Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Parliament of Queensland Amendment Bill 2004
PARLIAMENT OF QUEENSLAND
AMENDMENT BILL 2004
EXPLANATORY NOTES
Title of the Bill
Parliament of Queensland Amendment Bill 2004.
Policy Objectives of the Bill
To reinstate the previously applicable exemption in respect of land
transactions from the statutory prohibition on Members' transacting
business with the State under section 71 of the Parliament of Queensland
Act 2001.
Achieving the Policy Objectives of the Legislation
Section 71 of the Parliament of Queensland Act 2001 provides that a
Member of Parliament must not transact business, directly or indirectly,
with an entity of the State. Under the terms of the provision, if a Member
contravenes the section, a contract with an entity of the State is invalidated
to the extent of the contravention. In addition, under section 72(1)(h) of the
Act, a Member's seat becomes vacant if the Assembly, by resolution,
decides the Member has contravened section 71(1), provided that the
Assembly does not also make a declaration under section 73. Section 73
provides that the Assembly may disregard certain disqualifying events, in
specific circumstances.
Prior to the consolidation of the Parliament of Queensland Act 2001,
sections 6 and 7A of the Constitution Act 1867 applied to disqualify
Members of the Assembly from entering into certain contracts with the
State. The disqualification extended only to agreements `for the furnishing
or providing of wares and merchandise'. Along with other specified
exemptions, agreements for the purchase of land from, or sale of land to,
the State were specifically excluded from the disqualification.
2
Parliament of Queensland Amendment Bill 2004
It has been confirmed that, during the drafting stage of the consolidation
process in 2001, the specific exemption with respect to land transactions
with the State provided for in the Constitution Act 1867 was inadvertently
excluded from the consolidated Parliament of Queensland Act 2001.
This omission has had the effect of increasing the scope of s.71 beyond
that of the previously applicable provisions. Section 71 now applies to
cases which were specifically and intentionally excluded by the earlier
provisions. The scope of the provision has been extended at least as far as
to disqualify Members from entering into agreements with the State that
involve transactions in land.
The Bill amends section 70(2) of the Parliament of Queensland Act
2001. The proposed amendment will effectively reinstate the exemption in
respect of land transactions that was previously applicable under the
Constitution Act 1867. The amended section 70(2) provides that a Member
does not "transact business" with an entity of the State in specified
circumstances, including contracts to sell an interest in land to, or acquire
an interest in land from, an entity of the State, provided that the terms of
the agreement for sale or purchase are not more favourable to the Member
than they would be to a member of the public.
The Bill also provides for a transitional provision to be inserted into the
Act. The draft provision states that `during the transitional period, section
71(2) is taken always to have applied in relation to a contract as if the
amendment of section 70(2)(a) had commenced on 6 June 2002'. This date
is the date upon which the Parliament of Queensland Act 2001
commenced. "Transitional period" is defined as the period starting at the
beginning of 6 June 2002 and ending at the end of the day before the
commencement of the proposed amendment.
The practical effect of the proposed transitional provision will be the
same as if the proposed amendment was to apply retrospectively, from 6
June 2002. The transitional period will ensure that all transactions in land
since 6 June 2002 that would have been covered under the previously
applicable provisions will be exempted under the amended s.70.
Administrative Cost
Future administrative costs to the Government will be minimal.
3
Parliament of Queensland Amendment Bill 2004
Consistency with Fundamental Legislative Principles
The Bill is consistent with the fundamental legislative principles set out
in the Legislative Standards Act 1992.
The Bill inserts a deeming provision that effectively applies the land
transaction exemption inserted by Clause 3(1) of the Bill from 6 June 2002.
This retrospective operation is not considered to be objectionable, for the
following reasons:
· the omission of the exemption from the Parliament of
Queensland Act 2001 was inadvertent, and was therefore also not
publicised;
· the amendment is intended to be curative in nature, so as to
restore the previously applicable exemption; and
· the practical difficulty of seeking to undo any land transactions
between Members of the Assembly and the State that may have
taken place since 6 June 2002.
Consultation
The Crown Solicitor and Acting Crown Solicitor were consulted on the
Bill.
NOTES ON CLAUSES
Clause 1 sets out the short title of the Act.
Clause 2 provides that the Act amends the Parliament of Queensland Act
2001.
Clause 3 inserts a new section 70(2)(a)(ii) of the Parliament of
Queensland Act 2001.
Section 70 of the Parliament of Queensland Act 2001 defines the term
`transacts business' and specifically excludes certain circumstances from the
definition of that term. The new section 70(2)(a)(ii) provides that a Member
does not transact business with the State in relation to:
4
Parliament of Queensland Amendment Bill 2004
· contracts for provision by the State of goods or services, that are
available to the public, on the same terms that they are available
to the public;
· contracts for acquisition from the State of an interest in land, that
is available to the public, on the same terms that the interest is
available to the public; or
· contracts for acquisition by an entity of the State of an interest in
land on terms not less favourable to the entity than if the sale
were by a member of the public.
The effect of the new provision is that a Member would be able to sell an
interest in land to, or acquire an interest in land from, an entity of the State,
provided that the terms of the agreement for sale or purchase are not more
favourable to the Member than they would be to a member of the public.
The clause also deletes the list of `Examples of subparagraph (ii)' from
section 70(2)(a). The list of examples is no longer necessary given the more
comprehensive definition provided by the new subparagraph (ii).
Clause 4 inserts a new section 163 as a transitional provision.
Section 163(1) provides that during the transitional period, section 71(2)
is taken always to have applied in relation to a contract as if the amendment
of section 70(2)(a)(ii) had commenced on 6 June 2002.
This provision will ensure that contracts that would be excluded from the
definition of `transacts business' under the new 70(2)(a)(ii), that were
entered into between 6 June 2002 (the date of commencement of the
Parliament of Queensland Act 2001) and the date of commencement of the
amendment, will not be invalidated under section 71(2).
Section 163(2) provides that in deciding whether a Member has
contravened section 71(1) during the transitional period, section 72(1)(h) is
taken to apply as if the amendment of section 70(2)(a)(ii) had commenced
on 6 June 2002.
This provision will ensure that contracts that would be excluded from the
definition of `transacts business' under the new 70(2)(a)(ii), that were
entered into between 6 June 2002 (the date of commencement of the
Parliament of Queensland Act 2001) and the date of commencement of the
amendment, will not be grounds for a resolution by the Assembly that a
Member who entered into such a contract has contravened section 71(1),
and, as a consequence, could have their seat declared vacant.
Section 163(3) provides that section 159(6) of the Parliament of
Queensland Act 2001 has effect as if the amendment had commenced on 6
5
Parliament of Queensland Amendment Bill 2004
June 2002. Section 159(6) is a transitional provision that ensures section
71(1) applies to continuations of transactions that were commenced prior
to the commencement of the Act, but does not apply to transactions
completed prior to commencement of the Act. The new section 163(3)
clarifies the operation of section 159(6) to ensure that it is read as if the
amendment to section 70(2)(a)(ii) had commenced on 6 June 2002.
Section 163(4) defines terms used in the section.
The section states that "transitional period" means the period starting at
the beginning of 6 June 2002 and ending at the day before the
commencement of the amendment of section 70(2)(a)(ii). The effect of this
definition is to ensure that there is no period of time during which a
Member who entered into a contract that would be exempted under the
amended 70(2)(a)(ii) could be found to have contravened section 71(1).
© State of Queensland 2004