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Emblems of Queensland Bill 2004
Emblems of Queensland Bill 2004
Explanatory Notes
General Outline
Objective of the Bill
The objective of the Bill is to effect the adoption of the Barrier Reef
Anemonefish (Amphiprion akindynos) as the State's official aquatic
emblem and to modernise statutory provisions regulating the assumption,
use or publication of the State arms and badge.
Reasons for the Objectives and how they will be Achieved
Queensland currently has four State emblems: the Cooktown orchid (the
floral emblem); the koala (the faunal emblem); the brolga (the bird
emblem); and the sapphire (the gem emblem) as prescribed by the Badge,
Arms, Floral and Other Emblems of Queensland Act 1959. However,
despite its unique and diverse aquatic life, Queensland does not have an
aquatic emblem.
A community consultation process was undertaken from 30 May to 19 July
2004 to assist in choosing a species suitable for adoption as the State
aquatic emblem.
Following this process and further consultation with Aboriginal and Torres
Strait Islander community representative bodies on potential cultural
sensitivities with particular species, the Barrier Reef Anemonefish
(Amphiprion akindynos) was selected as the State aquatic emblem.
As the adoption of the State aquatic emblem requires legislative
amendment, the modernisation of the Badge, Arms, Floral and Other
Emblems of Queensland Act 1959 was proposed. Accordingly, the Bill
modernises the provisions of the Act which prohibit the unauthorised
assumption, use or publication of the State arms and badge and inserts a
new provision effecting the adoption of the Barrier Reef Anemonefish as
the State aquatic emblem.
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Emblems of Queensland Bill 2004
The modernisation of the Act has resulted in some minor modifications to
the position of the original Act to align the Bill with current drafting
practice and reflect the contemporary environment.
Administrative Costs to Government of Implementation
There will be minimal costs to the Government of implementing this
legislation. Printed and electronic publications will be progressively
updated to reflect the adoption of the aquatic emblem; costs will be met
from within existing budgetary allocations.
Consistency with Fundamental Legislative Principles
Although the Bill was drafted with regard to fundamental legislative
principles, it is noted that two clauses may be considered not to have
sufficient regard to the rights and liberties of individuals as they effectively
reverse the onus of proof.
Clause 4(2) of the Bill retains a provision of the original Act that requires
an accused person to prove lawful authority to assume, use or publish the
State arms or badge. Although this provision reverses the onus of proof, it
accords with the common law principle that the burden of proving or
negativing a state of affairs should rest on the person who has superior or
peculiar knowledge of the essential facts. In this situation, it would be
within the knowledge of an alleged offender to prove the existence of a
lawful authority, whereas it would be difficult for the State to prove such an
absence, potentially complicating the prospects of any future prosecutions.
Clause 5 of the Bill requires executive officers of a corporation to ensure
the corporation complies with the clause relating to the unauthorised
assumption, use or publication of the State arms or badge. As such, if a
corporation commits an offence under the Bill, each executive officer
commits the offence of failing to ensure that the corporation complies with
the clause. While such provisions are considered to reverse the onus of
proof, an executive officer liability is considered necessary in this instance
to ensure that individuals are unable to escape prosecution by acting
through corporations which would bear legal responsibility for their
actions. A defence against liability is provided for under the Bill, if
executive officers are able to prove that they took all reasonable
precautions and exercised due diligence to ensure the corporation complied
with the clause or that they were not in a position to influence the conduct
of the corporation in relation to the offence. It is also noted that the Bill
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Emblems of Queensland Bill 2004
alters the situation currently in operation under the Act by limiting liability
to executive officers of corporations, rather than any person connected with
an unincorporated club, body or association, and providing less stringent
requirements in establishing a defence against liability.
Consultation
All Queenslanders were afforded the opportunity to have input into the
selection of the State's aquatic emblem through the community
consultation process undertaken from 30 May to 19 July 2004. The public
was able to nominate one of eleven species shortlisted by an expert panel or
to nominate any other species of their choice.
Representatives of the Queensland Museum, the Indigenous community,
James Cook University, the University of Queensland, the Australian
Marine Conservation Society, the Freshwater Fishing and Stocking
Association of Queensland, Sea World, the Australian Underwater
Federation, the Queensland Seafood Industry Association, Sunfish
Queensland and the Museum of Tropical Queensland participated on the
expert panel which shortlisted the species for consideration as the aquatic
emblem.
Aboriginal and Torres Strait Islander representative bodies were consulted
regarding potential cultural sensitivities with the three species that received
the most nominations from the public.
Notes on Provisions
Part 1 Preliminary
Clause 1 states the short title of the Bill.
Clause 2 states that words used in the Bill are defined in the dictionary at
Schedule 5.
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Emblems of Queensland Bill 2004
Part 2 State arms, State badge and State flag
Clause 3 states that descriptions of the State arms, State badge and State
flag are set out in Schedule 1, Schedule 2 and Schedule 3 respectively.
Clause 4 prohibits the unauthorised assumption, use or publication of the
State arms or State badge. A person is prohibited from assuming, using or
publishing the State arms or State badge in connection with a relevant
enterprise, namely activities performed in connection with a club or
association, business, profession, trade or calling unless lawful authority
has been obtained. Lawful authority may be obtained from the Queen, the
Governor in Council, the responsible Minister, an Act or a law of the
Commonwealth. A person is also prohibited from otherwise assuming,
using or publishing the State arms or State badge without reasonable
excuse.
The prohibition on the assumption, use or publication of the State badge
does not extend to instances where the State badge appears as part of the
State flag; there are no restrictions imposed on the flying of the State flag
and all Queenslanders are encouraged to do so. However, the prohibition
on assumption, use or publication of the State arms or State badge includes
anything that depicts or substantially resembles the State arms or State
badge. If a person contravenes this clause, they are liable to a maximum
fine of 50 penalty units.
Clause 5 requires executive officers of a corporation to ensure that the
corporation complies with the Bill. Accordingly, if a corporation commits
an offence under the Bill, each executive officer will have committed the
offence of failing to ensure that the corporation complies with the clause.
However, the clause provides a defence against liability for executive
officers if they are able to prove that they took reasonable precautions and
exercised due diligence to ensure the corporation complied with the clause,
or that they were not in a position to influence the conduct of the
corporation in relation to the offence. For the purposes of the clause, an
executive officer means any person concerned with or who takes part in the
management of the corporation, whether or not they are a director or their
position is given the name of executive officer.
Clause 6 provides that offences against the Bill may be prosecuted
summarily under the Justices Act 1886 on the complaint of a person
authorised in writing by the responsible Minister to make the complaint.
Further, a person is able to be charged for one or more complaints during
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Emblems of Queensland Bill 2004
the period that the offence continues, and is liable to a continuing penalty
of 10 penalty units per day for each day the offence continues.
Clause 7 provides that the responsible Minister is able to delegate the
Minister's authority to authorise assumption, use or publication of the State
arms or badge to an appropriately qualified officer of the administering
department.
Clause 8 applies where an Act prescribes that an armorial insignia be used
on a document or seal, or for any other purpose, as a mark of authority
relating to the State. The clause provides that the use of a representation of
the State arms for this purpose would comply in law with that prescription.
Part 3 Other State emblems
Clause 9 states that other State emblems are set out in Schedule 4.
Part 4 General
Clause 10 provides the Governor in Council with a regulation-making
power under the Bill.
Part 5 Repeal and transitional provisions
Clause 11 repeals the Badge, Arms, Floral and Other Emblems of
Queensland Act 1959.
Clause 12 provides that a reference to the repealed Act, either in another
Act or in any other document, may be taken as a reference to the Bill if the
context permits.
Clause 13 provides for the continued validity of lawful authorities that
were granted under the repealed Act. Accordingly, following
commencement, any lawful authority granted under the repealed Act is
taken to be a lawful authority under clause 4 of the Bill.
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Emblems of Queensland Bill 2004
Schedule 1 - State arms
Schedule 1 sets out the heraldic and monochrome pictoral description of
the State arms. This description reflects the arms which were assigned to
the State by Royal Warrant in 1977.
Schedule 2 - State badge
Schedule 2 sets out the heraldic and monochrome pictoral description of
the State badge. This description reflects the badge which was assigned to
the State by notification in the Government Gazette in 1979.
Schedule 3 - State flag
Schedule 3 sets out a written and monochrome pictoral description of the
State flag. This description reflects the flag which was assigned to the
State by notification in the Government Gazette in 1876.
Schedule 4 - Other State emblems
Schedule 4 sets out the other emblems of the State, namely the floral
emblem (the Cooktown orchid); the faunal emblem (the koala), the bird
emblem (the brolga), the gem emblem (the sapphire) and the aquatic
emblem (the barrier reef anemonefish).
Schedule 5 - Dictionary
Schedule 5 defines the terms used in the Bill.
� State of Queensland 2004