report 10 - annual report 1 july 1997 - 30 june 1998 · annual report 1997–1998 constitution,...

Report No. 10

Annual Report 1 July 1997 to 30 June 1998

LEGISLATIVE ASSEMBLY OF QUEENSLAND

Scrutiny of Legislation Committee

Annual Report

1 July 1997 – 30 June 1998

October 1998

Scrutiny of Legislation Committee (48th Parliament - 2nd Session) 1

– Former Membership –

Chairperson: Mr Tony Elliott MLA, Member for Cunningham

Deputy Chairperson: Mr Jon Sullivan MLA, Member for Caboolture

Other Members: Mrs Liz Cunningham MLA, Member for Gladstone

Mr Paul Lucas MLA, Member for Lytton

Mr Neil Roberts MLA, Member for Nudgee

Mr Frank Tanti MLA, Member for Mundingburra

Scrutiny of Legislation Committee (49th Parliament - 1st Session) 2

– Current Membership –

Chairperson: Mrs Linda Lavarch MLA, Member for Kurwongbah

Deputy Chairperson: Mr Tony Elliott MLA, Member for Cunningham

Other Members: Mrs Liz Cunningham LA, Member for Gladstone

The Hon. Jim Fouras MLA, Member for Ashgrove

Dr John Kingston MLA, Member for Maryborough

Mr Peter Wellington MLA, Member for Nicklin

Legal Adviser To The Committee: Vacant

Committee Staff: Mr Chris Garvey, Research Director

Ms Veronica Rogers, Principal Research Officer

Ms Barbara Petrie–Repar, Senior Research Officer

Ms Maree Lane, Executive Assistant

Scrutiny of Legislation CommitteeLevel 6, Parliamentary Annexe

George StreetBrisbane QLD 4000

Phone: 07 3406 7671 Fax: 07 3406 7500Email: [email protected]

1 Dissolved at 2pm on 19 May 1998 and election held on 13 June 1998.2 Commenced on 28 July 1998 (Subordinate Legislation No. 195 of 1998).

Annual Report 1997–1998 Chair’s Foreword

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CHAIR’S FOREWORD

In performing its statutory functions during the 1997-98 financial year, the committee scrutiniseda substantial body of bills and subordinate legislation.

These included some very significant legislation, such as the Crime Commission Bill 1997 andthe Police Powers and Responsibilities Bill 1997.

On occasions during the year, the committee’s resources were fully extended as it endeavouredto scrutinise all bills on hand prior to the next Parliamentary sitting week. The committee’s taskshould be rendered easier by a recent amendment to Standing Orders which (for the currentParliamentary session) has extended from 6 to 13 days the minimum period before debate onbills can resume.

On the other hand, the number of bills scrutinised in the latter part of the financial year wasrelatively small, due to the State election and the consequent hiatus in Parliamentary sittings.

Following the June 13 election and the reconvening of Parliament on 28 July, I was appointedchair of the new Scrutiny of Legislation Committee constituted for the 49th Parliament.

During the financial year to which this report relates the committee was ably chaired by thecurrent deputy chair, Mr Tony Elliott, MLA. I believe members of the committee will join with mein expressing appreciation for the work performed by Mr Elliott during this period, and in alsoacknowledging the long and dedicated service to the committee and its predecessor of formerchair and deputy chair Mr Jon Sullivan, MLA.

Finally, I thank the committee staff and legal adviser, whose work was essential to thecommittee’s operations during financial year 1997-98.

Linda Lavarch, MLAChair

19 October 1998

Annual Report 1997–1998 Table of Contents

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TABLE OF CONTENTS

CHAIR’S FOREWORD..................................................................................................................... I

1. CONSTITUTION, ROLE AND AREA OF RESPONSIBILITY....................................................1CONSTITUTION AND ROLE OF THE SCRUTINY OF LEGISLATION COMMITTEE ....................................1AREA OF RESPONSIBILITY ..............................................................................................................1FUNDAMENTAL LEGISLATIVE PRINCIPLES........................................................................................2SUFFICIENT REGARD TO FUNDAMENTAL LEGISLATIVE PRINCIPLES...................................................2

2. SCRUTINY OF BILLS .................................................................................................................3OVERVIEW.....................................................................................................................................3BILLS SCRUTINISED AND REPORTED ON DURING 1997 - 1998 FINANCIAL YEAR...............................4ISSUES MOST FREQUENTLY RAISED IN THE SCRUTINY OF BILLS.......................................................4

Rights and liberties of individuals ........................................................................................6Clear and precise drafting ...................................................................................................6Retrospective legislation......................................................................................................6

IMPACT OF THE COMMITTEE REPORTS...........................................................................................7MINISTERIAL RESPONSES TO COMMITTEE REPORTS ON BILLS.......................................................8SUMMARY ON THE COMMITTEE’S SCRUTINY OF BILLS ....................................................................8

3. SCRUTINY OF SUBORDINATE LEGISLATION AND MONITORING ROLE...........................9OVERVIEW.....................................................................................................................................9SUBORDINATE LEGISLATION SCRUTINISED AND REPORTED ON IN THE 1997 - 1998 FINANCIAL YEAR9ISSUES MOST FREQUENTLY RAISED IN THE SCRUTINY OF SUBORDINATE LEGISLATION...................10

Subordinate legislation which amends Acts of Parliament...............................................11Subordinate legislation which may contain matter inappropriate to subordinate legislation11Subordinate legislation which contains retrospective provisions .....................................12

IMPACT OF THE COMMITTEE’S ROLE IN RELATION TO SUBORDINATE LEGISLATION .........................12

4. COMMITTEE BUSINESS..........................................................................................................14REPORTS.....................................................................................................................................14

Government Owned Corporations (QGC1–3 and AEC) Regulation 1997......................14Justice Legislation (Variation of Fees) Regulation 1997 ..................................................14Report on The Scrutiny of Bills Within a Restrictive Timeframe.......................................14Report on the Environmental Protection (Air) Policy 1997 and Environmental ProtectionRegulation 1998 ................................................................................................................15Report on The operation of the regulatory impact statement process under part 5 of theStatutory Instruments Act 1992.........................................................................................15

MEETINGS AND HEARINGS............................................................................................................16TRAVEL........................................................................................................................................16

5. ADMINISTRATIVE MATTERS..................................................................................................18BUDGET AND EXPENDITURE OF THE COMMITTEE ..........................................................................18STAFFING OF THE COMMITTEE .....................................................................................................19

Background........................................................................................................................19Changes to committee staff...............................................................................................19

Annual Report 1997–1998 Table of Contents

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Legal Advisers to the committee.......................................................................................19THE SCRUTINY OF BILLS AND SUBORDINATE LEGISLATION.............................................................20

APPENDIX A – TERMS OF REFERENCE...................................................................................21

APPENDIX B – MEANING OF "FUNDAMENTAL LEGISLATIVE PRINCIPLES"......................22

APPENDIX C – MEETING ATTENDANCE RECORD .................................................................23

APPENDIX D – COMMITTEE REPORTS PREVIOUSLY TABLED ...........................................24

APPENDIX E – ENDNOTES.........................................................................................................26

Annual Report 1997–1998 Constitution, Role and Area of Responsibility

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1. CONSTITUTION, ROLE AND AREA OF RESPONSIBILITY

Constitution and role of the Scrutiny of Legislation Committee

1.1. The Scrutiny of Legislation Committee was established by the ParliamentaryCommittees Act 1995 on 15 August 1995. This committee replaced the Committee ofSubordinate Legislation which was first constituted on 26 November 1975.

1.2. The main role of a statutory committee, pursuant to s.8 of the Parliamentary CommitteesAct, is to deal with issues within its area of responsibility and to report to Parliamentwhen necessary.

Area of responsibility

1.3. Section 22 of the Parliamentary Committees Act provides that:

(1) The Scrutiny of Legislation Committee’s area of responsibility is toconsider—

(a) the application of fundamental legislative principles3 to particularBills and particular subordinate legislation; and

(b) the lawfulness of particular subordinate legislation;

by examining all Bills and subordinate legislation.4

(2) The committee’s area of responsibility includes monitoring generally theoperation 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 subordinatelegislation)

• part 7 (Staged automatic expiry of subordinate legislation)

• part 8 (Forms)

3 “Fundamental legislative principles” are the principles relating to legislation that underlie a parliamentary

democracy based on the rule of law (Legislative Standards Act, s.4(1)). The principles include requiring thatlegislation has sufficient regard to rights and liberties of individuals and the institution of Parliament.

4 A member of the Legislative Assembly, including any member of the Scrutiny of Legislation Committee, maygive notice of a disallowance motion under the Statutory Instruments Act, s. 50.

Annual Report 1997–1998 Constitution, Role and Area of Responsibility

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• part 10 (Transitional).

Fundamental legislative principles

1.4. The Legislative Standards Act 1992 defines “fundamental legislative principles” as theprinciples relating to legislation that underlie a parliamentary democracy based on therule of law. The principles include requiring that legislation have sufficient regard to—

(a) rights and liberties of individuals; and

(b) the institution of Parliament.5

1.5. Section 4 of the Act sets out examples of what to look for when deciding whetherlegislation has sufficient regard to the rights and liberties of individuals and the institutionof Parliament.6 These include whether the legislation, for example:

• makes rights and liberties, or obligations, dependent on administrative poweronly if the power is sufficiently defined and subject to appropriate review;

• is consistent with the principles of natural justice;

• reverses the onus of proof in criminal proceedings without adequatejustifications; and

• is unambiguous and drafted in a sufficiently clear and precise way.

1.6. Section 4 of the Legislative Standards Act does not contain an exhaustive list of matterswhich may be described as fundamental legislative principles, neither does it enumerateall matters coming within those principles mentioned. This approach affords thecommittee a substantial degree of flexibility, allowing it to report on matters that are notexpressly set out in the Act but still infringe the rights and liberties of individuals or theinstitution of Parliament. For example, the committee has reported to Parliament on theabrogation of the right to silence, the protection of privacy and adherence to rightsrecognised in international treaties and conventions, despite the fact that these issuesare not specifically mentioned in the Legislative Standards Act.

Sufficient regard to fundamental legislative principles

1.7. The Legislative Standards Act does not require strict compliance with the fundamentallegislative principles set out in the Act, but instead sets a threshold test requiringlegislation to have “sufficient regard” to them.

1.8. The committee therefore carefully assesses each perceived breach of fundamentallegislative principles to consider whether it is adequately explained and justified. Thecommittee reports concerns about potential breaches to Parliament, leaving the questionof whether the legislation has had “sufficient regard” to the fundamental legislativeprinciple to Parliament to decide.

5 Legislative Standards Act, s. 4(2).6 Section 4 of the Legislative Standards Act is reproduced as Appendix B.

Annual Report 1997–1998 Matters in relation to bills

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2. SCRUTINY OF BILLS

Overview

2.1. The aim of this chapter is to provide information on how the committee has dischargedits responsibility of scrutinising bills and examining explanatory notes to bills and toprovide indicators of the committee’s performance in these areas.

2.2. Under s.22(1) of the Parliamentary Committees Act, the committee’s primaryresponsibility is to consider the application of fundamental legislative principles toparticular bills.

2.3. During the 1997-1998 financial year, the committee discharged its responsibility withrespect to bills by scrutinising all bills introduced into the Legislative Assembly underStanding Order 241 (which required debate on the bill to be adjourned for a period of atleast six whole calendar days7). The committee also attempted to scrutinise all urgentbills (which may be passed on the same day or within a few days of them beingintroduced8) if there was enough time to do so. The committee then reported toParliament any concerns that it may have had about the application of fundamentallegislative principles to the bills. These reports are called “alert digests” and thecommittee’s chairperson usually tabled a digest (dealing with bills introduced during theprevious sitting week) on the first day of each sitting week. The committee invitedministers to respond to comments made in its digests. Those responses were reportedon and reproduced in full in the next digest.

2.4. At times the time constraints within which the committee operated made it very difficultfor it to carry out its statutory responsibilities to Parliament. This was particularly soduring consecutive sitting weeks and when a substantial number of bills wereintroduced. The problem was caused by the fact that debate on bills introduced duringone sitting week could resume in the week immediately following (within 6 calendardays, in accordance with Standing Order 241).

2.5. To ensure that it had tabled its report before debate on bills introduced in the first weekresumed in the second of two consecutive sitting weeks, the committee had to scrutiniseand report on the bills introduced, within a few days. Bills can be introduced intoParliament on any sitting day, between Tuesday and Friday. In consecutive sittingweeks committee staff examined these bills, researched issues arising, obtainedinformation from departments, and assisted in the preparation of the chairperson’s draftreport which was normally distributed to the members of the committee before thecommittee met on the Monday of the second week. At the meeting, the committeeconsidered and adopted the draft alert digest, the adopted digest was printed overnightand tabled in Parliament on the sitting day following the committee meeting.9

7 Standing Order 241(d).8 Urgent bills are passed under Standing Order 273.9 The committee aimed to regularly table its alert digests on Tuesdays to cover the occasions when bills were

introduced on the Tuesday of the first sitting week and debate could resume on those bills on the Tuesday ofthe next week.


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2.6. To assist the committee during the 1997 - 1998 financial year, the then Leader ofGovernment Business in the House, Mr Tony Fitzgerald, MLA provided the committeewith information, to assist it in prioritising its work and arranging for additional assistance,where necessary, during consecutive sitting weeks. Despite this help, the committeehad significant concerns about its ability to properly carry out its responsibilities within thetight schedule; the committee therefore compiled a full report titled The Scrutiny of BillsWithin a Restrictive Timeframe10 setting out its concerns.

2.7. Since the end of the 1997-1998 financial year, Standing Order 241 has been amended11

to provide that debate on bills must be adjourned for at least 13 whole calendar days.This will ensure that legislation introduced in one sitting week cannot be passed in thenext calendar week. The new provision will assist the committee, particularly duringconsecutive sitting weeks, to discharge its responsibilities more effectively.

Bills scrutinised and reported on during 1997 - 1998 financial year

2.8. 96 bills were tabled and scrutinised by the committee during the 1997 - 1998 financialyear. The committee reported to Parliament on approximately 73% of bills tabled in 12alert digests.

2.9. Of the 96 bills tabled, 4 were urgent bills which were passed within 6 days. Thecommittee did not report on these urgent bills, as exposure drafts had not been tabledpreviously, allowing insufficient time for scrutiny and report.

Issues most frequently raised in the scrutiny of bills

2.10. The table below sets out statistics on the issues raised by the committee in its reports toParliament on bills, in descending order of frequency. In total, the committee queried orcommented on 254 issues in the bills reported on in its digests.

STATISTICS ON ISSUES WITHIN THE COMMITTEE’S AREA OF RESPONSIBILITY RAISEDIN ALERT DIGESTS

1 JULY 1997 TO 30 JUNE 1998

ISSUE* No. ofqueries

%12 ofqueries

Rights and liberties of individualsi 49 19

Clear and precise draftingii 29 11.5

Retrospective legislationiii 27 11

Sufficiently defined administrative power subject to appropriatereviewiv

21 8

10 Tabled on 18 March 1998.11 By Sessional Order adopted on 30 July 199812 Approximate figures only.


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STATISTICS ON ISSUES WITHIN THE COMMITTEE’S AREA OF RESPONSIBILITY RAISEDIN ALERT DIGESTS

1 JULY 1997 TO 30 JUNE 1998


%12 ofqueries

Explanatory notes v 18 7

Powers of entry, search and seizurevi 14 5.5

Privacyvii 14 5.5

Reversal of the onus of proofviii 14 5.5

Natural justiceix 12 5

Delegation of legislative powerx 10 4

Institution of Parliamentxi 8 3

Other (for example: comments on the regulatory impact statementsguidelines; staged automatic expiry; and compulsory acquisition ofproperty.)xii

8 3

Parliamentary scrutiny of delegated legislative powerxiii 6 2.5

Aboriginal tradition and Island customxiv 5 2

“Henry VIII clauses”xv 5 2

Immunity from proceedings without adequate justificationxvi 5 2

Self-incriminationxvii 5 2

Delegation of administrative powerxviii 4 1.5

*These issues relate to the committee’s terms of reference in Appendix A and to the fundamentallegislative principles in Appendix B. Each issue is further described in the endnotes to this report.

2.11. It may be useful to review the matters addressed in the three most reported categories.13

The three topics on which the committee reported most frequently remained the samethis year as in the 1996 - 1997 financial year:

• the rights and liberties of individuals;

• clear and precise drafting and

• retrospective legislation.

13 In the 1996 – 1997 financial year, the committee’s most frequently considered principle was rights and liberties

of individuals (18% of queries); followed by queries on retrospective legislation (13%) and then clear andprecise drafting (11.5%).


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♦ ♦ Rights and liberties of individuals

2.12. Issues raised by the committee under the heading Does the legislation have sufficientregard to the rights and liberties of individuals? included many which are not specificallymentioned in s.4 of the Legislative Standards Act. As previously mentioned, the list ins.4 is not an exhaustive list and the committee has considered a range of other “rightsand liberties” issues under this heading, for example:

• ouster or privative clauses which restrict the rights of individuals to gain access tothe courts;14

• an absence of notification of appeal rights;15

• disclosure of private confidential information;16

• differential treatment of individuals (prisoners);17

• exercise of coercive powers;18

• intrusive powers to detain, search, question and gather evidence;19

• power to intercept private communications;20

• power to discharge firearms at escaping prisoners and assistants.21

♦ ♦ Clear and precise drafting

2.13. The issues raised by the committee under this category are diverse. Most queries,however, arose from the committee’s expectations that legislation should:

• be user friendly and accessible so that ordinary Queenslanders can gain anunderstanding of the laws relating to a particular matter without having to refer tomultiple Acts of Parliament.22

• contain phrases that are imprecisely drafted;23 and

• contain coherent provisions, addressing foreseeable aspects.24

♦ ♦ Retrospective legislation

14 Lotteries Bill 1997, Alert Digest No. 7 of 1997.15 Natural Resources Bill 1997, Alert Digest No. 7 of 1997.16 Weapons and Other Legislation Amendment Bill 1997, Alert Digest No. 9 of 1997.17 Criminal Justice Legislation Amendment Bill 1997, Alert Digest No. 11 of 1997.18 Crime Commission Bill 1997, Alert Digest No. 12 of 1997.19 Police Powers and Responsibilities Bill 1997, Alert Digest No. 12 of 1997.20 Telecommunications (Interception) Bill 1998, Alert Digest No. 2 of 1998.21 Corrective Services Amendment Bill 1998, Alert Digest No. 3 of 1998.22 For example, Local Government Legislation Amendment Bill (No.3) 1998, Alert Digest No. 1 of 1998.23 For example, Government Owned Corporations and Other Legislation Amendment Bill 1998, Alert Digest No. 2

of 1998.24 For example, Vocational Education and Training Bill 1998, Alert Digest No. 3 of 1998.


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2.14. As the committee has done since its establishment, the committee has continued tobring all provisions in bills which have effect retrospectively, to the attention ofParliament—even if it was not concerned about the implications of the provisions. Thecommittee has consistently examined retrospective provisions to ensure that they do notadversely affect rights and liberties, or impose obligations, retrospectively.

2.15. Approximately 41% of the retrospective provisions reported on involved curativemeasures which did not concern the committee and around 22% of these provisionswere not curative but did not disadvantage individuals affected. The category ofretrospective provisions that most concerned the committee were those that adverselyaffected individuals or had the potential to do so (some 37% of retrospective provisionsqueried). In these cases the committee particularly looked at whether individuals hadlegitimate expectations under the existing law and could reasonably expect to rely on it.The committee most often referred to Parliament for consideration the question ofwhether any adverse retrospective effect imposed on individuals by the legislation wasundue.

Impact of the Committee Reports

2.16. The principal role of the committee’s Alert Digest is to inform Parliament of any issuesarising with respect to the fundamental legislative principles in bills introduced into theHouse. In this way, the committee seeks to enhance debate in the Legislative Assemblyon issues arising regarding the rights and liberties of individuals and the institution ofParliament.

2.17. The committee cannot directly oppose an objectionable provision in a bill in the way thatit can, for example, ask Parliament to support a motion to disallow a provision in asubordinate instrument. Instead, the committee must appeal to the relevant minister toaccommodate its views or convince members of Parliament that a change in thelegislation is justified and necessary.

2.18. During the 1997 - 1998 financial year, the committee has had an appreciable influenceon amendments made to bills during their passage through the Legislative Assembly ascan be seen from the table below.25

AMENDMENTS TO BILLS, AND THE PERCENTAGE26 OF AMENDMENTS THAT WERERELATED TO COMMENTS MADE BY THE COMMITTEE

1 JULY 1997 TO 30 JUNE 1998

% of all amendments moved in the Legislative Assembly that relate tocommittee recommendations27

11.5%

% of amendments agreed to that relate to committee’s 14%

25 These statistics are based on amendments to bills passed in the 1997 - 1998 financial year. Based on the

committee’s records, a total of 540 amendments were moved and 396 adopted during that period.26 Approximate figures only.27 Of the 540 amendments moved, 62 related directly to the committee’s recommendations. Therefore 11.5% of

the amendments moved in the Legislative Assembly were related to matters that the committee discussed inits alert digests.


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recommendations28

% of amendments moved in the Legislative that related to committeerecommendations and were agreed to29

88.70%

Ministerial Responses to Committee Reports on Bills

2.19. Unlike reports from other committees of the Queensland Parliament, ministers are notrequired by statute to respond to recommendations in reports of the Scrutiny ofLegislation Committee.30 However, ministers have been very supportive of thecommittee’s work. This is reflected in the following statistics.

2.20. Of the total number of queries raised or concerns expressed by the committee:

• ministers provided information to address the issues raised in 67% of cases;

• ministers provided information which overcame committee concerns on 17% ofoccasions;

• amendments were introduced to overcome the concerns raised in 11% ofinstances;

• only 5% of the committee’s concerns reported to the Legislative Assembly werenot responded to at all.

Summary on the Committee’s Scrutiny of Bills

2.21. While it could be said that the statistics provided above are indicative of the success ofthe committee, it would be more accurate to say that they reflect the level of support forthe work of the committee from members of the Executive. The committee depends on,and has been very appreciative of, this high level of support and it hopes that it willcontinue to enjoy a good working relationship with ministers in future years.

2.22. The committee also thanks departmental and ministerial staff for providing briefings andinformation to the committee and its staff on bills throughout this financial year. Manyissues which could have given rise to concern have been overcome at an early stagewith the help of these officers.

28 Of the 396 amendments adopted, 55 related directly to the committee’s recommendations. This represents a

direct influence on 14% of amendments adopted.29 62 of the committee’s recommendations were moved in the Legislative Assembly, and 55 of these were

adopted. Therefore 88.7% of the committee recommendations debated during the committee stage of a billwere adopted.

30 Section 24 of the Parliamentary Committees Act requires ministerial responses to committee reports undercertain circumstances.

Annual Report 1997–1998 Matters in relation to subordinate legislation

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3. SCRUTINY OF SUBORDINATE LEGISLATION AND MONITORING ROLE

Overview

3.1. This chapter provides information about the committee’s discharge of the scrutiny andmonitoring functions in relation to subordinate legislation in the 1997 - 1998 financialyear.

3.2. The committee examines subordinate legislation and carries out its monitoring functionsin accordance with s. 22 of the Parliamentary Committees Act. Where the committeehas concerns about any matters within its terms of reference, it corresponds with theminister responsible for the particular subordinate legislation. If the matter is notresolved, the committee will consider giving notice of a motion to disallow an instrumentand/or reporting its concerns to Parliament.

3.3. This chapter highlights a number of significant issues that the committee examinedduring the period from 1 July 1997 to 30 June 1998. It also contains statisticalinformation detailing the issues raised by the committee during this period and themanner in which these matters were addressed.

Subordinate legislation scrutinised and reported on in the 1997 - 1998 financial year

3.4. In the 1997 - 1998 financial year, there were 487 pieces of subordinate legislationpublished in the Queensland Subordinate Legislation Series. Potential problems wereidentified with respect to 22 such instruments; some instruments, however, wereinconsistent with more than one provision of s. 4 of the Legislative Standards Act.31 Inaccordance with its usual practice, the committee entered into correspondence with therelevant ministers concerning its queries in relation to subordinate legislation. Theministers responded in almost all cases by providing additional information orundertaking32 to address the committee’s concerns.

3.5. In accordance with its practice, the committee only reports to the Legislative Assemblyon subordinate legislation if the committee considers it necessary to facilitateParliamentary debate on the legislation. During the 1997 - 1998 financial year, thecommittee tabled 3 reports in the Legislative Assembly in relation to the followingregulations:

• Government Owned Corporations (QGC1-3 and AEC) Regulation 199733

• Justice Legislation (Variation of Fees) Regulation 199734

• Environmental Protection (Air) Policy 1997 and Environmental ProtectionRegulation 1998.35

31 This suggests that the overall standard of subordinate legislation has improved since the 1996 - 1997 financial

year.32 It has been the committee’s practice to closely monitor the fulfilment of the proposed changes promised in the

undertakings.33 Tabled on 8 July 1997.34 Tabled on 17 March 1998.


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Issues most frequently raised in the scrutiny of subordinate legislation

3.6. The table below sets out statistics on the issues raised by the committee in relation tosubordinate legislation, in descending order of frequency.

STATISTICS ON ISSUES RAISED WITHIN THE COMMITTEE’S TERMS OF REFERENCE

1 JULY 1997 TO 30 JUNE 1998


%36 ofqueries

Subordinate legislation amending principal legislationxix 7 23.3

Issues in relation to regulatory impact statement requirementsxx 5 16.7

Matter appropriate to subordinate legislationxxi 4 13.3

Subordinate legislation containing retrospective provisionsxxii 3 10

Insufficient regard to rights and liberties of individuals (general) xxiii 2 6.7

Subordinate legislation containing powers that are insufficiently definedand/or are not subject to appropriate review xxiv

2 6.7

Explanatory notesxxv 2 6.7

Clear and precise draftingxxvi 2 6.7

Legislation made beyond the powers conferred by the authorising lawxxvii 1 3.3

Reversal of onus of proofxxviii 1 3.3

Aboriginal tradition and Island customxxix 1 3.3

*These issues relate to the committee’s terms of reference in Appendix A and to the fundamentallegislative principles in Appendix B. Each issue is further described in the endnotes to this report.

3.7. Following is a brief review of the three categories37 most frequently queried following thescrutiny of subordinate legislation:

35 Tabled on 21 April 1998.36 Approximate figures only.37 In the 1996 – 1997 financial year, the committee’s most frequently considered principle was compliance with

the statutory guidelines on RISs (around 38%); rights and liberties of individuals (around 18%); followed byqueries on subordinate legislation amending principal legislation (9%) and then subordinate legislationcontaining powers that are insufficiently defined and/or are not subject to appropriate review (around 9% ofqueries). Issues concerning compliance with the RIS guidelines were also frequently raised in the 1997 - 1998financial year. Since the committee has compiled a full report on The operation of the RIS process under part5 of the Statutory Instruments Act 1992 (tabled on 23 April 1998 - an erratum was tabled on 30 April 1998),the issues will not be discussed in this chapter.


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• subordinate legislation which amends Acts of Parliament (pursuant to “Henry VIIIclauses”);

• subordinate legislation which may contain matter inappropriate to subordinatelegislation; and

• subordinate legislation which contains retrospective provisions.

♦ ♦ Subordinate legislation which amends Acts of Parliament

3.8. The committee has consistently expressed the view that a subordinate instrument thatamends an Act, whether it be the body of the Act or a schedule to the Act, isinconsistent with the fundamental legislative principle requiring that subordinatelegislation has sufficient regard to the institution of Parliament. The committee’s mainconcern in this area during the financial year 1997 - 1998 related to severalinstruments38 made pursuant to ss. 57B and 62(2) of the Government OwnedCorporations Act 1993 (the authorising provisions) which permit subordinate legislationto prescribe necessary changes to the application of certain sections of that Act. Thecommittee considered the authorising provisions to be “Henry VIII clauses” (clauses inan Act of Parliament that permit the text or effect of the Act to be amended by meansother than another Act of Parliament). The committee’s long held view is thatsubordinate legislation amending the text or effect of a provision in principal legislation isinconsistent with s.4(5)(d) of the Legislative Standards Act which expressly requiressubordinate legislation to amend statutory instruments only.

3.9. Further information on legislation made under the authority of “Henry VIII clauses” canbe found in the committee’s report on The Use of “Henry VIII clauses” in QueenslandLegislation39 and its report on the Government Owned Corporations (QGC1-3 and AEC)Regulation 1997.40

♦ ♦ Subordinate legislation which may contain matter inappropriate to subordinatelegislation

3.10. Section 4(5)(c) of the Legislative Standards Act provides that subordinate legislationshould contain only matter appropriate to subordinate legislation. What is appropriatedepends on the nature of a provision in question. The committee’s general approach isto consider whether a subordinate instrument makes provision for any matters whichshould preferably be dealt with by Parliament.

3.11. By way of example, in relation to the Lotteries Regulation 1997 which was madepursuant to s. 94(2) of the Lotteries Act 1997, the committee expressed concern abouts. 94(2) of that Act, which effectively permits the practice of taxation by subordinatelegislation. Under s. 94(2), the lottery tax is to be calculated and paid in accordancewith a regulation. The regulation made under that section makes provision for themanner in which the monthly lottery tax is to be calculated and sets the rates of the taxpayable. In the committee’s view, only Parliament should levy taxes; taxation is a matterfor primary legislation and taxing power is therefore inappropriate for delegation.

38 For example, Government Owned Corporations (Queensland Corrections) Regulation 1997, Government

Owned Corporations (QGC1-3 and AEC) Regulation 1997, Government Owned Corporations (QTSCRestructure—Stage 1) Regulation 1997.

39 Tabled on 28 January 1997.40 Tabled on 8 July 1997.


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However, where there are overwhelming justifications41 for subordinate legislation toprescribe the rate of levy, principal legislation should prescribe either the maximum rateof charge or a method of calculating such a maximum rate.42

♦ ♦ Subordinate legislation which contains retrospective provisions

3.12. Law makers need to be particularly vigilant in considering legislation that will haveretrospective application. Under s. 4(3)(g) of the Legislative Standards Act, the questionof whether legislation has sufficient regard to the rights and liberties of individualsdepends on whether it adversely affects rights and liberties, or imposes obligations,retrospectively. In the context of subordinate legislation, s. 34 of the StatutoryInstruments Act only permits a beneficial provision of a statutory instrument to be givenretrospective operation. A beneficial provision is by definition a provision that does notoperate to the disadvantage of a person (other than the State, a State authority or alocal government) by decreasing the person’s rights or imposing liabilities on theperson.43

3.13. The committee always takes care when examining legislation that could have effectretrospectively, to evaluate whether any adverse effects on rights and liberties, orobligations imposed, are undue. In making its assessment, the committee generally hasregard to the following factors:

• whether the retrospective application is beneficial to persons other than thegovernment; and

• whether individuals have relied on the legislation and have legitimateexpectations under the legislation prior to the retrospective clause commencing.

The committee examines each retrospective provision on a case by case basis.

Impact of the committee’s role in relation to subordinate legislation

3.14. The committee believes that it plays a vital part in the scrutiny of legislation andmonitoring process. This process seeks to ensure that subordinate legislation is lawfuland has sufficient regard to the fundamental legislative principles contained in theLegislative Standards Act. It also enhances public accountability of the Executive’ssubordinate legislation making function. One indicator of the committee’s contribution tothe overall improved standard of subordinate legislation is the number of concernsraised in relation to subordinate legislation. The committee is also pleased that ministerssupport its work by agreeing to introduce amendments in accordance with thecommittee’s recommendations.44 Relevant information is contained in the followingtable. The table also contains statistical information on how the committee’s concerns or

41 Which should be properly documented and fully explained in explanatory notes. Because of the effect of this

kind of subordinate legislation, it is likely to impose appreciable costs on the community or a part of it:accordingly, an RIS should be prepared before it is made.

42 See also the committee’s Alert Digest No. 7 of 1997 at p. 9 and Alert Digest No. 8 at p. 19. This view concurswith that expressed by the Senate Standing Committee for the Scrutiny of Bills in its 16th report of 1995, at p.340.

43 Section 34 of the Statutory Instruments Act.44 Contained in committee’s correspondence with ministers on issues arising from different subordinate

instruments.


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queries in relation to subordinate legislation were addressed in the 1997 – 1998 financialyear.

THE MANNER IN WHICH THE COMMITTEE’S CONCERNS / QUERIES INRELATION TO SUBORDINATE LEGISLATION WERE ADDRESSED

%45

Ministerial response which overcame the committee’s concerns33.35

Ministerial undertakings to amend provisions queried by the committee6.6

Matters which ministers responded to but the committee decided not to takeaction and matters which the committee considered but decided not to callfor a response

33.35

Matters which formed part of a committee’s report to Parliament13.35

Matters which the committee still has to consider (as at 30 June 1998)13.35

3.15. Departmental and ministerial staff play a significant role in providing information tofacilitate the scrutiny process. The committee thanks the ministers for supporting its workand for their departmental assistance in the 1997 – 1998 financial year.

45 Approximate figures only.

Annual Report 1997–1998 Committee Business

Page 14

4. COMMITTEE BUSINESS

Reports

4.1. In addition to the production of 12 alert digests, the committee tabled the following 5reports during the 1997 - 1998 financial year.46

♦ Government Owned Corporations (QGC1–3 and AEC) Regulation 199747

4.2. The committee considered the application of fundamental legislative principles to theGovernment Owned Corporations (QGC1—3 and AEC) Regulation (the regulation). Inthe report, the committee expressed concern about s. 12 of the regulation whichappeared to amend s. 100 of the Government Owned Corporations Act 1993 pursuantto s. 57B of that Act. The committee considered s. 57B of that Act to be a “Henry VIII”clause because of its effect of permitting a regulation to change the text of principallegislation for application.

4.3. In view of its amending effect on that Act, the committee regarded s. 12 of the regulationas not having sufficient regard to the institution of Parliament. The report also contains anumber of options that, in the committee’s view, could achieve the legislative aimswithout having to use a “Henry VIII” clause.

♦ Justice Legislation (Variation of Fees) Regulation 199748

4.4. On 3 March 1998, the Honourable M J Foley MLA, the then Shadow Attorney Generaland Shadow Minister for Justice and The Arts, gave notice to move disallowance on theJustice Legislation (Variation of Fees) Regulation 1997. As the committee was notinvolved in the notice to move disallowance on the amendment regulation given by theHonourable M J Foley MLA, the committee was unaware of the basis on which thenotice was given. However, the committee noted that the giving of the notice had theeffect of truncating the period of time within which the committee could enter intocorrespondence with the minister to address any unresolved concerns. Accordingly,the committee considered it appropriate to table a report at that time.

4.5. In the report, the committee expressed concern about the absence of explanatory notesto clarify the situations in which the relevant fee was payable. The committee alsoexpressed the view that the regulation would impose appreciable costs on thecommunity and therefore an RIS should have been prepared for the regulation before itwas made.

♦ ♦ Report on The Scrutiny of Bills Within a Restrictive Timeframe49

46 Also tabled was the committee’s Annual report for the period 1 July 1995 to 30 June 1996 (tabled on 30

October 1996).47 Tabled on 8 July 1997.48 Tabled on 17 March 1998. The regulation was subsequently disallowed by the Legislative Assembly following

the debate on the disallowance motion.49 Tabled on 18 March 1998.


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4.6. According to the Standing Orders of the Queensland Legislative Assembly, debate onbills must be adjourned for 6 calendar days after the second reading speech.Thereafter, debate can resume and the bills can be passed. In certain circumstances,this timeframe has made it very difficult for the committee to scrutinise bills effectivelyand report to Parliament before debate can resume on those bills.

4.7. The committee therefore decided to compile the report to make Parliament aware of theproblems posed for the committee by the timing of debate on bills, and to canvass thepossible effect of this practice on the general public and the institution of Parliament inQueensland. In addition to its brief review of the time available for the consideration ofbills in some other Australasian Parliaments, the report considered whether it would bebeneficial to have more time for the consideration of bills in terms of producinglegislation of a high standard and explored possible ways of extending the time availablefor scrutiny.

4.8. Since this report was tabled, Standing Order 241 has been amended by SessionalOrder to provide that debate on bills must be adjourned for at least 13 whole calendardays.

♦ Report on the Environmental Protection (Air) Policy 1997 and EnvironmentalProtection Regulation 199850

4.9. On 17 March 1998, Mr R Welford MLA, the then Shadow Minister for Environment andHeritage, gave notice to move disallowance on both instruments. The committeeobserved that the notice effectively truncated the period of time within which thecommittee could liaise with the responsible minister to address any of its unresolvedconcerns arising from the scrutiny of the instruments within its terms of reference. In thecircumstances, the committee decided to address a number of matters in the report.

4.10. In the report, the committee drew the attention of Parliament to its long held view thatsubordinate legislation should only contain matter appropriate to subordinate legislation.In light of the substantial penalties imposed by the Environmental Protection Act 1994for contravening provisions of an environmental policy, the committee considered thatthe offence provisions contained in the policy should be more appropriately included inthat Act. The report also highlighted the committee’s concerns about the sufficiency ofthe contents of the explanatory notes and RISs for the subordinate instruments inquestion.

♦ Report on The operation of the regulatory impact statement process under part 5of the Statutory Instruments Act 199251

4.11. Part 5 of the Statutory Instruments Act requires the preparation of an RIS for proposedsubordinate legislation which is likely to impose an appreciable cost on the community ora part of it. The reason for an RIS process in Queensland is to offer significantly higherlevels of scrutiny and accountability in the making of subordinate legislation bygovernment departments and to ensure that proposed regulations are effective andefficient in both their form and content.52

50 Tabled on 21 April 1998.51 Tabled on 21 April 1998 (an erratum was tabled on 30 April 1998).52 Department of Business, Industry and Regional Development, RIS Guidelines : Guidelines for RISs required

under the Statutory Instruments Act and Established Government Policy, 1995, Foreword.


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4.12. The committee has previously commented on the RIS process in its 1995 – 1996 AnnualReport.53 The concerns of the committee are:

• the apparent low level of compliance with the requirement to prepare an RIS;

• the interpretation of “appreciable” burden in determining whether an RIS isrequired;

• the process of justifying exemptions; and

• advancing enforcement of compliance.

4.13. The report therefore sought to identify the reasons why there is a low number of RISsbeing prepared in Queensland and initiatives to increase the number of RISs prepared,in order to advance the committee’s statutory monitoring role.

Meetings and hearings

4.14. During the 1997 - 1998 financial year, the committee regularly met on the Monday ofeach sitting week to adopt its alert digest to be tabled on the following sitting day and todeal with subordinate legislation and other matters arising since its last meeting. Thecommittee also met in between sitting weeks as required.

4.15. In total the committee had 18 meetings during the 1997 – 1998 financial year, asdetailed in Appendix C.

Travel

4.16. In July 1997, the committee participated in the 6th Australasian and Pacific Conferenceon Delegated Legislation and 3rd Australasian and Pacific Conference on the Scrutiny ofBills in Adelaide. During the conference, parliamentarians from all Australian and NewZealand parliamentary scrutiny committees exchanged views on their committee’sexperience in scrutiny of legislation.

4.17. The then deputy chairman of the committee, Mr Jon Sullivan MLA, attended aconference in Darwin in September 1997. Delegates to the conference discussedvarious topics concerning the reconciliation of a diversity of interests in a new NorthernTerritory Constitution for the 21st century.

4.18. The committee has been vigilant in its scrutiny of national schemes of legislation.54 Toensure that national schemes of legislation are properly scrutinised at a national level,the committee has been discussing with all Australian parliamentary scrutiny oflegislation committees the best means of scrutiny. In March 1998, the chairpersons andthe deputy chairs of all Australian scrutiny of legislation committees (including the thendeputy chair of the committee) met in Sydney to further discuss the best means ofimplementing the scrutiny proposals contained in the Position Paper on the Scrutiny of

53 At pp.26 to 36. This report was tabled in the Legislative Assembly on 30 October 1996.54 For example, see the committee’s Alert Digest No. 3 of 1998 (chapter on the Trans-Tasman Mutual

Recognition Bill 1998 at p. 31) and Alert Digest No. 4 of 1998 (chapter on the Gas Pipelines Access(Queensland) Bill 1998 at p. 13).


Page 17

National Schemes of Legislation.55 At that meeting, a working group of chairs anddeputy chairs of these committees was formalised. A steering committee comprised ofrepresentatives from the Victorian, New South Wales and Senate scrutiny of legislationcommittees was also formed. The steering committee will report to the working group inthe near future on the best means to appraise the strengths and weaknesses ofemploying cost benefit and sunset requirements to scrutinise legislation and to reviewother scrutiny options. It is anticipated that the chairs and deputy chairs of thesecommittees will continue to meet to further discuss the issues.

55 Which was jointly published by all the Australian parliamentary scrutiny of legislation committees and tabled in

the Queensland Legislative Assembly on 29 October 1996.

Annual Report 1997–1998 Administrative Matters

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5. ADMINISTRATIVE MATTERS

Budget and expenditure of the committee

5.1. The budgeted and actual expenditure for the committee in the period 1 July 1997 to 30June 1998 is set out in the table below:

THE COMMITTEE’S BUDGET AND EXPENDITURE FOR 1 JULY 1997 TO 30 JUNE 1998

ActualExpenditure

Annual Budget BudgetRemaining

Salaries56 $170,855.26 $170,334.00 -$521.26

Superannuation57 $16,939.06 $20,803.00 $3,863.94

Stores & Stationery58 $376.40 $200.00 -$176.40

Reference Books/Publications59 $4,673.07 $3,850.00 -$823.07

Consultants $19,479.60 $26,200.00 $6,720.40

Entertainment $1,613.20 $2,700.00 $1,086.80

Printing $20,730.34 $30,000.00 $9,269.66

Advertising $0.00 $1,200.00 $1,200.00

Miscellaneous $520.71 $1000.00 $479.29

Travel60 $12,813.28 $29,800.00 $16,986.72

TOTAL $248,000.92 $286,087.00 $38,086.08

56 Includes salaries; salaries – temp assistance; overtime; extra remuneration; meal allowance; and payroll tax.57 Includes superannuation GoSuper and Qsuper.58 Includes stores and stationery; postage and freight.59 Includes reference books and publications and serial subscriptions.60 Includes Members’ travel to Brisbane; Members’ travel outside Brisbane; taxis and fares; and authorised staff

committee business travel.


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Staffing of the committee

♦ ♦ Background

5.2. When the committee was first formed on 15 September 1995 it was allocated thefollowing positions:

• one Research Director

• one Senior Research Officer

• one Executive Assistant

♦ ♦ Changes to committee staff

5.3. In early November 1997, after the resignation of the then Casual Administrative Officer,the Clerk of the Parliament approved the committee’s proposal to replace the CasualAdministrative Officer with an additional part time Research Officer. The committee’scurrent staff includes one Research Director, one part time Senior Research Officer andan Executive Assistant. The committee’s staff is as follows:

• Mr Chris Garvey (Research Director) - P06

• Ms Veronica Rogers (Principal Research Officer) - P04

• Ms Barbara Petrie-Repar (Senior Research Officer) (part-time) - P03

• Ms Maree Lane (Executive Assistant) - A03

♦ ♦ Legal Advisers to the committee

5.4. Although not employed as a member of staff, the Legal Adviser to the committee playsan integral part in providing it with expert legal advice.

5.5. Professor Charles Sampford was first appointed as legal adviser to the committee forthe period October 1995 – 30 June 1996. He was the Foundation Dean of the GriffithUniversity Law School and currently holds appointments at Griffith University as Directorof the National Institute for Law, Ethics and Public Affairs, and as Minter EllisonFoundation Professor of Law.

5.6. From August 1997 to February 1998, Professor Sampford was working outsideAustralia. The committee resolved to appoint Mr Brian Fitzgerald, Senior Lecturer, LawSchool Griffith University, as Legal Adviser to the committee for a 6 month period duringProfessor Sampford’s absence.

5.7. During the course of the 1997-98 financial year, the committee received expert legaladvice (on specific issues arising within its terms of reference) from:

• Mr Gerard Carney, Barrister-at-Law, Associate Professor of Law, BondUniversity;61

61 In reference to the Police Powers and Responsibilities Bill 1997 and the Crime Commission Bill 1997.


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• Mr Robert Sibley, Barrister-at-Law, Senior Lecturer, Queensland University ofTechnology;62 and

• Mr Brian Horrigan, Associate Professor, Queensland University of Technology.63

5.8. The committee also engaged Mr Gary Donovan to advise the committee, and to assist inthe production of its report on regulatory impact statements.

5.9. The term of appointment of the committee’s Legal Adviser expired on 30 June 1998.Expressions of Interest have been sought for appointment as:

• Principal Legal Adviser; and

• Legal Adviser (a panel of approximately 4 will be appointed).

5.10. The committee hopes to finalise these appointments in the near future.

The scrutiny of bills and subordinate legislation

5.11. The bulk of the committee’s work will continue to be automatically generated by thelegislation making process in the next financial year. The committee will maintain itspolicy of endeavouring to scrutinise all bills introduced into the Legislative Assembly(including urgent bills, if time permits) and will report to Parliament on any perceivedproblems arising from the bills. Based on statistics for the last three financial years, thiswill involve scrutinising approximately 90 bills and tabling about 13 alert digests.

5.12. The scrutiny of subordinate legislation will also continue throughout the year. Based onthe number of instruments produced in the last three financial years, roughly 400 piecesof subordinate legislation will be scrutinised and queries in relation to some of them willbe raised during the year. As issues arising in subordinate legislation are generallyovercome, the committee may only table one or two reports on regulations in the 12months to 30 June 1999.

62 In reference to the Police and Other Legislation (Miscellaneous Provisions) Bill 1998.63 In reference to the Native Title (Queensland) Amendment Bill 1997.

Annual Report 1997–1998 Appendix A –Terms of Reference

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APPENDIX A – TERMS OF REFERENCE

The Scrutiny of Legislation Committee was established on 15 September 1995 by s. 4 of theParliamentary Committees Act 1995.

Terms of Reference

22.(1) The Scrutiny of Legislation Committee’s area of responsibility is to consider

(a) the application of fundamental legislative principles64 to particular Bills andparticular subordinate legislation; and

(b) the lawfulness of particular subordinate legislation;

by examining all Bills and subordinate legislation65.

(2) The committee’s area of responsibility includes monitoring generally theoperation 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).

64 “Fundamental legislative principles” are the principles relating to legislation that underlie a parliamentary

democracy based on the rule of law (Legislative Standards Act, s. 4(1)). The principles include requiring thatlegislation has sufficient regard to rights and liberties of individuals and the institution of Parliament.

* The relevant section is extracted overleaf.65 A member of the Legislative Assembly, including any member of the Scrutiny of Legislation Committee, may

give notice of a disallowance motion under the Statutory Instruments Act, s. 50.

Annual Report 1997–1998 Appendix B – Meaning of “fundamental legislative principles”

Page 22

APPENDIX B – MEANING OF "FUNDAMENTAL LEGISLATIVE PRINCIPLES"

4.(1) For the purposes of this Act, "fundamental legislative principles" are the principles relatingto legislation that underlie a parliamentary democracy based on the rule of law.66

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

(a) rights and liberties of individuals; and

(b) the institution of Parliament.

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

(a) makes rights and liberties, or obligations, dependent on administrative power only ifthe 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 toappropriate persons; and

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

(e) confers power to enter premises, and search for or seize documents or otherproperty, 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 adequatejustification; 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, forexample, the Bill–

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

(b) sufficiently subjects the exercise of a delegated legislative power to the scrutiny ofthe 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 dependson whether, for example, the subordinate legislation–

(a) is within the power that, under an Act or subordinate legislation (the "authorisinglaw"), 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.

66 Under s.7 of the Legislative Standards Act, a function of the Office of the Queensland Parliamentary

Counsel is to advise on the application of fundamental legislative principles to proposed legislation.

Annual Report 1997/98 Appendix C – Meeting Attendance Record

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APPENDIX C – MEETING ATTENDANCE RECORD

Date T. Elliott J. Sullivan L. Cunningham N. Roberts F. Tanti P. Lucas

7 Jul 97 4 4 4 4 4 4

8 Jul 97 4 4 4 4 4 4

18 Aug 97 4 4 4 4 4 4

25 Aug 97 4 4 4 4 4 4

6 Oct 97 4 4 4 4 4 4

9 Oct 97 4 4 4 4 4 4

22 Oct 97 4 4 4 4 4 4

26 Oct 97 4 4 8 4 4 4

27 Oct 97 4 4 4 4 4 4

28 Oct 97 4 4 8 4 8 4

17 Nov 97 4 4 4 4 4 4

21 Nov 97 4 4 4 4 8 4

24 Nov 97 4 4 4 4 4 4

2 Mar 98 4 4 4 4 4 4

16 Mar 98 4 4 4 4 4 4

20 Apr 98 4 4 4 4 4 4

11 May 98 4 4 4 4 4 4

18 May 98 4 8 4 4 4 8

Annual Report 1997–1998 Appendix D – Committee Reports Previously Tabled

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APPENDIX D – COMMITTEE REPORTS PREVIOUSLY TABLED

ReportNo.

Title of Report Date Report Tabled

Alert Digest No. 1 of 1995 17 October 1995


Alert Digest No. 3 of 1995 14 November 1995

Alert Digest No. 1 of 1996 16 April 1996


Alert Digest No. 3 of 1996 14 May 1996

Alert Digest No. 4 of 1996 9 July 1996


Alert Digest No. 6 of 1996 6 August 1996

Alert Digest No. 7 of 1996 3 September 1996

Alert Digest No. 8 of 1996 10 September 1996


2 Workplace Health and Safety Amendment Regulation 1996 10 October 1996


Scrutiny of National Schemes of Legislation - Position Paper67 29 October 1996

1 Annual Report for the period 1 July 1995 to 30 June 1996 30 October 1996


Alert Digest No. 11 of 1996 (supplement) 13 November 1996


Alert Digest No. 13 of 1996 3 December 1996

3 The Use of “Henry VIII Clauses” in Queensland Legislation 28 January 1997

Alert Digest No. 1 of 1997 28 January 1997

Alert Digest No. 2 of 1997 18 March 1997




Alert Digest No. 5 of 1997 (supplement) 8 May 1997

67 Jointly prepared by all Australian parliamentary scrutiny of legislation committees.

Annual Report 1997–1998 Appendix D – Committee Reports Previously Tabled

Page 25

Alert Digest No. 6 of 1997 3 June 1997


4 Government Owned Corporations (QGC1–3 and AEC) Regulation 1997 8 July 1997




5 Annual Report 1996 – 1997 28 October 1997






6 Justice Legislation (Variation of Fees) Regulation 1997 17 March 1998

7 The Scrutiny of Bills within a Restrictive Timeframe 18 March 1998


8 Environmental Protection (Air) Policy 1997 and Environmental ProtectionRegulation 1998

21 April 1998

9 The operation of the RIS process under part 5 of the Statutory InstrumentsAct 1992 (erratum tabled on 30 April 1998)

23 April 1998



Annual Report 1997–1998 Appendix E – Endnotes

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APPENDIX E – ENDNOTES

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

ii Section 4(3)(k) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation isunambiguous and drafted in a sufficiently clear and precise manner.

iii Section 4(3)(g) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation does notaffect rights and liberties, or impose obligations, retrospectively.

iv Section 4(3)(a) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation makesrights or liberties, or obligations, dependent on administrative power only if the power is sufficientlydefined and subject to appropriate review.

v Section 23 of the Legislative Standards Act 1992 sets out the information required to be included in anexplanatory note for a bill. If the explanatory note does not include any of this information, it muststate the reason for non-inclusion.

vi Section 4(3)(e) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation conferspower to enter premises, and search for or seize documents or other property, only with a warrantissued by a judge or other judicial officer.

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

viiiviii Section 4(3)(d) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation does notreverse the onus of proof in criminal proceedings without adequate justification.

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

x Section 4(4)(a) of the Legislative Standards Act 1992 provides that whether a bill has sufficient regardto the institution of Parliament depends on whether, for example, the bill allows the delegation oflegislative power only in appropriate cases and to appropriate persons.

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

xii Includes issues not often commented on in alert digests, such as regulatory impact statements,compulsory acquisition of property and automatic expiry of subordinate legislation.

xiii Section 4(4)(b) of the Legislative Standards Act 1992 provides that whether a bill has sufficient regardto the institution of Parliament depends on whether, for example, the bill sufficiently subjects theexercise of a delegated legislative power to the scrutiny of the Legislative Assembly.

xiv Section 4(3)(j) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation hassufficient regard to Aboriginal tradition and Island custom.


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xv Section 4(4)(c) of the Legislative Standards Act 1992 provides that whether a bill has sufficient regardto the institution of Parliament depends on whether, for example, the bill authorises the amendment ofan Act only by another Act.

xvi Section 4(3)(h) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation does notconfer immunity from proceeding or prosecution without adequate justification.

xvii Section 4(3)(f) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation providesappropriate protection against self-incrimination.

xviii Section 4(3)(c) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation allows thedelegation of administrative power only in appropriate cases and to appropriate persons.

xix Section 4(5)(d) of the Legislative Standards Act 1992 provides that whether subordinate legislationhas sufficient regard to the institution of Parliament depends on whether, for example, the subordinatelegislation amends statutory instruments only.

xx Section 43 of the Statutory Instruments Act 1992 provides that if proposed subordinate legislation islikely to impose appreciable costs on the community or a part of the community, then, before thelegislation is made, a regulatory impact statement must be prepared about the legislation.

Section 44 of the Statutory Instruments Act 1992 sets out the information required to be included in aregulatory impact statement.

xxi Section 4(5)(c) of the Legislative Standards Act 1992 provides that whether subordinate legislationhas sufficient regard to rights and liberties of individuals depends on whether, for example, thelegislation contains only matter appropriate to subordinate legislation.

xxii Section 4(3)(g) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation does notaffect rights and liberties, or impose obligations, retrospectively.

Section 34 of the Statutory Instruments Act 1992 provides that a provision of a statutory instrumentthat does not adversely affect a person’s rights or liberties may be given retrospective operation if thestatutory instrument expressly provides for that operation.

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

xxiv Section 4(3)(a) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation makesrights or liberties, or obligations, dependent on administrative power only if the power is sufficientlydefined and subject to appropriate review.

xxv Section 24 of the Legislative Standards Act 1992 sets out the information required to be included in anexplanatory note for significant subordinate legislation. If the explanatory note does not include any ofthis information, it must state the reason for non-inclusion.

xxvi Section 4(3)(k) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation isunambiguous and drafted in a sufficiently clear and precise manner.


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xxvii Section 4(5)(a) of the Legislative Standards Act 1992 provides that whether subordinate legislationhas sufficient regard to the institution of Parliament depends on whether, for example, the subordinatelegislation is within the power that (under an Act or subordinate legislation - “the authorising law” )allows the subordinate legislation to be made.

xxviii Section 4(3)(d) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation does notreverse the onus of proof in criminal proceedings without adequate justification.

xxix Section 4(3)(j) of the Legislative Standards Act 1992 provides that whether legislation has sufficientregard to rights and liberties of individuals depends on whether, for example, the legislation hassufficient regard to Aboriginal tradition and Island custom.

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