the bill:

will primarily affect Aboriginal and Torres Strait Islander communities in remote areas; and may be inconsistent with the Queensland Aboriginal and Torres Strait Islander Justice Agreement.

51. The committee seeks further information from the Minister regarding these matters.

12 At 76.

13 At 6.

14 Available at http://www.atsip.qld.gov.au/resources/documents/justice.pdf.


Chapter 1 Page 10

Alert Digest No 06 of 2008 Clean Energy Bill 2008

Chapter 2 Page 11

2. CLEAN ENERGY BILL 2008

Background

1. The Honourable Geoff Wilson MP, Minister for Mines and Energy, introduced this bill into the Legislative Assembly on 29 April 2008.

2. The Explanatory Notes state:15 The objectives of the Bill are to introduce new legislation for the Smart Energy Savings Program, one of the key elements of the Smart Energy Policy component of Climate Smart 2050, and to make amendments to the following Acts:

• Electricity Act 1994;

• Mineral Resources Act 1989;

• Petroleum and Gas (Production and Safety) Act 2004;

• Petroleum Act 1923;

• Coal Mining Safety and Health Act 1999; and

• Mining and Quarrying Safety and Health Act 1999. The Bill amends the Electricity Act 1994 to:

• increase the level of the 13% Gas Scheme target to 15 per cent in 2010 and progressively to 18 per cent by 2019, subject to proclamation;

• provide that suspension of an electricity retailer from the National Electricity Market is a specific ground for disciplinary action such as cancellation of the retailer’s Queensland electricity retail authority;

• make provisions for a Feed-in Tariff that pays small consumers for the surplus energy they contribute to the electricity grid from a photovoltaic power system; and

• address minor administrative issues identified in earlier amendments for full retail competition.

The Bill amends the Mineral Resources Act 1989, Petroleum and Gas (Production and Safety) Act 2004, Petroleum Act 1923, Coal Mining Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999 to:

• clarify the tenures and safety arrangements for underground coal gasification;

• improve administrative law processes for the granting of mining tenure;

• provide improved business processes; and

• require persons with relevant knowledge about the location, time and circumstances (including numbers and names of witnesses) of a serious mining accident to provide that information to investigating officers.

15 At 1.


Chapter 2 Page 12





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

♦ clause 27

6. Clause 27 would impose the burden of proving relevant matters on a person charged with an offence, breaching the fundamental legislative principle that legislation should not reverse the onus of proof in criminal proceedings without adequate justification.

7. Clause 27 of the bill seeks to ensure compliance with the bill by corporations. To this end, clause 27(1) would require the executive officer of a corporation to ensure the corporation complies with the Clean Energy Act 2008. Clause 27(2) provides that if a corporation commits an offence, each of the executive officers of the corporation is taken to have committed the offence of failing to ensure the corporation complied with the legislation. The relevant maximum penalty would depend on the offence in the bill for which liability arose. Offences are contained in clauses 8 to 9, 11 and 14 to 22, with proposed maximum penalties ranging from 20 penalty units ($1500) to 200 penalty units ($15,000). The committee notes, however, that proceedings for offences against the Act are to be taken in a summary way.

8. Clause 27(3) states that evidence the corporation has been convicted of an offence against a provision is evidence that each of the executive officers committed the offence of failing to ensure compliance by the corporation with the provision. However, clause 27(4) would provide a defence; namely, that the offence would not apply if executive officer could demonstrate that she or he: • exercised reasonable diligence to ensure the corporation’s compliance; or • was not in a position to influence the conduct of the corporation in relation to the offence.

9. Importantly, ‘executive officer’ is defined in clause 27(5) to mean any person by whatever name called and whether or not the person is a director of the corporation, who is concerned, or takes part in the management of the corporation.

10. The committee notes that while ‘defences’ are provided by clause 27, 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.


Chapter 2 Page 13

11. 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 state:16 The relevant clauses are in a form routinely employed in many Queensland Bills and provide that where an offence was carried out by a person’s representative, such activity is taken to be done by the person unless they can prove they could not, within reason, have prevented the offence. Further it must be shown that the offending representative was not acting of her or his own volition. This is a reversal of the onus of proof (ie. defences are provided, but must be proved by the defendant rather than the prosecution proving guilt), but has been included to ensure corporate responsibility and to ensure that the industry develops in an ethical and accountable manner. In other words, these clauses ensure that officers of corporations cannot hide behind the corporate veil.

12. Further, the Explanatory Notes also indicate:17 this provision was included to ensure that corporations will be more likely to view compliance with the Act as a serious requirement of their operations rather than merely dealing with it as an administrative process.

13. In chapter 8 of this Alert Digest, in relation to the Transport Security (Counter-Terrorism) Bill 2008, the committee discusses its consideration of provisions similarly reversing the onus of proof and having application to executive officers of corporations. As for that legislation, clause 27 would impose liability for corporate fault on ‘executive officers’, a broadly-defined class of persons and significant monetary penalties may attach to the relevant offences.

14. In chapter 8, the committee has set out the findings of a report of the Australian Government’s Corporations and Markets Advisory Committee, Personal Liability for Corporate Fault.18 The committee notes that the recommendations made in that report to the Parliament for consideration in the context of whether clause 27 has sufficient regard to the rights and liberties of individuals.

15. The committee notes that clause 27 of the bill would reverse the onus of proof and would impose liability for offences committed by the corporation on its executive officers.

16. The committee refers to Parliament the question of whether, in the circumstances, clause 27 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’.

Is the legislation consistent with the principles of natural justice?

17. Section 4(2)(a) of the Legislative Standards Act requires that legislation have sufficient regard to the rights and liberties of individuals and section 4(3)(b) provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation is consistent with principles of natural justice.

16 At 21.

17 At 7.

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


Chapter 2 Page 14

♦ clause 61

18. Clause 61 would amend section 132 of the Electricity Act 1994 to make suspension of an electricity retailer from the National Electricity Market a specific ground for disciplinary action, such as cancellation of the retailer’s Queensland retail authority.

19. The committee notes that the Explanatory Notes, indicate that the proposed provision is consistent with principles of natural justice:19 To prevent a possible breach of fundamental legislative principles, natural justice and the right for the retailer to be heard through a ‘show cause’ process will continue to apply to any proposal to cancel a retail authority on the additional ground proposed. Further, the retailer will be able to seek a review of any decision to cancel the authority (under section 214 of the Electricity Act 1994) and may appeal any review decision to the Supreme Court (under section 219 of that Act).

20. The committee makes no further comment regarding clause 61.

19 At 7.

Alert Digest No 06 of 2008 Corrective Services and Other Legislation Amendment Bill 2008

Chapter 3 Page 15

3. CORRECTIVE SERVICES AND OTHER LEGISLATION AMENDMENT BILL 2008

Background

1. The Honourable J Spence MP, Minister for Police, Corrective Services and Sport, introduced this bill into the Legislative Assembly on 1 May 2008.

2. The objective of the bill is to create a scheme:20 • to ensure offenders are required to utilise existing complaint mechanisms prior to making complaints to

the Anti-Discrimination Commission Queensland (ADCQ);

• modify how the Anti-discrimination Act 1991 applies to awards made to offenders;

• modify how the Anti-discrimination Act 1991 applies to the consideration of direct and indirect discrimination for corrective services;

• provide a mechanism to freeze compensation and damages awards made in favour of offenders and notify victims of crime so they are given the opportunity to make a civil claim against the frozen funds; and

• enable prescribed Queensland Corrective Services (QCS) Dog Squad Officers to lawfully possess dangerous drugs for the purpose of training drug detection dogs and to outline the manner in which drugs possessed for such purposes must be managed.


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

♦ the bill generally

4. The bill contains a number of provisions affecting the rights and liberties of offenders. These include provisions to amend the Corrective Services Act 2006 to: • confer additional powers and immunities on Queensland Corrective Services and other public

sector entities, for example –

- clause 5 (new part 13A, division 1, new ss344C to 3440 of the) confers powers to allow the Corrective Services department to have access to dangerous drugs for the purposes of training; and

- clause 6 would amend section 349 to expand the class of people conferred with immunity from civil liability; and

20 At 1.


Chapter 3 Page 16

• limit rights and liberties of offenders (‘offender’ includes a prisoner, parolee, individual on a community based order or continuing supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003, for example -

- clause 4 (new ss 319B, G and H) modify powers of the Anti-Discrimination Tribunal of Queensland to make determinations regarding direct and indirect discrimination.21

5. Accordingly, the bill raises issues regarding the rights of offenders. In a free and just society offenders should be treated humanely.22 The objects of the Corrective Services Act are set out in section 3, which recognises that every offender should be treated humanely and with dignity and that; every member of society has certain basic human entitlements, and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.

6. In this context, the committee notes that, for the purposes of specific parts of the Corrective Services Act, particular provisions of the bill would modify the application of section 3. These include: • clause 4 (new section 319B (Purpose of part and its achievement)), regarding discrimination

complaints; and • clause 5 (new section 344A (Object of pt 13A)), regarding the use of dangerous drugs for

training.

7. The committee notes, for example, that new section 319B would balance ‘financial and other constraints’ with ‘the need to respect offenders’ dignity’ (cl 4).

8. The bill contains a number of provisions affecting the rights and liberties of offenders.

9. The committee refers to Parliament the question whether the bill generally has sufficient regard to the rights and liberties of offenders.

♦ part 2

10. Part 2 of the bill contains provisions which curtail the circumstances under which offenders may apply to the Anti-Discrimination Commission Queensland (ADCQ) to resolve complaints and seek compensation. Notably, the bill also provides for the setting up of a victims’ trust fund to provide victims access to any available money where an offender is awarded compensation as a result of their treatment in a correctional environment.

11. The committee refers to Parliament the question whether part 2 of the bill has sufficient regard to the rights and liberties of offenders.

21 See Explanatory Notes at 15 to 16.

22 Article 10 of the ICCPR guarantees the right of all persons deprived of their liberty to be treated with humanity and respect for their inherent dignity.


Chapter 3 Page 17

♦ clause 18

12. Clause 18 of the bill amends section 5(2) of the Limitations of Actions Act 1974 to remove reference to a prisoner who, after conviction, is undergoing a sentence of imprisonment as a person considered to be ‘under a disability’ for the purposes of the Limitations of Actions Act. That section operates to extend the liability period for offenders, so that the three years within which they may bring a claim for negligence runs from their date of release.

13. As a result of the amendments to be effected by clause 18, offenders will be required to comply with the standard three year limitation period which applies to all other claimants.

14. The Explanatory Notes indicate:23 This disparity reflects a time when prisoners may have been considered to be at a disadvantage when attempting to gain access to justice. Prisoners now have access to telephones and videoconferencing and also official visitors and other external agencies such as the Ombudsman.

It is no longer justifiable to consider a prisoner to be “under a disability” for the purposes of the Act. There are also practical considerations in respect of claims brought by prisoners who are serving indefinite or life sentences and the ability of prison authorities to respond to these claims many years after the cause of action arose.

Furthermore, an offender may seek to use the extended limitation period to avoid having to pay compensation to a victim under the “freeze and notify” procedure above. In certain circumstances, the prisoner may simply delay bringing a claim for negligence in the hope that the victim may no longer be around to make a claim against any compensation received.

15. As the Explanatory Notes acknowledge, in general, offenders’ access to legal representation, advice and referral have improved significantly since section 5(2) of the Limitations of Actions Act was enacted. These improvements have occurred largely as a consequence of advances in technology and education, together with initiatives such as the Prisoners Legal Service. As such, the notion that offenders remain at such a disadvantage in terms of accessing justice so as to warrant their being regarded as being ‘under a disability’ for the purposes of the Limitations of Actions Act is more tenuous.

16. The committee notes that clause 18 of the bill would amend section 5 (2) of the Limitations of Actions Act 1974 to remove a prisoner who, after conviction, is undergoing a sentence of imprisonment as a person considered to be ‘under a disability’ for the purposes of the Limitations of Actions Act.

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


18. 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.

23 At 11.


Chapter 3 Page 18

♦ clause 4

19. Clause 4 of the bill inserts new sections 319E and 319F, which require an offender to utilise internal complaints mechanisms prior to making a complaint with the ADCQ. These provisions expressly deny offenders access to complaint processes within the ADCQ until such time as they have made a written complaint to the chief executive of the corrective services facility/probation and parole office. As such, offenders will not be able to actively pursue claims through the ADCQ, a right available to others in the general community.

20. These issues are dealt with at length at pages 7 to 8 of the Explanatory Notes, as summarised below: Offenders with perceived discrimination complaints have increasingly sought to by-pass established internal complaints mechanisms established by correctional authorities and take their complaints directly to the ADCQ. This provides no opportunity for correctional management to attempt to resolve the matter internally or review its practices.

Correctional authorities have identified that many of the complaints made by offenders which are ultimately resolved through the conciliation process, are complaints that could have been resolved through internal complaints processes just as effectively and with significantly less burden on public and correctional resources.

The use of the internal complaint mechanism will provide an opportunity for decisions to be reviewed and most matters to be resolved quickly at a local level in order to avoid delays associated with pursuing judicial remedies.

21. Whilst the committee notes the matters outlined above, the committee also notes that discrimination claims may relate to alleged acts or omissions of the chief executive’s own departmental officers. As such, the committee is of the view that there are circumstances where internal mechanisms may not be appropriate in the first instance.

22. The committee refers to Parliament the question of whether new sections 319E and 319F, which require an offender to utilise internal complaints mechanisms prior to making a complaint with the ADCQ are reasonable in the circumstances.

Alert Digest No 06 of 2008 Criminal Code and Other Acts Amendment Bill 2008

Chapter 4 Page 19

4. CRIMINAL CODE AND OTHER ACTS AMENDMENT BILL 2008

Background

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

2. The objectives of the bill are outlined in the Explanatory Notes.24 They state that the bill seeks to: 1. Amend the Criminal Code (the Code) to:

• streamline the Code and modernise the law relating to criminal offences;

• ensure drafting consistency with regards the structure of offences;

• rectify existing penalty anomalies;

• insert a new section 364A which provides the offence of leaving a child under 12 years unattended for an unreasonable time without making reasonable provision for the supervision and care of the child; and

• provide a special disclosure regime for an audio or video recorded statement admissible under section 93A of the Evidence Act 1977.

2. Amend the Bail Act 1980 to:

• clarify that legally represented defendants will only be excused from appearing at mentions; and

• expand the circumstances when an application for the revocation or variation of bail can be made upon issue of a notice so as to include juveniles on watchhouse bail.

3. Amend the Criminal Law Amendment Act 1945 to provide that, upon release on parole, a Queen’s Pleasure detainee loses the ability to be released unconditionally by the Governor in Council.

4. Amend the Criminal Law (Sexual Offences) Act 1978 to:

• facilitate information sharing across agencies where appropriate;

• allow adult complainants to consent to the publication of their identifying particulars; and

• improve the readability and accessibility of the Act generally.

5. Amend the Penalties and Sentences Act 1992 to:

• provide that a sentencing court must have regard to whether a child under 16 years of age was a witness to the offence in question or was directly exposed to the offence;

• provide that the principle that a sentence of imprisonment should only be imposed as a last resort, does not apply to offences under the Classification of Computer Games and Images Act 1995 and other such Acts; nor does it apply to the child exploitation material offences in the Code;

• clarify that a sentencing court may deal with an offender who re-offends during the extended operational period of a suspended sentence;

• clarify that a sentencing court, in ordering a person to serve the unexpired portion of an intensive correction order, is empowered to order release on parole or set a parole eligibility date; and

24 At 1.


Chapter 4 Page 20

• amend the provisions relating to the Court Diversion Program for a Minor Drugs Offence to reflect the practice of notifying offenders of breach proceedings as opposed to issuing an arrest warrant.

6. Amend the Summary Offences Act 2005 to insert a number of minor offences relocated from the Code.



♦ various provisions

4. Provisions of the bill: • create a new indictable offence – clause 65 (new section 364A of the Criminal Code) which

would provide for the offence of leaving a child under 12 years unattended for an unreasonable length of time without making reasonable provision for the supervision and care of the child (Maximum penalty – 3 years’ imprisonment); and

• amend existing maximum penalties for certain offences, including for the purposes of rectifying ‘existing penalty anomalies’.25

5. The clauses would have the effect of impacting on the rights and liberties of people liable to the offences.

Amendment of Criminal Code

Clause Section Offence New Penalty Existing Penalty (where relevant)

11 61 Riot 3 years 1 year

12 70 Forcible entry 2 years 1 year

13 71 Forcible detainer 2 years 1 year

14 72 Affray 1 year 1 year

17 80 Piracy Life imprisonment Life imprisonment

19 97 Personating public officers 3 years 3 years

22 99 Voting if not entitled 2 years 2 years

22 100 Hindering or interfering with voting conduct

1 year 2 years

22 101 Bribery 1 year 1 year or $400 fine

25 Explanatory Notes, 1.


Chapter 4 Page 21


22 102 Publishing false information about a candidate

1 year 1 year or $400 fine

22 103 Providing money for illegal payments

10 penalty units $200 fine

22 104 Election notices to contain particular matters

3 penalty units

25 108 Interfering at elections 3 years 3 years

26 110 Stuffing ballot boxes 7 years 7 years

26 111 Presiding officer helping an elector with a disability

3 years

26 112 False or misleading information 7 years

26 113 Interfering with secrecy at elections 2 years 2 years

26 114 Breaking the seal of a parcel at elections

2 years 2 years

27 129 Damaging evidence with intent 7 years

28 130 Preventing witnesses from attending

3 years 1 year

33 136 Justices exercising jurisdiction in a matter of personal interest

3 years 3 years

35 148 Obstructing officers of courts of justice

2 years 1 year or $200 fine

36 193 False verified statements 7 years 7 years

38 208 Unlawful sodomy 14 years 14 years or life imprisonment

53 319 Endangering the safety of a person in a vehicle with intent

Life imprisonment

54 322 Administering poison with intent to harm

7 years

14 years

14 years

54 323 Wounding 7 years 7 years

55 326 Endangering the life of children by exposure

7 years 7 years or 3 years


Chapter 4 Page 22


61 340 Serious assaults 7 years 7 years

64 364 Cruelty to children under 16 7 years 7 years

64 364A Leaving a child under 12 unattended

3 years

67 398 Punishment of stealing in special cases

14 years

67 398 Stealing stock 5 years

68 399 Fraudulent concealment of particular documents

3 years

14 years

14 years

73 415 Extortion Life imprisonment

14 years

14 years or life imprisonment

77 433 Receiving tainted property 14 years

7 years

14 years or 7 years

78 435 Taking reward for recovery of property obtained by way of indictable offence

7 years 7 years

85 462 Endangering particular property by fire

14 years 14 years

87 467 Endangering the safe use of vehicles and elated transport infrastructure

Life imprisonment Life imprisonment

88 469 Destroying or damaging premises by explosion


88 469 Destroying or damaging sea walls and other property


88 469 Destroying or damaging other things of special value

7 years 7 years

90 471 Damaging mines 7 years 7 years

92 488 Forging and uttering 14 years

3 years

3 years

99 535 Punishment of attempts to commit Life imprisonment 14 years or 7 years


Chapter 4 Page 23


certain indictable offences 14 years

100 538 Reduction of punishment 14 years 7 years

102 540 Preparation to commit crimes with dangerous things

3 years 3 years

103 545 Punishment of accessories after the fact to certain offences

Life imprisonment

14 years

2 years or half the punishment to which a principal offender would be liable

Amendment of Criminal Law (Sexual Offences) Act 1978

Clause Section Offence New Penalty Existing Penalty

129 6 Publication at large of a complainant’s identity prohibited

100 penalty units or 2 years imprisonment for an individual

1000 penalty units for a corporation

Penalty not exceeding $500 or 6 months imprisonment for an individual

Penalty not exceeding $2000 for a corporation

130 7 Publication prematurely of defendant’s identity prohibited



Penalty not exceeding $500 or 6 months imprisonment for an individual

Penalty not exceeding $2000 for a corporation

132 10 Other publication of complainant’s or defendant’s identity is prohibited



Amendment of Summary Offences Act 2005


146 10A Unlawful assembly a) if offender continues to participate after anyone has used unlawful violence – 2 years

b) otherwise – 1 year


Chapter 4 Page 24


149 25A Advertising a reward for the return of stolen property

2 penalty units

6. The committee notes that the bill creates a new indictable offence and amends the maximum penalties set for a number of other offences.

7. The committee refers to Parliament the question whether the proposed maximum penalties have sufficient regard to the rights and liberties of persons potentially subject to them.

♦ part 4

8. Part 4 of the bill would abolish a right to unconditional parole currently available to certain people.

9. Part 4 of the bill would amend section 18 of the Criminal Law Amendment Act 1945. That section provides for certain orders to be made for the detention of persons found guilty of sexual offences committed in respect of a child under the age of 16 years. Currently, section 18H provides for the unconditional release of people detained under: • section 18(5)(b), who are not to be released until the Governor in Council is satisfied on the

report of two medical practitioners that it is expedient for him or her to be released; and • section 18(6A)(b), who are detained during Her Majesty’s pleasure and shall not be released

until the Governor in Council is satisfied, on the report of two medical practitioners that she or he is fit to be at liberty.

10. The Explanatory Notes to the bill state:26 The amendment to the Criminal Law Amendment Act 1945 raises a fundamental legislative principle issue in that the amendment is removing an existing right of a Queen’s Pleasure detainee to seek unconditional release. However, the amendment is considered justified in the interests of community protection and is consistent with the Government’s policy that serious sex offenders should only be released into the community under supervision.

11. In his second reading speech to the bill, the Attorney stated:27 The section has not been used by the courts since 1988 and is arguably redundant since the enactment of the Dangerous Prisoners (Sexual Offenders) Act 2003 and the indefinite sentencing provisions in the Penalties and Sentences Act 1992.

26 At 4.

27 The Hon Kerry Shine MP, Attorney-General and Minister for Justice and Minister Assisting the Premier in Western Queensland, Second Reading Speech, Queensland Parliamentary Debates (Hansard), 1 May 2008, 1425.


Chapter 4 Page 25

12. The committee notes the justification provided for the proposed amendments of the Criminal Code and the Criminal Law Amendment Act 1945 which seek to balance the safety of community members with the rights of people who have committed offences to resume their places within the community.

13. The committee makes no further comment regarding part 4 of the bill.

♦ clause 113

14. Clause 113 of the bill would insert a new section 590AOA into the Criminal Code. The new section is designed to ensure that audio and audiovisual recordings of vulnerable witnesses are disclosed only under rules designed to minimise the potential for unauthorised copying and distribution. Statements of this nature are provided for in section 93A of the Evidence Act 1977. The effect of clause 113 is described in detail at pages 21 to 22 of the Explanatory Notes.

15. However, the Explanatory Notes also provide the following information:28 During consultation on the Bill there was argument that the amendments to the disclosure regime raises fundamental issues about the ability to provide legal representation and the ability of a self-represented accused to make an adequate defence. New section 590AOA of the Code does not deny the accused access to the section 93A audio or video statement or its contents. Rather, the section’s purpose is to prevent a copy of the audio or video statement being given to the accused, so as to prevent it being further copied and distributed for purposes unconnected with the court proceedings. There is no restriction on the ability of the accused to view the statement or on the provision of a transcript of the contents of the statement.

16. The committee notes that people and organisations consulted about the proposed legislation have expressed concern regarding the effect of clause 113 on the right to a fair trial and, in particular, rights to legal representation. However, new section 590AOA of the Criminal Code appears to strike an appropriate balance between the right to a fair trial and the rights of vulnerable witnesses.

17. Clause 113 of the bill would limit the copying and distribution of certain evidence of vulnerable witnesses.

18. The committee considers that clause 113 has sufficient regard to the rights and liberties of individuals.

28 At 4.


Chapter 4 Page 26

Alert Digest No 06 of 2008 Duties Amendment Bill 2008

Chapter 5 Page 27

5. DUTIES AMENDMENT BILL 2008

Background

1. Dr Bruce Flegg MP, Shadow Treasurer, introduced the Duties Amendment Bill 2008 into the Legislative Assembly on 30 April 2008 as a private member’s bill.

2. The Explanatory Notes state to the bill state:29 The Bill seeks to amend the Duties Act 2001 to remove duties paid on life insurance premiums and life insurance riders to the State Government. Insurance duty is administered by the Office of State Revenue on contracts of life insurance under Chapter 8 of the Duties Act 2001. Insurance duty imposed on life insurance must be paid by the life insurer and is payable each time a life insurer writes a contract of life insurance.

3. The committee considers that the bill does not raise any issues within its area of responsibility.

29 At 1.

Alert Digest No 06 of 2008 Duties Amendment Bill 2008

Chapter 5 Page 28

Alert Digest No 06 of 2008 Motor Racing Events (Townsville) Amendment Bill 2008

Chapter 6 Page 29

6. MOTOR RACING EVENTS (TOWNSVILLE) AMENDMENT BILL 2008

Background

1. The Honourable J Spence MP, Minister for Police, Corrective Services and Sport, introduced this bill into the Legislative Assembly on 1 May 2008.

2. The object of the bill, as indicated by the Minister in the explanatory notes, is:30 to amend the Act to provide for:

1. the legislative framework for the development of motor racing precincts and the staging of motor racing events in Queensland generally (incorporating the Townsville motor racing precinct) as well as renaming the Act to the Motor Racing Events Act 1990.

2. the continuation of the staging of the Gold Coast motor racing event.

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

30 At 2.

Alert Digest No 06 of 2008 Motor Racing Events (Townsville) Amendment Bill 2008

Chapter 6 Page 30

Alert Digest No 06 of 2008 Transport Operations (TransLink Transit Authority) Bill 2008

Chapter 7 Page 31

7. TRANSPORT OPERATIONS (TRANSLINK TRANSIT AUTHORITY) 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 29 April 2008.

2. The Explanatory Notes outline the policy objectives of the bill:31 On 9 October 2007, Government announced the creation of one new Authority to manage all public transport services in south east Queensland. The announcement mentioned that the Authority would bring responsibility for public transport under one organisation, make it simpler and easier for customers by offering a “one stop shop” for scheduling, customer needs and complaints, and that it would be more accountable to the needs of customers and have greater control over service delivery.

These things will be delivered through the enactment of the Transport Operations (TransLink Transit Authority) Bill 2008, which includes:

• the establishment of the TransLink Transit Authority (the Authority) to provide in south east Queensland: an improved wider range of mass transit services with enhanced scheduling and integration across all TransLink services; a single point of contact for customer service issues; the seamless introduction of new technology to improve TransLink mass transit services such as real time passenger information and widespread use of go card smartcard; the single branding of all TransLink services to create greater clarity and recognition of the State Government's role as the major funding provider and decision maker for the public transport system; and improved governance of the TransLink mass transit system with local government, consumer and independent expert representation;

• the establishment of a board of management consisting of 7 members to oversee, manage and report on the strategic direction, mass transit network planning and the performance of the mass transit system against its role, functions, responsibilities and objectives; and

• amendments to the Transport Operations (Passenger Transport) Act 1994, and relevant amendments to the Public Service Act 1996, Transport Infrastructure Act 1994, Transport Operations (Road Use Management) Act 1995, and the Transport Planning and Coordination Act 1994.



♦ clause 7(1)

4. Clause 7(1) of the bill would define the ‘TransLink area’ as: • the contract areas or routes mentioned in schedule 1 of the Act; and • ‘another service contract area or route in the SEQ area, as prescribed under a regulation’.

31 At 2.


Chapter 7 Page 32

5. Clause 7(2) further provides definitions of ‘SEQ area’ and ‘service contract area or route’.

6. Regarding clause 7, the Explanatory Notes to the bill state:32 Allowing a regulation to change the definition of the TransLink area contained in the Act may be viewed as a breach of fundamental legislative principles. The definition of TransLink area in the Transport Operations (TransLink Transit Authority) Act 2008 has merely been transferred from Transport Operations (Passenger Transport) Act 1994 and does not represent a change in policy. The ability to extend the TransLink area by regulation is limited to the specified areas within south east Queensland and is subject to stringent criteria. 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.

♦ clause 70

7. The Transport Operations (Passenger Transport) Act 1994 would be amended by clause 70. The clause would insert a new chapter 5A (Essential public transport infrastructure), to provide for infrastructure important to the transport network and the continuity of public transport services deemed essential infrastructure.

8. New section 36A (Declaration of essential public transport infrastructure) would allow infrastructure to be deemed ‘essential public transport infrastructure’ by way of a declaration by the Minister in subordinate legislation.

9. Regarding chapter 5A generally, the Explanatory Notes indicate:33 This chapter will ensure public transport infrastructure that is already part of the transport network (or is identified by the Minister as needing to be part of the transport network) but is not owned by the Queensland Government (such as bus interchanges – including access to the interchange, depots, transit centres and the Bulimba ferry terminal) retains its infrastructure function.

10. In respect of the new section 36A, the following justification is provided:34 While the subordinate regulation is being used to declare essential infrastructure, it is the Minister who must approve the declaration. In approving the declaration, the infrastructure must meet specific defined criteria. Further, any direction given in relation to the infrastructure must only be made after the owner has been given the chance to make representations on the direction and an agreement with the State cannot be reached. In addition to this, the owner of the infrastructure can appeal the declaration in the District Court.

11. In January 1997, the committee reported to the Parliament on ‘Henry VIII’ clauses.35 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 the facilitation of:

32 At 8.

33 At 32.

34 At 11.



Chapter 7 Page 33

• immediate Executive action; • the effective application of innovative legislation; • transitional arrangements; and • the application of national schemes of legislation.

12. 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. In this context, the committee first notes the information provided in the Explanatory Notes regarding the delegation of legislative power to define the ‘TransLink area’.

13. The committee notes also that the definition of ‘TransLink area’ in clause 7(1) might be extended by regulation. Generally, the committee accepts that provisions enabling definitions of terms to be extended by regulation are not Henry VIII clauses. However, the committee considers also whether such provisions would appropriately delegate legislative power.

14. Similarly, in respect of clause 70 which provides for ‘essential public transport infrastructure’ to be declared by way of regulation, the committee has also considered the appropriateness of the delegation of legislative power.

15. The committee notes finally the definition of ‘TransLink area’, as provided by clause 7(1), is central to the operation of the bill. So, too, although perhaps to a lesser degree, is the infrastructure determined by regulation to be ‘essential public transport infrastructure’. Accordingly, regulations made in respect of these matters could have a substantial effect upon the scope of the proposed legislative scheme. In addition, these regulations may have significant consequences for transport network owners, operators and employees. In this context, the committee observes that clause 70 (new section 36D) would create an offence of failing to comply with an essential infrastructure direction, with the maximum penalty of 1665 penalty units ($124,875).

16. The committee notes that: the definition of ‘TransLink area’, provided in clause 7(1) of the bill, may be extended by

regulation; and clause 70 of the bill provides for the declaration of ‘essential public transport infrastructure’ by

way of regulation.

17. The committee refers to Parliament the question whether clauses 7(1) and 70 of the bill allow the delegation of legislative power in appropriate cases.



♦ clauses 49, 51, 53, 54 and 70

19. Clauses 49, 51, 53, 54 and 70 contain proposed offence provisions.


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20. Under clause 49, it would be an offence for a person to enter into or perform a contract or arrangement for the provision of mass transit services to or from a special event in the TransLink area without TransLink's written approval. The maximum penalty would be 200 penalty units ($15000). However, clause 57 would provide a transitional period of 12 months for existing contracts and arrangements to allow operators or event organisers to seek approval from TransLink.

21. Clause 51 would make it an offence to give a false or misleading statement to the Minister regarding information required of prospective appointees. These proposed maximum penalty is 100 penalty units ($7500).

22. Clause 53 would require a person appointed a member or the chief executive officer of TransLink to notify the Minister as soon as practicable if he or she becomes a ‘disqualified person’. Schedule 2 defines ‘disqualified person’ and includes a person who is a party to a relevant contract. Clause 53 provides a maximum penalty for non compliance of 100 penalty units ($7500).

23. A similar offence provision is contained in clause 54 regarding disclosure of conflicts of interests by appointees. A member or the chief executive officer with a close relative having a direct or indirect pecuniary interest that conflicts (or may conflict) with the performance of the appointee’s functions must, as soon as practicable, disclose the information to the board or the Minister. Again, the maximum penalty for non-compliance is 100 penalty units ($7500).

24. As noted above, new section 36D of the Transport Operations (Passenger Transport) Act, to be inserted by clause 70, would create an offence of failing to comply with an essential infrastructure direction. The maximum penalty would be 1665 penalty units ($124,875). People who must comply are identified in new section 36C.

25. Regarding new section 36D, the Explanatory Notes state:36 Due to the increasing reliance on public transport to address traffic congestion, it is critical to maintain the current public transport network and build upon it. To deter infrastructure owners from disregarding a direction and restricting or limiting the use of the infrastructure, a significant penalty has been assigned. The same penalty applies under the Urban Land Development Authority Act 2007 to a person who (a) carries out a UDA assessable development in an urban development area without a UDA development approval, or (b) contravenes a UDA development approval. A smaller repetitive daily penalty was originally sought, however, the Office of the Queensland Parliamentary Counsel advised repetitive penalties are no longer used in drafting.

26. Clauses 49, 53, 54 and 70 of the bill contain proposed offence provisions.

27. The committee refers to Parliament the questions whether sufficient regard to the rights and liberties of persons potentially subject to offences is had by:

the proposed offences; and the proposed maximum penalties.

36 At 11.


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♦ clause 70

28. The new sections 36A to 36F (new chapter 5A) of the Transport Operations (Passenger Transport) Act, to be inserted by clause 70 of the bill, may affect the rights of individuals. In particular, the proposed provisions may impact upon the commercial rights of people who own and operate transport infrastructure and, less directly, upon the work conditions of people employed by the transport owners. As outlined below, the new chapter would limit rights to compensation.

29. The proposed section 36A is outlined in paragraphs 8 to 10 and proposed sections 36C and 36D were outlined in paragraph 24.

30. New section 36B (Chief executive's power to give direction about use of essential public transport infrastructure) would confer the chief executive with powers to give a direction in relation to a piece of essential public transport infrastructure. Then, in accordance with new section 36E, (Record of essential infrastructure direction in land registry), the chief executive must give the registrar a copy of the essential infrastructure direction, to be kept by the registrar in a way that a search of any register kept by the registrar will show that the direction has been given.

31. New section 36F (Compensation) would provide for the owner of the essential infrastructure to be compensated for costs incurred by complying with the direction and for the appointment of an arbitrator if the chief executive and the owner cannot agree on the amount of compensation. However, the proposed section 36F precludes the payment of compensation for: • loss of income or profit for any use of the infrastructure other than that required to be allowed

under the direction; and • diminution in the value of the infrastructure or land related to the infrastructure because of the

direction.

32. In respect of new section 36F, the Explanatory Notes to the bill acknowledge:37 While section 36F provides for the owner to be compensated for costs incurred by complying with the direction, it does not compensate for (a) loss of income or profit by having to retain the infrastructure use, or (b) diminished property value because of the direction.

33. Regarding the new chapter 5A of the Transport Operations (Passenger Transport) Act, generally, the Explanatory Notes indicate: It is submitted that the provisions are critical to ensure that local government and privately owned infrastructure is always able to be fully used for public transport services even in circumstances of redevelopment or changes to ownership or leasing arrangements. The public transport network relies heavily on the existing infrastructure and any changes would severely disrupt the public transport system and damage the reputation of public transport services.

It should be noted that the essential infrastructure provisions only apply to infrastructure that is already used for public transport purposes. For example, under the current situation, if the owner of the Bulimba ferry terminal (which is privately owned) was to sell the land to a developer, the Government could not prevent the developer from removing the ferry terminal. This new chapter will allow the Government to declare the ferry terminal as “essential public transport infrastructure” and issue a direction that it must retain its current use. This would not

37 At 10.


Chapter 7 Page 36

prevent the new owner from developing the land, it would just require the owner to ensure the ferry terminal, and access to it, is part of the new development. Other examples of “essential public transport infrastructure” include the Queen Street Bus station (currently leased to the Brisbane City Council) and bus interchanges at major shopping centres.

34. In relation to new section 36F, the Explanatory Notes provide the following justification: As a declaration will not prevent the development of an infrastructure site, full compensation has not been established. If an owner is unhappy with their property being declared as essential infrastructure (and any associated loss of value/income), they can appeal the declaration. If a large amount of compensation was required, the State would consider the acquisition of the land under Acquisition of Land Act 1967.

35. The committee has noted above the potential significant consequences for transport network owners, operators and employees of the proposed chapter 5A of the Transport Operations (Passenger Transport) Act. In this context, the committee has considered the proposed section 36F which would limit rights to compensation. The committee notes the justification provided in the Explanatory Notes for the proposed section. However, while it is stated that ‘If a large amount of compensation was required, the State would consider the acquisition of the land under Acquisition of Land Act 1967’, this consideration has not been included in proposed section 36B which confers relevant powers on the chief executive.

36. The committee notes that new sections 36A to 36F (new chapter 5A) of the Transport Operations (Passenger Transport) Act, to be inserted by clause 70 of the bill, may affect the rights of individuals.

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

♦ clause 52

38. Clause 52 (Criminal history report about appointee or prospective appointee) would apply to a member, chief executive officer, or a person who is being considered for appointment as a member or chief executive officer. It would allow the Minister to ask the commissioner of the police service for a report about a person's criminal history.

39. It is arguable that this proposal could adversely affect the rights and liberties of a person who is filling, or may fill one of the relevant positions.

40. The Explanatory Notes address this issue as follows:38 If the Minister is asking for a criminal history report for a person who is being considered for appointment as a member or chief executive officer, consent must first be obtained from the person, otherwise no consent is required. The usual safeguard of destruction of the report applies. The need for such reports to extend to all offences is justified by the legitimate need for the board to maintain public confidence. A key function of the board includes being accountable for the performance of the Authority which will be under intense scrutiny from within the Government and the public. For example, it would not be appropriate for a member of the board to be convicted of a minor offence such as public transport fare evasion as this could erode public confidence in these offices.

38 At 28.


Chapter 7 Page 37

41. The committee notes, therefore, that any request for a criminal history of a nominee requires consent and therefore a person has the option of withholding consent and opting out of the process. The committee notes also that the bill does not override safeguards contained in the Criminal Law (Rehabilitation of Offenders) Act 1986.

42. The committee considers the disclosure obligations imposed by proposed section 52 are of a type which has become common in recent years and are reasonable.

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

43. 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.

44. Clause 33 provides for provides protection for members from civil liability for an act done, or omission made, honestly and without negligence under this Act or a direction or a requirement under this Act. Instead, the civil liability attaches to the State.

45. In respect of provisions conferring immunity from legal proceedings, such as clause 33, the committee generally expresses the view that one of the fundamental tenets of the law is that everyone is equal before the law.

46. The committee refers to Parliament for consideration the question of whether the immunity provided by clause 33 is justified.


Chapter 7 Page 38

Alert Digest No 06 of 2008 Transport Security (Counter-Terrorism) Bill 2008

Chapter 8 Page 39

8. TRANSPORT SECURITY (COUNTER-TERRORISM) 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 29 April 2008.

2. The policy objectives of the bill are outlined in the Explanatory Notes:39 The Bill is a significant community and transport initiative to provide for the increased preparedness of surface transport operations against the adverse impacts of an act or threat of terrorism.

In keeping with the philosophy of applying resources on a risk basis, the Bill focuses on surface transport operations that are at an ‘elevated risk,’ and provides for identifying those operations as security-identified surface transport operations (SISTOs).

The Bill introduces a regulatory framework and tools to promote compliance by SISTOs. The regulatory regime provides that counter-terrorism preparedness measures are established and maintained through the development and implementation of risk management plans. Further, it also puts into place mechanisms for those plans to remain valid and compliant.

The legislation also provides government with assurance that surface transport operations are prepared for the adverse risk of terrorism through an annual certificate.

This legislation is not designed to prevent a terrorist act or threat, but ensures that SISTOs have considered the risk of terrorism to their operation and mitigated this risk accordingly. Further, the Bill does not supersede the powers or responsibility accorded to law enforcement agencies under the Police Powers and Responsibilities Act 2000 and the Public Safety Preservation Act 1986.

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

3. Section 4(2)(b) of the Legislative Standards Act requires legislation to have sufficient regard to the institution of Parliament and section 23(i) requires that Explanatory Notes identify a bill which is substantially uniform or complementary with legislation of the Commonwealth or another State and provide a brief explanation of the legislative scheme.

♦ the bill generally

4. The Explanatory Notes provide the following information:40 This legislation will also significantly progress Queensland's responsibilities under the Intergovernmental Agreement on Surface Transport Security (the Intergovernmental Agreement), approved by the Council of Australian Governments (COAG) on 3 June 2005. The Intergovernmental Agreement outlined that states and territories are responsible for identifying SISTOs and for ensuring that those operations develop and implement preventative security measures. In the counter-terrorism context, states and territories have primary responsibility for surface transport security for buses, trains, ferries, freight and associated infrastructure.

39 At 1.

40 At 2.


Chapter 8 Page 40

As a signatory to the Intergovernmental Agreement, Queensland is responsible for increasing the protective security, planning and preventative measures in the surface transport system. Further, the agreement also provides that the parties will review their legislative arrangements to make sure that they are sufficiently strong in support of the purpose; securing transport from terrorism. The Bill provides for meeting these responsibilities with a regulatory regime focused on developing, implementing and maintaining risk management plans.

The Bill is consistent with other measures in the national transport industry.

Similar risk-based approaches to security have been adopted by the Commonwealth Government for aviation and maritime security. The Maritime Transport and Offshore Facilities Security Act 2003 and the Aviation Transport Security Act 2004 requires transport operators to generate plans to address and mitigate security risks. State initiatives to counter-terrorism are outlined under the Queensland Government Counter-Terrorism Strategy. Queensland Transport is committed to strengthening protective security arrangements across all transport systems, particularly mass transit and mass freight surface transport systems. Queensland Transport will meet part of this obligation through this Bill, as it will result in surface transport operations that are at an ‘elevated risk’ of terrorism, having an increased preparedness for an act or threat of terrorism

5. The committee generally expresses concern about national schemes of legislation as it has identified elements of such schemes as undermining the institution of Parliament. The committee notes the national scheme responsibilities to be implemented by the bill.

6. The bill implements Queensland responsibilities under the Intergovernmental Agreement on Surface Transport Security.

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



♦ clauses 43 to 45

9. Clauses 43 and 45 of the bill would provide authorised officers with the power to require a person to provide certain information in specified circumstances. Clause 44 would require a person to comply with such a request and provides that failure to do so would constitute an offence, the maximum penalty for which is set at 40 penalty units ($3000).

10. These provisions would create an exception to a person’s right to remain silent and refuse to answer if questioned by a person in authority - an individual right recognised under the common law and elsewhere in Queensland legislation such as the Police Powers and Responsibilities Act 2000. The committee notes, however, that there is scope for legislative adjustment of the individual right which is subject to statutory exceptions requiring a person to provide personal information or to answer certain questions. Clauses 43 to 45 would constitute such a statutory exception.


Chapter 8 Page 41

11. The Explanatory Notes to the bill state:41 This power is required by an authorised officer to determine and identify individuals who have obligations under the risk management plans. In the absence of this provision, it would be impossible for an authorised officer to verify a SISTOs compliance with clauses 15 and 19 to 28. Such information is vital to prosecuting non-compliance under the Bill and requiring identification establishes a record in order to ascertain if persons have fulfilled their obligations under the Bill.

12. The committee refers to Parliament the question whether clauses 43 to 45 of the bill have sufficient regard to the rights and liberties of individuals.

♦ various clauses

13. 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 Offence Penalty Units

15 Requirement to prepare a risk management plan and give a copy to chief executive

60

19(1),(2) Implementation/compliance with risk management plan 50

20 Annual audit of risk management plan 50

21 Keeping audit record 50

22 Review of risk management plan 50

23 Record of review of risk management plan 50

24(1) Amending a risk management plan after review 50

24(2) Amendment to be given to chief executive within 28 days 60

25 Preparing, conducting and participating in exercises to test the operation of a plan

60

26 Test exercise record to be kept 50

27 Annual certificate about auditing, reviewing and testing the operation of the plan

60

28 Giving chief executive notice of change to emergency contact information in risk management plan

60

35 Return of identity card within 7 days 10

42 Failure to provide reasonable help or information 60

41 At 5 to 6.


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44 Failure to give a name or address 40

45 Failure to provide information or documents 60

46(2)(a) Power to give a direction to comply with ss19,20,22(1),24(1) 500

46(2)(b) Power to give a direction to comply with ss15(1),25(1)or(2),27(1),28(1) 600

48 False or misleading statements 60

49 False or misleading documents 60

50 Obstructing an officer 60

55 Executive officers must ensure a corporation complies with this Act various

14. The Explanatory Notes provide the following information regarding the proposed penalties:42 The Bill provides for breaches of the regulation to incur penalties of up to $37,500 (500 penalty units) for clause 46. Specifically, this offence relates to the escalation in penalties in the regulatory regime.

Under the Bill, failure to develop, implement and act on counter-terrorism measures, or risk management plans, may result in mass casualties, significant capital loss or infrastructure damage from one incident, or coordinated incidents. This power provides the chief executive to direct operations that are remaining non-compliant to comply.

The benefits that the Bill will deliver to the community are an increase preparedness of a surface transport operation from the adverse impact of terrorism. These benefits are negated if there is non-compliance. The penalties for non-compliance with these key clauses are set at a level that is commensurate with the consequences to the community of non-compliance.

This maximum penalty of 500 units is proportionate with similar regulatory offences in Queensland legislation involving death or injury. Failure to employ counter-measures in the work environment to ensure workers health and safety has a maximum penalty of 800 penalty units ($60,000) or two years imprisonment under the Work Health Safety Act 1995 clause 24(1). Under the Dangerous Goods Safety Management Act 2001, after determining the “acceptable level of risk” in relation to safe management of dangerous goods, a person who has a safety obligation must discharge the obligation. For failing to discharge their obligation a person is liable for 500 units. However, if the failure to discharge the obligation results in property or environmental damage the maximum penalty is 750 units ($56,250) or 6 months imprisonment. Further, if multiple deaths are caused the penalty is increased to a maximum of 3000 units ($225,000) or 3 years imprisonment.

Likewise, 500 penalty units is less than what is provided under the Victorian Terrorism (Community Protection) Act 2003. Part 6 of this Act contains a penalty for non-compliance in the case of a natural person of 600 penalty units ($62,886) maximum and in the case of a body corporate 3000 penalty units ($314,430) maximum.

The penalties provided in this Bill are deemed sufficient to deter non-compliance. The number of penalty units reflects the seriousness of the potential consequences of a contravention in regard to a lack of preparedness against an act or threat of terrorism.

15. The committee notes that various clauses of the bill create offence provisions.

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

42 At 6 to 7.


Chapter 8 Page 43





19. 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.

♦ various clauses

20. The following clauses would impose the evidentiary burden on a defendant.

Clause Offence Maximum penalty (penalty units)

35 Return of identity card 10

42 Power to require reasonable help or information 60

44 Failure to give a name of address 40

45 Power to require information or documents 60

46 Power to give a direction to comply 500 / 600

50 Obstructing an authorised officer 60

55 Executive officers must ensure a corporation complies with this Act

various

21. The committee notes that various clauses in the bill would affect the rights and liberties of individuals as they provide for the reversal of the onus of proof.

22. The committee refers to Parliament the question of whether the provisions reverse the onus of proof without adequate justification.

♦ clause 55

23. In addition to the reversal of the onus of proof, clause 55 would impose personal liability on the executive officers of a surface transport operation for offences committed by the executive officers’ entity. That is, clause 55 would require executive officers to ensure surface transport operations comply with the requirements of the bill and, if a surface transport operation committed an offence against the legislation, the entity's executive officers would be taken to have committed the offence of failing to ensure compliance.


Chapter 8 Page 44

24. Accordingly, under clause 55, evidence that an entity had been convicted of an offence against the Act would be evidence that each of the executive officers committed the offence of failing to ensure compliance of the corporation with the provision. However, the clause 55(5) defines ‘executive officer’ broadly to mean a person who is concerned with or takes part in the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

25. In effect, clause 55 would impose personal derivative liability on an ‘executive officer’ unless he or she proved, on the balance of probabilities, that: • if the officer was in a position to influence the conduct of the corporation in relation to the

offence, the officer exercised reasonable diligence to ensure the corporation complied with the provision; or

• the officer was not in a position to influence the conduct of the corporation in relation to the offence.

26. Clause 56 provides that an entity may avoid liability if the entity can demonstrate that all reasonable steps were taken to comply with the obligations of the bill.

27. The following justification for clause 55 is provided by the Explanatory Notes:43 This Clause is considered essential to ensure executive officers, those most likely to have knowledge and access to information about the structure, operations and distribution of responsibilities in a company, can be held accountable for any failure to comply with the proposed requirements.

If the prosecution were required to prove an executive officer had committed an offence, obtaining the evidence necessary to prove liability would add cost and cause delay in an environment where certainty and immediate compliance is essential if surface transport operations are to be adequately prepared against the adverse impacts of an act or threat of terrorism. This is because the information necessary to prove this defence will be within the defendant's knowledge rather than the prosecutor's, and would be difficult for the prosecution to obtain and prove.

The reversal of the onus of proof is balanced by the fact that the Bill does not include warrant, entry and search powers and that a "reasonable steps defence" is available to executive officers. That is, it will be a defence for an executive officer to prove they exercised reasonable diligence to ensure compliance or that they were not in a position to influence the conduct of the company.

28. Accordingly, the committee notes that clause 55 would impose liability for corporate fault on ‘executive officers’, a broadly-defined class of persons. Significant monetary penalties may attach to these offences. While ‘defences’ are provided by clause 55(4), 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.

29. When considering whether clause 55 has sufficient regard to the rights of individuals, the committee has considered a report of the Australian Government’s Corporations and Markets Advisory Committee, Personal Liability for Corporate Fault.44 The committee sets out below relevant views and recommendations of CAMAC regarding the need for a principled and consistent approach to personal liability across Australian jurisdictions.45

43 At 7.

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

45 CAMAC report, at 33 to 36.


Chapter 8 Page 45

The Committee is of the view that, as a general principle, individuals should not be made criminally liable for misconduct by a company except where it can be shown that they have personally helped in or been privy to that misconduct, that is, where they were accessories.

There was strong support for this position in submissions. The Committee is concerned about the trend in various pieces of legislation to treat directors or other corporate officers as criminally liable for misconduct by their company unless they can make out a relevant defence. Provisions of this kind are objectionable in principle and unfairly discriminate against corporate personnel compared with the way in which other people are treated under the criminal law:

• the deeming of individuals to be guilty of an offence, by reason of an office they hold or a role they play, unless they can establish a defence, offends ordinary notions of fairness

• the reversal of the onus of proof inherent in such provisions is contrary to the general presumption of innocence in criminal law

• the fact that someone is a corporate officer should not subject that person to criminal liability in a way that an individual in other circumstances, or an individual in a responsible position in a non-corporate organization, would not be so subject

• the fact that a corporate officer may be able, in the circumstances of a particular case, to make out a relevant defence and thereby avoid conviction does not remove the seriousness of the risk to reputation and the apprehension, effort and expense to which he or she is subject by being exposed to criminal liability on a prima facie basis

• as a practical matter, whatever justification there may be, in the context of a small or closely-held company, for treating the individuals who run the company as personally responsible for its conduct, this approach becomes increasingly problematic in the case of larger corporate organizations. It does not fit at all well with the current Australian preferred governance model of boards constituted by a majority of non-executives

• an undue skewing of personal liability provisions, towards the interests of corporate compliance at the expense of individual fairness, will discourage people from accepting board or managerial positions in corporate enterprises. Apart from objections in principle to this extended form of personal liability, the range and disparity in the form of the deeming provisions found in various pieces of legislation create complexity and work against clear understanding and effective compliance.

The Committee considers that:

• liability for breach of a legal requirement by a company should fall in the first place on the company itself. It should not be assumed that appropriately weighted monetary or other penalties will not have an impact on shareholders and others who have a stake in the success of a company or will not influence the behaviour of those individuals who control and manage the company, whether through their being held accountable by shareholders or otherwise

• in addition, an individual who is personally implicated in such a breach—who helps in or is privy to the misconduct—should be exposed to personal liability as an accessory in accordance with ordinary criminal law principles.

Beyond the approach supported above, the Committee considers that great care should be taken in considering any extension of personal liability for the breach of a law by a company. Proper account should be taken of the individual rights of corporate officers—and how their proposed treatment compares with the way other citizens, including individuals involved in the governance of non-corporate organizations, are dealt with—as well as the interest in promoting corporate compliance with relevant statutory requirements.

The Committee acknowledges that in some circumstances a legislature may judge it appropriate to go beyond accessorial liability and impose a duty on a specified individual to ensure that a company complies with a particular legislative requirement. In effect, provisions of this kind impose a form of strict liability upon a designated officer. The Committee considers that any such provision should be confined to responsibility for ensuring that a company complies with a specific operational or administrative requirement, such as the filing of


Chapter 8 Page 46

a return by a particular date. It should not extend to areas where compliance requires the exercise of significant judgment or discretion.

The Committee also accepts that there may be circumstances in which a legislature judges it appropriate to impose on relevant corporate personnel a somewhat more positive duty of care than may be derived from ordinary principles of accessorial liability. Under those principles, wilful blindness as to the facts of the corporate offence is treated as equivalent to knowledge, and will attract liability, but neither negligence nor recklessness is sufficient.21 In exceptional circumstances, the public interest in achieving compliance by a company may be seen as requiring officers to assume a more positive role within their sphere of influence and to risk personal liability where they have acted with reckless or negligent disregard of the company’s relevant conduct.

An extended notion of accessorial liability along these lines, together with a model provision, is discussed further in Chapter 5. The Committee also considers that it is highly desirable, in the interests of assisting corporate compliance as well as reducing compliance costs, that the various jurisdictions strive to achieve a consistent approach to the imposition of personal liability for corporate fault and the content of any legislation that goes beyond ordinary accessorial liability.

30. The committee refers the recommendations in the CAMAC report to the Parliament for consideration in the context of whether clause 55 has sufficient regard to the rights and liberties of individuals.

31. The committee notes that clause 55 would impose personal liability on the executive officers of a surface transport operation for offences committed by the executive officers’ entity.

32. The committee refers to Parliament the question of whether, in the circumstances, clause 55 has sufficient regard to the rights and liberties of individual executive officers potentially liable for offences committed by a corporation.

Alert Digest No 06 of 2008 Water Supply (Safety and Reliability) Bill 2008

Chapter 9 Page 47

9. WATER SUPPLY (SAFETY AND RELIABILITY) 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 30 April 2008.

2. The policy objectives of the bill are outlined in the Explanatory Notes:46 The Water Supply (Safety and Reliability) Bill 2008 (the Bill) has three main objectives:

1. to establish a new Bill, the Water Supply (Safety and Reliability) Bill 2008 for the safety and reliability of water supply, which

(a) incorporates the existing regulatory framework in the Water Act 2000 (Water Act) for service providers and dam safety

(b) introduces new regulatory frameworks for recycled water and drinking water primarily for the protection of public health supported by amendments to the Public Health Act 2005 (Public Health Act) and Plumbing and Drainage Act 2002 (Plumbing and Drainage Act).

2. to amend the Water Act and the South East Queensland Water (Restructuring) Act 2007 (SEQ Water Restructuring Act) to implement further elements of the new institutional arrangements for urban water supply in South East Queensland (SEQ), including the establishment of the regulatory framework governing the SEQ water grid and the SEQ water market, as well as providing for the granting of relevant water entitlements to the water grid manager

3. to amend the Water Act to enable full and effective implementation of resource operations plans due to commence in 2008 and ensure the ongoing operation of the Water Act.

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

3. Section 4(2)(a) of the Legislative Standards Act requires legislation to have sufficient regard to the rights and liberties of individuals. Section 4(3)(e) of that Act provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation confers power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer.

♦ clauses 33 to 37 and 169

4. Clauses 33 to 37 of the Bill would allow an authorised person, for example, an appropriately qualified employee or contractor of a service provider, to enter places to: • disconnect unauthorised connections to the provider’s infrastructure; • undertake remedial work; install, read, check, maintain or replace meters; and • meet other restricted purposes such as maintaining and protecting infrastructure.

46 At 1.


Chapter 9 Page 48

5. In respect of clauses 33 to 37, the Explanatory Notes state that:47 These carry on provisions that existed under the Water Act for the same purpose. These powers of entry are justified on the basis that:

• they are essential for service providers to carry out their business and ensure lawful use of water. For example, water service providers who provide retail water services own the water meters and are responsible for reading and charging customers accordingly, and maintaining and replacing meters as necessary. As a result, water service providers require adequate powers to read meters, check accuracy of meters and maintain or replace meters

• prior notice is given to the person making the unauthorised connection to show cause why the disconnection should not happen. Similarly, the power to enter for restricted purposes such as maintaining and protecting infrastructure is only exercisable after the giving the occupier 14 days’ notice, except where urgent action is needed, or if prior consent is obtained

• none of the sections listed above authorise entry to a dwelling house. The powers to enter are limited, for example, to a right to enter to disconnect the unauthorised connection. The right to enter relates only to the service provider's infrastructure and does not apply to entry of a dwelling house

• compensation is payable should damage arise from exercising the entry powers and authorised persons must produce and display identity cards. Many of these powers are modelled on the current powers of electricity providers.

6. In addition to the powers identified above, clause 36 of the bill would also allow an authorised person to enter a place to install a device to reduce flow of water to premises under clause 169. This latter clause would confer a water service provider with powers to reduce water flow to premises to the necessary minimum for health and sanitation if, after giving written notice, the owner or occupier continued to contravene a service provider or commission water restriction or not pay a rate or charge for the service.

7. In respect of clauses 36 and 169 of the bill, the Explanatory Notes indicate:48 These carry on provisions that existed under the Water Act for the same purpose. Although there is no merits appeal in relation to the service provider's action, review under the Judicial Review Act 1991 is not excluded. Compliance with water restrictions is paramount to a water service provider’s ability to manage their current water supplies; this is particularly critical in the current water supply emergency under the Water Act in the SEQ region. Action to restrict flow is considered a measure of last resort and is considered justified as an owner or occupier has an opportunity to remedy repeated breaches before the action is taken.

8. Other legislative provision for similar powers in the Water Act 2000 has been considered by the committee in Alert Digests 10 of 2000 and 11 of 2007. As for those provisions, the committee notes that clauses 33 to 37 confer powers of entry upon authorised persons for particular purposes, including entry of residential premises under powers conferred by clause 36. Clause 169 would provide an authorised person with post-entry powers. Various safeguards apply in relation to the exercise of such powers and justification for the use of such powers is provided in the Explanatory Notes and the second reading speech. In the circumstances, the committee considers the proposed provisions to be reasonable.

47 At 8 to 9.

48 At 9.


Chapter 9 Page 49

9. The committee notes that clauses 33 to 37 and 169 confer authorised people with powers to enter places without consent or under the authority of a warrant. Clause 169 would provide an authorised person with post-entry powers.

10. The committee draws to the attention of Parliament the nature and extent of these entry and post-entry powers.


11. Equivalent to existing provisions in the Water Act, clauses 410 and 411 confer powers to enter land. Clause 410 would allow an authorised officer to enter land at any reasonable time in order to ensure compliance with the Integrated Planning Act to the extent that the Act relates to a development condition; for example, development conditions in relation to operational works for a referable dam. Clause 410 would also permit an authorised officer to enter land to monitor compliance with an approved drinking water quality or recycled water management plan, including its conditions or approved exemption. Clause 411 would allow an authorised officer to enter land for a range of matters in relation to referable dam and failure impact assessments.

12. The Explanatory Notes state:49 These carry on provisions that existed under the Water Act in relation to current service provider regulation and dam safety regulation. These powers of entry are justified because:

• the power to enter is limited to places that are not dwelling houses

• the power is largely limited to the particular purposes referred to above, which are necessary for determining the safety of referable dams to protect population at risk and compliance with approved recycled and drinking water management to ensure the protection of public health

• the only way to monitor compliance with the authorised activity is to enter land. Failure to act immediately could result in a risk to public health and safety

• if the entering is for a different purpose, the occupier must consent, the place must be a public place, entry must be by warrant, or the place must be open as a place of business

• the powers of entry must be exercised at a reasonable time (other than when acting on a warrant, with consent or with reason to believe that unauthorised taking interference or use is occurring).

The power in these clauses is able to be exercised at any time and without warrant, consent or prior notice, due to the need to ensure the protection of public health. There are similar powers in chapter 9, part 2 of the Environmental Protection Act 1994 (Environmental Protection Act) and chapter 5 of the Water Act.

13. Clauses 410 and 411 confer authorised people with powers to enter land without consent or under the authority of a warrant.

14. The committee draws to the attention of Parliament the nature and extent of these powers.

49 At 12.


Chapter 9 Page 50

♦ clause 438

15. Clause 436 would allow a regulator, satisfied or reasonably believing urgent action was necessary to prevent or minimise any adverse affect on public health, to: • direct any person to take reasonable steps within a period; • take the reasonable steps; or • authorise an authorised officer to take the reasonable steps to prevent or minimise the adverse

affect on public health.

16. Clause 438 would provide a regulator or authorised officer acting under new section 436 with power to enter any place, other than premises or part of premises where a person resides, without a warrant to take reasonable steps to prevent or minimise the adverse affect on public health. Before entering a place, an authorised would be required to: • make a reasonable attempt to show an identity card; • tell the occupier that he or she was permitted under the Act to enter; and • give the occupier an opportunity to allow them to enter the place without using force.

17. The committee notes the powers of entry conferred upon authorised persons for particular purposes by clause 438 and the safeguards to apply in relation to the exercise of such powers. The Explanatory Notes provide justification for the use of such powers:50 This provision is justifiable as the steps needed to be taken only relate to urgent matters that constitute an adverse impact on public health and immediate action is required to be taken to respond to such a risk to public health. The exercise of this power allows an authorised officer to, without consent or warrant, enter a place, but not including a residential place. A power of entry in these circumstances are consistent with other legislation necessary to ensure the requirements of the legislation are complied with and that the potential health risks associated with recycled water and drinking water are minimised as immediately as possible and be appropriately dealt with for the purposes of protecting public health. This clause seeks to balance the need to protect public health and protect the interests of the individual.

Similar provisions are included in the Food Act and also the Environmental Protection Act.

18. The committee notes that clause 438 of the bill authorises entry to places without consent or under the authority of a warrant and also powers to be exercised post-entry.

19. The committee draws to the attention of Parliament the nature and extent of these powers.

Does the legislation provide appropriate protection against self-incrimination?

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

50 At 13 to 14.


Chapter 9 Page 51


21. Clauses 102 and 270 of the bill may infringe this fundamental legislative principle as they would require notification of certain matters, even if to do so would incriminate the person providing the information.

22. Clause 102 of the bill would require a drinking water service provider to notify the regulator of incidences of water quality inconsistent with the provider’s drinking water quality management plan. Similarly, clause 270 would require a recycled water service provider to notify the regulator of incidences of water quality inconsistent with the provider’s recycled water management plan or conditions of an exemption.

23. The Explanatory Notes state:51 In each clause, the notification must be made to the regulator immediately unless for a reasonable excuse. The clause provides that it is not a reasonable excuse to not notify the regulator on the grounds the notification may [infringe] the person’s protection against self-incrimination.

In both cases, water quality criteria exceedances in drinking water or recycled water can lead to an adverse or serious impact on public health. The serious nature of the risks warrants removing the rights against self-incrimination. To ensure the rights of the person making the notification are protected, the clauses provide that information provided to the regulator is not admissible in evidence against the individual in any civil or criminal proceeding. These clauses seek to balance the need to protect public health and protect the interests of the individual.

24. The committee has on many occasions considered provisions which abrogate the privilege against self-incrimination. Over time it has adopted the approach that the abrogation of this privilege may be justified if: • the information required is peculiarly within the knowledge of the person concerned; and • the legislation provides an indemnity against the use of any information obtained.

25. Such an indemnity should be unconditional.52

26. Clauses 102 and 270 of the bill may have insufficient regard to the rights and liberties of individuals as they would require notification of certain matters, even if to do so would incriminate the person providing the information.

27. The committee refers these provisions to the Parliament for consideration.

51 At 9 to 10.

52 The committee’s approach on this issue is drawn from the approach of the Senate Standing Committee for the Scrutiny of Bills.


Chapter 9 Page 52



♦ clause 374

29. The bill proposes to relocate clause 374 from the Water Act 2000; that is, to the legislation providing for flood mitigation regulation. With respect to flood mitigation, clause 374 would provide the chief executive or a member of the council with immunity from civil liability for an act done or omission made honestly and without negligence. The clause would also provide that an owner of a dam (including the operator of the dam, or a director, employee or agent of the owner) who observed the operational procedures contained in a flood mitigation manual approved by the chief executive, would not be civilly liable for an act done or omission made honestly and without negligence in observing the operational procedures. In each case, the liability would attach to the State instead.

30. The Explanatory Notes to the bill indicate:53 Essentially the provision requires that the operator of the approved flood management storage must have, and comply with, Ministerial approved manuals as to how the storage is operated. Where releases from the storage may result in some damage downstream (for example, damage to a bridge) the operator is not liable.

The provisions are not matters that the service providers undertake as part of their normal commercial operations. Rather, they are things the operator undertakes to fulfil a broader public purpose, for example, to control releases and undertake certain reporting and coordinating activities with local governments about release from the storage.

The Bill provides that if the service provider operates the storage according to the approved manual, and acts honestly and without negligence, the service provider will not be liable. Liability will attach to the State instead.

31. In respect of provisions conferring immunity from legal proceedings, such as clause 374, 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 clause 374 would not deprive any person of the right to seek relief – rather, relief would be sought from the State.

32. The committee refers to Parliament for consideration the question of whether the immunity provided by clause 374 is justified.


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

53 At 11 to 12.


Chapter 9 Page 53

♦ clause 434

34. Clause 434 would allow an authorised officer to: • require a person to provide information or documents about stated matters; and • copy such a document and require the person responsible for keeping the document to certify

the copy.

35. Under clause 434(7), it would be an offence to fail to comply with such a requirement without reasonable excuse.

36. Clause 434(8) and (9) would then provide: (8) If the person is an individual, it is not a reasonable excuse for the person to fail to comply with a

requirement made under subsection (2) or (3) that complying with the requirement might tend to incriminate the person.

(9) However, if the person is an individual, evidence of, or evidence directly or indirectly derived from, the information that might tend to incriminate the person is not admissible in evidence against the person in a civil or criminal proceeding, other than a proceeding for an offence about the falsity of the information.

37. The Explanatory Notes state:54 It is arguable this provision may constitute a breach of the fundamental legislative principles with regard to protection against self-incrimination. However, this provision is required to avoid the situation where an employee of a company can decline to provide information or produce a document thereby making it extremely difficult to obtain sufficient information against the corporate entity regarding an alleged offence. In effect, a corporation can effectively choose to accept a lesser penalty, for example, failure to produce a document, rather than risk prosecution for an offence.

This clause also contains a safeguard in that the information or document produced may not then be used to prosecute the individual required to provide it. Consequently the individual is protected against the consequences of self-incrimination. A similar provision is provided under the Vegetation Management Act 1999 (Vegetation Management Act), the Food Act 2006 (Food Act) and the Fair Trading Act 1989 (Fair Trading Act). In addition it should be noted that the High Court has determined that a corporate entity is not entitled to protect itself against self-incrimination.

The committee notes that clause 434 would create an exception to a person’s right to remain silent and refuse to answer if questioned by a person in authority - an individual right recognised under the common law and elsewhere in Queensland legislation such as the Police Powers and Responsibilities Act 2000. It is acknowledged that there is scope for legislative adjustment of the individual right which is subject to statutory exceptions requiring a person to provide personal information or to answer certain questions.

38. The committee refers to Parliament the question whether clause 434 of the bill has sufficient regard to the rights and liberties of individuals.

54 At 13.


Chapter 9 Page 54


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

♦ clause 461

40. Clause 461 enables the chief executive to access, through the commissioner of the police service, information about a person's criminal history in circumstances where an authorised officer reasonably suspects the person may be present at a place the authorised officer enters.

41. The Explanatory Notes indicate that:55 This carries on a provision that existed under the Water Act. This may be considered a breach of the right to privacy. However, this right must be balanced against an authorised officer's right to a safe and secure working environment, and the obligation of the State to provide such an environment to its employees. Authorised officers are unarmed, and may work in remote areas with sometimes little assistance should they be confronted with a violent or dangerous situation.

The provision enables the chief executive to obtain advice as to whether a person has a history of offences involving violence or firearms, before an authorised officer enters a place where the person is likely to be present. This provides an opportunity for the authorised officer to request to be accompanied by a police officer if it is considered that unaccompanied entry to a place would create an unacceptable level of risk to the authorized officer's safety.

This clause is further justified as clause 462 provides stringent safeguards regarding the use, communication and confidentiality of criminal history information provided. Similar provisions are also provided under the Vegetation Management Act and the Water Act.

42. It is arguable that this proposal could adversely affect the rights and liberties of a person who is reasonably suspected of being present at a place the authorised officer enters. The potential for the bill’s provisions to impact adversely upon individuals is self-evident.

43. The committee referred to Parliament the question of whether the disclosure provision relating to a person’s criminal history referred to in clause 21 has sufficient regard to the rights and liberties of persons who may be affected by it.


44. Clauses 713 and 745 to the bill would affect future and existing contractual rights respectively.

45. Clause 713 of the bill (new s360ZDD) would give the Minister the power, until 1 July 2011, to make a document in the form of a contract (a grid contract document), providing for the supply of declared water services to the Water Grid Manager, or the supply of water supplied by declared water services by the Water Grid Manager.

55 At 14.


Chapter 9 Page 55

46. The Explanatory Notes to the bill indicate:56 The grid contract document will have effect as a contract between the Water Grid Manager and the grid service provider or grid customer named in the document. The terms of the document will override any inconsistent term contained in any other agreement entered into by the parties.

The initial imposition of contracts between the parties is a necessary part of the overall framework being put in place by the Bill. The grid contract documents are a fundamental part of the State Government’s policy for institutional arrangements in South East Queensland and are the key mechanism for sharing the costs of the water grid across the region.

Section 360ZDD is very limited in its scope, having practical application only to local governments, state government statutory authorities and government owned corporations in the SEQ region. The section also makes it clear that this is an interim measure only, with the power for the Minister to make a grid contract document applying only until 1 July 2011.

With the grid arrangements scheduled to commence on 1 July 2008, the timeframes do not allow for full commercial negotiations between grid participants and the Water Grid Manager. Further, it is generally acknowledged that the SEQ water market arrangements are highly regulated, and the contracts will not reflect normal commercial terms in any event.

Accordingly, given the nature of what is to achieved, the timetable for its achievement and the limited field of operation of the section, it is considered that the provision is reasonable.

47. Clause 745 of the Bill would insert a provision into the Water Act to override any existing contractual provision that specifies that water must be supplied from a particular source.

48. The Explanatory Notes to the bill indicate:57 A key principle underpinning the establishment of the SEQ water grid and the SEQ water market is that water is a shared resource. As construction of new water sources and pipelines are completed and the grid is connected, water will be able to be moved around the region, and sources supplying particular areas will be able to be substituted.

If a contract specifies that water must be supplied from a specific source, this conflicts with the core underlying principle that water for urban and industrial use in SEQ is a shared resource and supply from the SEQ grid may come from a variety of sources, as determined by the water grid manager, depending on quality considerations and the optimum conjunctive use of the SEQ water storages.

The rights of individuals are protected under the section via the requirement that any water substituted under the provision must be fit for the purpose for which the water is supplied.

49. Respectively, clauses 713 and 745 to the bill would affect future and existing contractual rights.

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

56 At 18, as amended by an erratum, tabled on 9 May 2008.

57 At 22 to 23.


Chapter 9 Page 56



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

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

♦ clause 635

53. Clause 635(1) would provide a transitional regulation-making power to make provisions of a saving or transitional nature for any matters for which the Bill does not make sufficient provision to achieve a change from the operation of a previous law. Under clause 635(2), a transitional regulation may have retrospective operation to a day not earlier than the commencement of the section. The new section and any regulation made would, however, expire one year after the commencement of the legislation (cl 635(4)).

54. Clause 635 may infringe fundamental legislative principles in two respects: as a ‘Henry VIII’ clause and a clause with retrospective operation.

55. 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.

56. In January 1997, the committee reported to the Parliament on Henry VIII clauses.58 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.



Chapter 9 Page 57

57. Clause 635 falls within the third exception and the committee notes that the Explanatory Notes provide information regarding the delegation of legislative power:59 This is considered to be justified in view of ensuring the effective implementation of the new regulatory frameworks for recycled water and drinking water which are primarily for the protection of public health. The new regulatory frameworks are significant in their application to ensuring the protection of public health. It is necessary to ensure the regulatory framework, in its potential initial application of approving recycled water for the purpose of augmenting drinking supply, achieves the objective of protecting public health. It is in the public interest that there are no gaps in the regulatory framework that may adversely impact on public health. Similar provisions have been used in Queensland legislation when regulatory regimes are being substantially changed.

58. However, the committee notes also that it is possible for transitional regulations to be made under clause 635 which ‘have retrospective operation to a day not earlier than the commencement’. While the practice of making retrospectively validating or clarifying legislation is not endorsed by the committee, it is recognised that there are occasions where curative retrospective legislation, without significant effects on the rights and liberties of individuals, may be justified. The committee questions, however, whether such circumstances exist in respect of the proposed legislative scheme as transitional regulations may be made for ‘any matter for which it is necessary to make provision to assist the transition from the operation of the previous provisions to the operation of the corresponding provisions’.

59. The committee refers to Parliament the questions whether clause 635 of the bill:

allows the delegation of legislative power in an appropriate case; and

has sufficient regard to the rights and liberties of individuals.



♦ clause 713

61. As for clause 635 of the bill considered above, clause 713 would allow for the making of transitional provisions inconsistent with the Act and, in this case, all other laws and instruments: the new section 360ZDN(5) of the Water Act, to be inserted by clause 713 of the bill, would provide that a transfer notice has effect despite any other law or instrument.

59 At 15.


Chapter 9 Page 58

62. The following information is provided in the Explanatory Notes: The transfer notice process is the simplest and most effective method of transferring water entitlements from current holders to the water grid manger. As noted above, the transfer notice will have a very limited scope of operation, and will apply to specific authorities, the majority of which will be held by a statutory authority.

The transfer notice process is transitional and is required to ‘initialise’ the SEQ water market. It is not expected that the provision will have ongoing application.

63. The committee notes that clause 713 would also fall within one of the exceptions to the principles regarding Henry VIII clauses.

64. The committee makes no further comment regarding clause 713.

♦ clause 360ZDA

65. The new section 360ZDA, to be inserted into the Water Act by clause 713 of the bill, would provide the Minister with the power to make market rules governing the operation of the SEQ water market.

66. The committee notes that, as stated in the Explanatory Notes, the market rules will be subject to the consideration and possible disallowance by the Legislative Assembly: The rules will be a statutory instrument within the meaning of the Statutory Instruments Act 1992 (Statutory Instruments Act), but will not be subordinate legislation…

Although they are not subordinate legislation, the rules and any amendments to the rules, are required to be tabled in the Legislative Assembly within 14 days of taking effect.

67. The committee makes no further comment regarding clause 360ZDA.

Alert Digest No 06 of 2008 Aboriginal and Torres Strait Islander Land Amendment Bill 2008

Chapter 10 Page 59

PART I - BILLS

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE

10. ABORIGINAL AND TORRES STRAIT ISLANDER LAND AMENDMENT BILL 2008

1. The Honourable Craig Wallace MP, Minister for Natural Resources and Water and Minister Assisting the Premier in North Queensland, introduced this bill into the Legislative Assembly on 17 April 2008.

2. The committee commented on this bill in its Alert Digest No 05 of 2008 at pages 1 to 5.

3. To date a response has not been received from the Minister however the committee has received a submission regarding the bill from the Cape York Land Council. The committee has included a copy of the submission in appendix A to this Alert Digest.

4. The committee thanks the Cape York Land Council for its submission regarding the bill.

5. The committee notes that matters addressed in the submission were addressed also in Alert Digest No 05 of 2008.

Alert Digest No 06 of 2008 Aboriginal and Torres Strait Islander Land Amendment Bill 2008

Chapter 10 Page 60

Alert Digest No 06 of 2008 Consumer Credit (Queensland) and Other Acts Amendment Bill 2008

Chapter 11 Page 61

11. CONSUMER CREDIT (QUEENSLAND) AND OTHER ACTS AMENDMENT BILL 2008

Background

1. The Honourable Kerry Shine MP, Attorney-General and Minister for Justice and Minister Assisting the Premier in Western Queensland, introduced the bill into the Legislative Assembly on 16 April 2008. The committee notes that this bill was passed, with no amendments, on 1 May 2008.

2. The committee commented on this bill in its Alert Digest No 05 of 2008 at pages 7 to 10. The Minister’s response to those comments is referred to in part below and reproduced in full in Appendix A of this Digest.



♦ clause 10

4. Clause 10 of the bill would amend the Legal Profession Act by inserting a new section 770.

5. The committee noted that proposed section 770 of the Legal Profession Act confers transitional regulation-making powers which would permit the making of transitional regulations inconsistent with provisions of the Act. However, the committee notes also that new section 770 makes express provision for sunsetting of any transitional regulations made under the section.

6. The committee referred to the Parliament the question whether clause 10 of the bill is reasonable in the circumstances.

7. The Attorney-General’s response was: The Committee has referred for the consideration of Parliament whether clause 10 of the Bill is reasonable in the circumstances.

The clause provides for the Queensland Law Society to make rules of a transitional nature for the purpose of extending various terms of office for the transitional purpose of facilitating those terms being according to calendar years from 1 January 2009.

As stated in the explanatory notes, the transitional rules will only apply for a short period and the limits for the making of the rules are clearly stated in the Bill. On this basis, the clause is submitted to be reasonable.

Alert Digest No 06 of 2008 Consumer Credit (Queensland) and Other Acts Amendment Bill 2008

Chapter 11 Page 62

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?

8. Section 4(3)(a) of the Legislative Standards Act provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation makes rights or liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review.

♦ clause 17

9. The committee drew to the attention of Parliament the exclusion by clause 17 of merits-based review and appeal of a decision of the Chief Executive under the proposed section.

10. The Attorney-General’s response was: The Committee has also drawn to Parliament’s attention the exclusion by clause 17 of merits-based review and appeal of a decision of the chief executive to require completion of on-going training of security providers under the proposed amendment to the Security Providers Act 1993.

This clause is justified because allowing the chief executive to increase security providers’ competencies will have a direct positive impact on the way security providers protect people and their property. Currently, an applicant for a security licence must successfully complete a minimum standard of training before the grant of a licence. This is a basic criterion for entitlement to a licence. However, this training is not currently required to be repeated or updated during the term of a licence.

The Government is responding to industry and community expectations that licensed security providers can be required to boost their competency through the term of their licences because of the unique role security providers play in the community.

The amendments place clear limits on the circumstances in which the chief executive can impose new training. Once these conditions are satisfied, given the consequences if such training cannot be mandated, it is appropriate that these measures to improve standards are not subject to merits-based review.

11. The committee notes the Attorney-General’s response.

Alert Digest No 06 of 2008 Disability Services and Other Legislation Amendment Bill 2008

Chapter 12 Page 63

12. DISABILITY SERVICES AND OTHER LEGISLATION AMENDMENT 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 this bill into the Legislative Assembly on 15 April 2008. The committee notes that this bill was passed, without amendments, on 30 April 2008.




♦ clauses 7 and 8

4. The committee referred to Parliament the question whether clauses 7 and 8 of the bill have sufficient regard to the rights and liberties of adults with: • intellectual or cognitive disability who have challenging behaviour; and • a skills deficit.

5. The Minister’s response was: At times service providers may use restrictive practices in order to manage an adult’s ‘challenging behaviour’ to prevent a serious risk of harm to the adult or another person such as staff, carers and co-tenants. As outlined in the Explanatory Notes (pages 2 and 30), the term ‘challenging behaviour’ is not defined in Bill and instead the Bill refers to the essence of challenging behaviour – that is, behaviour of such nature, intensity, frequency or duration that the behaviour causes harm or is likely to cause harm to the adult or others.

The Bill also regulates the practice of locking gates, doors and windows - the purpose of locking gates, doors and windows is to provide a safe environment for an adult with a safety ‘skills deficit’. This term is defined in the Bill and discussed below.

An example of the practice of locking gates, doors and windows is outlined on page 93 of the Explanatory Notes – where an adult with an intellectual or cognitive disability has no road safety skills and is unable to navigate the crossing of the road safely. The adult is fascinated with the sound of cars and will approach moving cars to touch them. The adult’s house is situated on a main road and as a result, at times, the front gate/fence is locked from the inside to prevent the adult wandering onto the road.

The term an ‘adult with a skills deficit’ is defined in section 214B and includes an adult with an intellectual or cognitive disability: (a) who cannot safely exit the premises, where disability services are provided to the adult, without supervision; and (b) the only reason the adult cannot safely exit the premises without supervision is because the adult lacks road safety skills, or the adult is vulnerable to abuse or exploitation by others, or the adult is unable to find his or her way back to the premises.


Chapter 12 Page 64

Importantly, the only reason for the locking of gates, doors and windows must be for the safety of the adult with a ‘skills deficit’. The Bill (section 214C) also makes it clear that this practice cannot be used to effectively contain a person who has ‘challenging behaviour’ – in this case, the main scheme applies and different requirements must be met, including getting independent approval.

This practice of locking gates doors and windows is not considered to be a ‘restrictive practice’ for the purpose of the Bill; restrictive practices are used to control a person’s ‘challenging behaviour’ and is a more complex issue, which requires (amongst other things) an assessment, a positive behaviour support plan and independent approval under the Bill. In contrast, the purpose of locking gates doors or windows is to manage an adult with a safety ‘skills deficit’.

If an adult with an intellectual or cognitive disability has both challenging behaviour and a skills deficit, the provisions around locking gates doors or windows would apply if the only reason for the practice was for the safety of the adult with a skills deficit, under one of the reasons outlined in (a)-(d) of the definition of ‘adult with a skills deficit’ in section 214B. If there were other reasons, for example, due to the adult’s challenging behaviour, it would be considered a ‘restrictive practice’ and the main scheme in part 10A of the Disability Services Act (and associated safeguards for the adult) would apply. There are different requirements for the practice of locking of gates, doors and windows (outlined in new part 15, division 1A of the Disability Services Act). As noted by the committee, the Explanatory Notes detail how the Bill:

(c) has regard to the rights and liberties of adults with an intellectual or cognitive disability with ‘challenging behaviour’ who may be subject to restrictive practices (pages 13-17); and

(d) has regard to the rights and liberties of adults with an intellectual or cognitive disability with a skills deficit, where the gates, doors or windows are locked from time to time (pages 18-19).

In summary, under the main scheme, the Bill authorises restrictive practices only if:

• it is necessary to prevent the adult’s behaviour causing harm to the adult or others; and

• is the least restrictive way of ensuring the safety of the adult or others;

• the adult has been assessed by an appropriately qualified or experienced person;

• a positive behaviour support plan has been developed for the adult and restrictive practices are used in accordance with the plan (including implementing the strategies in the plan designed to improve behaviour and improve their quality of life); and

• the use of restrictive practice has been approved by an independent decision-maker; and

• the approval for the use of the restrictive practice is time-limited and reviewed/monitored periodically.

For the practice of locking of gates doors and windows, where the purpose is to provide a safe environment for an adult with a ‘skills deficit’, the relevant service provider can do this only if:

• they act honestly and without negligence;

• they keep and implement a policy on the practice (which must be consistent with the policy of Disability Services Queensland);

• the gates, doors or windows are locked in compliance with the policy; and

• the service provider takes reasonable steps to minimise the impact of locking gates, doors or windows on a person living at the premises.


6. The committee referred to Parliament the question whether new sections 123ZZG to 123ZZI of the Disability Services Act and new section 80ZL of the Guardianship and Administration Act have sufficient regard to the information privacy rights of individuals.


Chapter 12 Page 65

7. The Minister’s response was: Sections 123ZZG-123ZZI

Sections 123ZZG-123ZZI deal with the exchange of confidential medical information between certain health care providers. The exchange of information is for limited purposes (listed in section 123ZZH). Essentially this relates to an assessment of the adult or developing or changing a plan for the adult.

As noted in the Explanatory Notes, access to this information is important for a comprehensive assessment to be conducted of the adult with an intellectual or cognitive disability and/or development of a plan for the adult.

An assessment and a positive behaviour support plan are key concepts under the Bill – together these processes look at the causes of the adult’s challenging behaviour and identify strategies to improve the adult’s behaviour and their quality of life.

The relevant service provider must demonstrate it is relevant information for the purpose of an assessment and/or plan; and the health care provider must be satisfied of this before the information can be provided. Examples of information that could be relevant are listed in the Explanatory Notes (page 91), and could include occupational therapy or physiotherapy assessments and reports.

If a health provider does provide the information to the service provider, there are strict requirements on the service provider to maintain confidentiality of the information. It is an offence under the Bill for the service provider (or someone acting on their behalf) not to comply with these requirements. Under section 123ZZI, the relevant service provider is prevented from disclosing the information to anyone else other than in the limited circumstances as prescribed in the Bill:

• if required for this Act;

• to discharge a function under another law;

• for a proceeding in a court or tribunal;

• if authorised under another law or regulation made under this Act;

• if authorised in writing by the adult to whom the information relates; or

• to protect a person with a disability from abuse, neglect or exploitation.

New section 80ZL

The new section 80ZL in the Guardianship and Administration Act, provides the authority of the adult guardian to access relevant and necessary information for the limited purpose of deciding whether or not to give a short term approval under part 4 of the Bill (for the use of containment or seclusion where there is an immediate and serious risk of harm to a person).

The rights of the adult guardian to access this information are similar to those rights of a guardian to access information under the existing section 44 of the Guardianship and Administration Act 2000. Section 249 of the Guardianship and Administration Act 2000 imposes a strict duty of confidentiality on the adult guardian to not make a record or intentionally or recklessly disclose confidential information obtained because of the adult guardian’s involvement in the administration of the Act, except if in accordance with the limited circumstances provided for in section 249(3). Therefore, any information obtained by the adult guardian under section 80ZL will be protected by virtue of section 249 of the Guardianship and Administration Act.




Chapter 12 Page 66

♦ clauses 7, 8 and 22

9. In respect of the immunities provided in proposed new sections 123ZZB, 123ZZC, 214C, 214D and 244 to 248, the committee noted that it has previously expressed the view that one of the fundamental tenets of the law is that everyone is equal before the law, and therefore should be fully liable for civil and criminal acts.

10. The committee referred to Parliament for consideration the question of whether the immunities provided by proposed new sections 123ZZB, 123ZZC, 214C, 214D and 244 to 248 is justified.

11. The Minister’s response was: These provisions deal with three types of immunities:

• transitional immunity provisions (for the use of restrictive practices for 18 months from commencement of the Bill);

• prospective immunity provisions (for the use of restrictive practices after the 18 month transitional period); and

• immunity provisions for the locking of gates, doors and windows.

The Carter Report provided that in limited circumstances, the use of restrictive practices, can be justified, however, a clear legislative framework was required to set out those circumstances. In Queensland, there is no specific legislation which deals with the use of restrictive practices for adults with an intellectual or cognitive disability.

As noted in the Explanatory Notes, and in the committee’s report, these immunity provisions is to help provide legal certainty to a relevant service provider and clearly outline the limited circumstances as to when restrictive practices (or the practice of locking gates, doors and windows) can be lawfully applied.

By including restrictive practices (and the practice of locking gates, doors and windows) in the Bill, it allows them to be properly regulated. There are a number of requirements that a relevant service provider, or someone acting on their behalf, must meet before these immunity provisions apply. These requirements vary depending on the type of immunity. These provisions balance providing appropriate safeguards for the adult with an intellectual or cognitive disability, with the need to protect the rights of others to live and work in a safe environment. Importantly, these requirements focus on eliminating or reducing the reliance on restrictive practices and ensuring that there are sufficient safeguards for the adult with an intellectual or cognitive disability.

For transitional immunity, the service provider must:

• act honestly and without negligence;

• demonstrate the use of the restrictive practice is necessary to prevent the adult’s behaviour causing harm to the adult or others; and

• is the least restrictive way of ensuring the safety of the adult or others; and

• if there is a guardian for the adult in relation to the restrictive practice – use the restrictive practice in compliance with the consent of the guardian; or

• if there is no guardian – assess the adult (to look at the causes of their behaviour and develop strategies to manage their behaviour and address their individual needs); and

• carry out monitoring in relation to the use of restrictive practices to ensure the safety of the adult; and

• keep and implement a policy about the use of restrictive practices (which must be consistent with the policy of Disability Services Queensland).


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The transitional immunity provisions (new sections 241-249 in the Disability Services Act) apply for a limited period (up to 18 months) to allow for a staged implementation of all of the new requirements of the Bill. These provisions balance providing time to enable service providers to be resourced to effectively implement the scheme, with providing appropriate safeguards for the adult during this transitional period.

The prospective immunity provisions, which are relevant after the transitional period, reflect all of the key principles of the Carter Report, including ensuring restrictive practices are the least restrictive option in the circumstances, used part of a model focused on the adult’s individual needs, requires independent and time-limited approvals; and are regularly reviewed. All of these safeguards are discussed at some length on pages 13-17 and summarised earlier in this response. Similarly, the immunity provisions for the practice of locking of gates, doors and justification is discussed on pages 18, 19 and 24 of the Explanatory Notes, and summarised earlier in this response.

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

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

♦ clause 12

13. Clause 12 (new ss 242 and 243) would provide immunity from liability for restrictive practices applied at any time prior to the commencement of the bill.

14. The committee referred to Parliament the question whether the retrospective operation of the new sections 242 and 243 has sufficient regard to the rights and liberties of individuals.

15. The Minister’s response was: As the Explanatory Notes outline these immunity provisions are included to address the lack of clear authority and transparent decision-making with regards to the use of restrictive practices. As mentioned earlier, in Queensland, there is no specific legislation which deals with the use of restrictive practices for adults with an intellectual or cognitive disability.

The Carter Report highlighted that the use of restrictive practices could be potentially unlawful and/or discriminatory but in some cases could be justified. The Report proposed the introduction of legislation as soon as possible but with delayed commencement to allow the new specialist service model, which complements the Bill, to be operational. In the interim period, the Report recommended the introduction of defences to the criminal offences of assault and deprivation of liberty, where the defence was based on the provider being able to show that it was reasonably necessary to protect that person or any other person from the risk of injury or harm.

However, instead of introducing defences, it is proposed to commence the main legislative scheme immediately. The main scheme is about driving a culture of change in the disability sector around the reliance on restrictive practices. The main scheme introduces new requirements and concepts such as creating new powers for the Guardianship and Administration Tribunal to approve and/or review a range of restrictive practices; and introducing the concept of a ‘positive behaviour support plan’. These new concepts cannot be imposed retrospectively.

The aim of the retrospective immunity provisions is to provide some legal clarity to a relevant service provider or their staff prior to the commencement of the Bill, where the restrictive practice was reasonably necessary to protect a person from harm and was the least restrictive option. It is difficult to place a time limit on these immunity provisions as any time limit would be arbitrarily imposed.


Chapter 12 Page 68

Essentially, a relevant service provider will only receive legal protection if they have applied restrictive practices consistent with the policy intent of the main scheme, which focuses on strengthening safeguards for the individual - not the service provider. In particular, the Bill provides that a relevant service provider is not criminally or civilly liable for using a restrictive practice before the commencement of the Bill if:

• they acted honestly and without negligence; and

• demonstrated the restrictive practice was necessary for safety and the least restrictive option; and

• within a reasonable time before using the restrictive practice, they assessed the adult to identify the causes of their harmful behaviour; and developed positive strategies to meet the adult’s needs; and

• they carried out monitoring in relation to use of the restrictive practices to ensure the safety of the adult.

If a service provider applied restrictive practices outside this ambit, they remain criminally and civilly liable.

16. The committee notes the Minister’s response.

Alert Digest No 06 of 2008 Mineral Resources (Peak Downs Mine) Amendment Bill 2008

Chapter 13 Page 69

13. MINERAL RESOURCES (PEAK DOWNS MINE) AMENDMENT BILL 2008

Background

1. The Honourable Geoff Wilson MP, Minister for Mines and Energy, introduced the bill into the Legislative Assembly on 15 April 2008. The committee notes that this bill was passed, with amendments, on 1 May 2008.


Is the legislation constitutionally valid?

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

♦ clause 3

4. Clause 3 of the bill (a new part 18A of the Mineral Resources Act) is intended to resolve matters regarding differing ownership of mining tenure and land tenure for the one area of land and would affect the outcome of current legal proceedings.

5. The committee referred to Parliament the question whether clause 3 has sufficient regard to the institution of Parliament.

6. The Minister’s response was: I appreciate the opportunity to provide a response to the Committee’s comments on the Bill. I have also had the benefit of considering the submissions made to the Committee by Mr Christopher Wallin, Managing Director, Cherwell Creek Coal Pty Ltd (Cherwell Creek) and Mr Ross Willims, Vice President Commercial Relations Queensland, BHP Billiton Mitsubishi Alliance (BMA).

I note your comments about the effect of the Bill on litigation before the Court. Two of my predecessors’ decisions about the renewal of exploration permit for coal 545 (EPC545) have been the subject of judicial review proceedings. One of those proceedings is still on foot. However, it should be noted that this litigation has been on hold for several years and that it relates to an earlier application by Cherwell Creek for the renewal of EPC 545. The two outstanding applications for the renewal of EPC 545 are not the subject of litigation.

I would like to provide some clarification on several issues raised in Mr Wallin’s submissions–

(a) Cherwell Creek is not being deprived of a number of mining tenures. It holds only one granted mining tenure in the area in dispute – EPC 545;

(b) Mr James Bell QC, who attempted to mediate the dispute between Cherwell Creek and BMA at the request of the Department of Mines and Energy, has advised the Department that “all persons involved in the mediation acted bona fide and made reasonable efforts in an attempt to reach a compromise”;

Alert Digest No 06 of 2008 Mineral Resources (Peak Downs Mine) Amendment Bill 2008

Chapter 13 Page 70

(c) The proposed legislation will give the Central Queensland Coal Associates priority over all other parties to apply for mining leases over the prescribed lands within the prescribed periods;

(d) If the Central Queensland Coal Associates fail to apply for mining leases, or do not apply for mining leases over some of the prescribed land, the land will be released at the end of the prescribed period and will be available for application by anyone with an interest in it;

(e) The Central Queensland Coal Associates will be required to comply with the requirements of the Mineral Resources Act 1989 when lodging any applications for mining leases. Further, having lodged their mining lease applications, they will be treated like every other mining lease applicant and the normal process for the granting of a mining lease will be adhered to; and

(f) The rights, powers and responsibilities of the Environmental Protection Agency, the Land Court, the Minister with portfolio responsibility for Mines and the Governor in Council will not be diminished or impeded in any way as a result of this legislation.

Thank you for bringing this matter to my attention and I trust this information is of assistance.

7. The committee note’s the Minister’s comments.

8. On 29 April 2008, the committee received a submission from Mr Ross Willims, Vice President Commercial Relations Queensland, BHP Billiton Mitsubishi Alliance. The committee has included a copy of the submission in appendix A to this Alert Digest.

9. The committee thanks BHP Billiton Mitsubishi Alliance for the submission regarding the bill.

10. The committee notes that matters addressed in the submission were addressed in Alert Digest No 05 of 2008.

Alert Digest No 06 of 2008 National Gas (Queensland) Bill 2008

Chapter 14 Page 71

14. NATIONAL GAS (QUEENSLAND) BILL 2008

Background

1. The Honourable Geoff Wilson MP, Minister for Mines and Energy, introduced this bill into the Legislative Assembly on 15 April 2008. The committee notes that this bill was passed, without amendments, on 1 May 2008.


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

3. Section 4(2)(b) of the Legislative Standards Act requires legislation to have sufficient regard to the institution of Parliament and section 23(i) requires that Explanatory Notes identify a bill which is substantially uniform or complementary with legislation of the Commonwealth or another State and provide a brief explanation of the legislative scheme.

4. The committee referred to Parliament the question whether the bill has sufficient regard to the institution of Parliament.

5. The Minister’s response was: The Bill applies national scheme legislation for the regulation of access to gas transmission and distribution pipelines. The scheme is a continuation of the approach taken in the Gas Pipelines Access (Queensland) Act 1998 which the Bill replaces as part of a national scheme in Queensland.

The Queensland Government endorsed a national scheme approach by entering into the Australian Energy Market Agreement (AEMA) on 30 June 2004. The AEMA was made between all Australian jurisdictions to advance a process of national energy market reform.

It goes without saying that Parliament is supreme and that Parliament can make the laws that it considers are in the best interests of Queenslanders.

In this case, it is considered that it is in the best interests of Queenslanders to have a nationally consistent approach for access to gas transmission and distribution pipelines. It is ultimately a matter for Parliament whether it accepts this view.

It is noted that:

• the regulation-making powers in the Bill provide for necessary state-specific variations, and it is expected that there will be some state-specific variations for particular transmission pipelines; and

• Queensland has had full opportunity to participate with other jurisdictions in debate on the content of the National Gas Law, and the Law represents a jointly agreed approach flowing from that debate.


Chapter 14 Page 72



♦ clause 18

7. The committee noted that proposed clause 18 confers transitional regulation-making power. However, the committee also notes that the bill specifies that transitional regulations are made only in limited circumstances, and regulations made under the power have a life of only three years.

8. The committee further noted that the regulation-making power does not provide for its own expiry, contrary to the committee’s stated position (that such a delegation of power can be justified in transitional situations provided there is a 12 month sunset clause which applies to both the transitional regulation making power and the regulations made thereunder).

9. The committee referred to Parliament the question of whether proposed clause 18 is, in the circumstances, appropriate.

10. The Minister’s response was: The proposed clause provides for a regulation-making power as a transitional arrangement for three particular Queensland transmission pipelines. The transitional arrangements are designed to preserve the intent of existing pricing arrangements between the Queensland Government and the pipeline owners. These arrangements were agreed prior to the introduction of the current national scheme and the Gas Code, and were protected by derogations to the tariff provisions of the Code under section 58 of the Gas Pipelines Access (Queensland) Act 1998.

With the National Gas Law soon to be enacted, Queensland has sought to preserve the arrangements, to the extent that is possible, in the new gas access regime.

In order to establish a single national gas access regime, jurisdictions have agreed to seek to have their individual regimes (i.e. the national scheme as adopted by them) declared as an effective regime under the Trade Practices Act 1974 (Cwth) (TPA). Failure to do so raises the possibility of an alternative regulatory process and forum, through the default third party access regime established under Part IIIA of the TPA.

Queensland was unable to obtain recognition of its current access regime (the current national scheme gas access regime, plus the derogations) as the National Competition Council advised the relevant Commonwealth Minister that the derogations meant the regime was not consistent with the Competition Principles Agreement.

Accordingly, Queensland has sought to re-negotiate the terms of the arrangements with the relevant pipeline owners, having regard to consultations with the National Competition Council, to develop arrangements in respect of the three pipelines which preserve some of their existing entitlements but are likely to permit the certification of the new Queensland gas access regime as an effective regime.

It is proposed that the new arrangements as negotiated will be implemented through regulations to be made under the power specified in section 18 of the Bill. There is a danger that re-negotiated arrangements in respect of the three pipelines may be found not to satisfy the principles in the Competition Principles Agreement. This can only be established after a formal application following enactment of the Bill. The regulation-making power has been created so that there is flexibility to further negotiate and amend the arrangements for the derogated pipelines until they satisfy the Competition Principles Agreement.


Chapter 14 Page 73

The section does not provide for its own expiry because it is uncertain how long the certification application process will take and it will be necessary to retain the power to make an amended or replacement regulation. Any regulation made under the section will expire three years after its making, which will require the government to review and renew the regulation or enact it into legislation within that period. Again, it is uncertain how long the certification process may take – the last one took over five years and it is necessary to preserve the transitional arrangements under the regulation until certification has been gained.

The intention is that once a set of arrangements has been agreed to satisfy the Competition Principles Agreement (by certification), it will be enacted in the National Gas (Queensland) Act 2008, and the regulation-making power will be repealed.

The effect is that existing entitlements of the affected pipeline owners will be retained to the extent possible while gaining certification of the Queensland access regime as an effective regime and affording regulatory certainty to the benefits of all pipeline owners and developers and access seekers in Queensland.


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

♦ clause 18

12. The committee identified, for the consideration of Parliament, the exclusion by clause 18 of the obligation to accord natural justice.

13. The Minister’s response was: Clause 18 provides power to make regulations for a number of different arrangements to take the place of the existing derogations. Some of the potential arrangements listed in clause 18 change rights that would be available to access seekers under the National Gas Law. For example, the regulations have the potential to remove the rights of access seekers to apply for ‘coverage’ of pipelines or to apply for a pipeline to be the subject of a full access regulation. Where a pipeline is covered, it must meet the regulatory obligations under the National Gas Law, and a pipeline subject to full access regulation must have its tariffs approved by the regulator.

It is noted however, that the arrangements that might be made under a regulation under clause 18 are in general more limited, or have a shorter life, than the derogations under the existing access regime. Clause 18 specifically limits the power to the three affected pipelines, the duration of the existing derogations and specific types of provisions as to transitional regulatory arrangements.

Clause 18 provides for the potential removal of the rights of access seekers in order to preserve aspects of the current derogated arrangements while modifying them into a form that satisfies the Competition Principles Agreement. For example, it may be that the modified arrangements provide for certain pipelines to be uncovered with a provision excluding an application for coverage of that pipeline for a certain period of time. Excluding parties from applying for coverage for a period of time reduces their rights but, against this, it may reflect an arrangement that they are prepared to accept in place of the existing, longer, tariff derogation arrangements.

Again, the possible reduction of rights is proposed in order to deliver an effective access regime and regulatory certainty for the gas industry in Queensland.


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

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

♦ clause 14

15. The committee sought further information from the Minister regarding the legislative objectives justifying clause 14.

16. The Minister’s response was: Clause 14 seeks to ensure that legal proceedings in respect of cross-boundary pipelines are to be brought in the most relevant jurisdiction.

Some distribution systems lie across jurisdictional borders. For example, parts of Tweed Heads in New South Wales are supplied by a distribution system lying predominantly in Queensland. Clause 14 seeks to specify that legal proceedings in relation to such cross- boundary distribution systems should be brought in the jurisdiction with which the pipeline is most closely connected.

Section 14 of the National Gas Law sets out the criteria for determining which jurisdiction is most closely connected with a cross-boundary distribution system. The criteria compare, for each jurisdiction, the relative numbers of customers; the amount of gas supplied; the length of pipeline network; growth prospects; and economic benefits; arising from the cross-boundary distribution network.

Once the most closely connected jurisdiction is determined, any legal proceedings must be brought in that jurisdiction. This restriction prevents parties from seeking to gain an advantage by picking a jurisdiction which may favour their case in operation or in Court proceedings.

The restriction meets the requirement in the Competition Principles Agreement that, in respect of cross-boundary pipelines, jurisdictions must provide for “a single body to resolve disputes about any aspect of access and a single forum for enforcement of access arrangements”.

17. The committee notes the Minister’s comments.

Alert Digest No 06 of 2008 Amendments to Bills

Chapter 14 Page 75

PART I - BILLS

SECTION C – AMENDMENTS TO BILLS60

(NO AMENDMENTS TO BILLS ARE REPORTED ON IN THIS ALERT DIGEST)

60 On 8 February 2007, Parliament resolved as follows:

The House confers upon the Scrutiny of Legislation Committee the function and discretion to examine and report to the House, if it so wishes, on the application of the Fundamental Legislative Principles to amendments to bills, whether or not the bill to which the amendments relate has received Royal Assent. (This resolution is identical to those passed by previous Parliaments on 7 November 2001 and 13 May 2004.)

In accordance with established practice, the committee reports on amendments to bills on the following basis:

• all proposed amendments of which prior notice has been given to the committee will be scrutinised and included in the report on the relevant bill in the Alert Digest, if time permits

• the committee will not normally attempt to scrutinise or report on amendments moved on the floor of the House, without reasonable prior notice, during debate on a bill

• the committee will ultimately scrutinise and report on all amendments, even where that cannot be done until after the bill has been passed by Parliament (or assented to), except where the amendment was defeated or the bill to which it relates was passed before the committee could report on the bill itself.

PART I - BILLS

APPENDIX

SUBMISSION AND 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 06 of 2008 Index of Subordinate Legislation about which Committee has Concluded Its Inquiries

Page 76

PART II – SUBORDINATE LEGISLATION

SECTION A – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCERNS61

Sub-Leg No. Name

Date concerns first

notified (dates are

approximate)

206 / 07 Statutory Instruments Amendment Regulation (No. 2) 2007 29/10/07

275 / 07 Justice and Other Legislation (Fees) Amendment Regulation (No.1) 2007 SL 275 of 2007

14/04/08

20 / 08 Building Fire Safety Amendment Regulation (No.1) 2008 SL 20 of 2008 14/04/08

61 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.


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PART II – SUBORDINATE LEGISLATION

SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES62 (INCLUDING LIST OF CORRESPONDENCE)

Sub-Leg No. Name

Date concerns first notified (dates are approximate)

Nil.

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

62 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.


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This concludes the Scrutiny of Legislation Committee’s 6th 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

13 May 2008

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