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State Penalties Enforcement and Other Legislation Amendment Bill 2009
State Penalties Enforcement and Other
Legislation Amendment Bill 2009
Explanatory Notes
Objectives of the Bill
The objectives of the Bill are to:
1. amend the State Penalties Enforcement Act 1999 (SPEA) to
strengthen the compliance and enforcement capabilities of the State
Penalties Enforcement Registry
2. amend the Police Service Administration Act 1990 and the Education
(Queensland College of Teachers) Act 2005 to enable Queensland's
participation in the COAG-endorsed national exchange of criminal
history information for people working with children
3. confer additional jurisdiction on the Queensland Civil and
Administrative Tribunal (QCAT)
4. correct minor technical errors to ensure that the Queensland Civil and
Administrative Tribunal Act 2009 and the Queensland Civil and
Administrative Tribunal (Jurisdiction Provisions) Amendment Act
2009 can operate as intended
5. amend the Classification of Films Act 1991, the Classification of
Publications Act 1991 and the Classification of Computer Games and
Images Act 1995 (classification Acts) to allow the appointment of
appropriately qualified public service officers as inspectors under
those Acts, in order to facilitate the continued use of Office of Fair
Trading inspectors, despite recent machinery of government changes
6. expand the bail powers of judicial registrars in uncontested matters in
the Magistrates Courts consistent with the original policy intent and
enable judicial registrars to hear and determine minor civil disputes as
adjudicators for QCAT (consistent with their current powers in
relation to small claims and minor debts)
7. amend the Guardianship and Administration Act 2000 to correct an
oversight that inadvertently removed the ability for a person to apply
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
to the Guardianship and Administration Tribunal for a review of the
appointment of an administrator
8. amend the Right to Information Act 2009 and the Information Privacy
Act 2009 to clarify internal review delegation powers, ensure that
decisions to neither confirm nor deny the existence of certain
information are reviewable and to ensure that the Information
Commissioner is not prevented from giving certain documents to parties
to an external review so that natural justice is accorded to all parties
9. amend the Disability Services Act 2006 to extend the transitional
period for restrictive practices for a further 9 months, and to make a
consequential amendment to the Guardianship and Administration
Act 2000
10. amend the Superannuation (State Public Sector) Act 1990 to confirm
that the QSuper Board of Trustees (QSuper Board) is within the
regulatory reach of the Australian Prudential Regulation Authority
(APRA) and the Australian Securities and Investment Commission
(ASIC), to the extent relevant as a regulated superannuation fund; and
also to provide for the appointment of a `standing' deputy chairperson
to the QSuper Board.
Reasons for the Bill
SPER Enforcement Initiatives
The State Penalties Enforcement Registry (SPER) recovers unpaid court
ordered fines (which are paid into consolidated revenue), court ordered
restitution or compensation (which is paid to victims of crime) and
infringement notice penalties issued by State Government agencies and
other administering authorities (e.g. local councils, hospitals, universities).
The objectives of the SPER system include maintaining the integrity of
fines as a viable sentencing or punitive option for offenders and
maintaining confidence in the justice system by enhancing the way fines
and other monetary penalties can be enforced.
Acknowledging that not everyone can pay their fine or other monetary
penalty in full upfront, the SPER system currently provides a range of
"compliance" options for people to pay their debt. These include flexible
payment arrangements under an instalment plan, direct debit or deduction
from Centrelink payments or, for those people who genuinely can not
afford to pay, unpaid community service under a fine option order in lieu of
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
payment. As at 1 June 2009, approximately $203M of the outstanding fine
pool managed by SPER was under "active compliance".
Although many people accept responsibility for their wrongdoing and
either pay their debt in full or enter into a compliance arrangement, there
are just as many people who steadfastly refuse to pay their debt to society.
The SPER system currently provides a range of enforcement options to
recover these debts. These include driver licence suspension (for unpaid
amounts relating to motor vehicle offences); fine collection notices to
garnishee wages, redirect money from debtors' bank accounts or attach
debts owed to the debtor; enforcement warrants to register interests against
debtors' vehicles or land or to seize and sell real and personal property;
warrants of apprehension for interstate debtors; and as a last resort,
warrants of arrest and imprisonment.
As at 1 June 2009, $249.1M of the outstanding fine pool managed by SPER
was either under some form of enforcement action or not under any form of
compliance, enforcement or suspension. The Government has developed
new enforcement strategies to significantly enhance SPER's ability to
recover this component of the outstanding fine pool. The SPEA requires
amendment to facilitate these initiatives.
Enforcement of unpaid wages and other entitlements orders by SPER
Section 34 of the SPEA prescribes the range of court ordered fines,
penalties and other amounts that can be referred to SPER for enforcement.
It does not currently include orders made under the Industrial Relations Act
1991 for the payment of unpaid wages, tool allowance, unpaid
superannuation contributions or fees charged illegally by private
employment agents. These orders are enforceable either under the Justices
Act 1886 as an order for payment of money made under that Act or can be
recovered by the employee from the employer as a debt. Over time many
of these orders have been referred to, and enforced by, SPER. Two recent
Industrial Court decisions identified that the SPEA does not currently
permit this practice. Both the SPEA and the Industrial Relations Act
require amendment to establish referral to SPER as an alternative
enforcement option for "wages victims".
National exchange of criminal history information for people working with
children
On 29 November 2008, the Council of Australian Governments (COAG)
agreed to establish an inter-jurisdictional exchange of criminal history
information for people working with children ("ECHIPWC"; "the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
exchange"), to better protect children. COAG also endorsed a set of
implementation actions, the establishment of a project implementation
committee (which is chaired by Queensland's Department of the Premier
and Cabinet) and an implementation plan.
The implementation plan includes that jurisdictions will do what is
legislatively necessary for the information exchange to commence by late
November 2009. This followed COAG's agreement in principle in April
2007 to a framework for such an exchange.
Currently, the criminal history information (CHI) considered by Australian
child related employment screening units is extensive when sourced
intrastate but limited when sourced from other jurisdictions: virtually only
"unspent" convictions are shared inter-jurisdictionally. Under COAG's
proposed exchange, jurisdictions will for the first time share routinely an
expanded range of CHI.
The "expanded CHI" that the exchange is designed to share includes:
· spent convictions (convictions which, after a rehabilitation period, are
otherwise no longer part of the person's criminal history and which
the person need not disclose);
· pending charges and (except for Victoria and the Australian Capital
Territory) non-conviction charges, including acquittals and withdrawn
charges;
· juvenile as well as adult convictions and charges; and
· "circumstances information", which may be the subject of a follow-up
request by a screening unit that has received the bare record of a
conviction or charge but is interested in details of the offence or
alleged offence that may not be clear from the record, for example,
whether a child was involved. Circumstances information will be
supplied in the form of a police service's original prosecution brief or
extract from it. Circumstances information will be exchanged via a
one-year, fee-for-service trial during which time the costs of its
supply, so far inestimable nationally, will be assessed. CHI held by
Courts and Directors of Public Prosecutions is outside the scope of the
exchange.
Screening units in receiving jurisdictions will benefit from receiving the
expanded CHI to better inform their decision making. Given the sensitive
nature of the expanded CHI and its potential to impact adversely on
individuals, COAG has stipulated strict "participation requirements" on the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
use of the information, as outlined under "Consistency with Fundamental
Legislative Principles" below.
The exchange does not require a uniform approach to how child related
employment screening is done within jurisdictions. (Indeed, the exchange
is intended to leave jurisdictions' disparate screening arrangements as
untouched as possible.) Rather, the exchange is about removing
jurisdictions' legislative barriers to supplying the expanded CHI between
jurisdictions, while ensuring that the screening units nominated by
jurisdictions to receive information via the exchange meet the participation
requirements. Queensland has nominated the Commission for Children and
Young People and Child Guardian and the Queensland College of Teachers
to participate in the exchange.
QCAT Amendments
The Queensland Civil and Administrative Tribunal Act 2009 creates QCAT,
contains the membership provisions and sets out the tribunal's general
functions and powers. The Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009 amends over 200 pieces of
legislation to give QCAT jurisdiction to hear and decide matters that are
currently decided by the tribunals that are amalgamated into QCAT.
The Government has announced that QCAT will commence operations on
1 December 2009. The new tribunal is to be a single recognisable gateway
to increase the community's access to justice and increase the efficiency
and quality of decision making through a larger administrative structure.
Enforcement of classifications Acts
Office of Fair Trading (OFT) inspectors have investigated and prosecuted
alleged breaches of the Classification of Films Act 1991, the Classification
of Publications Act 1991 and the Classification of Computer Games and
Images Act 1995 (classifications Acts) since the early 1990s. Under recent
machinery of government changes, the Attorney-General retained
administrative responsibility for classifications but OFT was transferred to
the Department of Employment, Economic Development and Innovation.
As currently drafted, the classification Acts prevent the employees of any
other agency from being appointed as inspectors under those Acts (except
the police, who do not investigate or prosecute alleged classification
offences unless the complaint involves suspected child exploitation).
Amendments are required to facilitate the continued use of OFT inspectors
to enforce the classifications Acts.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Amendment to Disability Services Act 2006
In 2008, amendments were made to the Disability Services Act 2006 and
Guardianship and Administration Act 2000 to create a legislative scheme
to regulate the use of restrictive practices by disability service providers,
and mandate positive behaviour support. A transitional period was included
in the legislative scheme to allow time for a disability service provider to
set up for the full scheme, which has more onerous requirements. Under
the scheme, a disability service provider may be authorised to use a
restrictive practice in certain circumstances, while ensuring the individual
has safeguards to protect their rights. Restrictive practices include
containment, seclusion, chemical, physical or mechanical restraint. At
times, restrictive practices are used to manage a person's behaviour which
might put them or others at harm or a serious risk of harm.
An amendment is required to extend the transitional period for using a
restrictive practice. The amendment will provide more time for a service
provider to meet the full legislative requirements, leading to better
assessments and plans for the individual and more informed
decision-making. It will also authorise a disability service provider to
continue to use a restrictive practice during the transitional period if they
meet a set of transitional requirements, already prescribed in the current
legislative scheme. While the extension is for 9 months, the majority of
disability service providers are expected to comply with the full scheme as
early as possible.
Amendment to the Superannuation (State Public Sector) Act 1990
APRA has raised a concern that the current QSuper Act contains State
protection for the QSuper Board, which may prevent the enforcement of
any directions, or pecuniary penalties, imposed by APRA or ASIC. The
proposed amendment effectively states that the QSuper Board does not
have the immunities of the State for specific provisions of the Corporations
Act 2001 (Cwlth) and the Superannuation Industry (Supervision) Act 1993
(Cwlth), in relation to its operation as a superannuation provider.
The QSuper Act currently allows for the QSuper Board to appoint a deputy
chairperson for a meeting if the chairperson is unable to attend. The
proposed amendment provides for a standing appointment of a deputy
chairperson, how the person is to be elected, who is eligible for election
and the circumstances under which they will cease to be deputy
chairperson. In situations where both the chairperson and deputy
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
chairperson are absent, the current practice whereby trustees at the meeting
elect a trustee to act as chairperson for that meeting will continue.
Achievement of the Objectives
SPER enforcement initiatives
The Bill strengthens SPER's compliance and enforcement capabilities by
amending the SPEA to:
(a) expand driver licence suspension to unpaid amounts for non-motor
vehicle related offences - this initiative brings Queensland into line
with all other jurisdictions (except the Australian Capital Territory);
(b) create new powers and processes for SPER to immobilise, seize and
sell vehicles owned by recalcitrant high-value debtors - this initiative
brings Queensland into line with Victoria, South Australia and New
Zealand, where "wheel clamping" is already an enforcement option.
It will first be trialled in the Brisbane metropolitan area (in the
Metropolitan North and Metropolitan South police regions) for 12
months commencing 1 January 2010. This will provide an
opportunity to assess implementation issues before the initiative is
rolled out state-wide.
This new enforcement option will apply to debtors who owe more
than a prescribed threshold amount (intended to be prescribed as
$5,000), are the sole registered operator of a motor vehicle and for
whom other compliance and enforcement options are either not
suitable or have proven ineffective.
It will be used as a "last resort" enforcement action, second only to
imprisonment. The wheel clamping process will provide debtors with
ample opportunity to pay the debt or enter into compliance before
their vehicle is actually clamped, seized and sold.
The proposed process involves SPER registering an interest over the
vehicle on the Register of Encumbered Vehicles under section 110 of
the SPEA (to make it harder for the debtor to avoid clamping by
selling the vehicle or transferring its registration); serving the debtor
with an intent notice that gives the debtor 14 days to pay or enter into
compliance; serving the debtor with an immobilisation warrant that
empowers SPER to clamp the vehicle at any reasonable time of the
day or night without further notice to the debtor; clamping the vehicle
for up to five days; and where the vehicle is of sufficient value,
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
immediately seizing it for sale after the clamps are removed. Vehicles
of low monetary value will be released and SPER will refer the debtor
to the next warrant evaluation committee for an arrest and
imprisonment warrant. The process is illustrated in the diagram at
Appendix A.
The proposed process incorporates an assessment of whether
clamping will cause severe and unusual hardship to the debtor, the
debtor's family or a third person who uses the vehicle but has no
capacity to ensure the debtor pays the debt,. This assessment will be
made both before the immobilisation warrant is issued and may be
made again during the immobilisation period. It will take account of
considerations including the debtor's homelessness, employment and
family/carer responsibilities.
It will be possible to clamp vehicles in a public place, the debtor's
place of residence, a corporate debtor's place of business or any other
place with the occupier's consent. Vehicles cannot be clamped in
places where the vehicle would be a traffic or safety hazard or where
the safety of the vehicle's occupants could be compromised.
Enforcement officers will be given powers of entry, search and to
require information to locate and clamp vehicles. They will not be
able to use force when exercising these powers.
The proposed amendments will be supported by operational
guidelines issued by the SPER Registrar. The amendments also
include a range of offences targeting activity that attempts to avoid,
frustrate or interfere with the clamping, seizure and sale process.
(c) strengthen SPER's existing powers of seizure and sale - although
SPER already has power to issue an enforcement warrant to seize and
sell real and personal property, SPER has not used these powers to
date because it has had neither the resources nor systems necessary to
regularly seize, store and sell property. The proposed amendments
will strengthen SPER's seizure and sale powers and align them with
the powers and process for enforcing money orders under the Uniform
Civil Procedure Rules 1999.
This aspect of the Bill will facilitate both the wheel clamping initiative
and a separate two year pilot in the Brisbane metropolitan area using
Magistrates Court bailiffs to enforce seizure and sale warrants against
debtors who owe $1000 or more.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
(d) allow SPER to use SMS technology to communicate with debtors,
without requiring debtors' consent - this aspect of the Bill will
facilitate the use of SMS technology to prompt debtor compliance and
encourage higher rates of payment, particularly by the 60% of debtors
aged under 34 years. Debtors will be sent SMS notifications when
SPER intends to suspend the debtor's driver licence (following prior
written notification); the debtor's credit card is due to expire (where
the debtor has agreed to a payment plan using the credit card); and
before SPER cancels an agreed payment plan (following issue of a
default notice). Other use criteria will be explored during testing.
Enforcement of unpaid wages and other entitlements orders by SPER
The Bill amends both the Industrial Relations Act and the SPEA to
establish referral to SPER as a cost-effective alternative enforcement
option for "wages victims". Employees will still be able to use existing
civil processes to recover the amounts ordered. Formalising this additional
enforcement option will assist employees who may have limited resources
to pursue a civil recovery process. The amendment will also validate the
past practice of these orders being referred to and enforced by SPER.
National exchange of criminal history information for people working with
children
In agreeing at the November 2008 COAG meeting to participate in the
exchange, Queensland (along with the other Australian jurisdictions) in effect
agreed to (i) enable the supply of its expanded CHI interstate and (ii)
ensure its participating screening units can receive the expanded CHI from
interstate. "Interstate" in this context means "interjurisdictional" and
includes reference to sharing information with the Territories and the
Commonwealth.
The Bill amends the Police Service Administration Act 1990 to remove the
current legislative barriers to Queensland supplying its expanded CHI
interstate (that is, beyond the convictions currently provided) for the
purposes of child related employment screening. Those restrictions are
contained in, for example, the Police Service Administration Act itself and
the Criminal Law (Rehabilitation of Offenders) Act 1986.
The Bill amends the Education (Queensland College of Teachers) Act 2005
to ensure the College meets COAG's requirements for participating in the
exchange, including that the expanded CHI can only be used for assessing
risks to the safety of children, and not for general employment screening or
probity checking individuals. The Commission for Children and Young
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
People and Child Guardian, which will be Queensland's other agency
participating in the exchange, meets the participation requirements already
and its legislation is not being amended by this Bill.
QCAT Amendments
To achieve its objectives the Bill will amend the Queensland Civil and
Administrative Tribunal Act 2009, the Queensland Civil and Administrative
Tribunal (Jurisdiction Provisions) Amendment Act 2009 and other relevant
Acts to confer additional jurisdiction and correct minor errors.
The Bill will also amend the Queensland Civil and Administrative Tribunal
Act 2009 and the Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009 to give judicial registrars
some additional bail powers in uncontested matters and enable them to hear
and determine minor civil disputes as adjudicators for QCAT. The judicial
registrar pilot will be extended from 2 to 3 years at Townsville and
Southport Magistrates Courts pursuant to a regulation made under section
53S of the Magistrates Act 1991.
Enforcement of classifications Acts
The Bill amends the three classifications Acts to permit the appointment of
appropriately qualified public service officers as inspectors under those
Acts. This will facilitate the continued use of OFT inspectors to perform
the classifications enforcement function. This will be operationalised
through a memorandum of understanding between the Department of
Justice and Attorney-General (DJAG) and the Department of Employment,
Economic Development and Innovation (DEEDI).
Amendment to Disability Services Act 2006
The Bill amends the Disability Services Act 2006 to extend the transitional
period for restrictive practices for a further 9 months - making 1 October
2010 the date when a disability service provider must meet all of the
requirements under the full scheme. While the extension is for 9 months, the
majority of disability service providers are expected to comply with the full
scheme as early as possible. A consequential amendment is also made to the
Guardianship and Administration Act 2000 so that the transitional period is
consistent for both Acts.
Amendment to the Superannuation (State Public Sector) Act 1990
The Bill amends the Superannuation (State Public Sector) Act 1990 to
confirm that the QSuper Board is within the regulatory reach of the APRA
and ASIC, to the extent relevant as a regulated superannuation fund; and
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
also to provide for the appointment of a `standing' deputy chairperson to
the QSuper Board.
Estimated Cost for Government Implementation
An increase in controlled appropriation revenue of $1.08M to SPER over
three financial years has been approved, based on the predicted increase in
the administered revenue collect by SPER resulting from the wheel
clamping initiative.
The remaining SPER enforcement initiatives (including expanding driver
licence suspension to unpaid amounts for non-motor vehicle related
offences and the two-year pilot using Magistrates Court bailiffs to seize
and sell property owned by high value debtors) will be undertaken within
existing resources.
DJAG and DEEDI will enter into a fee-for-service arrangement for OFT
inspectors to continue to perform the classifications enforcement function.
This will continue to be met within existing resources
The costs of Queensland participating in the COAG-endorsed national
criminal history exchange are not expected to be substantial. The
Commission for Children and Young People and Child Guardian and the
Queensland College of Teachers will meet the costs from existing
allocations. The exchange is expected to be roughly cost neutral to the
Queensland Police Service.
The costs associated with the conferral of additional jurisdiction on QCAT
will be funded through the realignment of existing resources.
Funding for the extension of the judicial registrar pilot in the Magistrates
Courts at Townsville and Southport for an additional 12 months will be met
from existing departmental appropriations.
Any costs for extending the transitional period for restrictive practices will
be met from existing budget allocations.
There is no cost to Government in implementing the amendments to the
Superannuation (State Public Sector) Act 1990.
Consistency with Fundamental Legislative Principles
The following clauses may represent a breach of fundamental legislative
principles and are discussed below:
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Chapter 2
Wheel clamping initiative
The proposal to immobilise a debtor's vehicle and seize and sell it or other
real and personal property may be considered to have insufficient regard to
the rights and liberties of individuals - Legislative Standards Act 1992,
section 4(2)(a).
The immobilisation and seizure and sale initiative is targeted at debtors
who have accumulated large amounts of unpaid monetary penalties and
who have steadfastly refused SPER's attempts to work with them to find
ways to pay their debt.
The proposal is justified in this context because the affected individuals
have:
(a) committed offences for which penalties have been applied;
(b) not taken any action to dispute the offences (or unsuccessfully
disputed the offences);
(c) failed to pay the penalties within the initial "time to pay" period;
(d) failed to respond to an enforcement order issued by SPER or defaulted
under a compliance arrangement (eg an instalment plan); and
(e) failed to pay the amount or enter into compliance after other
applicable enforcement action has been taken (eg driver licence
suspension, fine collection order, enforcement warrant).
The debt recovery process under the State Penalties Enforcement Act 1999
(SPEA) provides debtors with ample opportunity to pay the debt in full or
where this is not possible, negotiate a manageable form of compliance.
This includes part payment arrangements under an instalment plan, direct
debit or deduction from Centrelink payments from as little as $5-$10 a
week for low income earners.
The proposed immobilisation process will take account of the debtor's
personal circumstances (e.g. whether they are homeless or at risk of
homelessness) and the potential impact of immobilisation on the person's
work and family responsibilities. Through the issue of an initial notice of
intention to immobilise, the process provides the debtor with ample
opportunity to work with SPER to pay their debt in full or by instalments or
convert it to unpaid community service under a fine option order, before
their vehicle is actually clamped, seized and sold. Further, the proposed
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
amendments ensure the debtor is given notice of each step of the process,
as it escalates towards immobilisation, seizure and sale.
The proposed amendments respond to community expectation that people
who receive a monetary penalty for breaking the law repay their debt in
full.
New section 108A sets out the criteria for immobilisation. These include
that the debtor has failed to pay amounts totalling the threshold amount
prescribed by regulation. It is intended to prescribe an amount of $5,000
for this purpose. It is acknowledged that this construction is a "Henry VIII
clause" that breaches fundamental legislative principles by authorising the
amendment of an Act by subordinate legislation - Legislative Standards
Act 1992, section 4(4)(c).
Although this mechanism relates to a threshold criterion for this new form
of enforcement action, its use is justified as it provides the necessary
flexibility to adjust the threshold amount having regard to the impact of the
economic climate on debtors, from time to time.
The proposed immobilisation process will incorporate an assessment of
whether immobilisation, or continued immobilisation, will cause severe
and unusual hardship to the debtor, the debtor's family or a third person
who relies on the vehicle but has no ability to ensure the debt is paid. The
SPER Registrar will make this assessment before issuing an
immobilisation warrant and may do so again during the immobilisation
period - see clause 13 (new sections 108D & 108P) and clause 29.
The "hardship" assessment will be made having regard to guidelines issued
by the SPER Registrar, which will assist in identifying situations in which
immobilising a vehicle could cause severe and unusual hardship. The
Registrar will make this assessment having regard to information obtained
during SPER's preliminary investigations of the debtor and through contact
with the debtor after the initial intent notice is issued.
The use of administrative guidelines for this purpose, rather than the Act or
subordinate legislation, may be considered to breach fundamental
legislative principles by not having sufficient regard to the institution of
Parliament - Legislative Standards Act 1992, section 4(4). The use of
administrative guidelines is justified in this context as section 150B of the
SPEA, as amended by clause 29, establishes the broad scope of this aspect
of the guidelines. Hardship can only be determined having regard to the
individual circumstances of each case. This mechanism provides the
flexibility required to accommodate the range of situations in which
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
hardship may arise. The guidelines must be publicly available, including
on the SPER website.
It is proposed that the Registrar's decision to issue a notice of intention to
issue an immobilisation warrant under new section 108C or an
immobilisation warrant under new section 108D will not be reviewable -
section 155 SPEA, as amended by clause 32 Having regard to the potential
impact of the immobilisation process on an individual's rights and liberties,
the absence of a review process may be considered to breach fundamental
legislative principles - Legislative Standards Act 1992, section 4(3)(a).
Firstly, this aspect of the proposal is consistent with the current approach
under the SPEA in respect of the Registrar's decision to take other forms of
enforcement action. The Registrar's decisions to issue an enforcement
order, an enforcement warrant, a fine collection notice, notice of intention
to suspend a driver licence or an arrest and imprisonment warrant are not
reviewable. Driver licence suspension has very similar consequences to
vehicle immobilisation; the consequences of an arrest and imprisonment
warrant are much more significant. This approach reflects the need to
bring finality to the enforcement process.
Further, as noted above, the immobilisation, seizure and sale initiative
targets high value debtors who have refused to co-operate with the many
opportunities SPER provides to enter into compliance. The immobilisation
process itself provides further opportunities for the debtor to pay in full or
negotiate compliance before their vehicle is actually clamped, seized and
sold. There is also capacity to reconsider hardship considerations during
the immobilisation period. For these reasons, it is not proposed to provide
a right of review in respect of the Registrar's decision to issue an intent
notice or an immobilisation warrant.
New section 108E enables a person claiming an interest in a vehicle that is
or is about to be immobilised under an immobilisation warrant to apply to
the SPER registrar for part or all of the warrant to be cancelled, suspended
or varied. This is no appeal from the registrar's decision, but judicial
review is not excluded. This is consistent with the approach taken under
section 64 of the SPEA which provides a corresponding process in respect
of enforcement warrants issued under Part 5, division 2 of the Act. This
approach reflects the need to bring finality to the enforcement process.
Clause 10 of the Bill inserts new provisions to strengthen SPER's existing
powers to seize and sell real and personal property. They include
provisions which set out the process by which property seized under an
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
enforcement warrant must be sold. This process includes the ability for
debtor to apply to SPER registrar for a direction that property be sold
privately rather than by public auction (new section 73F) or for the sale to
be postponed (new section 73I). Whilst there is no appeal from the
registrar's decision, judicial review has not been excluded. This approach
reflects the need to bring finality to the enforcement process.
New section 108I sets out the range of powers to support the enforcement
of an immobilisation warrant, including power to enter and re-enter any
place occupied by the debtor (other than residential premises), without the
debtor's consent. This breaches fundamental legislative principles as a
warrant is not required for this power to be exercised - Legislative
Standards Act 1992, section 4(3)(e).
The immobilisation warrant provides authority for an enforcement officer
to immobilise a vehicle without further notice to the debtor. A copy of the
immobilisation warrant must be served on the debtor. It is anticipated that
some debtors will attempt to avoid immobilisation by hiding or moving
their vehicles. This is why the suite of powers proposed in new section
108I and section 114 of the SPEA, as amended by clause 18, is justified.
They are supported by power to seek and enforce an immobilisation search
warrant issued by a magistrate or a justice of the peace (magistrates court)
under new sections 108L and 108M.
It should be noted that:
(a) enforcement officers will carry identity cards, as currently provided
under section 10 of the SPEA;
(b) the power of entry to any premises occupied by the debtor is
consistent with the existing power of entry under section 70 of the
SPEA (which limits entry to part of premises used only for residential
purposes with the occupier's consent or under a search warrant);
(c) entry to any other premises (other than a public place) is subject to the
occupier's consent or a search warrant;
(d) it is not intended that enforcement officers will use force when
exercising these powers;
(e) the power to require the debtor to answer questions under section 114
of the SPEA, as amended by clause 18, is subject to reasonable
excuse;
(f) enforcement officers are required to provide the debtor with a notice
identifying what property is seized under an enforcement warrant;
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
(g) the debtor will be given reasonable access to vehicle while it is
immobilised;
(h) if the debtor's vehicle or other property is damaged by an enforcement
officer exercising powers under the immobilisation process, provision
is made for notice to be given to the debtor and for the debtor to seek
compensation for the cost of repairing or replacing the damaged
property.
The proposed immobilisation process may be considered to adversely
affect an individual's rights and liberties by exposing their vehicle to a
greater than normal risk of damage or theft - Legislative Standards Act
1992, section 4(2)(a). To minimise this risk, new section 108H provides
very clear guidance about where a vehicle can and can not be immobilised.
Vehicles can not be immobilised in places where the vehicle would impede
traffic or pose a safety risk or in places where the safety of the driver and
any occupants may be compromised e.g. in isolated locations with limited
access to public transport. These provisions will be supported by
administrative guidelines issued under section 150B of the SPEA, as
amended by clause 29. These guidelines will provide direction to
enforcement officers about how to plan and conduct immobilisation
operations in a way that minimises the risk of the vehicle being damaged or
stolen while immobilised. The justification outlined above in relation to
the "hardship" guidelines also applies to this mechanism.
Further, the proposed amendments operate to prevent an insurance
company from refusing a claim under a vehicle insurance policy for an
event (e.g. theft or damage) that occurred while the vehicle was
immobilised, merely because the vehicle was immobilised under the
SPEA.
Clause 33 amends section 157 of the SPEA to enable the SPER registrar to
issue a certificate that a notice of intention to issue an immobilisation
warrant or an immobilisation warrant was served on a stated person on a
stated day. The certificate is evidence. This reverses the onus of proof -
Legislative Standards Act 1992, section 4(3)(d). This is consistent with the
current approach under section 157 in relation to evidence of the broad
range of compliance and enforcement actions taken under the Act.
Retrospective validation of referral, registration and enforcement of unpaid
wages etc recovery orders
Clauses 4, 38 and Chapter 2, Part 2 of the Bill amend the SPEA and the
Industrial Relations Act 1991 to enable and retrospectively validate the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
referral of, and registration and enforcement by SPER of orders for the
payment of unpaid wages, tool allowance, unpaid superannuation
contributions and fees charged illegally by private employment agents
made under the Industrial Relations Act. These orders are currently
enforceable under the Justices Act 1886 as an order for payment of money
made under that Act or can be recovered by the employee from the
employer as a debt. The proposed amendments will formally establish
referral to SPER as an alternative and less costly method of enforcing these
orders. For this reason, it is not considered that the proposed retrospective
validation adversely affects the rights and liberties of individuals -
Legislative Standards Act 1992, section 4(3)(g).
Chapter 3
National exchange of criminal history information for people working with
children
Clause 66 of the Bill inserts into the Police Service Administration Act a
new Part 10, Division 1B (Provisions about exchange of criminal history
for child related employment screening) to enable the Queensland Police
Service to supply charges and spent convictions information interstate.
New Division 1B might be considered to have insufficient regard to the
rights and liberties of individuals--Legislative Standards Act, section
4(2)(a)--with respect to individuals' rights to rehabilitation, privacy, paid
employment and the freedom to participate in their community as
volunteers. The rights implications are particularly acute when the CHI is
untested information in the form of pending charges and withdrawn
charges, or acquittals.
However, the potential breach is justified given the objective of making the
information available to child related employment screening units; namely,
to safeguard children from sexual, physical and other abuse.
The potential breach is also ameliorated to the extent that COAG has
insisted on strict "participation requirements" on the use of the
information, given its sensitivity and potential to affect individuals
adversely.
These participation requirements have been consolidated by the ECHIPWC
national project implementation committee so they can be set out in the
intergovernmental agreement on ECHIPWC that is planned to be in place
before ECHIPWC's scheduled commencement as a trial in late November
2009. (A 12-month trial is planned to refine aspects of the exchange; there
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
is no suggestion that the COAG exchange might discontinue after the trial.)
The participation requirements apply to participating screening units in
each jurisdiction that will receive the expanded CHI under the exchange.
The participation requirements are as follows.
· Each participating screening unit has a legislative basis for screening
of persons working or seeking to work with children.
· Each participating screening unit may use the expanded CHI received
through the exchange only for the purposes of child related
employment screening.
· Each participating screening unit is prohibited from--and, where
appropriate, subject to penalty for--disclosing the expanded CHI
received through the exchange beyond the screening unit or to persons
not performing functions relevant to criminal record employment
screening for child related work. (However, a unit may disclose the
information for the protection of a particular child or class of children
as part of a legislated child protection function.)
· If a participating screening unit undertakes screening with both (i) a
child safety screening element and (ii) a general employment
suitability or probity screening element (many teacher registration and
accreditation authorities fit this category), there is appropriate
legislation or business rules in place to ensure that the expanded CHI
received through the exchange is used only to screen risks to the
safety of children, and not for general employment suitability or
probity screening.
· Each participating screening unit has a risk assessment and
decision-making framework pertaining to child related employment
screening that is: (i) evidence-based, at least to the extent possible in
light of the requirements of the governing legislation; and (ii)
documented, and supported by business rules and tools.
· Each participating screening unit has appropriately skilled staff to
make assessments about risks to children's safety suggested by
applicants' criminal histories.
· Each participating screening unit obtains the written consent of the
individual that records the individual's understanding that the
employment screening will involve the provision of the expanded
CHI, including information from other jurisdictions and information
about the circumstances of the convictions or charges. (For this
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
purpose, the project implementation committee has developed a
model consent form to inform participating screening units' consent
forms.)
· Each participating screening unit has a scheme that reflects the
principles of natural justice. In particular, where there is an intention
to make an adverse decision about an individual, the screening unit,
tribunal or authority is required by legislation or policy to:
-- disclose the CHI to the individual;
-- allow the individual a reasonable opportunity to be heard; and
-- consider the individual's response before finalising the decision.
· Each participating screening unit must comply with Commonwealth,
State and Territory privacy and human rights legislation where
relevant.
· Each participating screening unit must comply with records
management legislation within their jurisdictions that determines
information management, storage, retention and destruction
requirements.
Clause 66 of the Bill inserts into the Police Service Administration Act new
section 10.2S which defines "interstate screening unit" (to which the
Queensland Police Service can supply the expanded CHI ) as:
(a) units set out in a regulation; and
(b) units (outside Queensland) set out in the Commonwealth regulation
that will list the Australian screening units to which the
Commonwealth will supply its expanded CHI. (The
Commonwealth's regulation making power in this regard is a
proposed amendment to the Commonwealth Crimes Act 1914
contained in the Crimes Amendment (Working With Children-Criminal
History) Bill 2009 currently before the Commonwealth Parliament.)
The definition might be considered to breach the fundamental legislative
principle that there be sufficient regard to the institution of Parliament by
allowing the delegation of legislative power only in appropriate
cases--Legislative Standards Act, section 4(4)(a). The potential breach
represented by paragraph (a) above is ameliorated somewhat by Parliament
being asked to endorse as part of this Bill the regulation that has been
prepared for this purpose. See Chapter 3, Part 3 (Amendment of Police
Service Administration Regulation 1990). Further, while the Executive can
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
of course add to, or take away from, that regulated list afterwards, under the
proposed ECHIPWC intergovernmental agreement a government can only
nominate a screening unit for participation in the exchange if the screening
unit satisfies COAG's participation requirement safeguards. Accordingly,
Queensland's regulation will refer to an interstate screening unit only if the
unit is proposed for listing in the intergovernmental agreement. The
proposed intergovernmental agreement will provide for screening units to
be added in the future, but only if other jurisdictions agree the units comply
with the participation requirements.
Paragraph (b) above is ameliorated by proposed section 85ZZGE of the
Commonwealth bill to which reference is made above. Proposed section
85ZZGE provides that, before a regulation is made, the Commonwealth
Minister must be satisfied that the screening unit complies with a list of
matters that replicate COAG's participation requirements.
The delegation of legislative power is considered desirable to modify or
add to the list of interstate units in a responsive way.
Chapter 4
Amendments to Queensland Civil and Administrative Tribunal Act 2009
· amendment of section 210 (principal registrar)
· amendment of section 237 (immunity of participants etc.)
· amendment of section 238 (protection from civil liability).
The proposed amendment of section 210 will enable the principal registrar to
delegate his or her functions to a QCAT registry staff member or a
Magistrates Court staff member. The delegation may only be to a person
appropriately qualified to perform the function. This amendment is made
to ensure that the processing and case management of QCAT matters in
rural and regional areas can be carried out by appropriately qualified
tribunal and court staff.
The proposed amendment to section 237 extends the protection and
immunity that section confers to also cover a tribunal registry staff member
or a Magistrates Court staff member performing a function of the principal
registrar that has been delegated to the member under section 210 (as
amended) and that is mentioned in subsection (6). It is appropriate that a
person acting as part of a judicial process should be free of personal attack
on the basis of illegal or negligent action when performing their roles. The
immunity will ensure that these persons can act with appropriate
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
confidence in carrying out their roles in the community interest. Such roles
would be difficult to carry out if the office holders involved in the
proceeding were subject to allegations and litigation taken against them
personally for their actions in the office or proceeding.
The proposed amendment to section 238 extends the immunity from civil
liability that the section confers on a Magistrates Court staff member
performing a function of the principal registrar that has been delegated to
the member under section 210 (as amended). The immunity is for acts or
omissions done or made honestly and without negligence under the
Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act.
Any potential liability attaches instead to the State.
Amendments to Adoption Act 2009:
· new section 307J (children must not be compelled to give evidence)
· new section 307L (children giving evidence or expressing views to
tribunal)
· new section 307M (questioning of children)
· new section 307N (confidentiality order).
New part 14A replicates and continues part 3A of the Adoption of Children
Act 1964 which was inserted into that Act by the Queensland Civil and
Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009.
Where the Bill departs from fundamental legislative principles, this occurs
in the context of the tension between the rights of individuals as
safeguarded by the Legislative Standards Act 1992 and the competing
rights of children and young people to participate in review processes in a
way which protects them from distress and harm which may occur through
a strictly adversarial review process.
New section 307J provides that children cannot be compelled to give
evidence in a proceeding for a reviewable decision under the Adoption Act
2009 and specifically overrides the Queensland Civil and Administrative
Tribunal Act 2009 so that children must not be required to attend a hearing
of a proceeding to give evidence or produce a statement, document or other
thing to the tribunal.
New section 307L provides that where children are giving evidence or
expressing their views to the tribunal only the constituting members, the
lawyer, the separate representative and the child's support person may be
present.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
New section 307M prohibits the cross-examination of children who give
evidence or express their views to the tribunal.
While it will be rare that a particular child is the subject of a reviewable
decision under the Adoption Act 2009, it is possible. These provisions are
considered necessary to ensure their views and wishes are heard and to
reduce the stress for children and young people who choose to give
evidence. The children involved in these proceedings may be very
vulnerable and should not be required to give evidence and be
cross-examined. The restriction on cross-examination is also justified
given this review occurs in an administrative proceeding as opposed to a
court environment. Further, as the primary focus of the tribunal in these
proceedings is to make the best possible decision in the interests of the
child about whom the reviewable decision has been made, the protection is
considered appropriate and the departure from fundamental legislative
principles warranted.
New section 307N gives the tribunal the power to make confidentiality
orders in relation to documents produced, or evidence given to the tribunal.
The effect of such an order is to prohibit or restrict the disclosure of the
document or evidence to the parties in the proceedings. This power is
considered necessary to ensure that very sensitive information about a child
or prospective adoptive parent is not released that could result in harm to a
child or young person, or jeopardise the safety of another person or unduly
interfere with the privacy or a child or another person.
Amendment to Local Government Act 2009:
· new section 201A (equality of employment opportunity obligations)
· new section 201B (QCAT's powers for an investigation)
New section 201A permits a regulation to be made about administrative
and operational equality of employment opportunity (EEO) matters for
local governments and provides that the chief executive may refer to QCAT
for investigation and to give a report, a local government's non-compliance
with the regulation.
The proposal in section 201A to permit a regulation to provide for
administrative and operational matters about EEO for local governments
may be considered to have insufficient regard to the fundamental legislative
principle that subordinate legislation should only contain matters
appropriate to subordinate legislation - Legislative Standards Act 1992,
section 4(4)(a).
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
The approach taken in section 201A, which enables a regulation to be made
to govern operational and administrative EEO matters, is consistent with
the principles-based framework of the new Local Government Act 2009 as
foreshadowed in the explanatory notes to the Local Government Bill 2009.
The explanatory notes state that the Act would be supplemented by
regulations that govern essential but subordinate operational and
administrative issues. Accordingly, Parliament was fully informed of the
policy intent to build these regulation-making powers into the Act, and as
such, any concern about potential breach of fundamental legislative
principles in this regard have been addressed.
Amendment to Queensland Building Services Authority Act 1991:
· amendment of section 95 (expedited hearing of domestic building
disputes).
Section 94(1)(b) of the Queensland Civil and Administrative Tribunal Act
2009 provides that the tribunal may conduct an expedited hearing for a matter
an enabling Act states is a matter for which an expedited hearing may be
conducted. The amendment to section 95 of the Queensland Building
Services Authority Act 1991 will enable QCAT to deal with a domestic
building dispute between a building owner and a building contractor or a
review of a decision of the Queensland Building Services Authority
(QBSA) by way of an expedited hearing if certain circumstances apply.
Under section 83 of the Queensland Building Services Authority Act 1991 if
a proceeding about a building dispute is commenced in or transferred to the
Commercial and Consumer Tribunal (QCAT from 1 December), the tribunal
has management of the dispute. The QBSA must not act further in relation to
the dispute. This amendment is proposed to address instances where
certain building contractors commence proceedings with the purpose only
of delaying QBSA assistance to building owners, for example, by way of
issuing a direction or providing assistance under the Queensland Home
Warranty Scheme.
Under the Queensland Civil and Administrative Tribunal Act 2009 expedited
hearings are to be conducted in the way stated in the rules (section 94(2)) and
a party to a proceeding conducted by way of an expedited hearing does not
have an automatic right to cross-examine or re-examine witnesses (section
95(2)(c)). However, under section 28 the tribunal must act fairly, observe
natural justice and ensure all relevant material is disclosed to QCAT to enable
it to decide the proceeding with all the relevant facts. Further, the proposed
amendment provides that an expedited hearing for the dispute or review may
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
be conducted only if the tribunal considers a building owner will suffer
"undue hardship" and that the dispute or review may be properly decided by
way of an expedited hearing.
Chapter 5
Retrospectivity of proposed amendment to Guardianship and
Administration Act 2000
It is proposed to amend section 29 of the Guardianship and Administration
Act 2000 to correct an oversight that was made upon commencement of the
Disability Services and Other Legislation Amendment Act 2008 (amending
Act) that commenced on 1 July 2008. Prior to the commencement of the
amending Act, section 29 provided the authority for certain persons to
make an application for the review of an appointment of a guardian and/or
administrator. The amending Act amended section 29 to also provide for
the review of a guardian appointed for a restrictive practice matter under
chapter 5B. However, when drafting the new section 29, the reference to
the review of the appointment of an administrator was inadvertently
omitted.
Since 1 July 2008 any applications that have been lodged with the
Guardianship and Administration Tribunal seeking a review of the
appointment of an administrator under section 29 have been made and also
considered by the Tribunal without the proper authority. Given that the
omission of the reference to a review of an administration appointment was
an oversight, the retrospective operation of this amendment is justified to
correct the unintended consequences of this oversight.
Retrospectivity of proposed amendment to Right to Information Act 2009
and Information Privacy Act 2009
It is proposed to amend the Right to Information Act 2009 and Information
Privacy Act 2009 to rectify issues identified since commencement of the
new legislation. The amendments, which clarify the internal review
delegation powers of principal officers and Ministers require retrospective
effect to ensure the validity of any internal review delegations executed
prior to commencement of the amendments. The proposed amendments to
clarify that a decision to issue a notice neither confirming nor denying the
existence of certain types of prescribed information is a reviewable
decision will ensure that the review rights of applicants are maintained. The
amendments will therefore not adversely affect the rights of liberties of
individuals.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Amendment to Disability Services Act 2006
The proposal to extend the transitional period for restrictive practices may
be considered to have insufficient regard to the rights and liberties of
individuals - Legislative Standards Act 1992, section 4(2)(a). The
proposed amendment to the Disability Services Act 2006 will extend the 18
month transitional period for a further 9 months. The amendment will
allow a disability service provider a further 9 months to comply with all of
the requirements of the full scheme. In the meantime, they can continue to
use a restrictive practice during the transitional period if they meet a set of
transitional requirements, aimed at safeguarding the individual. A
consequential amendment is also made to the Guardianship and
Administration Act 2000 - which will extend the transitional period during
which a guardian (appointed before the commencement of the transitional
period) may continue to make decisions for an adult about the use of
restrictive practices.
Overall the aim of the restrictive practices scheme, together with the
renewed focus on positive behaviour support, is intended to drive cultural
change in the disability sector- through the provision of services that
promote an improved quality of life and the reduction or elimination of the
use of restrictive practices. The extension of the transitional period will
allow disability service providers enough time to conduct a thorough
assessment and prepare a comprehensive plan that best meets the needs of
the individual - in line with best practice and the full legislative
requirements. This will lead to better informed decision making, which is
ultimately in the individual's best interests. For these reasons, it is
considered the potential breach of the fundamental legislative principle is
justified. At the same time, the proposal maintains existing safeguards to
ensure appropriate protection for the individual subject to the restrictive
practice. In particular, for the Disability Services Act 2006, these include:
· the disability service provider must act honestly and without
negligence;
· use of the restrictive practice is necessary to prevent harm and is the
least restrictive way of ensuring the safety of the adult or others;
· either consent of an authorised guardian or an assessment of the adult
is required; and
· the disability service provider must keep and implement a policy and
procedures on the use of the restrictive practice (including information
on monitoring and reviewing the restrictive practice).
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
For the amendment to the Guardianship and Administration Act 2000, the
safeguard for the adult is that the guardian was authorised to make
decisions around restrictive practices before the commencement of the
transitional period, and the appointment is subject to review by the
Guardianship and Administration Tribunal.
Consultation
The Department of the Premier and Cabinet (DPC), Queensland Treasury,
QPS, Department of Transport and Main Roads, the Department of
Communities (DOC), Department of Infrastructure and Planning and the
Department of Employment, Economic Development and Innovation
(DEEDI) were consulted on the proposed SPEA amendments.
In relation to the amendments enabling Queensland's participation in the
national exchange of criminal history information for people working with
children, the following entities have been consulted--Queensland
Treasury, QPS, Department of Employment and Training, the Office of the
Queensland College of Teachers, Queensland Teachers Union, Queensland
Independent Education Union, Commission for Children and Young
People and Child Guardian, DOC, the Department of the Prime Minister
and Cabinet, Commonwealth Attorney-General's Department, CrimTrac,
and the other States and Territories.
The Queensland Building Services Board was consulted in relation to the
amendment to the Queensland Building Services Authority Act 1991. The
Crime and Misconduct Commission was consulted in relation to the
amendments to the Crime and Misconduct Act 2001.
DEEDI, DPC and Treasury were consulted on the proposed classification
Acts amendments.
The Chief Magistrate was consulted about the amendments for judicial
registrars.
The Guardianship and Administration Tribunal, the Adult Guardian and the
Public Advocate were consulted on the amendments to the Disability
Services Act 2006 and Guardianship and Administration Act 2000.
For the amendment to the Disability Services Act 2006, key disability
service providers and advocacy representatives were also consulted.
For the amendments to the Information Privacy Act 2009 and the Right to
Information Act 2009, the Information Commissioner was consulted.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Consultation about the amendments to the Superannuation (State Public
Sector) Act 1990 has occurred with APRA, ASIC and Commonwealth
treasury, together with key Queensland government departments that may
have an interest in the amendments.
Notes on Provisions
Chapter 1 Preliminary
Clause 1 states the short title of the Act.
Clause 2 provides that:
· Chapter 2, part 1 (other than sections 4, 12, 35 and 38) and part 3
are to commence on 1 January 2010. Chapter 2, part 1 amends
the State Penalties Enforcement Act 1999 (SPEA) to strengthen
the compliance and enforcement capabilities of the State
Penalties Enforcement Registry (SPER). Chapter 2, part 3
amends the Transport Operations (Road Use Management) Act
1995, consequential to the new vehicle immobilisation
provisions in Chapter 2, Part 1. Sections 4, 12, 35 and 38 and
Chapter 2, part 2 are to commence on assent;
· Chapter 3, other than as provided, and chapter 4, part 3 (QCAT)
are to commence on proclamation;
· Section 66, to the extent that it inserts the Police Service
Administration Act 1990, section 10.2S, definition interstate
screening unit, paragraph (b) commences immediately after the
commencement of the Crimes Act 1914 (Cwlth), section
85ZZGA;
· Chapter 3, section 54 and chapter 4, parts 4 to 8, 11 to 21 and 24
(QCAT) are to commence immediately after the commencement
of the Queensland Civil and Administrative Tribunal Act 2009,
chapter 7;
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
· Chapter 4, parts 1, 2 and 9 are to commence on assent;
· Chapter 4, parts 10, 22 and 23 (QCAT) are to commence when
the Queensland Civil and Administrative Tribunal Act 2009,
chapter 7 commences;
· Chapter 5 will commence on assent.
Chapter 2 Amendment of State
Penalties Enforcement Act
1999 and related Acts
Part 1 Amendment of State Penalties
Enforcement Act 1999
Clause 3 provides that this part amends the State Penalties Enforcement Act
1999 (SPEA).
Clause 4 amends section 34 of the SPEA to include an order mentioned in
section 400(1) or 408H(1) of the Industrial Relations Act 1999. Section 34
sets out the range of court ordered fines, penalties and other amounts
(including compensation, restitution and amounts forfeited under
undertakings and recognisances) that can be referred to SPER for
enforcement. The effect of this amendment is to enable the referral to,
registration and enforcement by SPER of orders made under the Industrial
Relations Act for the payment of unpaid wages, tool allowance, unpaid
superannuation contributions and fees charged illegally by private
employment agents. This amendment commences on assent.
This amendment operates in conjunction with corresponding amendments
to the Industrial Relations Act contained in Chapter 2, Part 2 below and
new section 174A, inserted by clause 38 below, which retrospectively
validates the referral of these types of orders to SPER for enforcement; the
registration of those orders and any action taken purportedly under the
SPEA to enforce them.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Part 5, division 2 of the SPEA sets out SPER's existing powers to issue
enforcement warrants, including warrants to seize and sell real and
personal property in which the enforcement debtor has a legal or beneficial
interest. Division 2 currently contains limited provisions for the issue,
renewal, cancellation, suspension or variation of an enforcement warrant
(ss.63, 64) and the enforcement of an enforcement warrant (ss.69-74, 115,
116, 117). Section 150 sets out the form and content requirements for an
enforcement warrant to seize and sell property.
To date, SPER has not used enforcement warrants for seizure and sale to
recover unpaid amounts. This is because SPER has not had the resources
or systems in place to regularly seize, store and sell property.
It is proposed to strengthen SPER's existing powers to seize and sell
property and align them with the powers and process for enforcing money
orders under the Uniform Civil Procedure Rules 1999 (`UCPR'). These
changes will facilitate both the wheel clamping initiative (which may result
in debtors' vehicles being seized and sold) and a separate two year pilot in
the Brisbane metropolitan area using Magistrates Court bailiffs to enforce
seizure and sale warrants against debtors who owe unpaid amounts of
$1,000 or more.
Clause 5 amends section 63 of the SPEA to align it with rules 820, 821 and
828 of the UCPR.
Section 63(2)(a) currently sets out the registrar's power to issue an
enforcement warrant to seize and sell real and personal property in which
the enforcement debtor has a legal or beneficial interest. For consistency
with rule 828(1) of the UCPR, section 63(2)(a) is amended by subclause
5(1) to limit the range of property that can be seized and sold under an
enforcement warrant. It does this by importing the concept of `exempt
property', which is defined under the Supreme Court of Queensland Act
1991 to mean property that is not divisible among the creditors of a
bankrupt under the relevant bankruptcy laws as in force from time to time.
Having regard to the Bankruptcy Act 1966 (Cth) and the bankruptcy
regulations, this means that SPER will be unable to seize and sell property
including household property that is reasonably necessary for the domestic
use of the debtor's household, having regard to current social standards;
property used by the debtor in earning income by personal exertion worth
less that $2,600 or transport vehicles worth less than $5,000. Whilst this
amendment reduces the current scope of SPER's seizure and sale powers, it
was not considered appropriate that SPER continue to be given an
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
advantage over enforcement creditors seeking to enforce a money order
under the UCPR.
For consistency with rule 820(1)(b) of the UCPR, section 63(3)(c) is
amended by subclause 5(3) to increase the maximum period of an
enforcement warrant to seize and sell property from six to twelve months.
The maximum period for other types of enforcement warrants remains
unchanged.
As noted above, vehicles immobilised under the wheel clamping initiative
may be seized and sold if debtors fail to either pay the amount owing or
enter into compliance by the time the immobilising device is removed. For
this to occur, the SPER registrar will first have to issue an enforcement
warrant under Part 5, Division 2 of the SPEA to seize and sell the vehicle.
To support this process, subclause 5(6) inserts new subsections (6) & (7) in
section 63 to provide that whilst there is nothing to prevent the SPER
registrar from issuing a seizure and sale enforcement warrant while a
vehicle is immobilised, the warrant can not be enforced during the
immobilisation period. This will occur immediately after the immobilising
device is removed. The rationale for this approach is discussed further in
clause 13 below (in respect of new section 108R).
Section 63(3)(b) requires enforcement warrants to be directed to
enforcement officers. Having regard to the amended definition of this term
under clause 39 below, this means an appropriately qualified public service
officer (engaged by SPER), the sheriff, the deputy sheriff, a court bailiff or
a commercial agent engaged under section 10 of the SPEA.
Clause 6 inserts new section 63A in Part 5, Division 2 of the SPEA. For
consistency with rule 821 of the UCPR this new provision:
(a) replaces existing subsection 63(4), which is omitted by clause 5
above. New subsection 63A(1) increases the renewal period for an
enforcement warrant to seize and sell property from six to twelve
months. The renewal period for other types of enforcement warrants
remains unchanged;
(b) requires any type of renewed enforcement warrant to state the period
for which the warrant has been renewed - new subsection 63A(2);
(c) clarifies that the priority of a renewed enforcement warrant is decided
according to the date the warrant was originally issued - new
subsection 63A(3); and
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
(d) requires a copy of the renewed warrant to be served on the
enforcement debtor - new subsection 63A(4).
Clause 7 inserts new section 68A in Part 5, Division 2 of the SPEA. This
provision makes it an offence for a debtor who is served with a copy of a
seizure and sale enforcement warrant to conceal, sell, transfer or otherwise
deal with the property with the intention of defeating the enforcement of
the warrant or adversely affecting the seizure or sale of the property under
the SPEA. Consistent with an existing similar offence under section 68 of
the SPEA (dealing with charged or restrained property), the maximum
penalty for this offence is 200 penalty units or three years imprisonment.
Clause 8 inserts new section 69A in Part 5, Division 2 of the SPEA. For
consistency with rule 828(2) & (3) of the UCPR, this new provision:
(a) requires the SPER registrar to give an enforcement warrant to an
enforcement officer for enforcement, subject to instructions
given under section 69 of the SPEA. These instructions require
an enforcement officer to first attempt to recover the amount
owing in full and if this is not possible, then attempt to interview
the debtor with a view to getting the debtor into compliance
under a fine collection notice or a fine option order;
(b) requires an enforcement officer to have the warrant in their
possession when enforcing the warrant and to show it to any
person claiming to have an interest in the property to be seized;
(c) clarifies that actual seizure is not necessary to authorise the sale
of real property; and
(d) provides that real property is taken to have been seized if the
advertising requirements under new section 73H are complied
with.
Clause 9 amends section 72 of the SPEA to give an enforcement officer
power to do anything else reasonably necessary to be done that is incidental
to searching for and seizing any property that may be seized and sold under
the enforcement warrant. This will include the power for an enforcement
officer to direct a tow truck operator to enter a place, including a debtor's
private property, where a vehicle has been immobilised under an
immobilisation warrant, in order to tow the vehicle under a direction issued
by the enforcement officer under new section 73B.
Clause 10 inserts new sections 73A-73K in Part 5, Division 2 of the SPEA.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
New section 73A establishes the process once an enforcement officer
seizes property under a seizure and sale enforcement warrant. It requires
the enforcement officer to serve a notice on the debtor or the person who is
in possession of any of the debtor's property that is being seized under the
warrant. The notice must be in the approved form and identify the property
that is being seized. The notice must also set out the offences under new
section 68A and section 117 of the SPEA (which both target activity aimed
at defeating the seizure and sale process).
New section 73B enables an enforcement officer who seizes a motor
vehicle under an enforcement warrant to authorise the vehicle to be towed
from the place where it was seized to a holding yard, pending sale.
New section 73C is a modified version of rule 829 of the UCPR. It sets out
the order in which an enforcement officer must seize and sell property. In
doing so, the enforcement officer must have regard to the objectives of
promptly enforcing the warrant without undue expense and minimising
hardship to the debtor and other persons. The SPER registrar may direct
the enforcement officer to seize and sell property in a different order, but in
exercising this discretion must still have regard to the objectives outlined
above. The provision also enables an enforcement officer to seize and sell
an item of property with a value exceeding the amount owing. If this
occurs, the enforcement officer is prevented from seizing and selling
additional items. New section 73J sets out how sale proceeds are
distributed, discussed below.
New section 73D is a modified version of rule 830 of the UCPR. It
operates to prevent an enforcement officer from selling seized property if at
or before the sale, the debtor pays both the amount owing (stated in the
warrant) and the costs of enforcement incurred to date.
New section 73E is a modified version of rule 831 of the UCPR. It requires
an enforcement officer to store seized goods in an appropriate place or to
give them to an appropriate person, approved by the SPER registrar for that
purpose. SPER is liable for any storage expenses but can recover these as
costs of enforcement. The recovery of these costs from the sale proceeds is
dealt with in new section 73J, discussed below.
New section 73F is a modified version of rule 832 of the UCPR. It sets out
the process for selling seized property. It is to be read in conjunction with
new section 73H below, which requires certain advertising to be
undertaken before the property is sold.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Subsections 73F(1) - (2) provide that unless the SPER registrar directs
otherwise, property liable to be sold under an enforcement warrant must be
put up for sale by public auction (conducted by either an enforcement
officer or another person authorised by the SPER registrar), as early as
possible and at a place and in a way the enforcement officer considers
suitable for a beneficial sale of the property.
Subsection 73F(3) sets out the conditions under which the seized property
must be sold. It should be noted that the reserve price for property sold at
auction is set by the SPER registrar. It must be an amount the registrar
considers is not less than a reasonable amount for the property. This is to
be read in conjunction with new section 73K below, which enables an
enforcement officer to require the debtor to provide information about the
property in order to help the registrar set the reserve.
Subsections 73F(4) - (6) establish a process by which the debtor can apply
to the SPER registrar for a direction to have the property sold privately
instead of by public auction. If the registrar gives this direction, the debtor
is liable for any costs already incurred by the enforcement officer for the
public auction.
Subsection 73F(7) deals with property that is put up for sale at, but not sold
by, public auction. It operates to enable an enforcement officer to sell the
property privately and sets out the conditions under which the property can
be sold this way.
New section 73G is a modified version of rule 833 of the UCPR. It enables
the SPER registrar to direct an enforcement officer to sell any property that
has not been sold under new section 73F, at the best price obtainable.
New section 73H is a modified version of rule 834 of the UCPR. It sets out
the advertising that must occur before property is put up for sale under
section 73F. An enforcement officer is responsible for advertising the
details of the property to be sold and the time and place of the sale no less
than 2 weeks and no more than 4 weeks before the sale date. The
enforcement officer must send a copy of the advertising notice to the
debtor, by prepaid post, at the debtor's last known address. The form of
advertising required is set out in subsection 73H(5) and depends on
whether and how many newspapers circulate in the district where the
property is situated and whether or not the property is an interest in land.
In any case, the sale must be advertised on the SPER website.
The advertising requirements may be dispensed with if:
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
(a) the property comprises perishable goods;
(b) the debtor requests it in writing; or
(c) the property is put up for sale at a public auction conducted by
someone other than an enforcement officer - in these circumstances
the advertising notice need only contain the details, and be advertised
in the way, reasonable and usual for a public auction of property of the
same nature.
New section 73I is a modified version of rule 835 of the UCPR. It enables
the SPER registrar to direct that a sale of seized property be postponed to a
specified date. The registrar may issue this direction on the advice of an
enforcement officer or on application by the debtor. Postponement of sale
under this provision extends the validity of the enforcement warrant
authorising the seizure until the end of the stated sale date.
New section 73J is a modified version of rule 836 of the UCPR. It makes
an enforcement officer accountable to the SPER registrar for all sale
proceeds and other money received by the enforcement officer under an
enforcement warrant as soon as practicable after the money is received
(whether before or after the property is seized). It allows the enforcement
officer to first deduct his or her fees and expenses incurred in enforcing or
attempting to enforce the warrant.
Subsection 73J(3) sets out the order in which the money received by SPER
from the enforcement officer is to be applied, namely to:
1. first, pay any other enforcement costs incurred by SPER in the actual
or attempted seizure and sale of the property - it should be noted that
section 149 of the SPEA provides that if no enforcement costs are
prescribed then no enforcement costs are payable;
2. from the balance, then discharge any security interest registered over
the property under the Motor Vehicles and Boats Securities Act 1986
or the Bills of Sale and Other Instruments Act 1955;
3. from the balance, then pay up to the amount owing stated in the
enforcement warrant - it should be noted that sections 111, 112 and
113 of the SPEA set out the order in which this payment is applied.
This depends on whether some or all of the amount owing relates to an
infringement notice offence and/or another amount and whether there
is more than one enforcement order, warrant or fine collection notice
to which the amount could be applied; and
4. finally, pay any remaining balance to the debtor.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
New section 73K is a modified version of rule 837 of the UCPR. It enables
an enforcement officer to require information from the debtor about the
property to be sold for the purpose of setting a reserve price for the
property. The debtor is only required to provide information that is known
to, or can reasonably be obtained by, him or her. The debtor must comply
with the requirement unless he or she has a reasonable excuse. Failure to
comply is an offence punishable by a maximum penalty of 10 penalty units
and does not prevent the SPER registrar from setting a reserve under new
section 73F. An enforcement officer is only permitted to communicate the
reserve price before the sale if it is necessary to do so to conduct the sale or
there is another sufficient excuse.
Clause 11 makes a minor technical amendment to section 75 by inserting
`or' between subparagraphs (2)(b) and (c).
Clause 12 amends section 104 to expand the application of driver licence
suspension to any unpaid amounts. It does this by omitting paragraph (a)
from subsection (1), which currently limits this enforcement action to
unpaid amounts for motor vehicle related offences. This expansion brings
Queensland into line with the other States and Territories (other than the
Australian Capital Territory). This amendment commences on assent.
Clause 13 inserts a new division 7A in Part 5 of the SPEA. Division 7A
establishes vehicle immobilisation as a new enforcement action under the
SPEA.
Subdivision 1 sets out the criteria for immobilisation. New section 108A
provides that this new enforcement option may be applied in respect of a
person who:
(a) is the subject of one or more enforcement orders issued by the SPER
registrar under section 38 of the SPEA; and
(b) has failed to pay amounts totalling at least the prescribed amount and
is not taking action to dispute all or part of the unpaid amount. It is
intended that the prescribed threshold amount will be $5,000. For the
purpose of this provision "failure to pay" encompasses:
(i) failing to pay the amount stated in the enforcement order per se;
or
(ii) having an instalment payment notice cancelled under section 36
of the SPEA because the person has defaulted in paying an
instalment under the notice within the time allowed; or
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
(iii) having a fine option order revoked under section 129 of the
SPEA because the person failed to comply with the order; or
(iv) having a good behaviour order cancelled under section 118 of the
SPEA; and
(c) is the sole registered operator of a motor vehicle of the type described
in new section 108B - `registered operator' is defined in Schedule 2
and captures not only the person in whose name the vehicle is
registered under Queensland or corresponding interstate transport
legislation, but also in the case of a vehicle that is not, but has been
registered, the person who was the last registered operator of the
vehicle. This is intended to prevent debtors from avoiding the
immobilisation process by deregistering their vehicle or allowing their
vehicle registration to lapse. Further, it should be noted that jointly
registered vehicles can not be immobilised under the SPEA; and
(d) for whom other enforcement options under the SPEA (such as driver
licence suspension, garnisheeing wages or redirecting money from the
debtor's bank account under a fine collection notice, registering an
interest against the debtor's vehicle or land or arrest and
imprisonment) are either not suitable or have already been attempted
by SPER, without success.
It is intended that vehicle immobilisation will be used as a `last resort'
enforcement action, second only to arrest and imprisonment under Part 6 of
the SPEA.
New section 108B establishes the types of vehicles that can be immobilised
under Division 7A. Having regard to the existing definition of `motor
vehicle' in Schedule 2 of the SPEA, this provision limits immobilisation to:
(a) motorised vehicles with wheels, other than those specified in
subsection 108B(2); and
(b) trailers built to be attached to a motorised vehicle with wheels e.g. a
caravan, haulage trailer, boat trailer.
Subsection 108B(2) expressly excludes the range of motorised wheeled
vehicles used by people with a disability and their carers (motorised
wheelchairs, scooters, quad bikes and motor vehicles adapted to
accommodate the person's disability), as well as motorised wheeled
recreational devices such as a motorised bicycle, golf buggy or other
motor-assisted transport device ordinarily used for recreation or play.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
It should be noted that section 150B of the SPEA, as amended by clause 29
below, provides for the making of guidelines to support the operation of
this provision. It is intended that these guidelines will provide guidance
about operational matters such as when it is appropriate for trailers to be
immobilised under an immobilisation warrant.
The first step in the immobilisation process will be for SPER to register an
interest over the debtor's vehicle on the Register of Encumbered Vehicles
under section 110 of the SPEA. Having regard to the operation of section
63(6) of the SPEA, a copy of the enforcement warrant under which this
action is taken must be served on the debtor.
This action serves two purposes - firstly, it alone may be sufficient
incentive for the debtor to pay the outstanding amount in full or enter into
compliance; secondly, it makes it harder for the debtor to avoid
immobilisation by selling the vehicle or transferring its registration. Clause
14 amends section 110 of the SPEA to clarify that this action does not
prevent the registrar from taking action in respect of the debtor under the
vehicle immobilisation process by issuing a notice of intention to issue an
immobilisation warrant under new section 108C or an immobilisation
warrant under new section 108D or a seizure and sale enforcement warrant
under section 63 of the SPEA.
Subdivision 2 deals with the second step in the immobilisation process.
This involves placing the debtor on notice that their vehicle may be
immobilised if they don't either pay the amount owing in full or enter into
compliance, within 14 days. The intent notice is designed to provide the
debtor with a very clear indication of the consequences of vehicle
immobilisation and what steps the debtor can take to satisfy the unpaid
amount, without having their vehicle immobilised. It is anticipated that the
issue of an intent notice alone will be sufficient incentive for some debtors
to pay their outstanding amount in full or enter into compliance.
New section 108C requires the SPER registrar to serve the debtor with a
notice of intention to issue an immobilisation warrant (`intent notice'), as a
precursor to issuing a warrant to immobilise the debtor's vehicle.
The form and content of the intent notice is set out in new section 146A,
which is inserted in Part 9 of the SPEA by clause 26. The notice must be in
the approved form and state the following matters:
(a) the total amount owed by the debtor;
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
(b) the vehicle proposed to be immobilised - it should be noted that new
section 108C provides flexibility for more than one vehicle to be
immobilised under a single immobilisation warrant. It should be
noted that section 150B, as amended by clause 29, provides for the
making of guidelines to support the operation of this provision. It is
intended that these guidelines will provide direction about when it is
appropriate for more than one vehicle to be identified for
immobilisation. The registrar must have regard to these guidelines
when issuing an intent notice and an immobilisation warrant;
(c) that the debtor has 14 days within which to either pay the amount
owing in full or enter into compliance. To have entered in
compliance, the debtor must have been granted an application to pay
by instalments under section 42 of the SPEA or to convert the unpaid
amount to hours of unpaid community service under a fine option
order made under section 50 of the SPEA. The notice also
acknowledges that the making of a good behaviour order under
section 118 of the SPEA will prevent immobilisation proceeding;
(d) the effect of an immobilisation warrant, namely that it authorises an
enforcement officer to immobilise the debtor's vehicle without further
notice to the debtor and without the debtor's consent;
(e) where, when and for how long the debtor's vehicle can be
immobilised under the warrant - this is intended to generally state the
effect of new sections 108H and 108O, discussed below;
(f) that the debtor's vehicle may be liable to be seized and sold under an
enforcement warrant if the debtor does not either pay the amount
owing in full or enter into compliance or a good behaviour order is not
made by the time the immobilising device is removed from the
vehicle; and
(g) the range of offences that apply in respect of activity that is intended
to avoid, frustrate or interfere with the immobilisation process - these
offences are set out in subdivision 4 of new division 7A and also
section 116 of the SPEA, as amended by clause 20.
It should be noted that clause 34 amends section 158 of the SPEA to enable
an intent notice to be served on the debtor by post or facsimile at either:
(a) the address at which the debtor's vehicle is registered; or
(b) if the debtor is an individual - the address last known to the SPER
registrar to be the debtor's residential or business address; or
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
(c) if the debtor is a corporation - the address last known to the SPER
registrar to be the corporation's head office, registered office or a
principal office.
Operationally, SPER will endeavour to make and maintain contact with the
debtor during the 14 day intent notice period with the objective of getting
them to either pay the debt in full or enter into compliance, without having
to proceed to the next step of the immobilisation process i.e. issuing an
immobilisation warrant.
It should noted that clause 32 below amends section 155 of the SPEA to
provide that the registrar's decision to issue an intent notice is not
reviewable.
Subdivision 3 deals with the third step in the immobilisation process,
namely the issue, service and enforcement of an immobilisation warrant.
New section 108D enables the SPER registrar to issue a warrant to
immobilise one or more of the debtor's vehicles after the 14 day intent
notice period if:
(a) the debtor has not paid the amount owing in full;
(b) the debtor's application to pay the unpaid amount by instalments or to
convert it to hours of unpaid community service under a fine option
order has not been granted or a good behaviour order is not made in
relation to the debtor;
(c) the debtor has not taken action to dispute part or all of the unpaid
amount.
When deciding whether or not to issue an immobilisation warrant, the
registrar may have regard to whether immobilisation would cause severe or
unusual hardship to the debtor, the debtor's family or another person who
uses the vehicle but has no capacity to ensure the debtor pays the amount
owing.
The registrar is required to make the hardship assessment having regard to
guidelines issued under section 150B, as amended by clause 29. New
subsection 150B(4) provides the broad scope of the guidelines issued to
support the hardship assessment, including whether hardship is caused
because immobilisation deprives the debtor of his or her means of earning a
living (e.g. the debtor relies on the vehicle in the ordinary course of their
employment) or because immobilisation impacts adversely in another way
(e.g. because the debtor is homeless or a risk of homelessness or it
seriously compromises the debtor's family or carer responsibilities for
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
example, by leaving the debtor without reasonable access to alternative
means of transport to get their children to school or to obtain regular
medical treatment). An example of immobilisation causing severe and
unusual hardship to a third person is the situation of an employee who has
full personal use of the vehicle under an employment contract with the
debtor. These guidelines will be publicly available on the SPER website.
It is expected that SPER's preliminary investigations into, and contact with
the debtor after the intent notice is served under subdivision 2 will elicit
sufficient information for the registrar to make the hardship assessment.
In cases where immobilisation does not proceed because hardship is
established, SPER will instead consider whether or not the debtor is
eligible for a good behaviour order under section 118 of the SPEA (as an
alternative to arrest and imprisonment under Part 6 of the SPEA).
Before issuing an immobilisation warrant, SPER will also liaise with the
Queensland Police Service to help locate the debtor and assess risk having
regard to information about the debtor's criminal history. This is currently
permitted under section 151 of the SPEA.
The form and content of the immobilisation warrant is set out in new
section 146B, which is inserted in Part 9 of the SPEA by clause 26. The
warrant must be in the approved form and state the following matters:
(a) the debtor's full name and address;
(b) the total amount owed by the debtor, together with a debt schedule
that identifies the offence for which an amount incurred as a fine
became payable or the original court order to which an amount owing
under a court order relates;
(c) the date and time when the warrant was issued and its expiry date (no
longer than 12 months after it was issued);
(d) the vehicle or vehicles proposed to be immobilised under the warrant;
(e) that the debtor's vehicle may be liable to be seized and sold under an
enforcement warrant if the debtor does not either pay the outstanding
amount in full or enter into compliance or a good behaviour order is
not made in relation to the debtor by the time the immobilising device
is removed from the vehicle. To have entered in compliance, the
debtor must have been granted an application to pay by instalments
under section 42 of the SPEA or to convert the unpaid amount to
hours of unpaid community service under a fine option order made
under section 50 of the SPEA; and
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
(f) the range of offences that apply in respect of activity that is intended
to avoid, frustrate or interfere with the immobilisation process - these
offences are set out in subdivision 4 of new division 7A and also
section 116 of the SPEA, as amended by clause 20.
Subsection 108D(3) requires a copy of the warrant to be served on the
debtor as soon as practicable after it is issued. It should be noted that
clause 36 amends section 158 of the SPEA to enable an immobilisation
warrant to be served on the debtor by post or facsimile at either:
(a) the address at which the debtor's vehicle is registered; or
(b) if the debtor is an individual - the address last known to the SPER
registrar to be the debtor's residential or business address; or
(c) if the debtor is a corporation - the address last known to the SPER
registrar to be the corporation's head office, registered office or a
principal office.
It should noted that clause 32 below amends section 155 of the SPEA to
provide that the registrar's decision to issue an immobilisation warrant is
not reviewable.
New section 108E enables a person claiming an interest in a vehicle that is
or is about to be immobilised to apply to the SPER registrar for all or part
of the warrant to be cancelled, suspended or varied. This mirrors the
process currently provided under section 64 of the SPEA for enforcement
warrants. Although there is no appeal from the registrar's decision on an
application made under this provision, judicial review has not been
excluded under section 155 of the SPEA.
New section 108F states the effect of an immobilisation warrant. The
warrant authorises an enforcement officer to attach an immobilising device
to the vehicle, without further notice to the debtor and without the debtor's
consent. `Immobilising device' is defined to mean wheel clamps or
another device that effectively detains the vehicle. An enforcement officer
also has the powers set out in new section 108I (discussed below) under an
immobilisation warrant.
Consistent with the approach taken with other forms of enforcement action
under the SPEA, subsection 108F(3) operates to increase the total amount
owing by the debtor by the addition of the prescribed civil enforcement fee
once an immobilisation warrant is issued.
After the warrant is served, SPER will endeavour to make and maintain
contact with the debtor with the objective of getting them to either pay the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
debt in full or enter into compliance before the vehicle is immobilised. It is
anticipated that the service of the warrant alone will be sufficient incentive
for some debtors to satisfy their unpaid amount, without SPER having to
actually immobilise the debtor's vehicle.
If the debtor does not respond to these attempts, SPER will then start
planning the immobilisation operation. This will include liaising with the
Queensland Police Service to advise that it has issued the warrant against
the debtor and where and when it proposes to enforce the warrant. New
151A, inserted by clause 30, facilitates this information exchange.
Once SPER has located the debtor's vehicle, the immobilisation warrant
will be enforced. New section 108G provides than an enforcement officer
may enforce an immobilisation warrant. Notwithstanding the scope of the
definition of `enforcement officer', as amended by clause 39 below, in
practice, immobilisation warrants will be enforced by SPER employees
who will be trained specifically to undertake immobilisation operations.
New section 108H deals with where and when an immobilisation warrant
can and can not be enforced.
Subsection 108H(1) sets out the places where a vehicle can be immobilised
under an immobilisation warrant, namely:
(a) in a public place - this is defined in subsection 108H(5) to mean an
area that is open to or used by the public and is developed for, or has
as one of its uses, the driving or riding of motor vehicles, whether on
payment of a fee or otherwise;
(b) on property occupied by an individual debtor - this includes the
debtor's place of residence or place of business;
(c) at a corporate debtor's place of business or registered office; or
(d) any other place, but only with the occupier's consent.
A vehicle can be immobilised even if it is unattended. The immobilisation
notice affixed to the vehicle under new section 108N below will contain
contact details for the SPER immobilisation team. SPER will endeavour to
contact the debtor immediately after an unattended vehicle is immobilised.
During the 12 month trial commencing on 1 January 2010, SPER intends to
target public places like Queensland Rail car parks, park and ride stations,
universities and shopping centre car parks, but not privately operated paid
parking stations. SPER intends to conduct immobilisation operations at
paid parking facilities operated by local councils, universities or other
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
administering authorities only if a memorandum of understanding can be
negotiated with the relevant entity so that immobilised vehicles do not
attract any further parking fees or penalties. SPER will liaise with the
relevant entities and QPS when planning these immobilisation operations.
Subsection 108H(4) sets out the places where a vehicle can not be
immobilised, namely a place where:
(a) the immobilised vehicle could impede the use of the place or traffic
flow or pose a safety risk - this is intended to include a place that
becomes a clearway or a no parking zone during certain times; and
(b) the enforcement officer reasonably believes the safety of the driver
and any other occupants may be at risk, e.g. in an isolated location.
When enforcing an immobilisation warrant, the enforcement officers must
have regard to guidelines issued by the SPER registrar to support the
operation of this provision - see new subsection 150B(6), inserted by
clause 29 below. In short, if the vehicle can not be clamped safely where it
is located, it will not be clamped at that time.
Further, under new subsection 108H(4)(c), an enforcement officer is
prevented from immobilising a vehicle if the debtor either pays the amount
owing in full or enters into compliance (by successfully applying to have
pay the amount by instalments or to convert the amount to unpaid
community service under a fine option order) or a good behaviour order is
made in relation to the debtor before the immobilising device is attached to
the vehicle.
Consistent with the enforcement of enforcement warrants under section 70
of the SPEA, new subsection 108H(3) enables an enforcement officer to
enforce an immobilisation warrant at any reasonable time of the day or
night. During the 12 month trial, it is intended that immobilisation
operations will be conducted during SPER's normal hours of operation
(8am to 5:45pm), with most operations conducted in the mornings to
maximise the five day immobilisation period. This will be reviewed as part
of the trial evaluation.
New section 108I sets out the additional powers an enforcement officer can
exercise under an immobilisation warrant, namely power to:
(a) enter and re-enter a public place - this is defined in subsection 108I(3)
to mean a place that is open to or used by the public, whether or not on
payment of a fee;
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
(b) enter and re-enter premises occupied by the debtor, without the
debtor's consent - `premises' is currently defined by the SPEA to
include any structure, building, aircraft, vehicle, vessel or place,
whether built on or not. It should be noted that if the premises is used
only for residential purposes, the enforcement officer may only enter
with the debtor's consent or an immobilisation search warrant;
(c) enter and re-enter premises occupied by someone other than the
debtor, but only with the occupier's consent;
(d) do anything else reasonably necessary to immobilise the vehicle.
It should be noted that when enforcing an immobilisation warrant, an
enforcement officer will also have power under section 114 of the SPEA, as
amended by clause 18 below, to require a person whom the enforcement
officer reasonably believes to be the debtor named in the warrant to answer
questions.
New sections 108J and 108K are standard provisions that apply when an
enforcement officer is seeking consent to enter residential premises
occupied by the debtor or premises occupied by someone other than debtor.
New section 108J sets out the extent of an enforcement officer's power of
entry, without consent or a warrant, to ask the occupier for consent to enter.
New section 108J sets out the process an enforcement officer must follow
when seeking consent to enter a place.
It is anticipated that some debtors will move their vehicles to places where
the occupier will refuse entry to the enforcement officers. To address this,
new section 108L enables an enforcement officer to apply for an
immobilisation search warrant to enter, re-enter and search premises to
locate the debtor's vehicle. It mirrors the process under section 71 of the
SPEA for issuing a search warrant to support the enforcement of an
enforcement warrant. The application for an immobilisation search
warrant can only be made if the enforcement officer reasonably believes
the debtor's vehicle has been relocated to premises, by or on the debtor's
behalf, in an attempt to avoid the enforcement of an immobilisation
warrant. The form and content of an immobilisation search warrant is set
out in new section 146D, which is inserted in Part 9 of the SPEA by clause
26.
New section 108M sets out the powers an enforcement officer can exercise
under an immobilisation search warrant, namely to enter, re-enter and
search premises for a vehicle that is the subject of an immobilisation
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
warrant and to use reasonable help to exercise those powers. This is
consistent with the powers set out in section 72 of the SPEA that can be
exercised under a search warrant to support the enforcement of an
enforcement warrant.
New section 108N requires an enforcement officer, when immobilising a
vehicle under an immobilisation warrant, to also attach an immobilisation
notice to a prominent place on the vehicle e.g. on the vehicle's windscreen.
The form and content of the immobilisation notice are set out in new
section 146C, which is inserted in Part 9 of the SPEA by clause 26. The
notice must be in the approved form and state:
(a) that the vehicle has been immobilised under the SPEA;
(b) how long the vehicle can remain immobilised; and
(c) the range of offences that apply in respect of activity that is intended
to avoid, frustrate or interfere with the immobilisation process - these
offences are set out in subdivision 4 of new division 7A and also
section 116 of the SPEA, as amended by clause 20.
In practice, the notice will also contain contact details for the SPER
immobilisation team and their hours of operation. This notice is intended
to act as an additional visual deterrent to other would-be fine defaulters in
the community.
New section 108O establishes the maximum period for which a vehicle can
be immobilised under an immobilisation warrant. It provides that both the
immobilising device and the immobilisation notice can only be attached to
the vehicle for up to five days. This provision is to be read in conjunction
with section 38 of the Acts Interpretation Act 1954, which deals with the
reckoning of time. Even though the vehicle is immobilised, the debtor may
still access the vehicle during the immobilisation period e.g. to retrieve
personal property from it.
Once the vehicle is immobilised, SPER will assess whether it is of
sufficient value for seizure and sale immediately after the immobilising
device is removed. If so, the SPER registrar will issue a separate seizure
and sale enforcement warrant under section 63 of the SPEA and serve it on
the debtor during the immobilisation period. Even though section 63, as
amended by clause 5 above, prevents the seizure and sale enforcement
warrant from being enforced during the immobilisation period, the issue
and service of a separate warrant during the immobilisation period provides
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
further incentive for the debtor to either pay the amount owing in full or to
enter into compliance before the immobilisation period ends.
SPER will continue to work with the debtor during the immobilisation
period. Application of the immobilising device (whether or not
supplemented by a separate seizure and sale enforcement warrant) may be
sufficient incentive for the debtor to either pay the amount owing in full or
enter into compliance (by successfully applying to pay the amount in
instalments or to convert the amount into hours of unpaid community
service under a fine option order) or a good behaviour order is made in
relation to the debtor before immobilisation period ends. If this occurs,
then new section 108P(1) requires the registrar to direct an enforcement
officer to remove both the immobilising device and the immobilisation
notice from the vehicle as soon as practicable.
New section 108P(1) also operates to require the removal of the
immobilising device and immobilisation notice before the end of the
immobilisation period if the registrar is satisfied that the immobilised
vehicle is impeding the use of a place or traffic flow or is a safety risk. This
direction must be made having regard to guidelines issued by the SPER
registrar to support the operation of this provision - see new subsection
150B(5), inserted by clause 29 below. The direction must be given even if
the debtor has not paid the amount owing in full or entered into
compliance.
New section 108P(2) gives the SPER registrar discretion to direct the
removal of the immobilising device and the immobilisation notice before
the end of immobilisation period, even though the debtor has not paid the
amount owing in full or entered into compliance. This discretion may be
exercised if the registrar is satisfied that continued immobilisation will
cause severe or unusual hardship to the debtor, the debtor's family or
another person who uses the vehicle but has no capacity to ensure the
debtor pays the amount owing. When exercising this discretion, the
registrar may have regard to guidelines issued under section 150B, as
amended by clause 29 below. The broad scope of these hardship guidelines
was discussed in relation to new section 108D above.
New section 108Q requires an enforcement officer to remove both the
immobilising device and the immobilisation notice from the vehicle
immediately after the immobilisation period ends, even if the debtor still
hasn't paid the amount owing or entered into compliance.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
As outlined above, there are three scenarios in which the immobilising
device and immobilisation notice can be removed without the debtor
having paid the amount owing in full or having entered into compliance or
a good behaviour order having been made in relation to the debtor, namely:
(a) before the end of immobilisation period - under new section
108P(1)(d) or (2); and
(b) after the immobilisation period ends.
If this occurs, new section 108R operates to enable the SPER registrar to
direct an enforcement officer to immediately seize the vehicle under an
enforcement warrant issued under section 63 of the SPEA, once the
immobilising device is removed under new section 108Q. The vehicle will
then be sold under Part 5, division 2 of the SPEA.
Vehicles not worth selling will be released once the immobilising device
and immobilisation notice are removed under new section 108Q. In these
cases, SPER will then assess whether the debtor is eligible for a good
behaviour order under section 118 of the SPEA or will refer the debtor to
the next warrant evaluation committee to consider whether the debtor
should be issued with an arrest and imprisonment warrant under Part 6 of
the SPEA.
An immobilisation warrant remains current for 12 months. New section
108S operates to enable a current warrant to be re-enforced if a debtor who
enters into compliance at any stage during the immobilisation process, later
defaults by having:
(a) an instalment payment notice cancelled under section 36 of the SPEA
(for defaulting on a payment under the notice); or
(b) a fine option order revoked under section 129 of the SPEA (for failing
to comply with the order); or
(c) a good behaviour order cancelled under section 118 of the SPEA.
New section 108T mirrors section 74 of the SPEA by requiring an
enforcement officer to give the SPER registrar a return about the
enforcement or attempted enforcement of an immobilisation warrant. The
return must certify what was done to enforce the warrant or what other
action, if any, was taken.
New section 108U sets out the requirement for, and the process by which,
an enforcement officer must give notice of any damage he or she causes to
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
property during the enforcement of an immobilisation warrant, to the
owner of the damaged property.
New section 108V operates to enable a person to make a claim against the
State for the cost of repairing or replacing property damaged by an
enforcement officer during the enforcement of an immobilisation warrant.
It should be noted that this provision does not extend to any damage caused
to an immobilised vehicle during the immobilisation period by someone
other than an enforcement officer or by some other event.
New section 108W operates to prevent a claim under a vehicle insurance
policy for an event that occurred during the immobilisation period being
refused merely because the vehicle was immobilised under the SPEA. This
applies despite anything to the contrary in a vehicle insurance policy or
other agreement. SPER will develop operational guidelines to assist
enforcement officers to plan and conduct immobilisation operations in a
way that minimises the risk of a vehicle being damaged or stolen while it is
immobilised.
Subdivision 4 contains a range of offences that apply in respect of activity
intended to avoid, frustrate or interfere with the immobilisation process. It
is an offence:
(a) for a debtor to conceal, sell, transfer or otherwise deal with a vehicle
stated in an intent notice issued under new section 108C, with intent to
avoid the issue of an immobilisation warrant - new section 108X(1);
(b) for a debtor to conceal, sell, transfer or otherwise deal with a vehicle
stated in an immobilisation warrant, with intent to avoid the
enforcement of the warrant - new section 108X(2); and
(c) for a person to interfere with or remove an immobilised vehicle during
the immobilisation period with intent to adversely affect the seizure or
sale of the vehicle - new section 108Y.
For consistency with an existing corresponding offence under section
68 of the SPEA (dealing with charged or restrained property), each of
these three offences is punishable by a maximum penalty of 200
penalty units or three years imprisonment.
(d) for a person to tamper with or remove or attempt to remove an
immobilising device or an immobilisation notice attached to a vehicle
under the SPEA - new section 108Z. This offence is punishable by a
maximum penalty of 50 penalty units.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 14 amends section 110 to clarify that the registration of an interest
in a motor vehicle under that section does not prevent the SPER registrar
from issuing an immobilisation intent notice or an immobilisation warrant
for the vehicle under new division 7A of Part 5 of the SPEA or a seizure
and sale enforcement warrant under section 63 of the SPEA.
Clause 15 amends section 111 to extend its application to payment by a
debtor of part or all of an amount payable under an immobilisation warrant.
Clause 16 amends section 112 to extend its application to payment by a
debtor of part or all of an unpaid amount payable under an immobilisation
warrant.
Clause 17 amends section 113 to extend its application to payment by a
debtor of part or all of an unpaid amount payable under an immobilisation
warrant.
Clause 18 amends section 114 to give an enforcement officer enforcing an
immobilisation warrant power to require a person the enforcement officer
reasonably believes to be the debtor named in the warrant to answer a
question that is relevant to the warrant or the exercise of powers under the
SPEA because of the warrant. The enforcement officer is required to warn
the person that failure to comply with the requirement is an offence, unless
the person has a reasonable excuse. The clause also amends section 114 to
require an enforcement officer to show their identity card before they
exercise a power under subsection 114(1) or (5). This amendment
supplements the additional powers set out in new section 108I that an
enforcement officer may exercise under an immobilisation warrant.
Clause 19 amends section 115 to include reference to an immobilisation
warrant.
Clause 20 amends section 116 to expand the scope of the offence to include
threatening an enforcement officer acting in the performance of duties
under the SPEA.
Clause 21 amends section 117 to increase the maximum penalty for the
offence of interfering with a seized item left at the place of seizure or a
seizure tag or sticker placed on the item. The penalty is increased from ten
to 50 penalty units. This achieves consistency with the maximum penalty
for the offence under new section 108Z.
Clause 22 amends section 118 to include reference to an immobilisation
warrant.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 23 amends section 119 to include reference to an immobilisation
warrant.
Clause 24 amends section 136(1)(i)(i) to include reference to an
immobilisation warrant.
Clause 25 amends section 137 to include reference to the issue of an
immobilisation warrant.
Clause 26 inserts new sections 146A - 146D in Part 9 of the SPEA. These
provisions set out the form and content requirements for a notice of intention
to issue an immobilisation warrant (section 146A), an immobilisation warrant
(section 146B), an immobilisation notice (section 146C) and an
immobilisation search warrant (section 146D). Each provision is explained in
detail in clause 13 above.
Clause 27 amends section 147 which provides that an enforcement warrant
issued by the SPER registrar is taken to be a warrant of the Magistrates Court
in the central division of the Brisbane Magistrates Court district. For
consistency with rule 826 of the UCPR, section 147 is amended to deal with
the situation where the SPER registrar believes the debtor or any of the
debtor's property is in another Magistrates Court direct. It establishes a
process by which the warrant can be enforced in the other district. The
remittance of moneys back to the SPER registrar is dealt with under new
section 73J, discussed above.
Clause 28 amends section 148 to include reference to an immobilisation
warrant.
Clause 29 amends section 150B to enable the SPER registrar to issue
guidelines to support the operation of new sections 108B, 108C, 108D(2),
108H(4)(a) or (b) or 108P(1)(d) or (2). The scope and application of these
guidelines under these provisions are explained in clause 13 above. The
guidelines must be made publicly available, including on the SPER website.
Clause 30 inserts a new section 151A in Part 9, division 2. This provision
complements the information exchange currently permitted under section
151 of the SPEA. It enables the SPER registrar to advise the Queensland
Police Service once it has issued an immobilisation warrant and when and
where it proposes to enforce the warrant. This information exchange will
assist in ensuring that SPER's immobilisation operations do not
compromise major police investigations and will enable immobilisation
warrant information to be flagged in QPRIME. It is possible that
enforcement officers may need to call the police for assistance during an
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
immobilisation operation. The proactive information exchange permitted
under this provision will assist QPS to allocate policing resources to
respond to these situations. The information provided by the SPER
registrar under this provision may only be used by the QPS in relation to
the enforcement of the warrant and not for general policing purposes.
Clause 31 amends section 153 to include reference to the registrar's
decision to issue a notice of intention to issue an immobilisation warrant or
an immobilisation warrant. Particulars of both must be entered on the State
penalties enforcement register required to be kept under this section.
Clause 32 amends section 155 to provide that the registrar's decision to
issue a notice of intention to issue an immobilisation warrant or an
immobilisation warrant is not reviewable. This is consistent with the
current approach under the SPEA in respect of the registrar's decision to
take other forms of enforcement action, including to decisions to issue an
enforcement order, an enforcement warrant, a fine collection notice, notice
of intention to suspend a driver licence or an arrest and imprisonment
warrant.
Clause 33 amends section 157 to include reference to the service of a
notice of intention to issue an immobilisation warrant or the service of an
immobilisation warrant on a stated person on a stated day.
Clause 34 amends section 158 to enable a notice of intention to issue an
immobilisation warrant or an immobilisation warrant to be served on the
debtor by post or facsimile at either:
(a) the address at which the debtor's vehicle is registered; or
(b) if the debtor is an individual - the address last known to the SPER
registrar to be the debtor's residential or business address; or
(c) if the debtor is a corporation - the address last known to the SPER
registrar to be the corporation's head office, registered office or a
principal office.
Clause 35 inserts a new section 159A in Part 9 of the SPEA. It gives the
SPER registrar express power to communicate with enforcement debtors
by SMS, without requiring debtor consent for this form of contact. The
registrar is permitted to use this technology to communicate with debtors
about matters relating to their payment of an unpaid amount (i.e. under a
form of compliance such as an instalment payment notice) or about
enforcement action that is being, or may be taken against the debtor. This
amendment commences on assent.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
This amendment will facilitate a program of proactive SMS contact by
SPER aimed at prompting debtor compliance and encouraging higher rates
of payment. Initially, it is intended that debtors will be sent SMS
notifications where the debtor has entered into an instalment payment plan
using a credit card and that credit card is due to expire; before SPER
cancels an instalment payment notice (following issue of a default notice)
and when SPER intends to suspend the debtor's driver licence (following
prior written notification). Other use criteria will be investigated following
testing.
The provision overrides the operation of the Information Privacy Act 2009.
This is because section 7 of that Act provides that it operates subject to the
provisions of any other Act relating to the collection, storage, handling,
accessing, amendment, management, transfer, use and disclosure of
personal information.
Clause 36 amends section 165 to include reference to immobilisation
warrants. It also omits the power to make a regulation about the property
that may not be seized under an enforcement warrant, the sale of property
seized under an enforcement warrant, the order in which the property may
be sold, when and how the property may be sold and accounting for the
proceeds of a sale of property seized under an enforcement warrant. This
aspect of the regulation making power is no longer required as these
matters are now dealt with in the SPEA.
Clause 37 amends section 169 to correct a section reference.
Clause 38 inserts new section 174A in Part 9 of the SPEA. This provision
is to be read in conjunction with the amendment of section 34 under clause
4 above. This provision retrospectively validates the referral to SPER of
particulars of orders mentioned in section 400(1) or 408H(1) of the
Industrial Relations Act 1999 for enforcement; the registration of those
orders and any action taken purportedly under the SPEA to enforce them.
This amendment commences on assent.
Clause 39 amends the dictionary in schedule 2 of the SPEA by inserting
definitions of new terms to support the seizure and sale and immobilisation
amendments. It also inserts an amended definition of `enforcement officer'
which adds an appropriately qualified public service officer to the now
exhaustive list.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Part 2 Amendment of Industrial
Relations Act 1999
Clause 40 provides that this part amends the Industrial Relations Act 1999.
Clause 41 amends section 400 of the Act to give the magistrate discretion
to give the court registrar particulars of the orders mentioned in subsection
(1) to provide to the SPER registrar for registration under section 34 of the
State Penalties Enforcement Act 1999. These include orders for the
payment of unpaid wages, tool allowance and unpaid superannuation
contributions.
Clause 42 amends section 408H of the Act to give the magistrate discretion
to give the court registrar particulars of the order mentioned in subsection
(1) to provide to the SPER registrar for registration under section 34 of the
State Penalties Enforcement Act 1999. This is an order for the payment of
fees charged illegally by a private employment agent or a costs order.
These amendments are to be read in conjunction with the amendment of
section 34 of the SPEA under clause 4 above, which enables the SPER
registrar to receive, register and enforce these orders.
The effect of these amendments is to establish referral to the State Penalties
Enforcement Registry as an alternative enforcement option under the Act,
which already enables these orders to be enforced either under the Justices
Act 1886 as an order for payment of money made under that Act or to be
recovered by the employee from the employer as a debt.
The amendments contained in this part commence on assent.
Part 3 Amendment of Transport
Operations (Road Use
Management) Act 1995
Clause 43 provides that this part amends the Transport Operations (Road
Use Management) Act 1995 (the TORUM).
Clause 44 makes a consequential amendment to section 135 of the
TORUM to provide that an enforcement officer who enforces an
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
immobilisation warrant under the State Penalties Enforcement Act 1999
does not commit an offence under section 135(1)(c).
The amendment contained in this part commences on 1 January 2010.
Chapter 3 Amendments relating mainly
to the national exchange of
criminal history information
Part 1 Amendment of Education
(Queensland College of
Teachers) Act 2005
Clause 45 provides that this part amends the Education (Queensland
College of Teachers) Act 2005.
Clause 46 amends section 11 (Suitability to teach--criminal history
information) by inserting a provision that makes section 11 subject to new
section 12A.
Clause 47 amends section 12 (Suitability to teach--other considerations)
by inserting a provision that makes section 12 subject to new section 12A.
Clause 48 inserts a new section 12A to ensure that the Queensland College
of Teachers meets requirements of the Council of Australian Governments'
(COAG) agreement dated 29 November 2008 to facilitate the
inter-jurisdictional exchange of criminal history information for people
working with children. In considering whether a person poses a risk of
harm to children as part of the assessment about whether a person is
suitable to work in a child related field under section 12(1)(b), the College
must consider the expanded interstate criminal history information sourced
from interstate under the exchange as well as any other information relating
to that expanded interstate criminal history information as provided by the
commissioner of police under section 15 or an interstate commissioner of
police under new section 15A. In addition when considering the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
information relating to the expanded interstate criminal history
information, the College must consider: when the offence was committed,
is alleged to have been committed or may possibly have been committed;
the nature of the offence and its relevance to the duties of a teacher; and any
other matter considered relevant by the College in deciding whether a
person poses a risk of harm to children.
Subsection (4) provides that the section does not limit the matters that the
college may consider under section 11(2) or 12(1)(b).
Subsection (5) of new section 12A provides that despite section 11 or 12, in
considering whether a person is suitable to work with children, a person's
expanded interstate criminal history information (and related information)
is only relevant to a consideration of whether a person poses a risk of harm
to children.
Clause 49 inserts a new section 15A that enables the College to request a
brief description of the circumstances of a conviction or charge for an
interstate or Commonwealth offence mentioned in an applicant's criminal
history, from the relevant interstate (including territory) or Commonwealth
commissioners of police. Under COAG arrangements, jurisdictions' police
commissioners will be obliged to supply screening units of other
jurisdictions formally participating in the exchange with expanded criminal
history information and, if the subject of a follow-up request, with
descriptions about the circumstances of the charges and convictions.
Clause 50 amends section 16 (Requirement to advise applicant of criminal
history information received) to include a reference to section 15A.
Clause 51 amends section 65 (College's power to obtain criminal history
etc. in relation to an approved teacher) to enable the College of Teachers to
seek interstate criminal history information or a brief description of the
circumstances relating to that criminal information to determine if a
teacher is or continues to be suitable to teach.
Clause 52 replaces section 91 (Definition for ch 5) and provides a new
definition of disciplinary information in section 91 (Definition for ch 5)
which states that the definition does not include interstate information.
Subsection (2) of new section 91 clarifies that information disclosed by a
person to the college as required by chapter 3, part 1 is not interstate
information even if the information is also disclosed to the college by the
commissioner of police or an interstate commissioner.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 53 amends section 112 (Reporting of offences) to remove any doubt
that, in subsection (1), a reference to other information does not include
interstate information.
Clause 54 amends section 124, as inserted by the Queensland Civil and
Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, to
clarify that references to members that constitute the tribunal for the
purpose of determining matters under the Act, are references to members
of QCAT, not members of the Board of the Queensland College of Teachers
or the Professional Practice and Conduct Committee. In addition it
provides that a legally qualified member means a legally qualified member
under the QCAT Act.
Clause 55 amends section 282 (Definition for pt 1) to include in the
definition relevant personal information, information obtained under the
new section 15A.
Clause 56 amends section 283 (Confidentiality of particular information) to
describe the limited circumstances in which interstate criminal history
information may be disclosed.
Clause 57 amends section 286 (College may enter into information sharing
arrangement with commissioner of police) to include in the definition
criminal history information, information that is required or permitted to be
given to the College of Teachers under the new section 15A. The section
title is also changed to more accurately reflect the existing nature of the
provision, to `Information sharing arrangement with commissioner of
police for information otherwise lawfully given'.
Clause 58 amends section 287 (Other information sharing agreements) to
clarify that interstate criminal history information may not be the subject of
an information sharing agreement under section 287.
Clause 59 inserts a new part 10 which outlines the transitional provisions.
The effect of the transitional provision is to clarify that an interstate charge
refers to a charge against a person for an offence including a charge for an
offence alleged to have been committed by the person before the
commencement of this Act. Also, that for the definition interstate spent
conviction, a reference to a conviction of a person includes a conviction of
the person before the commencement of this Act.
Clause 60 amends schedule 3 (Dictionary) by including definitions of
expanded interstate criminal history, interstate charge, interstate
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
commissioner of police, interstate information, interstate rehabilitation law
and interstate spent conviction.
expanded interstate criminal history, of a person, means (a) every interstate
spent conviction of the person and (b) every interstate charge against the
person.
interstate charge, made against a person, means a charge against the person
for an offence alleged to have been committed by the person against a law
of another State or the Commonwealth.
interstate commissioner of police means the commissioner of a police force
or service of another State (including a Territory) or the Commonwealth.
interstate information means (a) a person's expanded interstate criminal
history disclosed by the commissioner of police to the college under
section 15, 65 or 75; or (b) any other information, that relates to a person's
expanded interstate criminal history, disclosed by the commissioner of
police under section 15, 65 or 75, or an interstate commissioner of police
under section 15A, to the college.
interstate rehabilitation law means a law applying, or that applied, in
another State or the Commonwealth, that provides, or provided, for the
same matter as the Criminal Law(Rehabilitation of Offenders) Act 1986.
interstate spent conviction, of a person, means a conviction for an offence
committed by the person against a law of another State or the
Commonwealth that the person is not required to disclose under an
interstate rehabilitation law because (a) a rehabilitation period prescribed
under that law for the conviction has expired and (b) the conviction has not
been revived under that law.
Part 2 Amendment of Police Service
Administration Act 1990
Clause 61 provides that this part amends the Police Service Administration
Act 1990.
Clause 62 amends several existing definitions in section 1.4. Clause 62
amends the definitions of approved agency, conviction and criminal history
to refer to new definitions of those terms because the terms are used in new
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
part 10, division 1B (Provisions about exchange of criminal history for
child related employment screening) that is being inserted into the Police
Service Administration Act by this Bill. Additionally, clause 62 supports
the relocations from section 1.4 of substantive definitions of criminal
history to other parts of the Act by clauses 63, 64 and 65 below, by
referring to the changed locations. Finally, subsection (2) inserts
references into section 1.4 to the definitions of child-related employment
screening and interstate screening unit provided by new section 10.2S.
Clause 63 relocates the existing definition of criminal history for part 5AA
(Assessment of suitability of persons seeking to be engaged, or engaged, by
the service) from section 1.4 (Definitions) to part 5AA, as new section
5AA.1A. The existing definition is relocated without any change being
made to it.
Clause 64 relocates the existing definition of criminal history for
subdivision 2 (Criminal history disclosure provisions) of division 1
(Provisions about information disclosure) of part 10 (Miscellaneous
provisions) from section 1.4 (Definitions) to subdivision 2 of division 1 of
part 10, as new section 10.2AA. The existing definition is relocated
without any change being made to it, apart from the addition of the editor's
note.
Clause 65 relocates the existing definition of criminal history for division
1A (Provisions about exchange of policing information) of part 10
(Miscellaneous provisions) from section 1.4 (Definitions) into division 1A,
as an amendment to section 10.2G. The existing definition is relocated
without any change being made to it.
Clause 66 inserts new part 10, division 1B (Provisions about exchange of
criminal history for child related employment screening) comprising of
new sections 10.2S, 10.2T, 10.2U and 10.2V. The key section of new
division 1B is 10.2T (Giving criminal history information to interstate
screening unit or approved agency for child-related employment
screening), which is supported by new section 10.2U (Use of criminal
history permitted despite other provisions) and must be read with the
critical definitions in new section 10.2S (Definitions for div 1B).
New division 1B gives effect to the Council of Australian Governments'
(COAG) agreement of 29 November 2008 to facilitate the
inter-jurisdictional exchange of criminal history information for people
working with children. It does this by enabling the Queensland Police
Service to provide the expanded criminal history information that is the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
subject of the COAG agreement to interstate child-related employment
screening units, to better inform their decision making in safeguarding
children from sexual, physical and other abuse.
The provision of the expanded criminal history information by the
Queensland Police Service under new division 1B will be the subject of
various safeguards that underline the COAG agreement of 29 November
2008 and which will be the subject of a formal intergovernmental
agreement that will be in place before information is provided under new
division 1B. The safeguards are in the form of requirements that COAG has
insisted child related employment screening units must comply with before
they receive the expanded criminal history information under the national
exchange. Australian governments will be obliged to ensure the screening
units they are nominating to participate in the exchange comply with these
`participation requirements'.
The participation requirements are those listed under the "Consistency with
Fundamental Legislation Principles" heading above, and are that the
participating screening unit must:
· have a legislative basis;
· use the information only for the purposes of child related employment
screening;
· be prohibited from--and, where appropriate, subject to penalty
for--disclosing the information beyond the screening unit (though
there is an express exception to this requirement for legislated child
protection functions);
· if they have functions beyond child safety screening, they use the
information only to screen risks to the safety of children, and not for
general employment suitability or probity screening;
· have appropriate risk assessment frameworks;
· have appropriately skilled staff;
· obtain the written consent of the individual that records the
individual's understanding that the employment screening will involve
the provision of the expanded interstate criminal history information
(and to facilitate this the COAG national implementation committee
has developed a model consent form);
· have a scheme that reflects the principles of natural justice. In
particular, where there is an intention to make an adverse decision
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
about an individual, the screening unit is required to disclose the
information to the individual, allow the individual a reasonable
opportunity to be heard and consider the individual's response before
finalising the decision;
· comply with Commonwealth, State and Territory privacy and human
rights legislation where relevant; and
· comply with records management legislation within their jurisdiction.
New section 10.2S (Definitions for div 1B) defines the terms approved
agency, child-related employment screening, criminal history and interstate
screening unit for the purposes of part 10, division 1B.
approved agency means CrimTrac or a police service of the
Commonwealth or another State.
child-related employment screening means using information about a
person in a way that is authorised or required under a law of another State
or the Commonwealth that relates to assessing whether a person poses a
risk of harm to children. The provision defines `child related employment
screening' by reference to the legislation of the other jurisdiction in which
the information will be used for the screening.
criminal history, of a person, means the person's convictions for offences
committed in Queensland or elsewhere, charges against the person for
offences alleged to have been committed in Queensland or elsewhere, and
circumstances information, namely, information about a conviction or
charge including a brief description of the circumstances of the conviction
or charge.
interstate screening unit means an entity, established under a law of
another State or the Commonwealth, that is (a) prescribed under a
regulation or (b) prescribed for the purposes of the Crimes Act 1914
(Cwlth), section 85ZZGB, 85ZZGC or 85ZZGD.
The interstate screening units that other jurisdictions have advised they are
nominating for participation in the exchange are listed in this bill at chapter
3, part 3 (Amendment of Police Service Administration Regulation 1990).
The provisions to which reference is made in paragraph (b) of the
definition are new sections of the Commonwealth Crimes Act proposed by
the Crimes Amendment (Working With Children - Criminal History) Bill
2009 (Cwth) currently before the Commonwealth Parliament. Proposed
section 85ZZGE of the Commonwealth bill provides that, before a
regulation is made, the Commonwealth Minister must be satisfied that the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
screening unit complies with a list of matters that replicate COAG
participation requirements
New section 10.2T (Giving criminal history to interstate screening unit or
approved agency for child-related employment screening) is the key
section of new division 1B and provides that to enable an interstate
screening unit to use the history for child related employment screening,
the commissioner may disclose a person's criminal history information,
either directly to an interstate screening unit or to CrimTrac or a police
service of another State or the Commonwealth for forwarding to an
interstate screening unit.
New section 10.2U (Use of criminal history permitted despite other
provisions) provides the commissioner may disclose the person's criminal
history despite a prescribed provision. Prescribed provision is defined to
mean: part 5A, part 5AA or part 10, division 1 or 1A of the Police Service
Administration Act; the Criminal Law (Rehabilitation of Offenders) Act
1986; or part 9 of the Juvenile Justice Act 1992.
New section 10.2V (Protection from liability) is designed to ensure that a
person who is acting honestly and without negligence will not be civilly or
criminally liable for the disclosure of criminal history information under
new division 1B.
Clause 67 inserts new division 5 (Transitional provisions for the State
Penalties Enforcement and Other Legislation Amendment Act 2009) into
part 11 to provide for transitional and declaratory provisions in relation in
relation to the State Penalties Enforcement and Other Legislation
Amendment Act 2009.
New section 11.9 (Definition for div 5) clarifies that, for the purposes of the
division, commencement means the commencement of the State Penalties
Enforcement and Other Legislation Amendment Act 2009.
New section 11.10 (Amendment of regulation by the State Penalties
Enforcement and Other Legislation Amendment Act 2009 does not affect
powers of Governor in Council) declares that the amendment by Parliament
to the regulation proposed in chapter 3, part 3 of this Bill does not affect the
power of the Governor in Council to further amend or repeal the regulation.
New section 11.11 (Exchange of criminal history for child-related
employment screening) clarifies that for new section 10.2S, definition
criminal history, a reference to a charge against a person for an offence
includes a charge for an offence alleged to have been committed by the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
person before the commencement of the State Penalties Enforcement and
Other Legislation Amendment Act 2009.
Part 3 Amendment of Police Service
Administration Regulation 1990
Clause 68 provides that this part amends the Police Service Administration
Regulation 1990.
Clause 69 inserts new Part 7E (Provision about exchange of criminal
history for child-related employment screening) into the regulation.
New 7E.1 (Interstate screening units--Act, s 10.2S, definition interstate
screening unit, paragraph (a)) identifies entities that are interstate screening
units for the purposes of paragraph (a) of the definition interstate screening
unit in new section 10.2S (Definitions for div 1B) of the Police Service
Administration Act.
Chapter 4 QCAT Amendments
Part 1 Amendment of Queensland Civil
and Administrative Tribunal Act
2009
Clause 70 provides that this part amends the Queensland Civil and
Administrative Tribunal Act 2009.
Clause 71 amends section 2 to provide that section 277A, as inserted into
the Act by this Bill, is to commence upon assent of the Bill as an Act.
Clause 72 amends section 128 to include in subsection (2)(b) a person
performing a function of the principal registrar delegated to the person
under section 210(2). This amendment is consequential on the amendment
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
to section 210 which permits the principal registrar to delegate his or her
functions to a QCAT registry staff member or a Magistrates Court staff
member.
Clause 73 amends section 132 to provide that enforcement of a final
decision of the tribunal relating to a minor civil dispute is to be by filing in
the registry of the Magistrates Court, rather than the Supreme Court as
presently provided.
Clause 74 amends section 166 in relation to internal appeals within QCAT,
that is, appeals from QCAT in its original jurisdiction to QCAT in its appeal
jurisdiction. The amendment will provide that an appeal from QCAT
constituted by a magistrate must be heard by a judicial member, as opposed
to a non-judicial member. This amendment will apply to appeals from
magistrates' decisions as ordinary members for minor civil disputes and
magistrates' decisions as supplementary members for other QCAT matters.
Clause 75 amends section 167 to insert a note which refers to the powers of
judicial registrars to hear and determine minor civil disputes as
adjudicators under the new section 198A (which is inserted by the
following clause).
Clause 76 inserts a new section 198A. This section will allow judicial
registrars to hear and determine minor civil disputes as an adjudicator.
Under the Magistrates Act 1991 the Chief Magistrate may currently issue a
practice direction which allows judicial registrars to hear and determine
minor debt claims and small claims. The jurisdiction for minor debt claims
and small claims will form part of the minor civil disputes jurisdiction of
QCAT from commencement.
Clause 77 amends section 203 to correct punctuation.
Clause 78 amends section 210 to permit the principal registrar to delegate
his or her functions to a QCAT registry staff member or a Magistrates
Court staff member. The delegation may only be to a person appropriately
qualified to perform the function. This amendment is made to ensure that
the processing and case management of QCAT matters in rural and regional
areas can be carried out by appropriately qualified tribunal and court staff.
A consequential amendment is made to the heading to more accurately
reflect its content following the amendment.
Clause 79 amends the heading to section 211 for consistency with the
amendment made to the heading to section 210.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 80 amends section 212 (principal registrar must disclose interests)
to add to the definition of principal registrar a person performing a function
of the principal registrar delegated to the person under section 210(2). This
amendment is consequential on the amendment to section 210 which
permits the principal registrar to delegate a QCAT registry staff member or
a Magistrates Court staff member.
Clause 81 amends section 216 (false or misleading information) to add to
the definition of official a Magistrates Court staff member performing a
function of the principal registrar delegated to the person under section
210(2). This amendment is consequential on the amendment to section 210
which permits the principal registrar to delegate his or her functions to a
Magistrates Court staff member.
Clause 82 amends section 218 to clarify that a finding of contempt is a
matter to be determined in each case and hence "may" arise from the listed
behaviour. The clause also amends the section to provide that the
behaviour of insulting certain persons may constitute contempt where the
person insulted is performing a function that is linked with a proceeding.
Presently, the section does not require that link to behaviour during a
proceeding, which is inconsistent with similar contempt provisions. Also,
the list of relevant persons, the insulting of whom may constitute contempt,
is extended to apply to a Magistrates Court staff member. This amendment
is consequential on the amendment to section 210 which permits the
principal registrar to delegate his or her functions to a Magistrates Court
staff member. The provision is also extended to apply to assessors.
Clause 83 amends section 220 to replace the reference to, and definition of,
tribunal staff member with a reference to, and definition of, prescribed
persons. The provision is thereby extended to include a Magistrates Court
staff member performing a function of the principal registrar delegated to
the member under section 210 as a person who may lawfully remove a
disruptive person from the tribunal.
Clause 84 amends section 228 to omit the requirement that magistrates,
who are ordinary members of the tribunal by virtue of section 171(2), are to
take an oath of office. Magistrates already take an oath of office under the
Magistrates Act 1991.
Clause 85 amends section 233 (confidentiality generally) to add to the
definition of prescribed person a Magistrates Court staff member
performing a function of the principal registrar delegated to the person
under section 210(2). This amendment is consequential on the amendment
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
to section 210 which permits the principal registrar to delegate his or her
functions to a Magistrates Court staff member.
Clause 86 amends section 234 (further limitation on disclosure to a court
etc.) to add to the definition of prescribed person a Magistrates Court staff
member performing a function of the principal registrar delegated to the
person under section 210(2). This amendment is consequential on the
amendment to section 210 which permits the principal registrar to delegate
his or her functions to a Magistrates Court staff member.
Clause 87 amends section 237 (immunity of participants etc.) to add to the
definition of principal registrar a person performing a function of the
principal registrar delegated to the person under section 210(2). This
amendment is consequential on the amendment to section 210 which
permits the principal registrar to delegate a QCAT registry staff member or
a Magistrates Court staff member.
Clause 88 amends section 238 (protection from civil liability) to add to the
definition of official a Magistrates Court staff member performing a
function of the principal registrar delegated to the person under section
210(2). This amendment is consequential on the amendment to section 210
which permits the principal registrar to delegate his or her functions to a
Magistrates Court staff member.
Clause 89 inserts a new section 242A. This section provides that section
242A and section 198A of the Act expire at the same time as the provisions
for judicial registrars in Part 9A of the Magistrates Act 1991. Part 9A of
that Act expires 2 years after it commences however the period before
expiry of the part may be continued by regulation for up to 1 year. Despite
the expiry of the part, a judicial registrar will have jurisdiction beyond
expiry to the extent necessary to enable a decision to be given in a part
heard matter or standing for the decision.
Clause 90 amends section 263. Section 263 operates to transfer members,
other than full-time members, of tribunals abolished by the Act from
membership of those tribunals to ordinary membership of QCAT, for a
period of two years. As such members may apply to be a senior member or
an adjudicator of QCAT, a situation may arise in which a person was
appointed as an ordinary member by virtue of section 263 and appointed as
a senior member or an adjudicator by virtue of an appointment. An
amendment is therefore made to provide that section 263 does not apply, or
ceases to apply if it has already operated to apply, to a person who is
appointed as a member or an adjudicator.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 91 amends section 268 to correct an incorrect cross-reference.
Clause 92 inserts new section 277A which provides that the chief executive
may approve forms for use under the Act. Initial forms will therefore be
approved by the chief executive and subsequent forms will be approved by
the rules committee pursuant to section 241. This provision expires three
months after section 241 commences. This allows for the circumstance
that a rules committee is not appointed prior to commencement of QCAT
operations.
Clause 93 amends schedule 2, section 12(d) to substitute a word.
Clause 94 amends schedule 3 to omit a redundant definition and to insert a
definition of Magistrates Court staff member. The insertion of this
definition is consequential upon the amendments to sections 210, 212, 216,
218, 220, 233, 234, 237 and 238.
The clause also amends schedule 3 to replace the definition of adjudicator
to refer to the new section 198A and insert a definition of the term judicial
registrar.
Part 2 Amendment of Queensland Civil
and Administrative Tribunal
(Jurisdiction Provisions)
Amendment Act 2009
Clause 95 provides that this part amends the Queensland Civil and
Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009.
Clause 96 amends section 11 to replace subsection (5) of new section 36E
that is inserted into the Adoption of Children Act 1964 by the Queensland
Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act
2009. Subsection (5) sets out the circumstances in which a member is
ineligible to be a constituting member for a review of a reviewable decision
made under the Adoption of Children Act 1964. Currently subsection (5) is
drawn from section 30(3) and (4) of the Children Services Tribunal Act 2000
(which will be repealed when the relevant provisions of the Queensland Civil
and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009
commence). The current criteria for ineligibility, namely, whether a person is
approved or not as an approved carer is not considered to bear sufficient
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
relationship to adoption matters that are reviewable and accordingly is not an
appropriate ground for disqualifying a member. The new criteria concerns a
member's current participation in the adoption process or a previous decision
that the member was not suitable to be an adoptive parent.
Clause 97 inserts new section 559A to amend section 97 of the Gaming
Machine Act 1991. The amendment omits reference to a section that is
repealed by the amendment contained in the next clause.
Clause 98 replaces section 564. The effect of the replacement is to omit all of
part 12 division 8 of the Gaming Machine Act 1991, rather than just sections
414 to 421 (as currently omitted by section 564), as it has been determined
that all of the division is redundant.
Clause 99 amends section 565 to insert a provision omitting part of the
definition of "commencement" from the schedule to the Gaming Machine
Act 1991 and renumbering the remainder of the definition. The clause also
inserts a provision amending the definition of "operating authority" in the
schedule to the Gaming Machine Act 1991. These amendments are
consequential on the repeal of part 12 division 8.
Clause 100 replaces section 699 to replace section 500B of the Property
Agents and Motor Dealers Act 2000, to remove reference to an approved
form in relation to starting a proceeding. All forms for use in relation to
QCAT proceedings will be approved under the Queensland Civil and
Administrative Tribunal Act 2009.
Clause 101 amends section 724 to substitute a reference to "appeal" in the
heading to new section 153 of the Racing Act 2002 with a reference to
"review" to correctly reflect the nature of the proceeding before the
tribunal.
Clause 102 replaces sections 871 and 872 to replace the amendment to the
Wine Industry Regulation 1995 consequential on the remaking of the
regulation as the Wine Industry Regulation 2009.
Clause 103 replaces section 1047. The amendment is made to include a
reference in section 213 of the Health Practitioners (Professional Standards)
Act 1999, inadvertently omitted by the Queensland Civil and Administrative
Tribunal (Jurisdiction Provisions) Amendment Act 2009, to the president
choosing a judicial member to hear a disciplinary matter. The amendment
also correctly requires the principal registrar, rather than the president, to
choose assessors to assist the tribunal.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 104 amends section 1273 to substitute a reference to appeals and the
Commercial and Consumer Tribunal in the heading to section 189 of the
Building Act 1975 with a reference to review and the tribunal to correctly
reflect the nature of the proceeding before QCAT.
Clause 105 amends section 1293 which inserts new section 1137K in the
Local Government Act 1993 to provide appropriate protection against
self-incrimination for an individual required to provide information to
QCAT under section 1137K.
Clause 106 amends section 1466 which inserts new section 163 into the
Guardianship and Administration Act 2000. The amendment includes a
reference to the Court of Appeal that was inadvertently omitted in section
163(3)(a)(viii). From the commencement of QCAT operations, the right of
appeal of decisions under the Guardianship and Administration Act 2000 lies
with the QCAT appeal tribunal or the Court of Appeal rather than the
Supreme Court.
Clause 107 replaces section 1519 to correct the number of the new section to
be inserted into the Legal Profession Act 2007.
Clause 108 inserts new section 1555A. This new section will amend section
53I of the Magistrates Act 1991 to insert a note which refers to the powers of
judicial registrars to hear and determine minor civil disputes as adjudicators
under the new section 198A the QCAT Act.
Clause 109 replaces section 1556 which amends section 53J of the
Magistrates Act 1991. Section 53J sets out the subject matters that judicial
registrars may hear and determine if so authorised by the Chief Magistrate
by practice direction. Section 1556 makes a consequential amendment to
section 53J by omitting paragraphs 53J(1)(b) and (c) which refer to minor
debt claims under the Magistrates Courts Act 1921 and small claims under
the Small Claims Tribunals Act 1973. As these claims will become part of
the jurisdiction of QCAT, they no longer need to be referred to in section
53J.
The replacement provision also expands the bail powers of judicial
registrars in uncontested matters consistent with the original intent of the
provisions. The amendment will allow judicial registrars to consider
applications to enlarge or vary bail for defendants charged with an offence
mentioned in section 16(3) of the Bail Act 1980 and to also grant bail in
those matters following a consent committal provided the complainant, the
prosecutor or a person appearing on behalf of the Crown does not oppose
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
the application. Other paragraphs in section 53J are renumbered as a
consequence.
Clause 110 amends section 1557 to refer to the new paragraphs in section
53J(1) of the Magistrates Act 1991 inserted and renumbered by the above
clause.
Clause 111 amends section 1844 to insert a new subsection (2) into the new
section 10 that is inserted into the Debits Tax Repeal Act 2005 by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009. The amendments to the Debits Tax Repeal Act 2005
by the Queensland Civil and Administrative Tribunal (Jurisdiction
Provisions) Amendment Act 2009 allow a person who is dissatisfied with a
commissioner's decision on objection to either: request that the commissioner
refer the commissioner's decision to the Supreme Court, consistent with the
current arrangements, or apply to QCAT for a review of the decision.
Consistent with this choice of forum, if a Supreme Court proceeding has been
started but is still pending at the commencement of the transitional provisions
for the Queensland Civil and Administrative Tribunal (Jurisdiction
Provisions) Amendment Act 2009, section 10 of the Debits Tax Repeal Act
2005 provides that the Supreme Court proceeding cannot be transferred to
QCAT without the consent of the applicant for the Supreme Court
proceeding. The amendment clarifies that section 268(7) of the Queensland
Civil and Administrative Act 2009 does not apply to a final decision of the
Supreme Court. Section 268(7) provides that a continuing entity's (that is,
the Supreme Court's) final decision has effect as though it is a final decision
of QCAT. However when an applicant chooses not to have a Supreme Court
proceeding transferred to QCAT, the ensuing decision of the Supreme Court
should be not taken to be a decision of QCAT.
Clause 112 amends section 1886 to omit subparagraph (e) from new section
68(2) that is inserted into the Taxation Administration Act 2001 by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009. Subparagraph (e) provides that a notice of an
objection decision is to include any right the taxpayer has to have the
operation of the decision stayed. However, new section 69(1)(b) inserted by
section 1887 of the Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009 is clear that the taxpayer
cannot seek a stay of the decision. The taxpayer must pay all outstanding
amounts before an application for review by QCAT can be made.
Clause 113 amends section 1892 to insert a new subsection (2) into the new
section 165 that is inserted into the Taxation Administration Act 2001 by the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009. The amendments to the Taxation Administration Act
2001 by the Queensland Civil and Administrative Tribunal (Jurisdiction
Provisions) Amendment Act 2009 allow a person who is dissatisfied with a
commissioner's decision on objection to either: appeal to the Supreme Court,
consistent with the current arrangements, or apply to QCAT for a review of
the decision. Consistent with this choice of forum, if a Supreme Court
proceeding has been started but is still pending at the commencement of the
transitional provisions for the Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009, section 165 of the Taxation
Administration Act 2001 provides that the Supreme Court proceeding cannot
be transferred to QCAT without the consent of the applicant for the Supreme
Court proceeding. The amendment clarifies that section 268(7) of the
Queensland Civil and Administrative Act 2009 does not apply to a final
decision of the Supreme Court. Section 268(7) provides that a continuing
entity's (that is, the Supreme Court's) final decision has effect as though it is a
final decision of QCAT. However, when an applicant chooses not to have a
Supreme Court proceeding transferred to QCAT, the ensuing decision of the
Supreme Court should be not taken to be a decision of QCAT.
Part 3 Amendment of Adoption Act
2009
Clause 114 provides that this part amends the Adoption Act 2009.
Clause 115 amends section 29, consequential to the insertion of new part
14A.
Clause 116 amends section 30, consequential to the insertion of new part
14A.
Clause 117 amends section 39, consequential to the insertion of new part
14A.
Clause 118 amends section 148, consequential to the insertion of new part
14A.
Clause 119 amends section 175, consequential to the insertion of new part
14A.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 120 inserts new part 14A to provide for proceedings before QCAT.
Part 14A replicates part 3A of the Adoption of Children Act 1964 which
was inserted into that Act by the Queensland Civil and Administrative
Tribunal (Jurisdiction Provisions) Amendment Act 2009. Pursuant to the
insertion of part 3A, the jurisdiction of the Children Services Tribunal and the
Guardianship and Administration Tribunal to determine adoption matters is
transferred to QCAT from the commencement of QCAT operations. The
insertion of part 14A into the Adoption Act 2009 ensures that the jurisdiction
of QCAT continues from the date of repeal of the Adoption of Children Act
1964 and the commencement of the Adoption Act 2009. This clause and the
remainder of part 2 will commence upon proclamation to coincide with the
commencement of the Adoption Act 2009. Apart from some drafting
changes, part 14A does not depart significantly from the intention of part 3A
as explained in the Explanatory Note to clause 11 of the Queensland Civil
and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009.
Clause 121 amends section 319, consequential to the insertion of new part
14A.
Clause 122 amends section 335, consequential to the insertion of new part
14A.
Clause 123 amends section 337, consequential to the insertion of new part
14A.
Clause 124 amends schedule 3 (dictionary), consequential to the insertion of
new part 14A.
Part 4 Amendment of Body Corporate
and Community Management Act
1997
Clause 125 provides that this part amends the Body Corporate and
Community Management Act 1997.
Clause 126 amends section 279 to replace a reference to written notice with
a reference to a QCAT information notice and to replace the reference to
section 241 with a reference to section 241A. The clause also omits the
reference to a stay under section 291, as that section is repealed by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Amendment Act 2009. The reference will be to a stay under the Queensland
Civil and Administrative Tribunal Act 2009, as stays are provided for under
that Act.
Part 5 Amendment of Child Protection
Act 1999
Clause 127 provides that this part amends the Child Protection Act 1999.
Clause 128 amends section 99H which is inserted into the Act by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009. The amendment is a re-wording of subsection (2)
which deals with constitution of the tribunal for a compulsory conference.
The amendment does not change the effect of the section.
Part 6 Amendment of Crime and
Misconduct Act 2001
Clause 129 provides that this part amends the Crime and Misconduct Act
2001.
Clause 130 amends sections 56 and 174 to refer to a "Note" rather than an
"Editor's note" as the note text is not merely editorial.
Clause 131 amends the headings to certain sections in line with current
drafting practice.
Clause 132 amends section 78 to correct a cross-reference.
Clause 133 amends section 86 to insert a missing word.
Clause 134 amends section 109 to replace a reference to misconduct
tribunal with a reference to QCAT. Misconduct tribunal jurisdiction is
transferred to QCAT by the Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009.
Clause 135 amends the heading to section 119B in line with current drafting
practice.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 136 amends section 119K to omit subsection (3) which provides a
redundant definition.
Clause 137 amends section 124 to omit redundant words. The Cross-Border
Law Enforcement Legislation Amendment Act 2005 removed references to
"major crime" from the surveillance device provisions of the Act, but omitted
to remove this reference from section 124.
Clause 138 amends section 130 to replace a reference to misconduct
tribunal with a reference to QCAT. Misconduct tribunal jurisdiction is
transferred to QCAT by the Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009.
Clause 139 amends section 146K to correct numbering.
Clause 140 amends section 166 to remove a reference to a repealed division.
Clause 141 amends section 170 to omit a redundant word.
Clause 142 amends section 227 to correct a cross-reference.
Clause 143 amends section 230 to correct two cross-references.
Clause 144 amends sections 326 and 339 to remove an unnecessary word in
each section.
Clause 145 amends schedule 2, definition of evidence, to update the
drafting style. The clause also amends the definition of relevant person to
omit a reference to a repealed section.
Part 7 Amendment of Fisheries Act
1994
Clause 146 provides that this part amends the Fisheries Act 1994.
Clause 147 amends section 186, as inserted by the Queensland Civil and
Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, to
clarify that references to members that constitute the tribunal for the
purpose of determining matters under the Act, are references to members
of the tribunal, not members of the Joint Authority.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Part 8 Amendment of Food Act 2006
Clause 148 provides that this part amends the Food Act 2006.
Clause 149 inserts new section 240 to provide for the stay of operation of
an original decision. Current section 240 was inadvertently omitted by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009. (The provision making the omission has not been
commenced.) New section 240 will maintain the right of a person to apply
for a stay of an original decision where an application for internal review of
the decision is made. The stay application is currently made to the
Magistrates Court. This will transfer to QCAT upon commencement of
QCAT operations.
Part 9 Amendment of Health and Other
Legislation Amendment Act 2009
Clause 150 provides that this part amends the Health and Other Legislation
Amendment Act 2009.
Clause 151 amends section 42, which amends section 392 of the Health
Practitioners (Professional Standards) Act 1999, to omit a reference to the
Nursing Tribunal. The jurisdiction of the Nursing Tribunal to determine
matters under the Nursing Act 1992, including matters referred to it under
the Health Practitioners (Professional Standards) Act 1999, is transferred
to QCAT from the commencement of QCAT operations. A substituted
reference to QCAT is unnecessary as section 392(3)(b) already applies the
section to a disciplinary body which in turn is defined as QCAT (following
amendment by the Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009).
Clause 152 amends section 43, which amends the dictionary to the Health
Practitioners (Professional Standards) Act 1999, to omit the definition of the
Nursing Tribunal. This amendment is consequential on the transfer of the
tribunal's jurisdiction to QCAT from the commencement of QCAT
operations.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Part 10 Amendment of Integrated Resort
Development Act 1987
Clause 153 provides that this part amends the Integrated Resort
Development Act 1987.
Clause 154 replaces section 175W which provides the Commercial and
Consumer Tribunal with jurisdiction to hear disputes about the transfer of a
letting agent's management rights. This jurisdiction will transfer to QCAT
upon commencement of QCAT's operations, hence replaced section 175W
refers to QCAT rather than the Commercial and Consumer Tribunal.
Clause 155 amends section 175X which provides the Commercial and
Consumer Tribunal with jurisdiction to hear disputes about the
appointment or engagement of a person as a body corporate manager or
caretaking service contractor for an approved scheme or part of an
approved scheme; or the authorisation of a person as a letting agent for an
approved scheme or part of an approved scheme. This jurisdiction will
transfer to QCAT upon commencement of QCAT's operations, hence
section 175X is amended to replace the reference to the Commercial and
Consumer Tribunal with a reference to QCAT.
Clause 156 amends section 179B which provides the Commercial and
Consumer Tribunal with jurisdiction to hear disputes about the application
of a development control by-law for an approved scheme; or a
contravention or alleged contravention of a development control by-law for
an approved scheme. This jurisdiction will transfer to QCAT upon
commencement of QCAT's operations, hence section 179B is amended to
replace the reference to the Commercial and Consumer Tribunal with a
reference to QCAT.
Clause 157 amends section 179C which applies to section 179B and
requires that reasonable efforts must be made to resolve the matter using an
internal dispute resolution process before it can be decided by a referee or
the Commercial and Consumer Tribunal. Consequential to the
amendments to section 179B, the references to the Commercial and
Consumer Tribunal and tribunal are replaced by references to QCAT.
Clause 158 amends the schedule 7 (dictionary) to omit the definition of the
Commercial and Consumer Tribunal. This amendment is made as the
jurisdiction conferred on the Commercial and Consumer Tribunal will
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
transfer to QCAT upon the commencement of QCAT's operations. The
definition of QCAT is contained in the Acts Interpretation Act 1954.
Part 11 Amendment of Local
Government Act 2009
Clause 159 provides that this part amends the Local Government Act 2009.
Clause 160 inserts new division 4 into chapter 6, part 5. The new sections
are drawn from certain sections of part 3A inserted into the Local
Government Act 1993 by the Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009. However, much of the
contents of part 3A of the Local Government Act 1993 are not replicated in
new division 4, as regulations will set out the equality of employment
opportunity obligations for local governments.
New section 201A permits a regulation to be made about equality of
employment opportunity and provides that the chief executive may refer to
QCAT for investigation and to give a report, a local government's
non-compliance with the regulation.
Concerns with respect to potential fundamental legislative principle issues
in relation to section 201A have been previously addressed in the
explanatory notes under the section on Fundamental Legislative Principles.
New section 201B, drawn from section 1137K of the Local Government
Act 1993, confers jurisdiction on QCAT to investigate a referral made to it
under section 201A and also provides appropriate protection against
self-incrimination for an individual required to provide information to
QCAT under section 201B.
New section 201C, drawn from section 1137L of the Local Government
Act 1993, requires QCAT at the end of a referral to give a report, with or
without recommendations, to the chief executive officer of the local
government and the chief executive.
New section 201D, drawn from section 1137N of the Local Government
Act 1993, provides that a local government must comply with a
recommendation in a report of QCAT.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 161 amends section 270 to permit regulations to be made about
reviews of decisions made under the Act. Accordingly, a regulation may
provide for QCAT to conduct a review of a decision, as permitted by
section 6 of the Queensland Civil and Administrative Tribunal Act 2009.
Part 12 Amendment of Nursing Act 1992
Clause 162 provides that this part amends the Nursing Act 1992.
Clause 163 amends section 87 to substitute references to "president" with
references to "principal registrar". Consistent with sections 88 and 89, the
principal registrar rather than the president of QCAT is to perform the role
of choosing assessors to assist the tribunal in determining matters under the
Nursing Act 1992.
Part 13 Amendment of Pest Management
Act 2001
Clause 164 provides that this part amends the Pest Management Act 2001.
Clause 165 inserts new section 107 to provide for the stay of operation of
an original decision. Current section 107 was inadvertently omitted by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009. (The provision making the omission has not been
commenced.) New section 107 will maintain the right of a person to apply
for a stay of an original decision where an application for internal review of
the decision is made. The stay application is currently made to the District
Court. This will transfer to QCAT upon commencement of QCAT
operations.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Part 14 Amendment of Plumbing and
Drainage Act 2002
Clause 166 provides that this part amends the Plumbing and Drainage Act
2002.
Clause 167 amends section 70B, as inserted by the Queensland Civil and
Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, to
clarify that references to members that constitute the tribunal for the
purpose of determining matters under the Act, are references to members
of the tribunal, not members of the Plumbers and Drainers Board.
Part 15 Amendment of Police Powers
and Responsibilities Act 2000
Clause 168 provides that this part amends the Police Powers and
Responsibilities Act 2000.
Clause 169 amends section 207 to omit subsection (3) which provides a
redundant definition.
Part 16 Amendment of Private Health
Facilities Act 1999
Clause 170 provides that this part amends the Private Health Facilities Act
1999.
Clause 171 inserts new section 130 to provide for the stay of operation of
an original decision. Current section 130 was inadvertently omitted by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009. (The provision making the omission has not been
commenced.) New section 130 will maintain the right of a person to apply
for a stay of an original decision where an application for internal review of
the decision is made. The stay application is currently made to the District
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Court. This will transfer to QCAT upon commencement of QCAT
operations.
Part 17 Amendment of Property Agents
and Motor Dealers Act 2000
Clause 172 provides that this part amends the Property Agents and Motor
Dealers Act 2000.
Clause 173 amends section 477 to substitute "president" for "chairperson"
to correctly reflect the title of the head of QCAT.
Clause 174 replaces section 598 which currently differentiates between
forms used in relation to the Commercial and Consumer Tribunal
proceedings (approved by the chairperson of the tribunal) and forms used
otherwise (approved by the chief executive). As all forms for use in
relation to QCAT proceedings will be approved under the Queensland Civil
and Administrative Tribunal Act 2009, the section is replaced with a
reference to forms being approved only by the chief executive.
Part 18 Amendment of Public Health
(Infection Control for Personal
Appearance Services) Act 2003
Clause 175 provides that this part amends the Public Health (Infection
Control for Personal Appearance Services) Act 2003.
Clause 176 inserts new section 123 to provide for the stay of operation of
an original decision. Current section 123 was inadvertently omitted by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009. (The provision making the omission has not been
commenced.) New section 123 will maintain the right of a person to apply
for a stay of an original decision where an application for internal review of
the decision is made. The stay application is currently made to the
Magistrates Court. This will transfer to QCAT upon commencement of
QCAT operations.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Part 19 Amendment of Queensland
Building Services Authority Act
1991
Clause 177 provides that this part amends the Queensland Building
Services Authority Act 1991.
Clause 178 amends section 95 to provide that QCAT may deal with a
domestic building dispute between a building owner and a building
contractor or a review of a decision of the Queensland Building Services
Authority by way of an expedited hearing if certain circumstances apply.
Part 20 Amendment of Radiation Safety
Act 1999
Clause 179 provides that this part amends the Radiation Safety Act 1999.
Clause 180 inserts new section 187 to provide for the stay of operation of
an original decision. Current section 187 was inadvertently omitted by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009. (The provision making the omission has not been
commenced.) New section 187 will maintain the right of a person to apply
for a stay of an original decision where an application for internal review of
the decision is made. The stay application is currently made to the District
Court. This will transfer to QCAT upon commencement of QCAT
operations.
Part 21 Amendment of Retail Shop
Leases Act 1994
Clause 181 provides that this part amends the Retail Shop Leases Act 1994.
Clause 182 amends section 17 to update a reference to Commonwealth
legislation to reflect the repeal of the Petroleum Retail Marketing Franchise
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Act 1980 and the commencement of the Trade Practices (Industry
Codes-Oilcode) Regulation 2006.
Clause 183 amends section 63. Section 63 requires a mediator to refer a
retail tenancy dispute to the chief executive following a failed mediation. The
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009 replaces this requirement by a requirement that the
mediator refer the dispute to QCAT. As a result, the chief executive is no
longer notified of the outcome of failed mediations, information which the
chief executive requires to maintain the register of retail tenancy disputes
under section 116. The clause will require the mediator to inform the chief
executive of the referral of a dispute to QCAT.
Part 22 Amendment of Sanctuary Cove
Resort Act 1985
Clause 184 provides that this part amends the Sanctuary Cove Resort Act
1985.
Clause 185 amends section 4 to omit the definition of the Commercial and
Consumer Tribunal. This amendment is made as the jurisdiction conferred
on the Commercial and Consumer Tribunal will transfer to QCAT upon the
commencement of QCAT's operations. The definition of QCAT is
contained in the Acts Interpretation Act 1954.
Clause 186 replaces section 94T which provides the Commercial and
Consumer Tribunal with jurisdiction to hear disputes about the transfer of a
letting agent's management rights. This jurisdiction will transfer to QCAT
upon commencement of QCAT's operations, hence replaced section 94T
refers to QCAT rather than the Commercial and Consumer Tribunal.
Clause 187 replaces subsection (2) of section 94U which provides the
Commercial and Consumer Tribunal with jurisdiction to hear disputes
about a claimed or anticipated contractual matter about:
· the appointment or engagement of a person as a body corporate
manager or caretaking service contractor for the resort or part of the
resort; or
· the authorisation of a person as a letting agent for the resort or part of
the resort.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
This jurisdiction will transfer to QCAT upon commencement of QCAT's
operations, hence amended section 94U refers to QCAT rather than the
Commercial and Consumer Tribunal.
Clause 188 amends section 104B which provides the Commercial and
Consumer Tribunal with jurisdiction to hear disputes about the application
of a development control by-law; or a contravention or alleged
contravention of a development control by-law. This jurisdiction will
transfer to QCAT upon commencement of QCAT's operations, hence
section 104B is amended to replace the reference to the Commercial and
Consumer Tribunal with a reference to QCAT.
Clause 189 amends section 104C which applies to section 104B and
requires that reasonable efforts must be made to resolve the matter using an
internal dispute resolution process before it can be decided by a referee or
the Commercial and Consumer Tribunal. Consequential to the
amendments to section 104B, the references to the Commercial and
Consumer Tribunal and tribunal are replaced by references to QCAT.
Part 23 Amendment of Taxation
Administration Act 2001
Clause 190 provides that this part amends the Taxation Administration Act
2001.
Clause 191 amends section 29B to replace subsections (7) to (10) with new
subsections (7) to (11). Section 29B currently provides a right of appeal to
the Commercial and Consumer Tribunal from a decision of the
commissioner refusing an application for the withdrawal of a notice to
make an electronic payment. The appeal right will become a right of
review to QCAT upon commencement of QCAT operations. The
amendments therefore update the language to refer to "review" rather than
"appeal" proceedings, to reflect the nature of the proceeding before QCAT.
New subsection (11)(a) provides a right to legal representation for parties
to a proceeding before QCAT. This is consistent with other QCAT review
proceedings under this Act. New subsection (11)(b) provides that the
grounds for review are limited to the grounds upon which an application
may be made to the commissioner for withdrawal of the notice.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 192 amends the heading to section 61 to include a reference to
QCAT, to properly reflect the contents of section 61 as amended by the
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions)
Amendment Act 2009.
Clause 193 amends section 143B to replace subsections (7) to (10) with
new subsections (7) to (11). Section 143B currently provides a right of
appeal to the Commercial and Consumer Tribunal from a decision of the
commissioner refusing an application for the withdrawal of a notice to
make an electronic lodgement of documents. The appeal right will become
a right of review to QCAT upon commencement of QCAT operations. The
amendments therefore update the language to refer to "review" rather than
"appeal" proceedings, to reflect the nature of the proceeding before QCAT.
New subsection (11)(a) provides a right to legal representation for parties
to a proceeding before QCAT. This is consistent with other QCAT review
proceedings under this Act. New subsection (11)(b) provides that the
grounds for review are limited to the grounds upon which an application
may be made to the commissioner for withdrawal of the notice.
Clause 194 amends section 153C to replace subsections (3)(c) and (d), (6)
and (7). Section 153C currently provides a right of appeal to the
Commercial and Consumer Tribunal from a decision of the commissioner
to require a person to pay a penalty for noncompliance with a notice under
section 29B or 143B of the Act. The appeal right will become a right of
review to QCAT upon commencement of QCAT operations. The
amendments therefore update the language to refer to "review" rather than
"appeal" proceedings, to reflect the nature of the proceeding before QCAT.
New subsection (7)(b) provides a right to legal representation for parties to
a proceeding before QCAT. This is consistent with other QCAT review
proceedings under this Act.
Clause 195 amends schedule 2 to change the definition of tribunal from the
Commercial and Consumer Tribunal to QCAT.
Part 24 Amendment of Veterinary
Surgeons Act 1936
Clause 196 provides that this part amends the Veterinary Surgeons Act
1936.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 197 amends section 15B, as inserted by the Queensland Civil and
Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, to
clarify that references to members that constitute the tribunal for the
purpose of determining matters under the Act, are references to members
of the tribunal, not members of the Veterinary Surgeons Board of
Queensland.
Chapter 5 Other amendments
Part 1 Amendment of Classification of
Computer Games and Images
Act 1995
Clause 198 provides that this part amends the Classification of Computer
Games and Images Act 1995.
Clause 199 makes minor technical amendments to section 12 of the Act to
relocate the existing footnotes as notes in line with Queensland's current
legislation format and to correct a section reference in one of the notes.
Clause 200 amends section 30 of the Act to enable the appointment of a
public service officer as an inspector. A public service officer can only be
appointed as an inspector if the chief executive believes the person has the
necessary expertise or experience to be an inspector. The amendment
preserves the current power to appoint a police officer as an inspector. For
consistency with the other classification Acts, a note is inserted to cross
reference the operation of section 13 of the Police Powers and
Responsibilities Act 2000, which requires a proposed appointment of a
police officer to have the approval of the Police Commissioner.
This amendment will facilitate the continued use of Fair Trading inspectors
to perform the classifications enforcement function. This will be
operationalised through a memorandum of understanding between the
Department of Justice and Attorney-General and the Department of
Employment, Economic Development and Innovation.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 201 amends section 51 of the Act to omit an unnecessary and
incorrect footnote.
Clause 202 amends the dictionary in Schedule 2 of the Act to omit
unnecessary footnotes from the definitions of "approved form",
"determined markings" and "exempt computer game".
The amendments contained in this part commence on assent.
Part 2 Amendment of Classification of
Films Act 1991
Clause 203 provides that this part amends the Classification of Films Act
1991.
Clause 204 amends section 4 of the Act to enable the appointment of a
public service officer as an inspector. A public service officer can only be
appointed as an inspector if the chief executive believes the person has the
necessary expertise or experience to be an inspector. The amendment
preserves the current power to appoint a police officer as an inspector. It
relocates and corrects the existing footnote about the operation of section
13 of the Police Powers and Responsibilities Act 2000 as a note to
subsection 4(1)(b), in line with Queensland's current legislation format.
This amendment will facilitate the continued use of Fair Trading inspectors
to perform the classifications enforcement function. This will be
operationalised through a memorandum of understanding between the
Department of Justice and Attorney-General and the Department of
Employment, Economic Development and Innovation.
Clause 205 makes minor technical amendments to section 27 of the Act to
relocate the existing footnotes as notes in line with Queensland's current
legislation format and to correct a section reference in one of the notes.
Clause 206 makes a minor technical amendment to section 28 of the Act to
relocate the existing footnote as a note in line with Queensland's current
legislation format and to correct a section reference in the note.
Clause 207 makes a minor technical amendment to section 56 to correct a
grammatical error.
The amendments contained in this part commence on assent.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Part 3 Amendment of Classification of
Publications Act 1991
Clause 208 provides that this part amends the Classification of
Publications Act 1991.
Clause 209 amends section 3 of the Act to omit unnecessary footnotes from
the definitions of "board", "classification guidelines" and "determined
markings".
Clause 210 amends section 5 of the Act to enable the appointment of a
public service officer as an inspector. A public service officer can only be
appointed as an inspector if the chief executive believes the person has the
necessary expertise or experience to be an inspector. The amendment
preserves the current power to appoint a police officer as an inspector. It
relocates and corrects the existing footnote about the operation of section
13 of the Police Powers and Responsibilities Act 2000 as a note to
subsection 5(1)(b), in line with Queensland's current legislation format.
This amendment will facilitate the continued use of Fair Trading inspectors
to perform the classifications enforcement function. This will be
operationalised through a memorandum of understanding between the
Department of Justice and Attorney-General and the Department of
Employment, Economic Development and Innovation.
Clause 211 amends section 6A of the Act to omit `of the department'. This
is unnecessary as the term `chief executive' is defined under section 33(11)
of the Acts Interpretation Act 1954.
Clause 212 makes a minor technical amendment to section 11C of the Act
by omitting an unnecessary footnote.
The amendments contained in this part commence on assent.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Part 4 Amendment of Disability
Services Act 2006
Clause 213 provides that this part amends the Disability Services Act 2006.
Clause 214 amends the definition of `transitional period' in section 241(1).
The effect of the amendment is to extend the transitional period for
restrictive practices for a further period of 9 months - making 1 October
2010 the new date when a disability service provider using a restrictive
practice must meet all of the full legislative requirements.
Part 5 Amendment of Guardianship and
Administration Act 2000
Clause 215 provides that this part amends the Guardianship and
Administration Act 2000.
Clause 216 amends section 29(1)(b) to provide than an application for the
review of an appointment of an administrator is also able to be made as
well as an application for the review of a guardian (other than a guardian
for a restrictive practice matter under chapter 5B). This amendment is
required to correct an oversight that was made upon commencement of the
Disability Services and Other Legislation Amendment Act 2008.
Clause 217 makes a consequential amendment to section 265(4) to amend
the definition of `transitional period' to be consistent with the definition of
`transitional period' in the Disability Services Act 2006 (see Part 4). The
amendment allows a guardian authorised to make decisions around
restrictive practices before the commencement of the transitional period, to
continue to make these decisions until the end of the extended transitional
period, unless otherwise ordered by the Guardianship and Administration
Tribunal.
Clause 218 inserts new section 268 which is a transitional provision. New
section 268 provides that from the commencement of the Disability
Services and Other Legislation Amendment Act 2008 on 1 July 2008, the
amendments to section 29 made by the above clause, is taken to always
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
have applied in relation to a review of an appointment of an administrator
for an adult.
Part 6 Amendment of Information
Privacy Act 2009
Clause 219 provides that this part amends the Information Privacy Act
2009.
Clause 220 amends section 50 to insert a definition of `power to deal' with
an access or amendment application to clarify that it includes the power to
deal with an application for internal review.
Clause 221 amends section 51 to insert a definition of `deal' with an access
or amendment application to clarify that it includes dealing with an
application for internal review.
Clause 222 amends section 69 to put it beyond doubt that a decision under
subsection 69(2) is a decision refusing access to a document under section
67.
Clause 223 amends section 94 to insert a further note that an internal
review application may be dealt with under a delegation or direction.
Clause 224 amends section 120 to clarify that the information
commissioner must not disclose documents the subject of the decision
being reviewed to a person other than to the persons set out in subsections
120(a)(i), (ii) and (iii) and that, at the end of the review, those documents
must be returned to the person who gave them.
Clause 225 inserts a heading for part 1 of chapter 8.
Clause 226 inserts a heading for part 2 of chapter 8. This clause also
inserts new transitional provisions 212, 213 and 214. New section 212 sets
out a definition of `relevant period' which means the period starting on 1
July 2009 and ending immediately before the commencement of this part.
New section 213 provides for the retrospective validation for delegations
by a principal officer and directions by a Minister that have occurred during
the relevant period. New section 214 provides that a decision made under
section 69(2) during the relevant period is taken to be a reviewable decision
as if section 69 as amended by this Act had been in force on the day the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
decision was made. New section 214 also provides that the 20 business day
timeframe for making an application for an internal or external review
starts after the commencement date of this part and that any internal or
external review application in relation to matters mentioned in section 69
made before the commencement of this part is taken to have been made
immediately after the commencement of this part.
Part 7 Amendment of Right to
Information Act 2009
Clause 227 provides that this part amends the Right to Information Act
2009.
Clause 228 amends section 30 to insert a definition of `power to deal' with
an access application to clarify that it includes the power to deal with an
application for internal review.
Clause 229 amends section 31 to insert a definition of `deal' with an access
application to clarify that it includes dealing with an application for
internal review.
Clause 230 amends section 55 to put it beyond doubt that a decision under
subsection 55(2) is a decision refusing access to a document under section
47.
Clause 231 amends section 80 to insert a further note that an internal
review application may be dealt with under a delegation or direction.
Clause 232 amends section 107 to clarify that the information
commissioner must not disclose documents the subject of the decision
being reviewed to a person other than to the persons set out in subsections
107(a)(i), (ii) and (iii) and that, at the end of the review, those documents
must be returned to the person who gave them.
Clause 233 inserts a heading for part 2 of chapter 7.
Clause 234 inserts a heading for part 3 of chapter 7. This clause also
inserts new transitional provisions 204, 205 and 206. New section 204 sets
out a definition of `relevant period' which means the period starting on 1
July 2009 and ending immediately before the commencement of this part.
New section 205 provides for the retrospective validation for delegations
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
by a principal officer and directions by a Minister that have occurred during
the relevant period. New section 206 provides that a decision made under
section 55(2) during the relevant period is taken to be a reviewable decision
as if section 55 as amended by this Act had been in force on the day the
decision was made. New section 206 also provides that the 20 business day
timeframe for making an application for an internal or external review
starts after the commencement date of this part and that any internal or
external review application in relation to matters mentioned in section 55
made before the commencement of this part is taken to have been made
immediately after the commencement of this part.
Part 8 Amendment of Superannuation
(State Public Sector) Act 1990
Clause 235 cites that this part amends the Superannuation (State Public
Sector) Act 1990 (QSuper Act).
Clause 236 amends section 3 to insert provisions which provide that for the
purposes of Chapter 7 of the Corporations Act 2001 (Cwlth) and the
Superannuation Industry (Supervision) Act 1993 (Cwlth), the QSuper
Board does not represent the State, nor has the immunities and privileges of
the State.
Clause 237 inserts new section 6DAA into the QSuper Act which allows
the trustees to elect one of their number as standing deputy chairperson of
the Board. Further, this clause sets out how the deputy chairperson is to be
elected, which trustees are eligible for election and the circumstances under
which the person ceases to be the deputy chairperson.
Clause 238 amends section 6I of the QSuper Act to state that the deputy
chairperson of the QSuper Board is to preside at meetings in the
chairperson's absence. In the absence of both the chairperson and deputy
chairperson, consistent with current practice another trustee chosen by the
trustees present, is to preside.
© State of Queensland 2009
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
OVERVIEW OF WHEEL CLAMPING, SEIZURE AND SALE PROCESS
SPER identifies eligible debtor - ss.108A & 108B
Owes amounts totalling prescribed threshold amount or more
Has failed to enter into, or defaulted on, compliance arrangement
Other enforcement action has failed OR no other enforcement action is
suitable
Is sole registered operator of motor vehicle (identified by TRAILS search)
Debtor enters into compliance
SPER registers interest over vehicle on REVS s.110
SPER serves enforcement warrant on debtor (by post)
Debtor later defaults on compliance Notice of intention to immobilise vehicle is issued - s.108C & 146A
`intent notice' served on debtor (by post)
arrangement
Debtor has 14 days to pay in full or enter into compliance
14 day `intent notice' period
Debtor enters into compliance SPER actively endeavours to make contact and liaise with debtor during this
time to negotiate payment or identify suitable compliance arrangement
Hardship identified - s.108D(2)
Debtor does not pay or enter into compliance by end of 14 day SPER assesses suitable compliance
`intent notice' period - s.108D options (including fine option order) or
SPER registrar assesses whether clamping would cause severe or unusual alternatively, other enforcement action
Debtor later defaults on compliance
hardship to debtor, debtor's family or another person; assessment is made e.g. good behaviour order, seizure and
arrangement with reference to guidelines and on basis of information available to SPER sale of property or referral to next
from its preliminary investigations and contact with debtor warrant evaluation committee to assess
SPER liaises with QPS to assess debtor's whereabouts and criminal history whether to issue arrest and
(risk assessment) imprisonment warrant for debtor
Immobilisation warrant is issued - s.108D, 108F
Copy of warrant served on debtor (by post)
Debtor enters into compliance Warrant enables SPER to clamp vehicle without further notice to debtor
SPER notifies QPS that warrant has been issued
SPER plans clamping operation
Debtor later defaults on compliance
Ongoing liaison with QPS and relevant entities re: clamping operation (date,
arrangement & immobilisation
time, place etc)
warrant is still current - s.108S SPER actively endeavours to make contact and liaise with debtors to identify
suitable compliance arrangement
Debtor's vehicle is clamped & sticker applied - ss.108G 108N
SPER enforcement officers can clamp at any reasonable time of day or night,
whether or not vehicle is attended
Vehicle can be clamped in public place, at debtor's place of residence or
business or any other place (with occupier's consent)
Debtor enters into compliance If vehicle unattended, SPER will endeavour to contact debtor as soon as
clamps applied
If vehicle considered to be of sufficient value, SPER will issue enforcement
(seizure and sale) warrant in anticipation of debtor not paying or entering
into compliance before clamps removed - copy of seizure and sale warrant
served on debtor (by post) - s.63
Hardship identified; clamps removed
- s.108P
Five day immobilisation period - ss.108O - 108Q
SPER assesses suitable compliance
SPER actively endeavours to maintain contact and liaise with debtor during
options (including fine option order) or
this time to negotiate payment or identify suitable compliance arrangement
alternatively, other enforcement action
SPER registrar may reconsider `hardship' during this time and direct that
e.g. good behaviour order, seizure and
clamps be removed, even if payment/compliance not made
sale of property or referral to next
Debtor later defaults on compliance
warrant evaluation committee to assess
arrangement & immobilisation whether to issue arrest and
OR
warrant is still current - s.108S imprisonment warrant for debtor
Debtor does not pay or enter into compliance by end of
immobilisation period - s.108R
If vehicle of sufficient value - enforcement officers remove clamps and
immediately seize vehicle (under previously issued seizure and sale warrant)
SPER will liaise with QPS about seizure operation (day, time, place etc)
If vehicle not of sufficient value - clamps removed; SPER registrar refers
debtor to next warrant evaluation committee to assess whether to issue
arrest and imprisonment warrant for debtor
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