slc alert digest no. 8 of 1999 - 20 july 1999...6 see, for example, alert digest no. 5 of 1997 at...

SCRUTINY OF LEGISLATION COMMITTEE

ALERT DIGEST

Tabled and ordered to be printed Issue No. 8 of 199920 July 1999

SCRUTINY OF LEGISLATION COMMITTEE– MEMBERSHIP –

49TH PARLIAMENT , 1ST SESSION

Chair: Mrs Linda Lavarch MLA, Member for Kurwongbah

Deputy Chair: Mr Tony Elliott MLA, Member for Cunningham

Mrs Liz Cunningham MLA, 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

Principal Legal Adviser tothe Committee:

Professor Charles Sampford

Legal Advisers to the Committee: Associate Professor Gerard Carney

Associate Professor Bryan Horrigan

Mr Robert Sibley

Dr Max Spry

Committee Staff: Mr Christopher Garvey, Research Director

Ms Veronica Rogers, Principal Research Officer

Senior Research Officer – vacant

Executive Assistant - vacant

Scrutiny of Legislation CommitteeLevel 6, Parliamentary Annexe

George StreetBrisbane QLD 4000

Phone: 07 3406 7671

Fax: 07 3406 7500

Email: [email protected]

Alert Digest No.8 of 1999 Table of Contents

Page i

TABLE OF CONTENTS

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

1. AUSTRALIA ACTS (REQUEST) BILL 1999.......................................................................................... 1

Background.................................................................................................................................................... 1

Does the legislation have sufficient regard to the institution of Parliament? ............................................... 1Clause 2 .................................................................................................................................................... 2

2. COMMONWEALTH PLACES (MIRROR TAXES ADMINISTRATION) BILL 1999 .................... 4

Background.................................................................................................................................................... 4

3. CONSTITUTION (REQUESTS) BILL 1999............................................................................................ 5

Background.................................................................................................................................................... 5

Does the legislation have sufficient regard to the institution of Parliament? ............................................... 5Clause 2 .................................................................................................................................................... 7

4. DOMESTIC VIOLENCE (FAMILY PROTECTION) AMENDMENT BILL 1999............................ 8

Background.................................................................................................................................................... 8

Does the legislation have sufficient regard to the rights and liberties of individuals? ................................. 8Overview of the bill................................................................................................................................... 8clause 9 ..................................................................................................................................................... 9clause 11 ................................................................................................................................................. 10

5. HEALTH PRACTITIONERS (PROFESSIONAL STANDARDS) BILL 1999 .................................. 12

Does the legislation have sufficient regard to the rights and liberties of individuals? ............................... 12Overview of the bill................................................................................................................................. 12clauses 104, 162, 198, 236, 295 and 365................................................................................................ 13clauses 107 and 218................................................................................................................................ 14clauses 241, 243, 368, 389 and 391........................................................................................................ 14clause 392 (privacy)................................................................................................................................ 15clause 487 ............................................................................................................................................... 15

Does the legislation confer power to enter premises and to search for or seize documents or other propertywithout a duly issued warrant?.................................................................................................................... 16

clauses 78 to 106 inclusive ..................................................................................................................... 16Is the legislation consistent with the principles of natural justice? (immediate suspension)...................... 17

clause 59 ................................................................................................................................................. 17clauses 139, 182, 225 and 288 (right to legal representation)............................................................... 18clauses 140, 183 and 226........................................................................................................................ 19clause 224 ............................................................................................................................................... 19

Does the bill sufficiently subject the exercise of delegated legislative power to the scrutiny of theLegislative Assembly?................................................................................................................................. 20

clause 374 ............................................................................................................................................... 20Does the legislation confer immunity from proceeding or prosecution without adequate justification? ... 21

clauses 386 and 387................................................................................................................................ 21clauses 138, 181 and 222........................................................................................................................ 22

6. LIQUOR (EVICTIONS, UNLICENSED SALES AND OTHER MATTERS) AMENDMENT BILL1999 ................................................................................................................................................................. 23

Background.................................................................................................................................................. 23


Page ii

Does the legislation have sufficient regard to the rights and liberties of individuals? ............................... 23clause 9 ................................................................................................................................................... 23clause 9 (proposed s.165B)..................................................................................................................... 24clauses 11 to 19....................................................................................................................................... 26

Does the legislation confer power to enter premises and to search for or seize documents or other propertywithout a duly issued warrant?.................................................................................................................... 27

clause 18 ................................................................................................................................................. 27

7. PUBLIC SECTOR ETHICS AMENDMENT BILL 1999 ..................................................................... 28

Background.................................................................................................................................................. 28

Does the legislation have sufficient regard to the rights and liberties of individuals? ............................... 28clause 7 (proposed s.30) ......................................................................................................................... 28clause 10 (privacy).................................................................................................................................. 30clause 7 (proposed s.34) (privacy).......................................................................................................... 30

Is the legislation consistent with the principles of natural justice?............................................................. 31clause 7 (proposed s.30) ......................................................................................................................... 31

Does the legislation confer immunity from proceeding or prosecution without adequate justification? ... 32Clause 7 (proposed ss. 35 and 36).......................................................................................................... 32

Does the legislation make individual rights and liberties, or obligations, dependent on administrativepower only if the power is sufficiently defined and subject to appropriate review? .................................. 33

Clause 7 (proposed s.41) ........................................................................................................................ 34

8. STATE PENALTIES ENFORCEMENT BILL 1999............................................................................. 35

Does the legislation provide for the reversal of the onus of proof in criminal proceedings withoutadequate justification? and.......................................................................................................................... 36

Is the legislation unambiguous and drafted in a sufficiently clear and precise way? ................................. 36clauses 17, 18, 19 and 20 (reversal of onus of proof) ............................................................................ 36

Is the legislation unambiguous and drafted in a sufficiently clear and precise way? ................................. 37clauses 29, 60 (removal of demerit points when withdrawing infringement notices) ............................ 38

Does the legislation make individual rights and liberties, or obligations, dependent on administrativepower only if the power is sufficiently defined and subject to appropriate review? and ........................... 38

Is the legislation consistent with the principles of natural justice?............................................................. 38clauses 38, 42, 45, 48, 56, 63, 65, 69, 75, 77, 199, 125, 130, 155 (review of administrative action) .... 38

Does the legislation have sufficient regard to the rights and liberties of individuals? ............................... 41clause 104 (power to suspend driver’s licences) .................................................................................... 41

Does the legislation make individual rights and liberties, or obligations, dependent on administrativepower only if the power is sufficiently defined and subject to appropriate review? and ........................... 42

Does the legislation allow the delegation of administrative power only in appropriate cases and toappropriate persons?.................................................................................................................................... 43

clauses 10(3), 11 and 161 (extensive powers of registrar, registry staff and enforcement officers) ..... 43Is the legislation unambiguous and drafted in a sufficiently clear and precise way? ................................. 44

clause 109 and Dictionary...................................................................................................................... 44

9. STIPENDIARY MAGISTRATES AND OTHER ACTS AMENDMENT BILL 1999 ....................... 45

Background.................................................................................................................................................. 45clauses 3 to 7 inclusive ........................................................................................................................... 45

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ........... 48clauses 7 and 8........................................................................................................................................ 48

Is the legislation unambiguous and drafted in a sufficiently clear and precise way? ................................. 49


Page iii

Clauses 4 and 5....................................................................................................................................... 49

10. TRADE MEASUREMENT AMENDMENT BILL 1999.................................................................... 51

Background.................................................................................................................................................. 51

Does the legislation have sufficient regard to the institution of Parliament? ............................................. 51

Does the legislation make individual rights and liberties, or obligations, dependent on administrativepower only if the power is sufficiently defined and subject to appropriate review? .................................. 52

clauses 5 and 7........................................................................................................................................ 52Does the legislation allow the delegation of administrative power only in appropriate cases and toappropriate persons?.................................................................................................................................... 53

clause 9 ................................................................................................................................................... 53

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE..................... 56

11. ACQUISITION OF LAND AMENDMENT BILL 1999..................................................................... 56

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ........... 58Clause 6 .................................................................................................................................................. 58

12. CHARITABLE AND NON-PROFIT GAMING BILL 1999............................................................... 59

Background.................................................................................................................................................. 59clauses 111 to 160 inclusive ................................................................................................................... 59clauses 49, 71, 114(3) and Dictionary (Definition of “Criminal History”)........................................... 60Clause 144 .............................................................................................................................................. 61Clause 165 .............................................................................................................................................. 61clause 148 ............................................................................................................................................... 62

Does the legislation provide for the reversal of the onus of proof in criminal proceedings withoutadequate justification?................................................................................................................................. 62

clauses 169 and 170................................................................................................................................ 62clause 194 ............................................................................................................................................... 63


clause 171 ............................................................................................................................................... 64

13. COMMUNITY-BASED REFERENDUM BILL 1999 ......................................................................... 66

Background.................................................................................................................................................. 66clause 16 ................................................................................................................................................. 66clause 3 ................................................................................................................................................... 67


clauses 33-37 .......................................................................................................................................... 67clauses 38 and 39.................................................................................................................................... 68clause 58 ................................................................................................................................................. 69

14. FINANCIAL ADMINISTRATION AND AUDIT ACT 1999.............................................................. 70

Background.................................................................................................................................................. 70

15. FINANCIAL SECTOR REFORM (QUEENSLAND) BILL 1999...................................................... 72

Background.................................................................................................................................................. 72clauses 22, 35, 73.................................................................................................................................... 72clause 73 ................................................................................................................................................. 73

16. JUSTICE LEGISLATION (MISCELLANEOUS PROVISIONS) BILL (NO. 2) 1999.................... 75


Page iv

Background.................................................................................................................................................. 75clause 19 ................................................................................................................................................. 75clause 42 (proposed s 93J) ..................................................................................................................... 76clause 42 (proposed s 93L) ..................................................................................................................... 78clause 35 ................................................................................................................................................. 79

17. LOCAL GOVERNMENT AND OTHER LEGISLATION AMENDMENT BILL 1999 ................. 80

Background.................................................................................................................................................. 80clause 19 ................................................................................................................................................. 81

18. NATIVE TITLE (QUEENSLAND) STATE PROVISIONS AMENDMENT BILL 1999................ 82

Background.................................................................................................................................................. 82

APPENDIX B – TERMS OF REFERENCE............................................................................................... 88

APPENDIX C - MEANING OF "FUNDAMENTAL LEGISLATIVE PRINCIPLES"......................... 89

APPENDIX D – TABLE OF BILLS RECENTLY CONSIDERED ......................................................... 90

BILLS EXAMINED BUT NOT REPORTED ON -

FREEDOM OF INFORMATION AMENDMENT BILL 1999

HEALTH PRACTITIONER REGISTRATION BOARDS (ADMINISTRATION) BILL 1999

TRUSTS (INVESTMENTS) AMENDMENT BILL 1999

SECTION A

BILLS REPORTED ON

Note: s.14B of the Acts Interpretation Act 1954 provides that consideration may be given to “extrinsic material” in theinterpretation of a provision of an Act in certain circumstances. The definition of “extrinsic material” provided in thatsection includes:

... a report of a committee of the Legislative Assembly that was made to the Legislative Assemblybefore the provision was enacted1

Matters reported on to Parliament by the Scrutiny of Legislation Committee in its alert digests prior to the enactment2 ofa provision may therefore be considered as extrinsic material in its interpretation.

1 Section 14B(3)(c) Acts Interpretation Act 1954.2 The date on which an Act receives royal assent (rather than the date of passage of a bill by the Legislative Assembly) s.15 Acts

Interpretation Act 1954.

Alert Digest No. 8 of 1999 Australia Acts (Request) Bill 1999

1

SECTION A – BILLS REPORTED ON

1. AUSTRALIA ACTS (REQUEST) BILL 1999

Background

1.1. The Honourable P D Beattie MLA, Premier, introduced this bill into the LegislativeAssembly on 8 June 1999.

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

to assist the Commonwealth to remove restrictions on the States that would otherwiseprevent them from severing their links with the Crown.

1.3. The bill is directly related to the Constitution (Requests) Bill 1999, which is reportedon elsewhere in this Alert Digest.

Does the legislation have sufficient regard to the institution of Parliament?3

National Scheme Legislation

1.4. The bill is intended to form part of national scheme legislation.4

1.5. National schemes of legislation have been a source of considerable concern, both tothe committee and to its interstate and Commonwealth counterparts.5 These schemestake a number of forms and the objection to them is greatest when they involvepredetermined legislative provisions which are either included in the bill introducedinto Parliament or which the bill incorporates by adopting Commonwealth orinterstate legislation. The Committee has considered such scenarios on a number ofoccasions.6

1.6. As the Premier stated in his Second Reading Speech:

(the bill forms part of) uniform request legislation which each State is proposing toenact.

The bill has now been passed by the Victorian and New South Wales Parliaments andbeen introduced in the Parliaments for the three other States.

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

Parliament.4 The Committee uses this term to describe broadly:

any and all methods of developing legislation, which is -

• uniform or substantially uniform in application;

• in more than one jurisdiction, several jurisdictions or nationally.5 The relevant issues are canvassed in detail in Scrutiny of National Schems of Legislation - A Position Paper of

Representatives of Scrutiny of Legislation Committees throughout Australia, October 1996.6 See, for example, Alert Digest No. 5 of 1997 at pp14 and 13-38, Alert Digest No. 7 of 1998 at pp5-7.


2

1.7. The bill suffers from a difficulty common to all forms of national scheme legislation,which has been previously commented upon by the Committee.7 This concerns thepractical impediments to significantly amending bills whose underlying principles orcontent have previously been agreed upon by the Executive Governments of theparticipating jurisdictions.

Constitutional Validity

1.8. The bill is designed to deal with a constitutional issue which will arise if theNovember 1999 referendum on Australia becoming a republic is passed. Even ifAustralia became a republic at the federal level, s.7 of the Australia Act 1986 (whichdeals with the powers and functions of State Governors) might prevent the Statesfrom making their own constitutional changes to sever their links with the Crown.

1.9. This bill is designed to facilitate appropriate amendments to s.7, via the process setout in s.15(1) of the Australia Act. This process involves the Commonwealth passinga law which effects the appropriate amendment. Section 15(1), however, makes it aprecondition to the Commonwealth having this power that the Commonwealth law be:

passed at the request or with the concurrence of the Parliaments of all the States.

1.10. According to the Premier’s Second Reading Speech, the process incorporated in thisbill is regarded by the States as more legally secure and appropriate than thealternative route provided for under s.15(3) of the Australia Act. The committeenotes that each State’s Solicitor-General and Parliamentary Counsel has been involvedin the drafting of the bill.

1.11. The committee notes that the bill forms part of national scheme legislation.

1.12. The committee notes that the bill utilizes a process provided for in s.15 of theAustralia Act 1986, and further notes the Premier’s statement indicating that theSolicitors-General of all the States and Territories and the Commonwealth have beeninvolved in settling its contents.

♦ Clause 2

Clause 2 of the bill provides that it shall commence:

on the day after the day on which the Constitution Alteration (Establishment ofRepublic) 1999 of the Commonwealth receives the Royal Assent.

1.13. The bill will therefore not come into operation unless the forthcoming referendum onthe republic is passed.

1.14. This is, in the committee’s view, both a necessary and an appropriate provision.

7 See, for example, Alert Digest No. 5 of 1997 at pp14 and 13-38, Alert Digest No. 7 of 1998 at pp5-7 and Alert Digest

No. 7 of 1999 at pp14-15.


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1.15. The Committee notes that the bill, quite appropriately, will not come into force unlessthe forthcoming referendum on the republic is passed.

Alert Digest No. 8 of 1999 Commonwealth Places (Mirror Taxes Administration) Bill 1999

4

2. COMMONWEALTH PLACES (MIRROR TAXESADMINISTRATION) BILL 1999

Background

2.1. The Honourable D J Hamill MLA, Treasurer, introduced this bill into the LegislativeAssembly on 25 May 1999. It was passed on 8 June 1999, and was assented to by theGovernor on 16 June 1999.

2.2. Upon receiving the Governor’s assent, the bill became an Act.

2.3. The Committee only has jurisdiction to comment on bills and not Acts.

2.4. The Committee therefore makes no comment with respect to this bill.

Alert Digest No. 8 of 1999 Constitution (Requests) Bill 1999

5

3. CONSTITUTION (REQUESTS) BILL 1999

Background

3.1. The Honourable P D Beattie MLA, Premier, introduced this bill into the LegislativeAssembly on 8 June 1999.

3.2. The purpose of the bill, as indicated by the Explanatory Notes, is:

to assist the Commonwealth Parliament to make amendments to the Commonwealthof Australia Constitution Act 1900 that would otherwise be in conflict with arepublicanised Constitution if the November referendum is carried.

3.3. The bill is directly related to the Australia Acts (Request) Bill 1999, which is reportedon elsewhere in this Alert Digest.

Does the legislation have sufficient regard to the institution of Parliament?8

National Scheme Legislation

3.4. The bill is intended to form part of national scheme legislation.9

3.5. National schemes of legislation have been a source of considerable concern, both tothe committee and to its interstate and Commonwealth counterparts.10 These schemestake a number of forms and the objection to them is greatest when they involvepredetermined legislative provisions which are either included in the bill introducedinto Parliament or which the bill incorporates by adopting Commonwealth orinterstate legislation. The Committee has considered such scenarios on a number ofoccasions.11

3.6. As the Premier stated in his Second Reading Speech:

The bill will, when enacted, request the Commonwealth Parliament to enact aCommonwealth Act (the Commonwealth of Australia Constitution Act AmendmentAct 1999).

……

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

Parliament.9 The Committee uses this term to describe broadly:

any and all methods of developing legislation, which is -

• uniform or substantially uniform in application;

• in more than one jurisdiction, several jurisdictions or nationally.10 The relevant issues are canvassed in detail in Scrutiny of National Schems of Legislation - A Position Paper of

Representatives of Scrutiny of Legislation Committees throughout Australia, October 1996.11 See, for example, Alert Digest No. 5 of 1997 at pp14 and 13-38, Alert Digest No. 7 of 1998 at pp5-7.


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Once all States make similar requests, the Commonwealth parliament will beempowered to enact the Commonwealth of Australia Constitution Amendment Act1999..

3.7. The bill suffers from a difficulty, common to all forms of national scheme legislation,which has been previously commented upon by the Committee.12 This concerns thepractical impediments to significantly amending bills whose underlying principles orcontent have previously been agreed upon by the Executive Governments of theparticipating jurisdictions.

Constitutional Validity

3.8. The bill is designed to address a constitutional issue which will arise if the November1999 referendum on Australia’s becoming a republic is passed. The CommonwealthConstitution is contained in cl. 9 of a United Kingdom Act, the Commonwealth ofAustralia Constitution Act 1900 (“the Constitution Act”). The preamble and coveringclauses (1 to 8) of that Act contain a number of provisions which are either spent orwhich, if Australia were to become a republic, would be either incongruous orunnecessary.

3.9. However, the process of amending the Constitution Act (which, as mentioned earlier,is a United Kingdom Act) is, in the words of the Premier in his Second ReadingSpeech, “not simple or straightforward”.

3.10. In order to achieve this end, according to the Premier, the Statute of Westminster 1931would need to be amended so as to remove a limitation contained in s.8 of thatStatute.

3.11. As with the Australia Acts (Request) Bill 1989, the process to be followed is set out ins.15(1) of the Australia Act 1986. This involves the Commonwealth legislating toamend the Statute of Westminster:

at the request or with the concurrence of the Parliaments of all the States.

3.12. Once that process is completed, the Commonwealth Parliament could legislate toamend the Constitution Act.

3.13. Additionally, the bill requests that the Commonwealth legislate in relation to therelevant matters pursuant to the process laid down in s.51(xxxviii) of theCommonwealth Constitution, which again empowers the Commonwealth to legislatein respect of such matters provided that the Parliaments of all the States request orconcur in that action.

3.14. The committee notes that whilst the amendment process envisaged by the bill involvesa number of separate stages, these are all expressly provided for in the Australia Act1986 and the Commonwealth Constitution.

12 See, for example, Alert Digest No. 5 of 1997 at pp14 and 13-38, Alert Digest No. 7 of 1998 at pp5-7 and Alert Digest

No. 7 of 1999 at pp14-15.


7

3.15. Finally, although the Premier’s Second Reading Speech does not specifically advert tothe matter, the committee has been advised by departmental officers that this bill, likethe Australia Acts (Request) Bill 1999, has been drafted with the involvement of theSolicitors-General of all States and Territories and the Commonwealth.

3.16. The Committee notes that the bill forms part of national scheme legislation.

3.17. The Committee notes that the bill utilizes a process expressly provided for in s.15 ofthe Australia Act 1986, and further notes that the Solicitors-General of all the Statesand Territories and the Commonwealth have been involved in settling its contents.

♦ Clause 2

3.18. Clause 2 of the bill provides that it shall commence:

on the day after the day on which the Constitution Alteration (Establishment ofRepublic) 1999 of the Commonwealth receives the Royal Assent.

3.19. The bill will therefore not come into operation unless the forthcoming referendum onthe republic is passed.

3.20. This is, in the committee’s view, both a necessary and an appropriate provision.

3.21. The committee notes that the bill, quite appropriately, will not come into force unlessthe forthcoming referendum on the republic is passed.

Alert Digest No. 8 of 1999 Domestic Violence (Family Protection) Amendment Bill 1999

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4. DOMESTIC VIOLENCE (FAMILY PROTECTION)AMENDMENT BILL 1999

Background

4.1. The Honourable AM Bligh MLA, Minister for Families, Youth and Community Careand Minister for Disability Services introduced this bill into the Legislative Assemblyon 8 June 1999.

4.2. The purpose of the bill, as indicated by the Explanatory Notes, is to:

amend the Domestic Violence (Family Protection) Act 1989 to improve theoperational efficiency and effectiveness of the Act.

Does the legislation have sufficient regard to the rights and liberties of individuals?13

♦ Overview of the bill

4.3. In her Second Reading Speech, the Minister states:

this bill is the result of a comprehensive review of the Act undertaken by myDepartment, in conjunction with the Queensland Domestic Violence Council, overthe last four years.

4.4. The bill incorporates a number of reforms intended to facilitate the effective operationof the Domestic Violence (Family Protection) Act (the Act).

4.5. Given the nature of the Act, most of these provisions will either promote or impingeupon the rights and liberties of individuals. The Act provides a Court-centred processfor protecting persons against spousal violence, and its provisions have the capacityto affect the aggrieved and respondent spouses, their children and other associatedpersons.

4.6. Measures contained in the bill include:• ensuring that a spouse subject to a domestic violence order can be prevented

from obtaining access to weapons in the course of their employment (cl. 9)

• limiting the right of a person subject to a domestic violence order to locate orattempt to locate the person’s spouse or other “aggrieved person” (cl. 11)

• enabling tenancy issues to be dealt with concurrently with domestic violenceorder proceedings (cl. 6)

• enabling temporary protection orders to be made (cl. 17)

• enabling regard to be had to family court “family contact orders”(cl.18)

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

of individuals.


9

• enabling a respondent spouse to be held in custody for up to four hours whilstarrangements are completed to safeguard the aggrieved spouse (cl. 28); and

• modifying the current requirement that a person must “knowingly” breach aprotection order (cl. 32).

4.7. As legislation of this kind impacts on the rights of various categories of persons,attempts should be made to achieve a fair balance between the rights of those persons,especially the respective spouses. Whilst any change the bill makes to the overallbalance of rights could be said to affect the rights and liberties of one of the categoriesof persons, the committee considers that where that balance should be struck isultimately a policy judgment.

4.8. Accordingly, the Committee does not propose to comprehensively comment on thebill’s contents, as it considers the appropriate balance of rights is a matter forParliament.

4.9. However, the following specific aspects of the bill do, in the committee’s opinion,raise “fundamental legislative principle” issues.

♦ clause 9

4.10. Under current s.23(2) of the Act the Court, in making a domestic violence order, mustprovide that the respondent spouse is not to possess a weapon for the duration of theorder.

4.11. Clause 9 of the bill inserts proposed s.23A, which addresses situations where such aperson has access to weapons as part of their employment. Section 23A enables theCourt, in such situations, to identify an appropriate “effective individual” within thepersons “employing entity”, who is in a position to ensure that the respondent spouseis prevented from possessing weapons as part of their employment, and to serve acopy of the domestic violence order upon that individual. The “effective individual”is then authorised to disclose information about the order to another person within theentity, to the extent necessary to ensure the respondent spouse does not obtainpossession of weapons in the course of their employment.

4.12. These provisions impact directly upon the privacy of the spouse subject to thedomestic violence order, and might even have adverse implications for the spouse’sfuture employment with the particular “employing entity”.

4.13. The Minister addresses this amendment in the following passages of the SecondReading Speech:

Another initiative of this bill is the ability of Courts to notify employers of theexistence of a domestic violence order where their employee is a respondent to anorder and has access to weapons in their employment.

I am aware that this amendment may have the potential to adversely impact onindividuals. However, I have carefully considered these issues and ensured that theprinciples of natural justice are preserved and safeguards built in.


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Firstly, the Magistrate will consider whether the provision of such information isappropriate and the respondent will have the opportunity to be heard on the issue.Secondly, where the employer discloses the information more widely than isnecessary, the employer can be liable for a penalty of up to $3000.

4.14. The committee also acknowledges the protection afforded by the prohibition on the“effective individual” disclosing information to any other person about the domesticviolence order, except to the extent necessary to ensure the respondent spouse doesnot obtain possession of weapons in the course of their employment (see proposeds.23A(5)). The committee notes, however, that the prohibition imposed by proposeds.23A(5) upon the “effective individual” does not apply to the “other persons” towhom the “effective individual” legitimately communicates that information.

4.15. The provisions inserted by cl. 9 authorise disclosure of the existence of a domesticviolence order to the respondent spouse’s employer where the spouse has access toweapons as part of their employment. They also authorise the employer to disclose toothers information within the employing entity to ensure the spouse does not obtainpossession of weapons in the course of their employment. These powers all impactupon the respondent spouse’s right to privacy.

4.16. The committee seeks information from the Minister as to why the confidentialityobligation under proposed s.23A(5) does not extend to persons other than the“effective individual”.

4.17. The Committee refers to Parliament the question of whether the provisions of cl. 9have sufficient regard to the rights and liberties of respondent spouses.

♦ clause 11

4.18. Clause 11 amends current s.25 of the Act, which enables the Court to imposeconditions upon persons against whom domestic violence orders are made.

4.19. Clause 11 re-enacts most of the current matters in respect of which conditions cancurrently be imposed on the respondent spouse. Those include conditions:

• prohibiting the respondent spouse from entering premises or approaching within astated distance of premises

• prohibiting the respondent spouse from approaching or attempting to approach theaggrieved spouse (the order may state a distance within which an approach isprohibited)

4.20. Conditions may also currently be imposed which prohibit the respondent spouse fromcontacting or asking someone else to contact the aggrieved spouse.

4.21. The bill will extend the range of potential conditions to include a conditionprohibiting the respondent spouse from locating or attempting to locate the aggrievedspouse, or asking someone else to do so.

4.22. The process of “locating” another person simply involves establishing their presentwhereabouts, and does not necessarily involve any contact whatsoever with the


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aggrieved spouse. The aggrieved spouse may never become aware that this processhas occurred. Accordingly, questions might be raised as to the reasonableness ofimposing such a restriction upon the respondent spouse.

4.23. It could be argued that the restriction is justified on the basis that the act of locating, orattempting to locate the aggrieved spouse will often be followed by contact with thatspouse and/or the commission of further acts of violence.

4.24. The Minister addresses this aspect of the bill in the following passage from herSecond Reading Speech:

People escaping domestic violence are often forced to enter refuges or go intohiding. Now, respondents will be prohibited from attempting to locate or from beingassisted to locate people in refuge or hiding. The provisions of the Family Law Act1975 will be excluded from the operation of this prohibition to enable parents to seekcontact with their children.

4.25. The Committee notes that the prohibition does not prevent another person, including alawyer, locating the aggrieved spouse “for a purpose authorised by an Act”.

4.26. The Committee refers to Parliament the question of whether the provisions of cl. 11which prohibit respondent spouses from locating or asking someone else to locate theaggrieved spouse are an unreasonable interference with the rights and liberties of therespondent spouse.

Alert Digest No. 8 of 1999 Health Practitioners (Professional Standards) Bill 1999

12

5. HEALTH PRACTITIONERS (PROFESSIONAL STANDARDS)BILL 1999

Background

5.1. The Honourable W M Edmond MLA, Minister for Health, introduced this bill into theLegislative Assembly on 11 June 1999.

5.2. The principal objects of the bill, as indicated by the Explanatory Notes, are:

• to protect the public by ensuring health care is delivered by registrants in aprofessional, safe and competent way

• to uphold the standards of practice within the health professions

• to maintain public confidence in the health professions

• to establish a uniform approach to the handling of complaints aboutregistrants, the investigation and discipline of registrants, and themanagement of impaired registrants

• to provide a system to deal with complaints about registrants that iscomplementary to that of the Health Rights Commission (“thecommission”) established under the Health Rights Commission Act 1991


♦ Overview of the bill

5.3. Before dealing with specific clauses of the bill, the committee considers it appropriateto make some general observations.

5.4. The bill is about processes for the disciplining of health practitioners (called“registrants” in the bill), and for ancillary matters. Not surprisingly therefore, the billcontains many provisions which impinge upon the rights of individuals, particularlyhealth practitioners. These provisions must be balanced against the right of the publicto receive a high standard service from health practitioners. The Minister in hersecond reading speech addresses this issue as follows:

The core principles underscoring the development of this legislation are: theprotection of the public; accountability; fairness; peer and public involvement; andefficiency and effectiveness. The Bills reflect a careful balancing of various viewsand interests against these core principles.


of individuals.


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Overall, the Bills have a strong emphasis on public interest and this has beenapplauded by health consumer groups in particular. The Administration Bill and theProfessional Standards Bill are at the leading edge of reform of occupationalregulation legislation and they reaffirm the state’s responsibilities in respect of theregulation of registered health practitioners.

5.5. Whilst the bill contains many provisions which impinge upon the rights of individuals,the committee recognises the significant efforts which have been made in draftingmany of these provisions to take account of fundamental legislative principles.

5.6. Nevertheless, various provisions of the bill give rise to concerns or require comment.These are addressed below.

♦ clauses 104, 162, 198, 236, 295 and 365

5.7. Clauses 104, 162, 198, 236, 295 and 365 all create an offence of giving a document“containing information the person knows is false or misleading in a materialparticular”. The provisions all relate to situations in which the person concerned isunder a legal obligation to give the document to a relevant person (an investigator, aninspector, a board, a panel or the tribunal).

5.8. The provisions mostly accompany others which make it an offence for an individual tomake a statement to the relevant person or body, that the person knows is false ormisleading in a material particular. They also incorporate provisions exonerating theperson if, when giving the document, the person informs the person to whom it isgiven “to the best of the person’s ability, how it is false or misleading” and, if thecorrect information is obtainable, gives it to that person.

5.9. Whilst the committee does not generally object to provisions which make it an offenceto make a false or misleading statement, it has on several previous occasionscommented adversely on provisions similar to cls. 104, 162, 198, 236, 295 and 365.15

5.10. Sponsoring Ministers have usually indicated to the Committee that the clauses areintended to apply to any and all documents, not just documents which the bill requiresthe person to keep. This is consistent with the usual wording of such clauses.

5.11. The committee maintains its previously-expressed view that this type of provision isunreasonable, in that persons are compelled not merely to hand over documents to astipulated person or body, but at the same time are automatically subjected to apositive duty to comment on the contents of those documents. An obvious alternativeapproach would be for the persons to whom the documents are given to then, if theywish, exercise their interrogatory powers and compel the giver to answer questionsabout the accuracy of any or all such documents.

5.12. Explanations provided by sponsoring Ministers on previous occasions have generallynot convinced the committee of the necessity for provisions of this type to beincluded.

15 See, for example, Alert Digest No. 11 of 1998 at page 24, Alert Digest No. 3 of 1999 at page 31.


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5.13. The Committee is of the view that the obligation imposed upon persons by clauses104, 162, 198, 236, 295 and 365 is unreasonable, and has insufficient regard for therights and liberties of the persons compelled to give the documents.

5.14. The Committee seeks information from the Minister as to why it is thoughtappropriate for such clauses to be included in this bill.

♦ clauses 107 and 218

5.15. Clauses 107 and 218 confer power upon a board and the tribunal respectively, torequire a registered health practitioner to undergo a health assessment.

5.16. These provisions clearly impact upon the rights and liberties, including the right toprivacy, of the registrant.

5.17. On the other hand it can be argued, as do the Explanatory Notes, that such a power isreasonable and necessary because a registrant who is “impaired” (through, forexample, a drug addiction) may be a risk to themselves and their patients.

5.18. The Committee refers to Parliament the question of whether the power under cls. 107and 218 of the bill for registered health practitioners to be required to undergo a healthassessment has sufficient regard to the rights and liberties of those persons.

♦ clauses 241, 243, 368, 389 and 391

5.19. Clauses 241 and 243 empower the tribunal, if it decides that a ground for disciplinaryaction against a present or former registrant is established, to require the person to paya maximum fine of 1333 penalty units ($99,975.00).

5.20. This can fairly be described as a substantial amount.

5.21. Clause 368 provides that whilst all other offences against the bill are summaryoffences, offences against cls. 389 and 391 are indictable offences.

5.22. Clause 389 creates the offence of “taking a reprisal” (that is, causing detriment to aperson who has made a complaint to a board, etc) and cl. 391 creates an offence ofmaking a false complaint to a board in relation to a registrant.

5.23. Indictable offences may generally be described as more serious offences which arenormally tried before a judge and jury (though cl. 369 provides some scope for suchmatters to be dealt with summarily under the Justices Act 1886). The categorisation ofoffences against cls. 389 and 391 as such is therefore a matter of some significance.

5.24. The Committee draws to Parliament’s attention the heavy maximum fine which maybe imposed under cls. 241 and 243, and the fact that offences against clauses 389 and391 constitute indictable offences.


15

♦ clause 392 (privacy)

5.25. Clause 392 imposes a general confidentiality obligation upon persons who, inperforming functions under the bill, acquire information about another person’saffairs, and imposes a penalty for breach. However, the clause incorporates asubstantial number of exceptions, including disclosures made in the performance ofthe person’s functions under the bill or a related Act.

5.26. An examination of the bill reveals that it specifically provides for the giving ofinformation about persons (particularly registrants subject to disciplinary proceedings)in a significant number of situations.

5.27. For example, under ss. 261 and 384 other bodies can be notified of disciplinaryproceedings or other disciplinary orders in relation to specific registrants, althoughsafeguards are incorporated in that the relevant body must be satisfied that suchdisclosure is necessary.

5.28. In this regard the right of registrants to privacy must again be balanced against theright of the public to expect health services of reasonable quality, and appropriatebehaviour, from registrants.

5.29. The Committee refers to Parliament the question of whether the confidentialityprovisions contained in cl. 392 of the bill have sufficient regard to the rights andliberties of persons subject to the provisions of the bill, particularly registrants.

♦ clause 487

5.30. Clause 487, amongst other things, effectively re-enacts in this bill provisions whichwere previously contained in the Medical Act 1939. These obliged medicalpractitioners to immediately inform the police of certain crime-related informationobtained in the course of his or her professional activities. This includes informationobtained by the medical practitioner that a crime or attempted crime has taken place,or that the medical practitioner has treated a person for wounds, partial strangulationor asphyxiation and is not satisfied that the conditions have been accidentally incurred.

5.31. Duties of confidentiality by professionals towards their clients or patients have longbeen recognised at common law.

5.32. Accordingly, any provision which authorises members of the medical profession tobreach this long-standing obligation is a matter of some significance, and should beproperly justified. This is even more so when, as in the present case, a statutoryprovision obliges a medical practitioner to breach the obligation by informing anoutside person or body of certain aspects of a patient’s condition.

5.33. This is not to say that statutory provisions requiring such disclosure are unheard of.Most jurisdictions, for example, require notification of sexually transmitted diseases.

5.34. The committee notes the information to be disclosed by the medical practitionerrelates to the possible commission or attempted commission of a crime and concerns


16

violent crimes in particular. Therefore, the continuation of this statutory obligationwould appear to be reasonable.

5.35. The committee notes that cl. 487 obliges medical practitioners to inform the police ofinformation obtained by them in their professional capacity in relation to thecommission, or apparent commission, of crimes (particularly violent crimes).

Does the legislation confer power to enter premises and to search for or seizedocuments or other property without a duly issued warrant?16

♦ clauses 78 to 106 inclusive

5.36. The bill confers upon investigators significant powers of entry. These extendsomewhat beyond situations where the occupier consents or the entry is authorised bya warrant, in that entry can be effected to “public places” when they are open to thepublic.

5.37. Once entry has been effected, the bill confers on investigators a wide range of powers(see clauses 88-106) and confers additional powers to obtain information (see cls. 78-81). The bill also confers upon inspectors powers to obtain information (see cls. 363-366).

5.38. In respect of investigators, the Explanatory Notes state:

Effective investigation processes are essential to properly inform a board’s decisionto pursue disciplinary proceedings to protect the public. Accordingly, the Billconfers various powers upon investigators and board investigation committees toinvestigate allegations about registrants. The powers are standard investigationpowers, although there is also an additional power to require a registrant to undergoa health assessment and a power to seek expert advice.

5.39. Whilst the bill confers upon investigators and inspectors significant powers of entryand wide consequential investigative and enforcement powers, the committeerecognises the significant efforts which have been made in drafting many of thoseprovisions to take account of fundamental legislative principles.

5.40. The committee notes that the bill confers on investigators significant powers of entry,which extend somewhat beyond situations where the occupier consents or where awarrant has been obtained. The committee notes that once entry has been effected, thebill confers on investigators a further wide range of powers. Finally, the committeenotes that the bill confers on both investigators and inspectors significant powers toobtain information.

5.41. Departures from the safeguards provided by search warrants should be carefullyconsidered and adequately justified. The committee brings this concern, and the extentof the other powers referred to above, to the attention of Parliament.

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

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


17

Is the legislation consistent with the principles of natural justice?17 (immediatesuspension)

♦ clause 59

5.42. Clause 59 enables a board to immediately suspend, or impose conditions upon, theregistration of a registrant.

5.43. The board is not required to hear submissions from the registrant before making sucha decision.

5.44. In this regard, it could be argued that the bill denies the registrant natural justice.Suspension of registration, in particular, has a very significant effect upon aregistrant’s financial and professional position.

5.45. However, cl. 59 limits the circumstances in which this power can be exercised, andincorporates a number of safeguards. Firstly, the power cannot be invoked unless theboard reasonably believes that the registrant “poses an imminent threat to the wellbeing of vulnerable persons” and “immediate action … is necessary to protect (thosepersons)”.

5.46. Further, the board is required to:

• take the action it considers the least onerous necessary in the circumstances,

• immediately thereafter inform the registrant,

• commence to investigate the matter or refer it to the tribunal,

• provide reasons for its decision, and

• advise the registrant of the availability of an appeal to the tribunal against thedecision.

5.47. The decision, however, continues to have effect until it is set aside by the tribunal orthe matter is otherwise determined by the tribunal.

5.48. In situations such as those dealt with by cl. 59, a balance must necessarily be struckbetween the rights of the registrant and the rights of the “vulnerable persons” underthreat from the registrant’s behaviour.

5.49. The committee notes that cl. 59 empowers the board to immediately suspend orimpose conditions on a registrant’s registration, and that in so doing it is not requiredto provide the registrant with an opportunity to be heard.

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

liberties of individuals depends on whether, for example, the legislation is consistent with the principles of naturaljustice.


18

5.50. The committee refers to Parliament whether cl. 59, to the extent that it denies theregistrant natural justice in relation to the making of an immediate suspension orcondition-imposing order, has sufficient regard to the rights of the registrant.

♦ clauses 139, 182, 225 and 288 (right to legal representation)

5.51. Under the scheme of the bill, minor disciplinary matters are dealt with by registrationboards and health assessments are dealt with by health assessment committees.Routine disciplinary matters are dealt with by professional conduct review panels.

5.52. All of these bodies are intended to proceed in a relatively informal manner.

5.53. The most serious disciplinary matters, which may merit cancellation or suspension ofa registrant’s registration, are generally dealt with by the Health Practitioner Tribunal,which is constituted by a District Court Judge assisted by assessors.

5.54. The bill’s provisions concerning legal representation basically reflect this hierarchy.

5.55. In hearings before boards, health assessment committees and panels, the registrant andany complainant may be accompanied by a lawyer or another person, and a board mayhave a lawyer present to assist it.

5.56. A board may permit a person other than a lawyer to address it on behalf of theregistrant, and a panel may permit a non-lawyer to address it on behalf of theregistrant or the board’s nominee. No person (either lawyer or non-lawyer) is entitledto address a health assessment committee.

5.57. A lawyer may not address a board, a panel or a Health Assessment Committee onbehalf of any person.

5.58. In short, lawyers can be present at the various proceedings mentioned above and canadvise the parties involved, but they are unable to appear before (that is, address) thebody.

5.59. The Explanatory Notes (in relation to cls. 139 and 182) state:

The prohibition on legal representation is considered essential to ensure an informaland non-legalistic approach to the hearing. Importantly, a registrant may choose(under various clauses of the bill) to have a disciplinary matter dealt with by theTribunal and be represented by a lawyer at that hearing.

5.60. In the tribunal, on the other hand, any party may have a lawyer or other person appearon their behalf. As mentioned earlier, the tribunal deals with more seriousdisciplinary matters.

5.61. The committee notes that whilst lawyers may accompany parties appearing atdisciplinary proceedings, they cannot appear before (that is, address) disciplinarybodies other than the tribunal.


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5.62. Taking into account the nature of the various disciplinary bodies established under thebill, the committee considers the bill’s provisions about access to legal advice andlegal representation, accord with the principles of natural justice.

♦ clauses 140, 183 and 226

5.63. Clauses 140, 183 and 226 all provide that a disciplinary body may direct that thecomplainant be excluded from part or all of the disciplinary hearing until thecomplainant has given evidence. In the case of the tribunal, other witnesses maysimilarly be excluded. In each case, the disciplinary body can only exercise thisdiscretion if it believes the attendance of the complainant (or other witness) beforegiving evidence would seriously prejudice the fairness of the hearing.

5.64. Such a power is consistent with the practice adopted in Courts18.

5.65. The committee notes that cls. 140, 183 and 226 enable the complainant and otherwitnesses to be excluded from the hearing until they have given evidence.

5.66. The committee observes that this power is consistent with the practice adopted incourts of law.

♦ clause 224

5.67. Clause 224 provides for the giving of evidence by “special witnesses”. This termincludes individuals younger than 12, persons the disciplinary body believes would belikely to be disadvantaged as witnesses by reason of intellectual impairment or culturaldifferences, individuals likely to suffer severe emotional trauma and individuals likelyto be so intimidated as to be disadvantaged as a witness.

5.68. Clause 224 stipulates a number of arrangements which may be made to assist suchpersons to give evidence. These include enabling another person to accompany themto provide emotional support, giving evidence by video tape, giving evidence from aroom other than that in which the tribunal is sitting, and ordering the registrant to beexcluded from the hearing or be obscured from the view of the special witness whilstthe special witness is giving evidence.

5.69. The cl. 224 arrangements will tend to reduce the opportunity for the registrant and hisor her legal representatives, and the tribunal itself, to interact with and assess theevidence of the “special witness” to the same extent as if evidence had been given inthe normal manner.

5.70. This could be said to detract from the rights of the registrant in relation to thepresentation of his or her case, and thereby to limit the provision of natural justice.

5.71. In matters of this kind, it is essential that a fair balance be struck between the rights ofthe registrant, the witness and the public.

18 Cross on Evidence (5th Aust edition) 1996 at page 390.


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5.72. The Committee refers to Parliament the question of whether the procedures set out incl. 224 for the giving of evidence by “special witnesses” have sufficient regard to therights and liberties of all persons concerned, including those of registrants subject todisciplinary proceedings.

Does the bill sufficiently subject the exercise of delegated legislative power to thescrutiny of the Legislative Assembly?19

♦ clause 374

5.73. Clauses 374 provides as follows:

A board may develop codes of practice, or adopt another entity’s code of practice, toprovide guidance to its registrants as to appropriate professional conduct orpractice.

5.74. A code of practice, or an amendment thereof, has no effect until it is approved by theMinister by gazette notice (cl.374(3)).

5.75. Clause 376 provides that a code of practice “is admissible as evidence” in disciplinaryproceedings, where those proceedings involve issues of appropriate professionalconduct or practice for the particular profession.

5.76. It should be noted that the stated purpose of the codes is to “provide guidance” toregistrants (cl. 374), and that whilst they constitute evidence of what is appropriateprofessional conduct, they are not declared to be conclusive evidence in respect ofthose matters (cl 376).

5.77. Because the code does not have effect until a gazette notice indicating Ministerialapproval has been published, the code would appear to be a “statutory instrument” interms of the Statutory Instruments Act 1992. However, the codes are not “subordinatelegislation” under that Act’s usual criteria, nor does the bill deem them to besubordinate legislation. Accordingly, the codes will not be required to be tabled in theLegislative Assembly, and will not be subject to Parliamentary disallowance.

5.78. The committee has previously considered bills permitting matters of significance,which might normally have been expected to be dealt with in subordinate legislation,to be incorporated in Ministerial directions or codes of conduct, departmentalguidelines or other instruments not subject to Parliamentary scrutiny.

5.79. In considering the appropriateness of such provisions, the committee takes intoaccount a variety of factors including the importance of the matters dealt with andtheir suitability for inclusion in subordinate legislation.

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

of Parliament depends on whether, for example, the bill sufficiently subjects the exercise of a delegated legislative powerto the scrutiny of the Legislative Assembly.


21

5.80. In respect of cl. 374, the committee has had difficulty in assessing whether thecontents of the proposed codes of practice are or are not matters which would moreappropriately be included in subordinate legislation.

5.81. The Committee seeks information from the Minister as to why it has been thoughtappropriate to incorporate the relevant material in board-generated codes of practice,rather than in regulations.

Does the legislation confer immunity from proceeding or prosecution withoutadequate justification?20

♦ clauses 386 and 387

5.82. Clause 386 confers upon members of boards, panels and the tribunal, and assessorsassisting the tribunal, the same protection and immunity as a District Court judgeperforming judicial functions. The clause also confers on parties appearing before aboard, a panel or the tribunal, and witnesses appearing before those bodies, the sameprotection and immunity as parties and witnesses enjoy in District Court proceedings.

5.83. In respect of the tribunal, the committee considers such immunity is appropriate.Although the matters dealt with by boards and panels are generally less serious,extension of the same immunity in respect of disciplinary proceedings before thosebodies is also perhaps not unreasonable.

5.84. Clause 387 confers immunity from civil and criminal liability upon persons who“honestly and on reasonable grounds” give information to investigating authorities inrelation to a complaint, an investigation, or for another purpose under the bill’sprovisions.

5.85. The Explanatory Notes address this issue as follows:

As the boards may rely upon complaints and information to trigger the processeswhich are used to protect the public, it is essential to remove any significantdeterrents to the making of complaints. It is important to acknowledge that personswho make complaints under this legislation do not receive any personal advantagefrom doing so (for example, they do not receive compensation for damages). Theprovision is defensible on the grounds that if complainants could be sued fordefamation or breach of confidence it is unlikely that complaints would be madeand, consequently, the public protection objectives of the legislation would befrustrated.

Further, clause 387 provides a restricted immunity. The immunity is only availablefor persons giving information to relevant entities for the purposes of making acomplaint or in the course of an investigation or another purpose under the Bill.

Also, this provision is standard for legislation of this kind and effectively mirrorssection 135 of the Health Rights Commission Act 1991.

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

liberties of individuals depends on whether, for example, the legislation does not confer immunity from proceeding orprosecution without adequate justification.


22

5.86. The committee refers to Parliament the question of whether the immunity grantedunder cl. 386 to members of disciplinary bodies, and to participants in disciplinaryproceedings before those bodies, is justified in the circumstances.

5.87. The committee refers to Parliament the question of whether the immunity given by cl.387 to complainants and other persons supplying information in relation toinvestigations and for other purposes under the bill’s provisions, is justified in thecircumstances.

♦ clauses 138, 181 and 222

5.88. Clauses 138 and 181 respectively provide that hearings before boards and panels arenot open to the public. Clause 222, on the other hand, provides that hearings beforethe tribunal, except in relation to “impairment” matters, are generally open to thepublic.

5.89. As mentioned earlier, the tribunal generally deals with more serious disciplinarymatters.

5.90. Whilst courts of law are generally open to the public, and whilst open hearings areusually considered to promote the proper application of justice, many court hearings,depending upon the nature of the matter being dealt with, are in fact either wholly orpartially closed to the public.

5.91. Moreover, the proceedings of statutory bodies other than courts, even where theyexercise powers which may impact adversely on individuals, are often not open to thepublic. This reflects a range of imperatives, including a perceived need to maintain asuitable level of privacy in relation to some or all of the persons involved.

5.92. As mentioned earlier, the bill imposes a general requirement to conduct publichearings upon the tribunal, which hears more serious disciplinary matters (which mayjustify cancellation of, or imposition of conditions upon, a registrant’s registration).

5.93. This issue is in strict terms perhaps more closely related to the rights and liberties ofindividuals rather than to the provision of natural justice, but the committee considersit is more conveniently dealt with in conjunction with the various other hearing-relatedissues canvassed above.

5.94. The Committee considers the degree of public access to hearings of the variousdisciplinary bodies established under the bill’s provisions to be reasonable.

Alert Digest No. 8 of 1999 Liquor (Evictions, Unlicensed Sales and Other Matters) Amendment Bill 1999

23

6. LIQUOR (EVICTIONS, UNLICENSED SALES AND OTHERMATTERS) AMENDMENT BILL 1999

Background

6.1. The Honourable R J Gibbs MLA, Minister for Tourism, Sport and Racing introducedthis bill into the Legislative Assembly on 25 May 1999.

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

to clarify and strengthen the existing provisions of the Liquor Act dealing with theeviction of patrons from licensed premises and the unlicensed sale of liquor.


♦ clause 9

6.3. Clause 9 replaces current s.165, and inserts new ss.165A and 165B. Section 165Bwill be referred to in more detail later in this Chapter.

6.4. Proposed s.165 sets out a specific list of grounds upon which persons may be requiredto leave licensed premises, and authorises the use of “necessary and reasonable force”for that purpose. Proposed s.165A likewise lists a number of specific grounds uponwhich a person can be refused entry to licensed premises, and necessary andreasonable force applied if they attempt to enter.

6.5. The background to these provisions appears from the following passages of theMinster’s Second Reading Speech:

For some time now licensees have considered it their right to vet the entry of patronsto their establishment and to check behaviour by removing problem patrons toprovide a safe environment for all. However, recent Court decisions have cast somedoubt on these provisions and have effectively removed the rights of licensees tocontrol their premises.

6.6. To the extent that the provisions expressly authorise removal of persons from, andrefusal of entry to, licensed premises, and authorise the use of necessary andreasonable force against them, proposed sections 165 and 165A will have an impactupon the rights and liberties of the patrons and intending patrons against whom theyare invoked. However, these restrictions upon the movement of particular individualsmust be considered in the context in which they occur, and in light of the rights ofother patrons and members of the public, and of the legal obligations to whichlicensees may be exposed.

6.7. The Minister refers to these matters in the following passages from his SecondReading Speech:


of individuals.


24

Coupled with this new flexibility (provided by the Liquor Act 1992) came greatersocial obligations in relation to the responsible service of alcohol. Licensees andtheir staff were asked to minimise the potential harms from alcohol sales byconsidering their management and service practices and to ensure a safeenvironment for patrons.

In providing this safe environment, the licensee must be able to monitor and checkpatron behaviour. Prohibiting entry to people who may be known trouble makers,intoxicated, underage or disorderly is not only good business practice, but itsafeguards the wellbeing of all patrons.

……

Equally as important as prohibiting entry is the ability to remove patrons who arecreating a disturbance, disorderly or for some other lawful reason. We have all readabout the increasing number of civil suits where licensees are being sued for notprotecting their patrons. This amendment will empower licensees and theiremployees to do just that. It’s not good enough to say “let the police deal with it”.Consider our country licensees. The local officer in charge of Police may be hoursaway. The licensee can’t just give a fellow another drink and ask him to sit quietlyand wait for the police to eject him from the hotel. This amendment contemplates thepossible harm these circumstances can cause to the problem patron and to otherpatrons.

6.8. Proposed ss. 165 and 165A confer upon licensees express rights, in stipulatedcircumstances, to remove patrons from, or refuse intending patrons entry to, licensedpremises, and authorise the use of necessary and reasonable force against them if theydo not comply.

6.9. The Committee refers to Parliament the question of whether those provisions of thebill have sufficient regard to the rights and liberties of the patrons and intendingpatrons concerned.

♦ clause 9 (proposed s.165B)

6.10. As mentioned earlier, proposed s.165 lists a number of specific grounds upon whichpersons may be required to leave licensed premises, and proposed s.165A likewiselists a number of specific grounds upon which persons may be refused entry tolicensed premises.

6.11. These sections are qualified by proposed s.165B, which provides as follows:

Preservation of other rights to prevent entry to premises or remove persons frompremises

Sections 165 and 165A do not limit any rights a person has under another law toprevent entry to premises to anyone or remove anyone from premises.

Example -

A licensee decides on a dress standard for persons in the licensed premises. The licensee may exercise the licensee’s rights apart from this Act to stop anyone whodoes not comply with the standard from entering the premises.


25

6.12. This draws attention to the corresponding question of what (if any) obligation anoperator of licensed premises has to allow persons who are not in breach of ss. 165and 165A entry to, and service at, the licensed premises.

6.13. The issue is best considered in terms of a general liquor licence.

6.14. In the committee’s view the operator of licensed premises, as owner or lessee of thosepremises, would enjoy a common law right to exclude other persons from theirproperty. The Anti-Discrimination Act 1991 would of course prevent such actionbeing taken on the basis of, for example, the affected person’s sex, age22 or race.Subject to that, however, the operator could refuse entry to any individual at will.

6.15. For example, it would seem to the committee that the operator of the sole hotel in asmall town could exclude a completely respectable individual simply because of someprevious business dispute with the person. In a similar vein, media reportsoccasionally refer to licensed premises which exclude persons because, whilst well-dressed and well-behaved, they are not attired in a pre-determined style, or because oftheir physical appearance.

6.16. In other words, it seems operators of licensed premises, unlike licensed taxi operatorsfor example, will have a general right to choose their patrons on whatever basis theyplease (subject to their not breaching anti-discrimination laws).

6.17. The Minister’s Second Reading Speech contains the following relevant passages:

In 1992 I introduced a new Liquor Act which allowed licensees greater flexibility instructuring and promoting their business to target a particular market sector. Sincethat time, diversity has flourished and hospitality operators are servicing a moresophisticated and demanding local market and are also able to quickly respond tointernational trends for tourists.

……

The licensee should be free to set the tone of their venue, for example by enforcingminimum dress standards and therefore cater for a particular market niche.

6.18. In addition, the Explanatory Notes state:

New section 165B preserves the rights of persons to prevent entry to the premises orremove persons from the premises other than in the circumstances outlined insections 165 and 165A. Licensees have the same general rights as the operator ofany other business to manage the business in a manner that they see fit. This mayinclude targeting a niche market, through dress codes for example, and generallysetting standards regarding patron behaviour. This will differ from premises topremises. It is not intended that sections 165 and 165A limit those rights in any way.

6.19. Both of the quoted sources to support the committee’s interpretation of the Act.

6.20. The committee seeks information from the Minister as to whether the policy intent isthat operators of licensed premises should enjoy an unqualified right (subject to any

22 The Liquor Act, of course, requires the exclusion of minors.


26

conditions of the particular licence, and to anti-discrimination laws) to excludepersons from their premises.

♦ clauses 11 to 19

6.21. Clauses 11 to 19 make a number of amendments to existing provisions of the LiquorAct and introduce various new sections, all of which are aimed at deterring theunlicensed sale of liquor.

6.22. The bill attempts to achieve this result in a number of ways. For example:• proposed new s. 169 and amended s. 171 will substantially increase the

maximum penalties for unlicensed sale of liquor and carrying or exposingliquor for sale

• amendments to s.173 will make it easier to convict the occupier or owner ofthe unlicensed premises from which liquor has been, or is being, sold

• new s.183A expressly authorises investigators to seize property if theyconsider that action necessary to prevent the use of the property in continuingor repeating unlicensed sales of liquor

• proposed new s.228A disqualifies a person from holding a licence or permitupon being convicted at least twice for unlicensed sales, and continues thatdisqualification for periods of 5 or 10 years depending upon the number ofconvictions.

6.23. The following passages from the Minister’s Second Reading Speech provide thebackground to these amendments:

The Amendment bill also seeks to increase the penalties relating to the unlicensedsale of liquor. The illegal sale of liquor brings with it the associated problems ofunrestrained and unsupervised public consumption of liquor including publicdrunkenness, violence and vandalism. Unlicensed operators have the propensity tocause significant harm within the community without any of the usual social or legalobligations. Legitimate operators have to pay for the same privileges, obtain townplanning approvals, run the gauntlet of public objections and provide facilities to anappropriate standard. The unlicensed operator sets up shop without considerationfor the law or their surrounding community.

This amendment will also increase the penalties for sly-grogging and I put theseunscrupulous operators on notice that the fines will fit the crime and the harm thatthey cause. In the more remote areas of this State sly-grogging is affecting manyindigenous communities. It undermines any attempts by local councils to enforcecommunity laws and control liquor supplies, leading to problems of drunkenness,violence and family distress.

6.24. The relevant provisions of the bill will impact not only upon the persons conductingthe unlicensed liquor sales, but upon others such as owners of premises. Thecommittee’s comments are mainly directed towards the position of these latterpersons.


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6.25. Again, the impact which the various provisions mentioned above will have on therights and liberties of individuals associated with the unlicensed sale of liquor must bebalanced against the rights of the public, which can be adversely affected in a varietyof ways by uncontrolled and illegal sales of alcohol.

6.26. The Committee refers to Parliament the question of whether the provisions of clauses11 to 19, which in various ways penalize the activities of persons associated with theillegal sale of liquor, have sufficient regard to the rights and liberties of those personsnot necessarily

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