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State Penalties Enforcement and Other Legislation Amendment Bill 2009
State Penalties Enforcement and Other
Legislation Amendment Bill 2009
Explanatory Notes for Amendments to be
moved during consideration in detail by the
Honourable Cameron Dick MP
Attorney-General and Minister for Industrial
Relations
Title of the Bill
State Penalties Enforcement and Other Legislation Amendment Bill 2009.
Objectives of the Amendments
The objectives of the amendments are to:
· allow the State Penalties Enforcement Registry (SPER) to obtain and
use information from the Queensland Police Service for the purposes
of a risk assessment before executing an immobilisation warrant;
· enable conduct money for a person required to attend a proceeding
under the Queensland Civil and Administrative Tribunal Act 2009 to
be paid at the time that a notice to attend is served or within a
reasonable time before attendance under the notice is required;
· remove an unnecessary fetter on the ability of the Queensland Civil
and Administrative Tribunal (QCAT) Rules Committee to develop a
list of matters suitable for determination by adjudicators under the
Queensland Civil and Administrative Tribunal Act 2009;
· remove a redundant reference to the Racing Appeals Tribunal from
the Racing Act 2002;
· amend section 50 of the Crime and Misconduct Act 2001 to omit the
reference to `a charge is laid' and insert `the start of a disciplinary
proceeding for the official misconduct' to reflect the terminology that
is used regarding QCAT's jurisdiction in respect of official
misconduct matters;
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
· omit redundant amendments to the Health and Other Legislation
Amendment Act 2009; and
· clarify the drafting of a provision in the Land Tax Act 1915 which is
intended to refer not only to `appeals' but also `reviews'.
Achievement of the Objectives
The objectives are achieved by way of amendments to the State Penalties
Enforcement Act 1999, the Queensland Civil and Administrative Tribunal
Act 2009, the Racing Act 2002, the Crime and Misconduct Act 2001 and
the Land Tax Act 1915 and by omission from the Bill of the amendments to
the Health and Other Legislation Amendment Act 2009.
Estimated Cost for Government Implementation
There are no costs to government in implementing the amendments.
Consistency with Fundamental Legislative Principles
The provision of information from the Queensland Police Service files
breaches the right to privacy of persons who are not subject to the
immobilisation warrant. This can be justified because the information is
required to protect the safety of enforcement officers executing
immobilisation warrants. The information will be used to determine
whether it is safe for an enforcement officer to attend a property to execute
an immobilisation warrant. This will not prejudice either the debtor or
other persons known to reside at the premises. The amendment requires the
registrar to destroy the information after it is no longer needed to assess the
risks associated with executing the immobilisation warrant.
The removal of the word `non-contentious' from the description of the
types of matters that may be stated by the QCAT Rules as matters that an
adjudicator may determine, widens the types of matters that may be stated
in the Rules. A rule may only be made with the consent of the QCAT Rules
Committee. Accordingly, the discretion of the Committee is widened, as
the Committee will be able to consent to matters of all types being
determined by adjudicators, not just matters of a non-contentious nature,
that are proposed to be included in the Rules for consideration by the
Governor in Council. This widening of the Committee's delegated power
is justified on the basis that narrowing the types of matters to
non-contentious matters was overly restrictive for the operation of the
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
tribunal. The Rules are subordinate legislation and must be tabled before,
and may be disallowed by, the Legislative Assembly.
The amendment to the Land Tax Act 1915 will clarify the drafting of a
provision which is intended to prohibit not only appeals but also reviews
against objections to tax assessments on the basis that the value issued
under the Valuation of Land Act 1944 is excessive. This amendment is
consistent with fundamental legislative principles as appeals against
valuations continue to be available to the Land Court under the Valuation of
Land Act 1944. Taxpayers will have a choice of appealing against
objections to land tax assessments to either the Supreme Court or QCAT.
No fundamental legislative principles issues are raised with respect to the
other amendments.
Consultation
SPER, the Crime and Misconduct Commission, Queensland Treasury and
Queensland Health were consulted about the amendments relevant to them
and support the amendments relevant to them.
Notes on Provisions
Clause 1 amends clause 2 of the Bill, which provides for commencement of
the Bill. The amendment provides for the commencement of new part 10A
which is inserted by clause 9 of the amendments to be moved during
consideration in detail.
Clause 2 amends section 151 of the State Penalties Enforcement Act 1999
to allow the commissioner of police to provide information about residents
of a property at which it is proposed to execute an immobilisation warrant.
This information includes the criminal history and details of any warnings
about the person that are in the possession of the Queensland Police
Service. After the risk of executing the warrant has been assessed, the
registrar of SPER must destroy the information.
Clause 3 amends the dictionary in schedule 2 of the State Penalties
Enforcement Act 1999 to define a `good behaviour order' by referring to
section 118(3) of the State Penalties Enforcement Act 1999. The term
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
`good behaviour order' is used in the new division 7A being inserted by
clause 18 of the Bill. Therefore, the amendment will provide clarity.
Clause 4 inserts new section 71A into the Bill to amend section 97 of the
Queensland Civil and Administrative Tribunal Act 2009. Section 97 of the
Act provides that the tribunal may, by written notice, require a person to
attend at a stated hearing of a proceeding to give evidence or produce a
stated document or other thing to the tribunal. A person who attends a
hearing or produces a document in compliance with a written notice is
entitled to be paid the fees and allowances prescribed under a regulation.
The Act restricts payment of the fees and allowances to after the person has
complied with the notice. It is appropriate, and consistent with court
practices, that at the time that a notice to attend is served or within a
reasonable time before attendance under the notice is required, the party or
parties responsible for paying the person fees and allowances under the Act
must pay the money to the person.
Clause 5 inserts new section 75A into the Bill to amend section 195 of the
Queensland Civil and Administrative Tribunal Act 2009. Section 195
provides that, if chosen by the President of QCAT to constitute the tribunal
to hear a matter, an adjudicator may hear and decide matters from a list of
four types of matters. These are: minor civil disputes; matters stated in the
Act or an Act that confers jurisdiction on QCAT as a matter that may be
determined by an adjudicator; matters that the President allocates on a case
by case basis; or a non-contentious matter stated in the QCAT Rules as a
matter that may be determined by an adjudicator.
In its effect the clause amends section 195 to omit the requirement that the
matters stated in the QCAT Rules be `non-contentious' matters. The
amendment removes an unnecessary fetter on the ability of the QCAT
Rules Committee to develop a list of matters suitable for determination by
adjudicators. Very few matters before QCAT will be non-contentious in
the ordinary meaning of the word.
Clause 6 inserts new section 100A into the Bill to insert new section 723A
into the Queensland Civil and Administrative Tribunal (Jurisdiction
Provisions) Amendment Act 2009. The effect of the amendment will be to
amend the Racing Act 2002 to remove a redundant reference to the Racing
Appeals Tribunal. The Racing Appeals Tribunal is abolished and its
jurisdiction transferred to QCAT from 1 December 2009 in accordance
with other provisions of the Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009.
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State Penalties Enforcement and Other Legislation Amendment Bill 2009
Clause 7 inserts new section 129A into the Bill, which will commence
immediately after the commencement of the Queensland Civil and
Administrative Tribunal Act 2009, chapter 7.
New section 129A amends what will be section 50(4) of the Crime and
Misconduct Act 2001 (as a result of amendments made by the Queensland
Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act
2009) upon commencement of that Act to omit the reference to `a charge is
laid' and insert `the start of a disciplinary proceeding for the official
misconduct'. This change reflects the terminology that will be used
regarding QCAT's jurisdiction in respect of official misconduct matters.
Clause 8 omits clauses 150 to 152 of the Bill, which amend sections 42 and
43 of the Health and Other Legislation Amendment Act 2009. The purpose
of the clauses was to omit the reference to the Nursing Tribunal in sections
42 and 43, which in turn amend section 392 of the Health Practitioners
(Professional Standards) Act 1999. The removal of the Nursing Tribunal
reference was effected by amendments in consideration in detail to the
Health and Other Legislation Amendment Bill Act 2009, therefore clauses
150 to 152 should be omitted.
Clause 9 inserts a new Part 10A into the Bill to amend the Land Tax Act
1915 so that an application to QCAT for review of the commissioner's
decision on an objection to an assessment may not be made on the ground
that the unimproved value issued under the Valuation of Land Act 1944 is
excessive.
© State of Queensland 2009
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