CONSTITUTIONAL AND OTHER LEGISLATION AMENDMENT BILL 2005 Explanatory Notes

Queensland Bills Explanatory Notes

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CONSTITUTIONAL AND OTHER LEGISLATION AMENDMENT BILL 2005

1 Constitutional and Other Legislation Amendment Bill 2005 Laid before the Legislative Assembly on 11 October 2005 Constitutional and Other Legislation Amendment Bill 2005 Explanatory Notes1 Title of the Bill Constitutional and Other Legislation Amendment Bill 2005 Policy Objectives of the Bill Constitutional amendments On 29 February 2000, the report of the Queensland Constitutional Review Commission (QCRC) titled "Report on the possible reform of and changes to the Acts and laws that relate to the Queensland Constitution" was tabled in Parliament. The QCRC researched and reviewed the 349 pages of Acts, Laws and Documents relating to the Constitution of Queensland. At each stage of the review, efforts were made to consult the public and interested bodies, and suggestions and arguments received as a result were incorporated into the successive reports and draft legislation. In November 2001, the extensive exercise to consolidate Queensland's Constitution culminated in the Legislative Assembly passing the Constitution of Queensland 2001 and the Parliament of Queensland Act 2001. These Acts commenced on 6 June 2002. The Legal, Constitutional and Administrative Review Committee (LCARC) continued the ongoing review exercise by undertaking an inquiry into issues of constitutional reform, including a review of the QCRC NB: These notes have been revised from the version first published on 23 August 1 2005

2 Constitutional and Other Legislation Amendment Bill 2005 recommendations not previously considered, and other issues of constitutional reform referred to it by the Government. A general objective of the Bill is to continue the work of the QCRC and the LCARC to further refine and explain Queensland's constitutional arrangements and conventions. The Bill gives effect to the Government's response to the following Legal Constitutional and Administrative Review Committee's Reports: · No. 36 (The Queensland Constitution: Specific Content Issues); · No. 41 (Review of the Queensland Constitutional Review Commission's recommendations regarding entrenchment of the Queensland Constitution); and · No. 42 (Hands on Parliament A Parliamentary Committee inquiry into Aboriginal and Torres Strait Islander peoples' participation in Queensland's democratic processes). In addition, the Bill gives effect to the Government's response to the Members' Ethics and Parliamentary Privileges Committee's (MEPPC) Report No. 64 (regarding prohibition on Members of Parliament transacting business with the State). Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) amendments Due to an oversight the Commission for Children and Young People and Child Guardian Amendment Act 2004 did not include a transitional provision to outline the effect, if any, of the amendments in relation to: (a) applications for suitability notices received by the Commissioner prior to 17 January 2005, which were undecided at that date ("undecided applications for a suitability notice"); and (b) assessments and applications as to whether or not a suitability notice (issued prior to 17 January 2005) should be cancelled, where the application or assessment relevant to the cancellation of the suitability notice was commenced prior to 17 January 2005 and undecided at that date ("undecided assessments and applications as to whether a suitability notice should be cancelled").

3 Constitutional and Other Legislation Amendment Bill 2005 Consequently the main objectives of the Bill are to: 1. clarify the circumstances in which the amendments inserted by the Commission for Children and Young People and Child Guardian Amendment Act 2004 will apply to: (a) applications for suitability notices received by the Commissioner prior to 17 January 2005, which remain undecided at commencement of this Bill ("outstanding applications for a suitability notice"); and (b) assessments and applications as to whether or not a suitability notice (issued prior to 17 January 2005) should be cancelled, where the application or assessment was commenced prior to 17 January 2005 and remained undecided at commencement of this Bill ("outstanding assessments and applications as to whether a suitability notice should be cancelled") and; 2. give certainty through validation to decisions made by the Commissioner between 17 January 2005 and commencement of this Bill, in relation to undecided applications for a suitability notice and undecided assessments and applications as to whether a suitability notice should be cancelled. In addition the Bill also seeks to achieve the following objectives: · to provide for the Commissioner to provide a report to the Minister in relation to employment screening issues, including the provision of details about individuals and their criminal history, without being in breach of confidence; and · to ensure that persons who are privy to such information shared between the Commissioner and the Minister are bound by the confidentiality provisions prescribed by the Commission for Children and Young People and Child Guardian Act 2000; and · to rectify current drafting anomalies in the Act to ensure clarity in the Act. Achieving the Policy Objectives of the Legislation Constitutional amendments The objectives of the Bill have been achieved by amending the Constitution of Queensland 2001 (the Constitution) and the Parliament of Queensland Act 2001 (the Parliament Act).

4 Constitutional and Other Legislation Amendment Bill 2005 The amendments to the Constitution and the Parliament Act give effect to a number of recommendations relating to the following matters: · clarifying constitutional conventions relating to the functions of the Executive Council, the Governor's rights and powers, and the appointment and dismissal of the Premier and Ministers; · the option for Members of the Legislative Assembly to take an oath or make an affirmation of allegiance to the Crown; · the requirement for the Legislative Assembly to meet soon after a general election; · the role of the Parliamentary Secretaries; · express inclusion of the retirement age of Judges and provisions relating to the removal of Judges; · extending the objects of the statutory committees of the Legislative Assembly to include extending democratic government and the transparency of public administration; · extending the LCARC's area of responsibility regarding legal reform to include considering whether Queensland law has sufficient regard to Aboriginal tradition and Torres Strait Islander custom; · implementing the Government's response to the MEPPC Report No. 64; · the definition of `State' under the Constitution (as it relates to a department's authority to engage in commercial activities); · the oath or affirmation of allegiance for Judges and Ministers; · proceedings in the Legislative Assembly (concerning section 9 of the Parliament Act "proceedings in the Assembly"); · new salary sacrifice arrangements for Members of the Legislative Assembly; and · clarifying procedures for the tabling of documents when Parliament is expired, dissolved or prorogued. The amendments to the Constitution, the Justices of the Peace and Commissioners for Declarations Act 1991, the Magistrates Act 1991, the Magistrates Regulation 2003 and the Oaths Act 1867, also provide judges, justices of the peace, magistrates and other public officials who are

5 Constitutional and Other Legislation Amendment Bill 2005 required to take an oath of allegiance with the alternative of taking an oath of loyalty. CCYPCG Act amendments The objectives of the Bill will be achieved by the insertion of provisions which will: · clarify the application of the Commission for Children and Young People and Child Guardian Amendment Act 2004, in relation to outstanding applications for suitability notices. The Bill provides that where an application for a suitability notice was made under s 100 or 101 of the Commission for Children and Young People and Child Guardian Act 2000 as it was in effect immediately before 17 January 2005 ("pre-amended Act") and was received by the Commissioner prior to 17 January 2005 (a "relevant application") the application will, after commencement, be assessed and decided in accordance with the pre-amended Act. The one exception to this is where the Commissioner has been notified of police information or disciplinary information on or after 17 January. In this case Commission for Children and Young People and Child Guardian Act 2000 as amended by the Commission for Children and Young People and Child Guardian Amendment Act 2004 and this Bill ("the amended Act") will apply to the assessment and determination of the relevant application; and · clarify the law to be applied in relation to outstanding assessments and applications in relation to whether a suitability notice should be cancelled. The Bill provides that where the Commissioner received information, before 17 January 2005, about the holder of a suitability notice (which would result in the Commissioner being able to exercise a power under s 119 (1) or (1A) of the pre-amended Act) or an application (under either s 118 or s 119 of the pre-amended Act) to cancel a suitability notice the pre-amended Act will continue to apply to all matters relevant to the suitability notice despite the fact that the relevant action or decision takes place after 17 January 2005. The one exception to this is where the Commissioner receives further information on or after 17 January 2005, which is relevant to the decision whether or not to cancel the suitability notice (i.e. would allow the Commissioner to exercise a power under s 119 (1) or

6 Constitutional and Other Legislation Amendment Bill 2005 (2) of the amended Act). In this situation, the amended Act must be applied in relation to the application or assessment, regardless of the fact that the original information or application was received before 17 January 2005; and. · allow information sharing between the Commissioner and the Minister which will ensure the Minister has the necessary information to make informed decisions about the legislation; and · clarify the legislation by correcting drafting anomalies; and · give certainty to the decisions of the Commissioner by validating those decisions made between 17 January 2005 and the commencement of this Bill, in relation to undecided applications for a suitability notice and undecided assessments and applications as to whether a suitability notice should be cancelled. The Bill will validate these decisions regardless of whether the pre-amended or amended Act was applied in making the determination. Administrative Cost There is no anticipated cost to the Government to implement the amendments. Consistency with Fundamental Legislative Principles Constitutional amendments The Bill is consistent with the fundamental legislative principles set out in section 4 of the Legislative Standards Act 1992, which requires legislation to have sufficient regard to: (a) the rights and liberties of individuals; and (b) the institution of Parliament. Clause 10 of the Bill inserts a new section 43C(2) and (3) of the Constitution dealing with the appointment, and termination of appointment, of the Premier. Sections 43C(4) and (5) state that subsections 43C(2) and (3) do not prevent the evolution of constitutional conventions, including those relating to the exercise of the reserve power, or make justiciable the exercise by the Governor of a power to appoint or remove a

7 Constitutional and Other Legislation Amendment Bill 2005 person a Premier if the exercise by the Governor of that power as a reserve power, was not justiciable before the enactment of the subsections. Clause 16 relocates provisions specifying a compulsory retirement age of 70 for Judges, from section 14 of the District Court Act 1967 and section 23 of the Supreme Court Act 1991, to the Constitution. While a compulsory retirement age could in certain circumstances be seen as discriminatory, the proposal was endorsed by the Anti-Discrimination Commissioner in a submission to the former LCARC. The Bill inserts a transitional provision that effectively applies the land transaction exemption inserted by clause 33 of the Bill from 6 June 2002. This retrospective operation is not considered to be objectionable, for the following reasons: · the omission of the exemption from the Parliament Act was inadvertent, and was therefore also not publicised; · the amendment is intended to be curative in nature, so as to restore the previously applicable exemption; and · the practical difficulty of seeking to undo any land transactions between Members of the Assembly and the State that may have taken place since 6 June 2002. CCYPCG Act amendments The Bill, as it amends the CCYPCG Act, infringes a number of fundamental legislative principles: Breach of s.4(3)(b) Legislative Standards Act 1992--Consistency with principles of natural justice · Retrospective application of the Commission for Children and Young People and Child Guardian Act 2000 in its amended form to: (a) outstanding applications for suitability notices; and (b) outstanding assessments and applications in relation to whether a suitability notice should be cancelled. In certain circumstances, the Commissioner will be able to apply the amended Act in determining outstanding applications for suitability notices and outstanding assessments and applications in relation to whether a suitability notice should be cancelled despite the fact that

8 Constitutional and Other Legislation Amendment Bill 2005 the application or assessment was commenced prior to 17 January 2005. The amended Act will apply to the determination of an outstanding application for a suitability notice where police or disciplinary information is received after 17 January 2005. Likewise the amended Act will apply to the determination of outstanding assessments and applications as to whether to cancel a suitability notice where information which would invoke s 119 (1) or (2) of the amended Act is received on or after 17 January 2005. In some cases this will result in a breach of a fundamental legislative principle. For example, an applicant who has been convicted of an excluding offence (where imprisonment was ordered or a disqualification order was made by a Court) will not have a right to provide submissions to the Commissioner before a decision is made in relation to the application or assessment. This is a right they would otherwise have had if the pre- amended Act were to apply to the application or assessment. This breach of a fundamental legislative principle is justified on the basis that: (a) the applicant has been convicted of an excluding offence and a court has determined that the circumstances of the offence warranted the person being sentenced to a period of imprisonment or a disqualification order being imposed. This approach is necessary to protect the best interests and safety of children; (b) if the applicant had been issued with a positive notice before 17 January 2005 and the Commissioner received information after that date which was relevant to a determination of whether or not the positive notice should be cancelled the Commissioner would have applied the amended Act in deciding whether or not the positive notice should be cancelled; and (c) the Commission for Children and Young People and Child Guardian Act 2000 requires that a further application for a prescribed notice must be made where a change in criminal history has occurred, even if a prescribed notice has not been issued at that time. A further application for a prescribed notice made on or after 17 January 2005 would result in the amended Act applying to an assessment of that application. The result is that in some cases the legislation would already require an

9 Constitutional and Other Legislation Amendment Bill 2005 applicant to take steps which would bring them within the scope of the amended Act. Breach of s.4(3)(g) Legislative Standards Act 1992--Does not adversely affect rights and liberties, or impose obligations, retrospectively · Taking into account investigative information when determining: (a) outstanding applications for suitability notices; and (b) outstanding assessments and applications in relation to whether a suitability notice should be cancelled. The Commissioner will in specified circumstances apply the amended Act to outstanding applications for a suitability notice and outstanding assessments and the applications as to whether a suitability notice should be cancelled. Accordingly where the amended Act applies to the application or assessment the Commissioner would be able to take into account any investigative information provided by the police Commissioner after 17 January 2005 despite the fact that that the application for a suitability notice or the assessment or application relevant to the cancellation of the suitability notice was commenced prior to 17 January 2005. This will result in a breach of a fundamental legislative principle in some cases as an applicant will no longer have the right to have the application or assessment determined on the basis of the pre-amended Act. In effect, the applicant will lose the right to have the application or assessment determined without any investigative information forming part of the assessment process. This breach of a fundamental legislative principle is justified on the basis that: (a) if an applicant was issued with a positive notice before 17 January 2005 and the Commissioner then received investigative information on or after this date, the Commissioner would have been able to consider this information when deciding whether or not to cancel the positive notice and substitute another prescribed notice; and (b) it is necessary for the Commissioner to take this information into account in order to make a decision which protects the best interests and safety of children as far as possible. · Taking into account disciplinary information when determining:

10 Constitutional and Other Legislation Amendment Bill 2005 (a) outstanding applications for suitability notices; and (b) outstanding assessments and applications in relation to whether a suitability notice should be cancelled. The Commissioner will in specified circumstances apply the amended Act to outstanding applications for a suitability notice and outstanding assessments and applications as to whether a suitability notice should be cancelled. Accordingly where the amended Act applies to the application or assessment the Commissioner will be able to have regard to disciplinary information about child care service providers, foster carers, nurses, midwives and certain health practitioners, in determining the assessment or application. Accordingly the application or assessment will be determined taking into account any disciplinary information received by the Commissioner despite the fact that application for the suitability notice or the assessment or application relevant to whether the suitability notice should be cancelled, was commenced prior to 17 January 2005. This will result in a breach of a fundamental legislative principle as in some cases an applicant will no longer have the right to have the application or assessment determined on the basis of the pre-amended Act. In effect, some applicants will lose the right to have an application or assessment determined without disciplinary information (as defined in the amended Act) being considered as part of the assessment process. This breach of a fundamental legislative principle is justified on the basis that: (a) if the applicant was issued with a positive notice before 17 January 2005 and the Commissioner received disciplinary information on or after this date the Commissioner would have been able to consider this information when deciding whether or not to cancel the positive notice and substitute another prescribed notice; and (b) it is necessary for the Commissioner to take this information into account in order to make a decision which protects the best interests and safety of children as far as possible. · Retrospective application of the Commission for Children and Young People and Child Guardian Act 2000 in its amended form to: (a) outstanding applications for suitability notices; and

11 Constitutional and Other Legislation Amendment Bill 2005 (b) outstanding assessments and applications in relation to whether a suitability notice should be cancelled. In specified circumstances, the Commissioner will be able to determine an outstanding application for a suitability notice or an outstanding assessment or application relevant to whether a suitability notice should be cancelled on the basis of the amended Act despite the fact that the application or assessment or application in relation to the cancellation of a suitability notice was commenced prior to 17 January 2005. This will result in a breach of a fundamental legislative principle in some cases have the following effects: (a) the Commissioner will be able to consider information that the applicant would not have anticipated would be considered in assessing an application for a suitability notice (namely investigative and disciplinary information (other than Board of teacher registration information); (b) an applicant who has a conviction for an excluding offence (where imprisonment was ordered or a disqualification order made) will no longer have a right of review to the Children Services Tribunal. This is a right the applicant would otherwise have had if the pre-amended Act was applied to the application or assessment; (c) an applicant who has a conviction for an excluding offence (where imprisonment was ordered or a disqualification order made) will no longer have a right to provide submissions to the Commissioner before a decision is made. This is a right the applicant would otherwise have had if the pre-amended Act was applied to the application or assessment; (d) an applicant who has a conviction for an offence which is now a serious offence but which was not previously a serious offence under the pre-amended Act will no longer have a right to have the application or assessment determined on the basis that they do not have a conviction for a serious offence. This is a right the applicant would otherwise have had if the pre-amended Act was to be applied, to the application or assessment. This breach of a fundamental legislative principle is justified on the basis that: (a) if the applicant was issued with a positive notice before 17 January 2005 and the Commissioner received information on or

12 Constitutional and Other Legislation Amendment Bill 2005 after this date which invoked s 119 (1) or (2) of the amended Act, the Commissioner would have applied the amended Act in deciding whether or not to cancel the positive notice and substitute another prescribed notice; (b) it is necessary for the Commissioner to take this information into account in order to make a decision which protects the best interests and safety of children as far as possible; (c) the Commission for Children and Young People and Child Guardian Act 2000 requires that a further application for a prescribed notice must be made where a change in criminal history has occurred, even if a prescribed notice has not been issued at that time. A further application for a prescribed notice made on or after 17 January 2005 would result in amended Act applying to that application. The effect is that in some cases in which a breach of a fundamental legislative principle will occur the legislation already requires an applicant to take steps which would bring them within the scope of the amended Act. Consultation The constitutional amendments in the Bill were developed in consultation with: · the Department of the Premier and Cabinet; · the Crown Solicitor; · the Department of Justice and Attorney-General (which in turn consulted with the Judiciary, the Magistracy, the Bar Association of Queensland and the Queensland Law Society); · the Government Superannuation Office; · the Clerk of the Parliament; and · the Office of the Queensland Parliamentary Counsel. The following agencies have been consulted on the amendments to the Commission for Children and Young People and Child Guardian Amendment Act 2004: · Commission for Children and Young People and Child Guardian; · the Crown Solicitor; · Department of Child Safety;

13 Constitutional and Other Legislation Amendment Bill 2005 · the Department of Justice and Attorney-General (which in turn consulted with the Child Services Tribunal); · Department of Justice and Attorney-General; · Queensland Police Service; and · Queensland Treasury. Notes on Clauses Part 1--Preliminary Clause 1 states the short title of the Act. Clause 2 states that other than clauses 35 (Act amendment in pt 4) clause 36 (Amendment of s 121) and clause 37 (Amendment of s 122A), which will be declared to have commenced on 17 January 2005, the amendments to the Commission for Children and Young People and Child Guardian Act 2000 will commence on assent. The retrospective commencement of clause 36 ensures that the appeal rights of applicants are safeguarded under section 121 as they were inadvertently misrepresented through a typographical error in the Commission for Children and Young People and Child Guardian Amendment Act 2004 (which commenced on 17 January 2005). The retrospective operation of clause 37 ensures that the drafting anomaly contained in the current s 122A does not prevent the police commissioner from notifying the Commissioner of a change in a relevant persons criminal history and/or that a decision has been made that there is investigative information about a relevant person where such a change has occurred or such a decision has been made since 17 January 2005 and before the commencement of this section.

14 Constitutional and Other Legislation Amendment Bill 2005 Part 2--Amendment of the Constitution of Queensland 2001 Clause 3 provides that this part amends the Constitution. Clause 4 inserts a new section 14A of the Constitution, which sets out when the Legislative Assembly must meet after a general election. Setting a specific time frame for when Parliament must meet ensures that the Executive Government becomes accountable to Parliament as soon as practicable after the election. New section 14A(1) requires the Legislative Assembly to meet after a general election no later than 60 days after the day of the general election, or no later than 90 days if the 60-day period includes the Christmas recess, or within one week after the date of the return of the writ, if a later date has been substituted under section 82 of the Electoral Act 1992. For a general election in Queensland there is a single writ upon which the names of all the successful candidates for each electoral district are endorsed. Accordingly, it is important that the writ is returned prior to the Legislative Assembly being convened. New section 14A(1) takes into account the operation of section 82 of the Electoral Act 1992 which provides for delays by natural disasters or other emergency situations. New section 14A(2) defines `general election', `State school' and `summer holidays'. `General election' means an election for the members of the Legislative Assembly. `State school' has the same definition as in the Education (General Provisions) Act 1989, section 2(1), and `summer holidays' means the days, including Christmas Day, appointed under legislation for student vacations for State schools. Under section 73 of the Education (General Provisions) Regulation 2000, the Minister must approve the days for student vacations for State schools. The days approved are then published in the Education Office Gazette. Clause 5 amends section 22(1) of the Constitution to provide members of the Legislative Assembly with the option of whether to take or make the oath or affirmation of allegiance to the Crown by omitting the words `of allegiance and of office' and inserting `of office, or of allegiance and of office'. In LCARC's Report No. 36 of August 2002, the Committee detailed its consideration of the mandatory requirement that members of the Legislative Assembly swear or affirm allegiance to the Crown and noted

15 Constitutional and Other Legislation Amendment Bill 2005 the arguments for and against. The Committee conducted public consultation on the issue of whether members should be provided with an option as to whether to swear or affirm allegiance to the Crown, or only to the people of Queensland. Submissions received by the Committee generally supported dispensing with a mandatory requirement and that members should have a choice in this regard. This amendment allows members to choose not to swear or affirm allegiance to the Crown. It respects members' different opinions and enables members to make a promise which reflects their personal commitment. Clause 6 amends section 25 of the Constitution by clarifying the functions of a Parliamentary Secretary. Subclause (1) renumbers the existing provision which notes that the Premier is responsible for deciding the specific functions of Parliamentary Secretaries as section 25(2). Subclause (2) inserts a new subsection 25(1), which provides that the main function of a Parliamentary Secretary is to help a Minister to perform the Minister's functions. Clause 7 inserts a new section 33A of the Constitution. New section 33A provides that the Governor may ask the Premier or another Minister for information on any particular matter relating to the Government, which is relevant to the performance or exercise of the Governor's functions or powers. This is in line with existing constitutional conventions. It is a well recognised convention that the Governor has the rights to be consulted, to encourage and to warn. Former Governor, Sir Walter Campbell, in his 1988 paper, the Role of a State Governor, noted that in accordance with those rights the Governor may "ask questions and seek further information". Communications between the Governor and Ministers are confidential and should not be public as this may jeopardise the political neutrality of the office of the Governor. Clause 8 amends section 34 of the Constitution by omitting all the words from `is not subject' and providing that the Governor `must, in accordance with constitutional conventions, act on the advice of the Premier' in appointing and dismissing Ministers. This will reflect the existing convention that the Governor will generally act on the advice of the Premier in appointing and dismissing Ministers. The reference to existing `constitutional convention' provides sufficient flexibility so as not to

16 Constitutional and Other Legislation Amendment Bill 2005 restrict the Governor from seeking advice from alternative sources and to freely exercise the reserve powers in a constitutional crisis. Clause 9 amends section 43 of the Constitution - Appointment of Ministers of the State. Subclause (1) inserts new section 43(1A) and (1B). New section 43(1A) provides that one of the offices declared under subsection (1) must be or include the office of the Premier to clarify that the Premier is also a Minister. New section 43(1B) provides that a reference in this Act to the Premier is a reference to the person appointed to the office mentioned in subsection (2). Subclause (2) omits the reference in section 43(2) to `a Minister' and inserts a reference to `the Premier or as another Minister'. This clarifies that a person appointed as the Premier may also hold other ministerial portfolios in accordance with constitutional conventions. For example, the current Premier has been sworn-in as "Premier and Treasurer of Queensland". Subclause (3) (like clause 5 above) amends section 43(5) of the Constitution to provide Ministers with the option of whether to take or make the oath or affirmation of allegiance to the Crown by omitting the words `of allegiance and of office' and inserting `of office, or of allegiance and of office'. This amendment allows Ministers to choose not to swear or affirm allegiance to the Crown. It respects Ministers' different opinions and enables members to make a promise which reflects their personal commitment. Subclause (4) renumbers section 43(1A) to (6) as section 43(2) to (8) as a consequence of inserting new section 43(1A) and (1B). Clause 10 inserts four new sections in the Constitution. Currently there is no provision in the Constitution of Queensland 2001 which reflects the convention that Ministers should be Members of the Legislative Assembly. New Section 43A expressly recognises this constitutional convention and attempts to put limits around the appointment of a Minister to ensure that this convention is followed in practice. New section 43A(1) states that a person may be appointed as a Minister if the person is: · a member of the Legislative Assembly; or

17 Constitutional and Other Legislation Amendment Bill 2005 · a candidate for election as a member of the Legislative Assembly under the Electoral Act 1992. New section 43A(2) provides that if a person is appointed as a Minister because the person is a candidate, the appointment ends after 90 days unless the person becomes a member of the Legislative Assembly within that period. The aim of this provision is to avoid the theoretical possibility of a government rotating non-elected Ministers through the Cabinet indefinitely by terminating each Minister's commission after 89 days. Reference to "a candidate" is intended to restrict the appointment of Ministers to persons who could potentially be declared as the Member for a given electoral district. The 90 day grace period recognises that on rare occasions there may be administrative delays in the receipt of electoral returns which might unnecessarily hinder the formation of a government. New section 43A(3) provides that for this section, a person becomes a member of the Legislative Assembly when the Electoral Commission of Queensland is notified of the person's election under the Electoral Act 1992, section 122. New section 43A(4) clarifies that this section does not apply to the appointment of a person as the Premier. A note in this subsection indicates that section 43D is the equivalent provision applying to the Premier. The provisions relating to the Premier and the other Ministers have been separated in recognition of the convention that upon a change of Government the Governor first appoints the Premier and then the other Ministers on the advice of the Premier. New section 43B(1) provides that the appointment of a person as Minister ends upon: · the acceptance by the Governor of the person's resignation as a Minister; or · the person's removal as a Minister by the Governor in accordance with constitutional conventions relating to the exercise of the power. Section 43A(2) also applies in that the appointment ends after 90 days unless the person becomes a Member of the Legislative Assembly. The appointment of a Minister will also end by death or incapacity. Modern drafting practice is not to refer to death as terminating an office as it is an obvious fact. Removal from office for incapacity is included within the general power to remove.

18 Constitutional and Other Legislation Amendment Bill 2005 New section 43B(2) also provides that this section does not apply to the Premier. A note in this subsection indicates that section 43C(3) is the equivalent provision applying to the Premier. New section 43C sets out the role, appointment and termination of appointment of the Premier. New section 43C(1) states that the Premier's role is to be chief Minister, chairperson of Cabinet and chief advisor to the Governor. The provision reflects current constitutional practice. New section 43C(2) states that the Governor must appoint as the Premier someone who the Governor believes can form a government that is most likely to command the confidence of a majority of members in the Legislative Assembly. The provision reflects current constitutional practice. New section 43C(3) mirrors new section 43B(1) and provides that a person's appointment as the Premier ends upon: · the acceptance by the Governor of the person's resignation as Premier; or · the person's removal as Premier by the Governor in accordance with constitutional conventions relating to the exercise of the power; · section 43D(2) having effect in relation to the person's appointment as Premier, in that the appointment ends after 90 days unless the person becomes a member of the Legislative Assembly. New section 43C(4) and (5) clarifies that the enactment of 43C(2) and (3) dealing with the power to appoint, and to terminate the appointment of, a person as Premier does not: · prevent the evolution of the constitutional conventions, including those relating to the exercise of the reserve powers; or · make justiciable the exercise by the Governor of a power to appoint or remove a person as Premier if the exercise by the Governor of that power as a reserve was not justiciable before the enactment of the subsections. New section 43D(1) provides that a person may be appointed as the Premier if the person is a member of the Legislative Assembly; or a candidate for election as a member of the Legislative Assembly under the Electoral Act 1992.

19 Constitutional and Other Legislation Amendment Bill 2005 As with new section 43A(1), this provision expressly recognises the constitutional convention that the Premier must be a member of the Legislative Assembly. New section 43D(2) provides that if a person is appointed as the Premier because the person is a candidate, the appointment ends after 90 days unless the person becomes a Member of the Legislative Assembly within that period. As with new section 43A(2), this provision avoids the theoretical possibility of a government rotating non-elected Premiers through the Cabinet indefinitely by terminating each Premier's commission after 89 days. The 90 day grace period recognises that on rare occasions there may be administrative delays in the receipt of electoral returns which might unnecessarily hinder the formation of a government. New section 43D(3) provides that for this section, a person becomes a member of the Legislative Assembly when the Electoral Commission of Queensland is notified of the person's election under the Electoral Act 1992, section 122. Clause 11 amends section 46 of the Constitution. Subclause (1) (like clauses 5 and 9 above) amends section 46(3) of the Constitution to provide a member acting for a Minister with the option of whether to take or make the oath or affirmation of allegiance to the Crown. This respects members' different opinions and enables members to make a promise which reflects their personal commitment. Subclause (2) amends section 46(6) by omitting the reference to section 43(4) and inserting a reference to section 46(6) as a consequence of renumbering section 43 in clause 9 above. Clause 12 amends section 48 of the Constitution. Subclause (1) inserts a new section 48(1A) which states that the main function of the Executive Council is to advise the Governor on the Government of the State, including by making recommendations to the Governor about the exercise of the powers of the Governor in Council. The provision reflects current constitutional practice. Subclause (2) renumbers sections 48(1A) to (4) as sections 48(2) to (5) as a consequence of inserting the new section 48(1A). Clause 13 amends section 49 of the Constitution. The new heading will read "Length of appointment as a member of Executive Council and a related matter".

20 Constitutional and Other Legislation Amendment Bill 2005 Section 49 will provide that the appointment of a person as a member of the Executive Council ends only if the Governor terminates the appointment in accordance with constitutional conventions. New subsection 49(2) provides that a member of Executive Council may only attend Executive Council meetings while the member is a Minister. The provision reflects current constitutional practice. Clause 14 amends section 52 of the Constitution by deleting the reference to `public sector unit' in the definition of `State' and providing that State includes `a department of government of the State and part of a department of government of the State'. The meaning of the term `State' was amended during the consolidation of the Constitution. An unintended consequence of the expansion of the term `State' has been to extend the authority to engage in commercial activities beyond government departments to public sector officers. The amendment will reinstate the definition of `State' applicable before the consolidation of the Constitution. Clause 15 (like clauses 5, 9 and 11) amends section 59(2) of the Constitution by inserting an oath or affirmation of loyalty and of office for judges. This allows Judges to choose not to swear or affirm allegiance to the Crown. It respects Judges' different opinions and enables Judges to make a promise which reflects their personal commitment. Clause 16 amends section 60 of the Constitution. Subclause (1) omits section 60(2) and inserts two new sections 60(2) and (2A). New section 60(2) provides a compulsory retirement age for Judges upon reaching 70 years of age. However, new section 60(2A) provides that a Judge who started hearing a proceeding before retiring remains a Judge for the purposes of finishing the proceeding. These provisions were previously contained in section 14 of the District Court of Queensland Act 1967 and section 23 of the Supreme Court of Queensland Act 1991. The consequential amendments to these two Acts and the Anti-Discrimination Act 1991 are contained in the Schedule to this Bill. Section 14 of the District Court of Queensland Act 1967 and section 23 of the Supreme Court of Queensland Act 1991 now have a provision stating that section 60 of the Constitution provides for the retirement of Judges. The Schedule also inserts a new section 106A(3A) of the Anti- Discrimination Act 1991 to make it clear that the Act has no effect on the

21 Constitutional and Other Legislation Amendment Bill 2005 imposition of a compulsory retirement age on a Supreme Court Judge or District Court Judge under the proposed section 60 of the Constitution. Subclause (2) renumbers section 60(2A) and (3) as section 60(3) and (4) as a consequence of inserting the two new subsections. Clause 17 amends section 61 of the Constitution in accordance with LCARC's Recommendation No.33 of Report 36 of August 2002 to refine the process for removal of Judges from office for misbehaviour or incapacity. The procedure for removal of a Judge from office for misbehaviour or incapacity includes that the Legislative Assembly must refer specific allegations concerning misbehaviour or incapacity to a tribunal established under an Act. The tribunal's jurisdiction is to be confined to a consideration of these allegations. The tribunal is required to report to the Legislative Assembly on whether the allegations of misbehaviour or incapacity are proved on the balance of probabilities and in the case of misbehaviour, if the allegations are proved, whether those allegations are capable in law of justifying removal from the office. The ultimate decision lies with the Legislative Assembly as to whether the Assembly accepts the finding of the tribunal and that a judge should be removed from office. Subclause (1) omits the current sections 61(3) and (4) and inserts new subsections. New section 61(3) provides that for subsection (2)(a), there is proved misbehaviour justifying removal from the office only if: · a tribunal states in a report under section 61C: · a finding that some or all the allegations of misbehaviour referred to the tribunal are proved on the balance of probabilities; and · that the proved misbehaviour is capable in law of justifying removal from the office; and · the Legislative Assembly accepts the finding of the tribunal, and decides that the judge should be removed from the office. · New section 61(4) provides that for subsection (2)(b), there is proved incapacity to perform the duties of the office only if: · a tribunal states in a report under section 61C a finding that incapacity to perform the duties of the office is proved on the balance of probabilities; and

22 Constitutional and Other Legislation Amendment Bill 2005 · the Legislative Assembly accepts the finding of the tribunal, and decides that the judge should be removed from the office. Subclause (2) amends section 61(5) to clarify that the tribunal is the tribunal mentioned in section 61. Subclause (3) renumbers and relocates current section 61(5) to (10) as section 61A (1) to (6). Clause 18 inserts a new section 61A heading (Establishment of a tribunal) of the Constitution. Clause 19 inserts new sections 61B and 61C of the Constitution. New section 61B(1) provides that for section 61, the Legislative Assembly must refer to the tribunal established under section 61A specific allegations of: · misbehaviour; or · incapacity to perform the duties of the office concerned. New section 61B(2) further provides that the tribunal's jurisdiction is limited to the specific allegations. However, under new section 61B(3) the Legislative Assembly can refer further specific allegations to the tribunal and, if it does so, the tribunal's jurisdiction extends to those allegations. Under new subsection 61B(4), the Legislative Assembly may act under subsection (3) on its own initiative, or after receiving an interim report from the tribunal asking for a referral of further specific allegations to the tribunal. New section 61B(5) provides that the specific allegations referred to the tribunal under subsection (1) and (3) may only be referred if it is a matter that is to constitute the jurisdiction of the tribunal. New section 61C(1) provides that the tribunal must report in writing to the Legislative Assembly: · if the allegations are of misbehaviour: -- whether some or all the allegations referred to the tribunal are proved on the balance of probabilities; and -- whether the proved misbehaviour is capable in law of justifying removal from the office; and · if the allegations are of incapacity to perform the duties of the office, whether incapacity to perform the duties of the office is proved on the balance of probabilities.

23 Constitutional and Other Legislation Amendment Bill 2005 New section 61C(2) states that the tribunal need not report anything to the Legislative Assembly that it considers immaterial to the exercise by the Legislative Assembly of its power under section 61. The subsection includes examples to clarify what the tribunal reports on. Clause 20 inserts a new part 1 heading (Act No. 80 of 2001) in chapter 9 of the Constitution relating to transitional provisions. Clause 21 inserts a new part 2 heading (Constitutional and Other Legislation Amendment Act 2005) in chapter 9, and a new section 94 of the Constitution. New section 94 provides a transitional provision for new section 43A and 43C (inserted by clause 10 above). This provision states that the enactment of section 43A or 43C has no effect on the appointment of a Minister or the Premier of the State holding any office immediately before the commencement of the section. Clause 22 makes consequential amendments to Schedule 1 (Oaths and affirmations) of the Constitution to reflect the amendments in clauses 5, 9, 11 and 15 above which provide members of the Legislative Assembly, Ministers, Members acting for a Minister and Judges with the option of whether to take or make the oath or affirmation of allegiance to the Crown. Subclause (1) amends the oath or affirmation of office of members of the Legislative Assembly. Subclause (2) amends the oath or affirmation of office of Ministers of the State and acting Ministers of the State. Subclause (3) inserts the oath or affirmation of loyalty and of office of Judges. Part 3--Amendment of the Parliament of Queensland Act 2001 Clause 23 states that this part amends the Parliament Act. Clause 24 amends section 9 of the Parliament Act. Subclause (1) omits section 9(3). The Members' Ethics and Parliamentary Privileges Committee (Report No. 26, Recommendation 5.4) originally recommended the insertion of section 9(3) into the Parliament Act. Section

24 Constitutional and Other Legislation Amendment Bill 2005 9(3) provides that a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry, which was brought into existence for another purpose, can be impeached or questioned in relation to that other purpose if the Assembly or committee has authorised its publication. The provision was intended to apply to documents, particularly original documents, prepared for a purpose other than a proceeding in the Assembly being tabled during a committee proceeding or in the House, which would attract parliamentary privilege. Section 9(3) is unclear and may have a wider scope than originally intended. The provision gives rise to an unintended consequence that parliamentary privilege may not apply to documents defined under section 9(2)(d). The possibility of the exception being used in an appropriate case is so low that it does not justify the exception to fundamental principles of parliamentary privilege. A transitional provision for this amendment is contained in new section 164, which is inserted by clause 33 below. Subclause (2) renumbers section 9(4) and (5) as section 9(3) and (4) as a consequence of omitting section 9(3). Clause 25 inserts a new section 59A of the Parliament Act References to when the Assembly is not sitting. This provision will put beyond all doubt the ability to table documents during a period when the Legislative Assembly is prorogued or dissolved when required or permitted by statute or standing orders. New section 59A(1) provides that subsection (2) applies if an Act or the standing rules and orders refer to something being done, or state the effect of something done, in relation to a document when the Assembly is not sitting. New section 59A(2) explains that the reference to the Assembly not sitting is taken to include a reference to the Assembly being expired, prorogued or dissolved. New section 59A(3) provides that if a document is taken to have been tabled in the Assembly because of subsection (2) when the Assembly: · has expired or is dissolved; or · is prorogued and the Assembly expires or is dissolved before its next session; · the document is taken to be a document of the next Assembly.

25 Constitutional and Other Legislation Amendment Bill 2005 New subsection (4) provides that if a document is taken to have been tabled in the Assembly because of subsection (2) when the Assembly is prorogued and the Assembly does not expire and is not dissolved before its next session, the document is taken to be a document of the next session of the Assembly. Clause 26 amends section 70 of the Parliament Act to provide that the term `transacts business' refers only to agreements or contracts for the provision of goods by a member to an entity of the State. Subclause (1) clarifies that `transacts business' in section 70(1)(a) refers only to contracts `for the supply of goods to the entity to be used in the service of the public'. Subclause (2) omits the reference `for a contract' in section 70(2)(a) and inserts `for subsection (1)(a)'. Subclause (3) omits 70(2)(a)(ii) and (iii). This amendment will ensure that the position before consolidation of the Parliament Act is reverted to. Having a provision that prohibits only specific conduct will allow for greater certainty, as conduct that is not specifically prohibited under section 70(1)(a) will be permitted. A transitional provision for this amendment is contained in new section 165, which is inserted by clause 33 below. Subclause (4) renumbers section 70(2)(a)(iv) as section 70(2)(a)(ii) as a consequence of omitting section 70(2)(a)(ii) and (iii). Subclause (5) omits the reference `for a duty or service' in section 70(2)(b) and inserts `for subsection (1)(b)'. Subclause (6) omits the reference to `service or duty' in section 70(2)(b)(ii) and inserts `duty or service'. Subclause (7) inserts two new definitions in section 70(5), `duty or service' and `entity'. `Duty or service' includes a duty or service constituted by the act of transacting any business for the State entity concerned. `Entity' of a State is defined as not including a local government. Clause 27 amends section 71 of the Parliament Act to provide that the term "entity of the State" excludes a local government. The amendment clarifies that the prohibition of Members transacting business with the State is not intended to apply to transactions with local governments. Subclause (1) omits sections 71(7).

26 Constitutional and Other Legislation Amendment Bill 2005 Subclause (2) inserts a new definition of entity of the State, which is defined as not including a local government. Subclause (3) renumbers section 71(8) as 71(7) as a consequence of omitting section 71(7). Clause 28 amends section 78 of the Parliament Act in relation to the object of Parliamentary Committees. In accordance with Recommendation 15 of LCARC's Report No. 36, August 2002 this provision amends the objects of statutory parliamentary committees to include extending democratic government and enhancing the transparency of public administration. Subclause (1) omits the current heading and inserts a new heading for section 78, `Main objects of ch 5 and their achievement'. Subclause (2) omits 78(1) and replaces it with a new section 78(1). The new section 78(1) provides that the objects of statutory committees of the Legislative Assembly include extending democratic government and enhancing transparency of public administration. Subclause (3) amends section 78(2) by omitting the words `main object is' and inserting `main objects are' to reflect the amendments in subclause (2). Clause 29 inserts new words into section 87 of the Parliament Act to expressly recognise that the LCARC's area of responsibility regarding constitutional reform includes any bill expressly or impliedly repealing `or amending' any law relevant to the State's Constitution in accordance with Recommendation 8 of LCARC's Report No. 41. Clause 30 amends section 89 of the Parliament Act. Subclause (1) inserts paragraphs 89(aa) and (ab) to include in the LCARC's area of responsibility: · considering whether Queensland law has sufficient regard to Aboriginal tradition and Island custom; and · the particular effect any Queensland law has on Aboriginal people and Torres Strait Islanders. Subclause (2) renumbers section 89(aa) to (b) as section 89(a) to (d) as a consequence of inserting the two new paragraphs. Clause 31 inserts a new part 4 in chapter 7 (Salary sacrifice) of the Parliament Act. New section 123A provides that part 4 applies to a member if the Parliamentary Contributory Superannuation Act 1970 does not apply to the member.

27 Constitutional and Other Legislation Amendment Bill 2005 New section 123B(1) provides members with the option to elect (by written notice given to the Clerk) that the annual salary, and any additional salary of the member, be provided: · in part by payment of salary to the member; and · in part by the payment of employer superannuation contributions to the State Public Sector Superannuation Fund under the Superannuation (State Public Sector) Act 1990. New section 123B(2) states that the payment under subsection 123B(1)(b) cannot exceed 50% of the member's annual salary or the member's additional salary. New section 123B(3) states that despite part of the annual salary or any additional salary of the member being paid to the State Public Sector Superannuation Fund under the election, the member is taken to have received the annual salary and any additional salary to which the member is entitled. New section 123B(4) provides a definition for `additional salary' and `annual salary' of a member. `Additional salary' means salary the member is entitled to under part 2 and `annual salary' means the annual salary the member is entitled to under part 1. New section 123C provides that a member may vary or revoke an election made under section 123B by written notice given to the Clerk. Clause 32 inserts a new part 1 heading (Parliament of Queensland Amendment Act 2003) and part 2 heading (Parliament of Queensland Amendment Act 2004) in chapter 10 of the Parliament Act. Clause 33 inserts a new part 3 heading (Constitutional and Other Legislation Amendment Act 2005) in chapter 10, and new sections 164 and 165. New section 164 is a transitional provision for clause 24. New section 164(1) provides that section 8 does not apply to a previous document if it did not apply to the document immediately before the commencement under section 9(3) of the pre-amended Act. New section 164(2) defines `commencement' as the commencement of this section and `pre-amendment Act' as, the Parliament Act as in force before the commencement of the Constitutional and Other Legislation Amendment Act 2005, part 3. `Previous document' is defined as a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry before the commencement.

28 Constitutional and Other Legislation Amendment Bill 2005 New section 165 is a transitional provision for the amendments to sections 70 and 71 contained in clauses 26 and 27 above. New section 165(1) provides that during the transitional period, sections 71(1) and (2) are taken to always have applied in relation to a contract or the performance of a duty or service as if sections 70 and 71 as amended by the amendment had commenced on 6 June 2002. New section 165(2) states that in deciding whether a member has contravened section 71(1) during the transitional period, section 72(1)(h) is taken to apply as if sections 70 and 71 as amended by the amendment had commenced on 6 June 2002. New section 165(3) provides that section 159(6) has effect as if sections 70 and 71 as amended by the amendment had commenced on 6 June 2002. New section 165(4) defines `amendment' as the Constitutional and Other Legislation Amendment Act 2005, sections 26 and 27. `Transitional period' is defined as the period starting at the beginning of 6 June 2002 and ending at the end of the day before the commencement of the amendment. Clause 34 signposts the definition of `transacts business' (contained in section 70) in the Dictionary. Part 4--Amendment of Commission for Children and Young People and Child Guardian Act 2000 Clause 35 states that this part amends the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act). Clause 36 amends subsection (1) of section 121 of the CCYPCG Act to clarify when an application to review a decision of the Commissioner can be made. The subsection now clarifies that a person may only apply for review of the following decisions of the Commissioner a decision to issue a negative notice, a decision to refuse to cancel a negative notice and decision that a person has been charged with an excluding offence (where the person alleges that they are not the person charged with the relevant excluding offence). The reference in the current section 121 to the right to apply for review of the Commissioner's decision to refuse to cancel a suspension of a positive notice has been amended. The simplification of this section merely clarifies and supports the current legislative provisions

29 Constitutional and Other Legislation Amendment Bill 2005 and intention that an applicant can only apply for the cancellation of a suspension when the charge resulting in the suspension has been finalised. Once a charge has been finalised the legislation (pursuant to s 119A(2), 119B(2) &119D(3)) prescribes that the suspension must be cancelled and a further positive or negative notice must be issued. Accordingly the right to review a decision of the Commissioner to refuse to cancel a suspension does not need to be provided for in section 121, except in the case where the Commissioner suspends a positive notice on the basis that a person has been charged with an excluding offence and the person wishes to challenge that he or she is not in fact the person who has been charged with the relevant excluding offence. Section 121 as amended provides a person with a right of review in the limited circumstances where the person claims that he or she is not in fact the person who has been charged with the relevant excluding offence. Clause 37 amends section 122A of the CCYPCG Act. The current wording of section 122A of the Act is unclear in that it requires a person to be charged with an offence in order for the section to operate but also refers to the provision of investigative information under the section. However, under the definition of investigative information, a person is not charged with an alleged offence. Accordingly, this amendment inserts new subclauses (1) and (1A) into section 122A, to clarify that the Police Commissioner is permitted to provide the Commissioner with information about a change in a relevant person's criminal history or that a decision has been made that investigative information exists in relation to a relevant person. Subclause (1)(b) when read in conjunction with subclause (1A)(b) specifically provides that the Police Commissioner may notify the Commissioner that investigative information exists in relation to a relevant person regardless of when the act or omission occurred or is alleged to have occurred. This enables the Police Commissioner to provide investigative information to the Commissioner from 17 January 2005, regardless of the fact that the investigation in relation to the alleged act or omission may have occurred prior to this time. Clause 38 amends section 126 of the CCYPCG Act by including a cross- reference to a report to the Minister under (amended) section 163. In effect, this amendment confirms that it is permissible for employment screening information about a person, which has been obtained under Part

30 Constitutional and Other Legislation Amendment Bill 2005 6 of the Commission for Children and Young People and Child Guardian Act 2000, to be used to inform that report. Clause 39 amends section 152 of the CCYPCG Act. Subclause (1) inserts a new subsection 152(2A) to enable the Minister, in that capacity, to receive certain employment screening information (whether written or verbal) from the Commissioner, under section 163, without being in breach of the confidentiality requirements under section 152. Subclause (2) inserts two new paragraphs 152(4)(ba) and (bb) to enable a person who is, or who has been the Minister or staff of the Minister, a public service officer of the department, Commissioner, or staff member of the Commission, to disclose information or give access to a document relating to a person's criminal history gained in that capacity, in order to obtain or provide advice to the Minister, relating to that employment screening information. Subclause (3) amends subsection 152(4)(d) to clarify that disclosure of, or access to, confidential information, where it is authorised for a report to the Minister under section 163, is not an offence under section 152(3). Subclause (4) then renumbers section 152(4)(ba) to (d) as 152(4)(c) to (f) as a consequence of inserting paragraphs (ba) and (bb). Clause 40 amends section 153 of the CCYPCG Act. Subclause (1) and (2) insert new paragraphs 153(3)(aa) and (ba) to provide that the Minister, staff of the Minister, or public service officer of the department are subject to a maximum penalty of 100 penalty units ($7,500) if they make a record, intentionally disclose (unless authorised under section 153(4)), or recklessly disclose to anyone, confidential information that has been gained through the administration of the Commission for Children and Young People and Child Guardian Act 2000. Subclause (3) renumbers paragraphs 153(3)(aa) to (d) as subsections 153(3)(a) to (f) as a consequence of the inserting paragraphs (aa) and (ba). Subclause (4) inserts a new subsection 153(5). Subsection (5) makes clear that under subsection (4), an authorised purpose under the Commission for Children and Young People and Child Guardian Act 2000 includes making a record or disclosing information to the Minister or staff of the Minister, public service officer of the department, Commissioner, or staff member of the Commission, in order to obtain or provide advice relating to a report to the Minister under section 163. Clause 41 amends section 161 of the CCYPCG Act. Subclauses (1) and (2) insert new paragraphs 161(3)(aa) and (ba) to provide that the Minister, staff

31 Constitutional and Other Legislation Amendment Bill 2005 of the Minister, and public service officers of the department, are also afforded protection from civil liability for acts done or omissions made honestly and without negligence, under the Commission for Children and Young People and Child Guardian Act 2000. Subclause (4) renumbers subsections 161(3)(aa) to (d) as subsections (a) to (f) as a consequence of inserting paragraphs (aa) and (ab). Clause 42 deletes existing section 163 of the CCYPCG Act (Other reports relating to commissioner's functions) and replaces it with new section 163 (Other reports by commissioner). This amendment enables the Commissioner to provide reports to the Minister in relation to the administration of the Commission for Children and Young People and Child Guardian Act 2000, including the Commissioner's performance, and exercise of functions and powers, both on request of the Minister, or on the Commissioner's own motion. The clause further clarifies the report to the Minister may include any employment screening information about a person, which is subject to the confidentiality requirements under sections 126, 152(1)(b) or 153. Clause 43 amends section 163A of the CCYPCG Act by inserting new paragraph (c) to provide that the annual report for the Commission for Children and Young People and Child Guardian must include the number of times the Minister asked the Commissioner to provide a report under section 163 during the year. Clause 44 inserts after existing section 195 of the CCYPCG Act, a new part 9 division 8 (Further transitional provisions for the Commission of Children and Young People and Child Guardian Amendment Act 2004), comprising new sections 196 to 206. New section 196 inserts definitions relevant to the transitional provisions for the following terms: commencement, post-amended Act, pre-amended Act, relevant applicant, relevant application, and suitability notice. New section 197 states that the purpose of new division 8 of part 9 is to clarify and declare which legislation is to be applied in particular circumstances to: (a) outstanding applications for suitability notices received prior to 17 January 2005; and (b) outstanding applications and assessments relevant to whether or not a suitability notice should be cancelled, where the assessment or application was commenced before 17 January 2005.

32 Constitutional and Other Legislation Amendment Bill 2005 Whether the application for a suitability notice or the assessment or application relevant to whether the suitability notice should be cancelled is determined under the pre-amended or amended Act, will depend on whether particular additional information has been received by the Commissioner on or after 17 January 2005. New section 198 declares the law in relation to applications for suitability notices received by the Commissioner prior to 17 January 2005, which were outstanding at commencement, and in relation to which the Commissioner has not received any police information or disciplinary information on or after 17 January 2005. These applications are to be assessed and determined in accordance with the pre-amended Act. The section also provides that once a decision has been made in relation to the outstanding application, a prescribed notice is to be issued under the amended Act and that the amended Act will apply to the prescribed notice from that time. However, the exception to this is if a negative notice is issued, the applicant is only entitled to apply for a review of the Commissioner's decision under the pre-amended Act. The pre-amended Act will therefore apply to the application for review, the review, any decision on review, and any appeal in relation to the decision. New section 199 declares the law in relation to applications for suitability notices received by the Commissioner prior to 17 January 2005, which were outstanding at commencement, and in relation to which the Commissioner has received police information or disciplinary information on or after 17 January 2005. These applications are to be assessed and decided in accordance with the amended Act. The amended Act will then continue to apply to the prescribed notice, in particular in relation to any application for review, the review, any decision on review, and any appeal in relation to the decision. New section 200 validates decisions made by the Commissioner in relation to applications for suitability notices received before 17 January 2005 but decided between 17 January 2005 and the commencement of this section. These decisions are deemed valid irrespective of whether the pre-amended or amended legislation was applied in deciding the application. The section also provides that once a decision has been made by the Commissioner, irrespective of whether it was made under the pre-amended or amended legislation, the amended legislation applies. The only circumstance in which the pre-amended Act continues to apply is in

33 Constitutional and Other Legislation Amendment Bill 2005 relation to an application for review of a decision of the Commissioner made under the pre-amended Act to issue a negative notice. In this circumstance the pre-amended Act applies to any application for review, the review, any decision on review, and any appeal in relation to the decision. Similarly, if the application was decided under the amended Act, the amended Act will apply to the application for review, the review, any decision on review, and any appeal in relation to the decision. New section 201 clarifies the mechanism by which information is communicated between the Commissioner and Police Commissioner in relation to applications for suitability notices received by the Commissioner prior to 17 January 2005 but which are outstanding at commencement of this section. This section clarifies that a relevant application as defined in section 196 is deemed to be an application for a prescribed notice that has not been withdrawn for the purposes of section 122 and section 122A. This ensures that the Commissioner can receive all police information from the Police Commissioner and take this information into account when assessing an outstanding application, regardless of when the application for a suitability notice was made. New section 202 declares the law to be applied in relation to suitability notices about which the Commissioner received, prior to 17 January 2005, either an application to cancel the suitability notice (under sections 118 or 119 of the pre-amended Act), or information relevant to whether the suitability notice might be cancelled (pursuant to section 119 of the pre- amended Act), but no decision had been made at commencement in relation to the application or assessment. In these circumstances, the application or assessment relevant to the potential cancellation of the suitability notice was commenced prior to 17 January 2005 and accordingly the pre-amended Act will be applied in determining the application or assessment. The exception to this is if further information relating to the suitability notice is received by the Commissioner on or after 17 January 2005 which would invoke the operation of section 119(1) or (2) of the amended Act. In this circumstance, the post-amended Act is to be applied in determining the application or assessment. This section also provides that once a decision has been made by the Commissioner, irrespective of whether it is made under the pre-amended or

34 Constitutional and Other Legislation Amendment Bill 2005 amended legislation, the amended legislation applies. The only circumstance in which the pre-amended Act continues to apply is in relation to an application for review of a decision of the Commissioner made under the pre-amended Act to issue or refuse to cancel a negative notice. In this circumstance, the pre-amended Act applies to any application for review, the review, any decision on review, and any appeal in relation to the decision. New section 203 validates decisions made by the Commissioner between 17 January 2005 and the commencement of this section, to cancel, or refuse to cancel, a suitability notice under sections 118 or 119, regardless of whether the pre-amended or post-amended legislation was applied in making this decision. The section also stipulates that the amended Act now applies in relation to the cancellation or refusal, irrespective of whether the decision was based on the pre-amended or amended legislation. However an exception applies where the Commissioner made a decision to cancel or refuse to cancel, a suitability notice under the pre-amended legislation. In this case, the pre- amended Act continues to apply to any application for review, the review, any decision on review, and any appeal in relation to the decision. New section 204 declares that where the Commissioner made a decision prior to 17 January 2005 which resulted in an application for review being made before commencement of this section ("a previous application for review") and in relation to which a final decision has not been made by the Tribunal as at commencement, the pre-amended Act will apply to the application for review, the review, any decision on review and any appeal in relation to the decision. The section also provides that if before commencement the Tribunal had started to hear a previous application for review but had not made a final decision it may for the purposes of subsection (1) exercise its powers under the Children Services Tribunal Act 2000 and issue directions in relation to the previous application for review and the hearing. The section also stipulates that if, as at commencement, the Tribunal has made a final decision in relation to a previous application for review, the pre-amended Act will apply in relation to any appeal arising from the decision. Likewise where the Tribunal has, before commencement, made a decision in relation to a previous application for review to set aside the decision of the Commissioner and return it to the Commissioner for reconsideration the pre-amended Act will apply to the reconsideration.

35 Constitutional and Other Legislation Amendment Bill 2005 New section 205 declares that the amended Act applies in relation to suitability notices issued by the Commissioner: · under the Commission for Children and Young People and Child Guardian Act 2000 prior to being amended by the Commission for Children and Young People and Child Guardian Amendment Act 2004, which at 17 January 2005 were current; and · prescribed notices issued between 17 January 2005 and before this Act commenced. For these notices, the Commission for Children and Young People and Child Guardian Act 2000 as amended by this Bill now applies, unless a provision in Part 9, division 8 states that the pre-amended legislation applies, or Part 9, Division 7 otherwise provides. New section 206 states that where in an Act or in a document a reference is made to a "prescribed notice", if appropriate in the context it should be taken to be a reference to a "suitability notice" under the Commission for Children and Young People and Child Guardian Act 2000 prior to being amended by the Commission for Children and Young People and Child Guardian Amendment Act 2004. Reference is to be made to the following table regarding the application of the amendments. Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS

36 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review Application for Pre-amended 198(1), Post-amended Act 198(5) Pre-amended 198(6) suitability notice: Act (2) (except in relation 198(3), Act ² received before to reviewing (4) 17/01/2005 decision to issue a ² not decided as negative notice) at 17/01/2005 Prescribed notice, ² not decided at whether positive or commencement negative, is issued of amendments under the post- ² no police or amended Act disciplinary information received on or after 17/01/05 (and before decision to issue positive or negative notice made)

37 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review Application for Post- 199 Post-amended Act 199 Post- 199 suitability notice: amended Act amended Act ² received before 17/01/2005 ² not decided as at 17/01/2005 ² not decided at commencement of amendments ² police or disciplinary information received on or after 17/01/05 (and before decision to issue positive or negative notice made)

38 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS Application to Pre-amended 202(1) Post-amended Act 202(3) Pre-amended 202(4) cancel negative Act & (2) (except in relation Act notice (under to reviewing a s.118): decision not to ² received before cancel a negative 17/01/2005 notice) ² not decided as at 17/01/2005 ² not decided at commencement of amendments ² no information received on or after 17/01/05 (and before decision whether or not to cancel suitability notice) which would allow a power under s 119 (1) or (2) of the amended Act to be exercised

39 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review Application to Post- 202(5) Post-amended Act 202(6) Post- 202(6) cancel negative amended Act & (6) amended Act notice (under s.118): ² received before 17/01/2005 ² not decided as at 17/01/2005 ² not decided at commencement of amendments information received on or after 17/01/05 (and before decision whether or not to cancel suitability notice) which would allow a power under s 119 (1) or (2) of the amended Act to be exercised.

40 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS Wrong, Pre-amended 202(1) Post-amended Act 202(3) Pre-amended 202(4) incomplete, or Act & (2) (except in relation Act new information to reviewing a about a suitability decision to issue, or notice (under not to cancel, a s.119): negative notice) ² received before 17/01/2005 ² not decided as at 17/01/2005 ² not decided at commencement of amendments ² no information received on or after 17/01/05 (and before decision whether or not to cancel suitability notice) which would allow a power under s 119 (1) or (2) of the amended Act to be exercised

41 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review Wrong, Post- 202(5) Post-amended Act 202(6) Post- 202(6) incomplete, or amended Act & (6) amended Act new information about a suitability notice (under s.119): ² received before 17/01/2005 ² not decided as at 17/01/2005 ² not decided at commencement of amendments ² information received on or after 17/01/05 (and before decision whether or not to cancel suitability notice) which would allow a power under s 119 (1) or (2) of the amended Act to be exercised.

42 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS Application for N/A N/A Post-amended Act 205 Pre-amended 204 review: Act ² made before commencement of this Bill ² in relation to a decision of the Commissioner made under pre-amended Act prior to 17 January 2005 ² no final decision has been made by the Tribunal as at commencement of this Bill

43 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review MATTERS DECIDED ON OR AFTER 17/01/05 AND BEFORE COMMENCEMENT OF THESE AMENDMENTS Application for Decisions 200(1), Post-amended Act 200(2) Pre-amended 200(3) suitability notice: made under (2) (except in relation Act ² received before pre-amended to reviewing 17/01/2005 Act (to issue decision to issue a ² not decided as a positive or negative notice) at 17/01/2005 negative ² decided on or notice) are after 17/01/05 validated and before commencement of amendments ² decided under pre-amended Act MATTERS DECIDED ON OR AFTER 17/01/05 AND BEFORE COMMENCEMENT OF THESE AMENDMENTS Application for Decisions 200(1), Post-amended Act 200(4) Post- 200(4) suitability notice: made under (4) amended Act ² received before post- 17/01/2005 amended Act ² not decided as (to issue a at 17/01/2005 positive or ² decided on or negative after 17/01/05 notice) are and before validated commencement of amendments ² decided under post-amended Act

44 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review Application to Decisions 203(1) Post-amended Act 203(3) Pre-amended 203(2) cancel negative made under (except in relation Act notice (under pre-amended to reviewing (right of s.118): Act (to decision to refuse review only ² received before refuse to to cancel a negative applies in 17/01/2005 cancel a notice) relation to ² not decided as negative refusal to at 17/01/2005 notice or to cancel a ² decided on or cancel a negative after 17/01/05 negative notice and before notice) are there is no commencement validated right of of amendments review in ² decided under respect of a pre-amended decision to Act (to refuse cancel a to cancel negative negative notice notice and or to cancel a issue a negative notice) positive notice)

45 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review MATTERS DECIDED ON OR AFTER 17/01/05 AND BEFORE COMMENCEMENT OF THESE AMENDMENTS Application to Decisions 203(1) Post-amended Act 203(3) Post- 203(3) cancel negative made under amended Act notice (under post- (right of s.118): amended Act review only ² received before (to refuse to applies in 17/01/2005 cancel a relation to ² not decided as negative refusal to at 17/01/2005 notice) are cancel a ² decided on or validated negative after 17/01/05 notice and before there is no commencement right of of amendments review in ² decided under respect of a post-amended decision to Act (to refuse cancel a to cancel negative negative notice notice and or to cancel a issue a negative notice) positive notice)

46 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review Decisions 203(1) Post-amended Act 203(3) Pre-amended 203(2) Wrong, incomplete, or made under (except in relation Act new information pre-amended to reviewing (application about a suitability Act (to decision cancel a for review notice (under cancel a positive notice or only applies s.119): positive refuse to cancel a in relation to ² received before notice or negative notice) decision to 17/01/2005 refuse to cancel a ² not decided as cancel a positive at 17/01/2005 negative notice or ² decided on or notice or to refuse to after 17/01/05 cancel a cancel a and before negative negative commencement notice and notice of amendments substitute a there is no ² decided under positive right of pre-amended notice) review of a Act (to cancel a decision to positive notice cancel a or refuse to negative cancel a notice and negative notice issue a or to cancel a positive negative notice notice). and substitute a positive notice)

47 Constitutional and Other Legislation Amendment Bill 2005 Circumstances Law Authority Law Commissioner to Authority Law to apply in Authority Commissioner apply post decision relation to to apply in review of making Commissioner's decision decision and any (about appeal in application / relation to a information) decision on review MATTERS DECIDED ON OR AFTER 17/01/05 AND BEFORE COMMENCEMENT OF THESE AMENDMENTS Wrong, Decisions 203(1) Post-amended Act 203(3) Post- 203(3) incomplete, or made under amended Act new information post- (application about a suitability amended Act for review notice (under (to cancel a only applies s.119): positive in relation to ² received before notice or decision to 17/01/2005 refuse to cancel a ² not decided as cancel a positive at 17/01/2005 negative notice or ² decided on or notice or to refuse to after 17/01/05 cancel a cancel a and before negative negative commencement notice and notice of amendments substitute a there is no ² decided under positive right of post-amended notice) review of a Act (to cancel a decision to positive notice cancel a or refuse to negative cancel a notice and negative notice issue a or to cancel a positive negative notice notice). and substitute a positive notice)

48 Constitutional and Other Legislation Amendment Bill 2005 Part 5--Amendments of other legislation Clause 45 provides that the schedule amends the Acts and regulation mentioned in it. Schedule--Minor and consequential amendments The Anti-Discrimination Act 1991 is amended by inserting a new subsection 106A(3A) to provide that the Anti-Discrimination Act 1991 has no effect on the imposition of a compulsory retirement age on a Supreme or a District Court Judge under the Constitution of Queensland 2001, section 60. Section 106A(3A) and (4) are renumbered as 106A(4) and (5) as a consequence of inserting the new subsection. The Crime and Misconduct Act 2001, section 70(1), is amended by replacing references to section 61 of the Constitution of Queensland 2001 with references to section 61A (Establishment of a tribunal) of the Constitution of Queensland 2001. The District Court Act 1967 is amended by omitting section 14(1) and (2) and inserting a new subsection providing that the Constitution of Queensland 2001, section 60, provides for the retirement age of judges. Section 20 of the Justices of the Peace and Commissioners for Declarations Act 1991 is amended to provide a justice of the peace with the option of whether to take or make the oath or affirmation of allegiance to the Crown by providing for the alternative of an oath or affirmation of loyalty and of office. Minor amendment are made to section 11(4) of the Magistrates Act 1991, and new section 62 of the Magistrates Act is inserted which provides that the amendment of the Magistrates Regulation 2003 by this amending legislation does not affect the power of the Governor in Council to further amend the regulation or repeal it. Section 3 of the Magistrates Regulation 2003 is amended to provide a Magistrate with the option of whether to take or make the oath or affirmation of allegiance to the Crown by providing for the alternative of an oath or affirmation of loyalty and of office.

49 Constitutional and Other Legislation Amendment Bill 2005 The Oaths Act 1867 is amended by inserting a new section 5B, which provides a person who is required under an Act or otherwise to take an oath of allegiance with the alternative of taking an oath of loyalty, as specified in that section. The Supreme Court of Queensland Act 1991 is amended by omitting section 23(1) and 23(2) and inserting a new subsection which provides that the Constitution of Queensland 2001, section 60, provides for the retirement age of judges. © State of Queensland 2005

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