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1
Constitution of Queensland 2001
CONSTITUTION OF QUEENSLAND 2001
EXPLANATORY NOTES
Title of the Bill
Constitution of Queensland 2001
Policy Objectives of the Bill
The Constitution is the fundamental law about how the people of
Queensland are governed, yet not since 1867 has there been a consolidated
or single Act of Parliament which sets out Queensland's constitutional
arrangements.
Further, many of the provisions of the ten or so principal pieces of
Queensland constitutional legislation were drafted using antiquated
language, making them difficult to read and to understand.
The primary objective of this Bill is to enhance public access to, and
understanding of, Queensland's Constitution by:
· consolidating, as far as practicable, Queensland's constitutional
provisions into one Act; and
· modernising the drafting style of Queensland's constitutional
provisions so that they might be more easily read and
understood.
Consolidation of the Queensland Constitution has been the source of
ongoing examination for over eight years by various independent
commissions and parliamentary committees and, more recently, by the
Government.
The Government acknowledges and commends the important
contribution made to the development of this Bill, and its companion Bill,
the Parliament of Queensland Bill 2001, by the Electoral and
Administrative Review Commission (1993), the Parliamentary Committee
for Electoral and Administrative Review (1993-1994), the Parliamentary
Legal, Constitutional and Administrative Review Committee (1996-2001)
and the Queensland Constitutional Review Commission (1999-2000).
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Constitution of Queensland 2001
Significantly, the Constitution of Queensland 2001 and the Parliament of
Queensland Bill 2001 are, to a large extent, based on the Bills
recommended by the Legal, Constitutional and Administrative Review
Committee in its Consolidation of the Queensland Constitution: Final
Report (report no. 13, April 1999) and Review of the Queensland
Constitutional Review Commission's recommendations relating to a
consolidation of the Queensland Constitution (report no. 24, July 2000).
Achieving the Policy Objectives of the Legislation
The consolidation of the Queensland Constitution has been largely
achieved by re-enacting in the Constitution of Queensland 2001, in modern
language, the constitutional provisions contained in the following Acts:
· Constitution Act 1867;
· Legislative Assembly Act 1867;
· Constitution Act Amendment Act 1890;
· Constitution Act Amendment Act 1896;
· Officials in Parliament Act 1896;
· Demise of the Crown Act 1910;
· Constitution Act Amendment Act 1922;
· Constitution Act Amendment Act 1934;
· Royal Powers Act 1953;
· Constitution (Office of Governor) Act 1987;
· Parliamentary Papers Act 1992; and
· Parliamentary Committees Act 1995.
Provisions from these Acts that are incidental to the operation of the
Legislative Assembly have been consolidated into the companion Bill to
the Constitution of Queensland 2001, the Parliament of Queensland Bill
2001.
Provisions of a constitutional nature from the following Acts have also
been relocated into the Constitution of Queensland 2001:
· Oaths Act 1867;
· Acts Interpretation Act 1954;
· District Court Act 1967;
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Constitution of Queensland 2001
· Supreme Court of Queensland Act 1991;
· Electoral Act 1992; and
· Supreme Court Act 1995.
For the following reasons, the Bills are only able to achieve a partial,
albeit substantial, consolidation of Queensland's constitutional legislation:
· a number of provisions are said to be entrenched such that they
can only be repealed and relocated to the consolidated Bills if
first approved by a majority of voters at a referendum (see the
discussion following about entrenchment, also under the heading
`Achieving the Policy Objectives of the Legislation' in these
explanatory notes);
· the repeal and re-enactment of sections 30 and 40 of the
Constitution Act 1867, which relate to the Parliament's power to
deal with the waste lands of the Crown, is likely to be an invalid
future act under the Commonwealth Native Title Act 1993 in
which case it would be invalid under section 240A of that Act
(this is discussed in more detail in the explanatory notes relating
to chapter 6 (Lands) which follow); and
· the re-enactment of sections 23 of the Supreme Court of
Queensland Act 1991 and 14 of the District Court Act 1967,
which require Supreme and District Court Judges to retire at age
70, would be inconsistent with section 106A of the Anti-
Discrimination Act 1991 which seeks to phase out mandatory
retirement ages (this is discussed in more detail in the
explanatory notes relating to chapter 4 (Courts) which follow).
The consolidation of these provisions into the Constitution of
Queensland 2001 and the Parliament of Queensland Bill 2001 might be
achieved at some future date following further consideration of these
matters by the Legal, Constitutional and Administrative Review Committee
and, in the case of the entrenched provisions, endorsement by the voters of
Queensland at a referendum.
References to Provisions Consolidated
These notes explain each clause of the Constitution of Queensland 2001,
the clause's origins in existing law and any major changes that have been
made in rewording the existing provision(s) which the clause represents.
The notes also highlight proposed changes to existing law that might be
regarded as substantial in nature.
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Constitution of Queensland 2001
At the beginning of the notes to most parts of the Bill is a list of the
provisions of the existing law that are being consolidated by the
corresponding part of the Bill. The references to the existing law are
included as a guide only to the origins of the provisions of the Constitution
of Queensland 2001.
The Entrenched Provisions
The Legislative Assembly can consolidate the majority of Queensland's
constitutional provisions into a Constitution of Queensland by passing an
ordinary Act of Parliament. However, to wholly consolidate the existing
provisions of constitutional legislation would require a referendum as a
number of the provisions of the Constitution are said to be `entrenched'.
Entrenched provisions are laws that the Parliament has sought to protect
so that the laws may not be repealed or changed through normal law-
making procedures. Entrenched provisions may not be repealed, amended,
or affected (depending on the terms of the entrenchment) unless Parliament
follows certain special measures that are required, for example, first
obtaining the approval of electors at a referendum.
In Queensland, constitutional provisions that are said to be referendum
entrenched (the "entrenched provisions") are contained in the Constitution
Act 1867 (sections 1, 2, 2A, 11A, 11B and 53), the Constitution Act
Amendment Act 1890 (section 2) and the Constitution Act Amendment Act
1934 (sections 3 and 4). These provisions concern the establishment and
law-making power of the Parliament of Queensland and the Legislative
Assembly, the duration of the Parliament and matters pertaining to the
office of the Governor.
These provisions will not be relocated, therefore, into the Constitution of
Queensland 2001 and will remain in the Constitution Act 1867, the
Constitution Act Amendment Act 1890 and the Constitution Act Amendment
Act 1934.
The entrenched provisions have not been restated in modern drafting
style in the Bill in the manner recommended by the Legal, Constitutional
and Administrative Review Committee.
There is a concern that a court could find that modernised versions of the
entrenched provisions included in the Bill would impliedly repeal the
entrenched provisions by applying the general principle of statutory
interpretation that a later enactment will repeal an earlier inconsistent
provision. It may be open for a court to conclude that the fact the proposed
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Constitution of Queensland 2001
later provision purports to restate in modern language the precise effect of
the earlier provision demonstrates that the two provisions are in law
inconsistent and cannot stand together. In doing so, the court could strike
the whole Act down on the basis that Assent should not have been given to
a Bill which included a provision which had the effect of repealing the
entrenched sections until a referendum had been held.
This interpretation may be applied even if the Parliament expressed an
intention not to amend (or repeal) the entrenched provision. A court may
be forced to the conclusion that the Parliament's statement of intention is
inconsistent with the actual effect of what it has purported to do.
For these reasons, the entrenched provisions have not been modernised
and restated in the Bill. However, to ensure that Queensland's
constitutional legislation is as accessible as possible, signpost provisions
have been included in the Bill. These signpost provisions refer to the
entrenched provisions in their original Acts as containing the substantive
law about the various matters pertaining to the Parliament and the office of
the Governor. To further enhance accessibility, copies of the entrenched
provisions have been included in attachments 1, 2 and 3 of the Bill.
The Constitution of Queensland 2001, in particular, the inclusion of the
signpost provisions and attachments 1, 2 and 3, is not intended to expressly
or impliedly in any way affect the entrenched provisions.
Administrative Cost
The Bill largely re-enacts, with little substantive change, the existing law
relating to Queensland's constitutional arrangements. As a consequence,
the processes and procedures of the Parliament and the Executive
Government will be largely unchanged. The greatest administrative cost to
the Government from the enactment of the Bill will be updating references
in documentation to reflect the Constitution of Queensland 2001 and this
cost will be met within existing budgetary allocations.
Consistency with Fundamental Legislative Principles
The Bill is consistent with the fundamental legislative principles defined
in section 4 of the Legislative Standards Act 1992. Section 4 requires that
legislation has sufficient regard to:
(a) the rights and liberties of individuals; and
(b) the institution of Parliament.
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Constitution of Queensland 2001
The Bill has sufficient regard to the institution of Parliament as it
consolidates, in modern drafting style, the basic laws relating to the
Parliament, including the procedures and the powers, rights and immunities
of the Legislative Assembly, its members and committees.
Clause 9 of the Constitution of Queensland 2001 enhances the institution
of Parliament by declaring that the Assembly has the powers, rights and
immunities that the Commons House of Parliament of the United Kingdom
had at the establishment of the Commonwealth on 1 January 1901this
provision clarifies that Queensland does not inherit any post-1901 changes
made to the powers, rights and immunities of the House of Commons and
that any such changes in Queensland originate in the Queensland
Legislative Assembly.
The existing section 23 of the Supreme Court of Queensland Act 1991
and section 14 of the District Court Act 1967 require Supreme and District
Court judges to retire at age 70. These provisions have not been relocated
to the Bill as this would be inconsistent with the phased abolition of
mandatory retirement ages from legislation, which is the object of section
106A of the Anti-Discrimination Act 1991. Despite the object of section
106A, these provisions will remain in their current Acts as previous drafts
of the Constitution of Queensland have indicated that the mandatory
retirement age for judges would be preserved. (See the Government's
Discussion Draft Bills released in July 1999 and Exposure Draft Bills
released in January 2001, as well as draft Bills released by the Legal,
Constitutional and Administrative Review Committee.)
In the longer term, the desirability of retaining a mandatory retirement
age for judges will be referred for consideration to the Legal,
Constitutional and Administrative Review Committee (which has
constitutional reform and anti-discrimination within its areas of
responsibility).
Clause 79 of the Bill declares that the issue of compliance with certain
provisions of the Bill is not justiciable in any court. The clauses are:
· clause 31 (Requirements concerning commission and oath or
affirmation)section 5 of the Constitution (Office of Governor)
Act 1987;
· clause 40 (Delegation by Governor to Deputy
Governor)section 10 of the Constitution (Office of Governor)
Act 1987;
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Constitution of Queensland 2001
· clause 41 (Administration of Government by Acting
Governor) section 9 of the Constitution (Office of Governor)
Act 1987;
· clause 48 (Executive Council)section 6 of the Constitution
(Office of Governor) Act 1987; and
· clause 50 (Meetings of Executive Council)section 7 of the
Constitution (Office of Governor) Act 1987.
The clause re-enacts an existing provision, section 11 of the Constitution
(Office of Governor) Act 1987, with the objective of protecting the practical
administration of the State by ensuring that the validity of acts of the
Executive Government cannot be challenged on the basis that, for example,
the Governor has not made the oath or affirmation of allegiance and of
office in accordance with clause 31 of the Bill.
Consultation
The Bill was developed in consultation with:
· the Department of the Premier and Cabinet;
· the Crown Solicitor;
· the Department of Justice and Attorney-General; and
· the Office of the Queensland Parliamentary Counsel.
The Bill is also based on the work performed by the Electoral and
Administrative Review Commission, the Parliamentary Committee for
Electoral and Administrative Review, the Legal, Constitutional and
Administrative Review Committee and the Queensland Constitutional
Review Commission. Extensive public consultation has been undertaken
in the development of the Bill over a number of years through these
entities.
Further, the Queensland Government released drafts of its proposed Bills
in June 1999 and January 2001 for public comment and, in finalising the
Bills for introduction, sought comments from the Chief Justice of
Queensland, the Chief Judge of the District Court and the Local
Government Association of Queensland Inc. about specific aspects of the
Bill.
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Constitution of Queensland 2001
NOTES ON CLAUSES
CHAPTER 1--PRELIMINARY
Clause 1 of the Bill provides that the short title of the Act is to be the
Constitution of Queensland 2001. The omission of the word `Act' from the
short title serves to distinguish the Constitution from other Acts and, in
doing so, recognises its special status as the fundamental law of
Queensland.
Clause 2 provides that the Act commences on 6 June 2002, Queensland
Day. Queensland Day commemorates the anniversary of Letters Patent
establishing Queensland as a colony separate from New South Wales being
issued by Queen Victoria in 1859.
Clause 3 provides the object of the Bill--that the Bill brings together
existing constitutional provisions in a modernised form and declares them
to be the Constitution of Queensland. However, a note to the clause
recognises that certain entrenched and other provisions in current
constitutional legislation have not been consolidated and remain untouched
in their original Acts, for reasons explained elsewhere in these notes.
Clause 4 provides that a reference to the Sovereign in the Bill is a
reference to the reigning Queen or King, or Her or His heirs or successors, as
the case may be.
Clause 5 provides that a note in the text of the Act is part of the Act. A
number of examples also appear within the text of the Bill. For the
legislative effect of examples see sections 14(3) and 14D of the Acts
Interpretation Act 1954.
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Constitution of Queensland 2001
CHAPTER 2--PARLIAMENT
PART 1--CONSTITUTION AND POWERS OF
PARLIAMENT
Provisions consolidated:
· Constitution Act 1867, s 10 Power to alter system of representation
· Constitution Act 1867, s 28 Members of Assembly
· Constitution Act 1867, Powers, privileges and immunities of
s 40A Legislative Assembly
· Legislative Assembly Act Number of members of Assembly
1867, s 3
· Legislative Assembly Act One member for each electoral district
1867, s 4
Provisions signposted (but not consolidated):
· Constitution Act 1867, s 1 Legislative Assembly
· Constitution Act 1867, s 2 Legislative Assembly constituted
· Constitution Act 1867, s 2A The Parliament
Clause 6 states that section 2A of the Constitution Act 1867 provides for
the Parliament in Queensland. A note to this clause indicates that section
2A is subject to, or entrenched by, section 53 of that Act and a footnote
advises that a copy of sections 2A and 53 of the Constitution Act 1867 is
included at attachment 1 of the Act.
A further note to clause 6 indicates that section 3 of the Constitution Act
Amendment Act 1934 is also entrenched so as to require a referendum to re-
establish the Legislative Council or another legislative body in Queensland.
A footnote advises that a copy of section 3 of the Constitution Act
Amendment Act 1934 is included in attachment 3 to the Act.
Clause 7 states that section 1 of the Constitution Act 1867 provides for
there to be a Legislative Assembly in Queensland. A note to this clause
indicates that section 1 is subject to, or entrenched by, section 53 of that
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Constitution of Queensland 2001
Act and a footnote advises that a copy of sections 1 and 53 of the
Constitution Act 1867 is included at attachment 1 of the Act.
Clause 8 states that section 2 of the Constitution Act 1867 provides for
law-making power in Queensland. A note to this clause indicates that
section 2 is subject to, or entrenched by, section 53 of that Act and a
footnote advises that a copy of sections 2 and 53 of the Constitution Act
1867 is included at attachment 1 of the Act.
Clause 9 provides generally for the powers, rights and immunities of the
Legislative Assembly. The more specific provisions of the Constitution Act
1867 which deal with the Legislative Assembly's powers, rights and
immunities (Constitution Act 1867, sections 41 to 52) are consolidated in
chapter 3 of the Parliament of Queensland Bill 2001.
Clause 9 states that the powers, rights and immunities of the Legislative
Assembly, its members and committees are those defined under an Act (for
example, the Parliament of Queensland Bill 2001) and, until defined under
an Act, are those of the House of Commons of the United Kingdom as at
the establishment of the Commonwealth (1 January 1901).
Clause 10 provides that the Legislative Assembly consists of directly
elected members who are eligible to be elected by the inhabitants of
Queensland who are eligible to vote. Clause 10 faithfully reproduces the
essence of the existing section 28 of the Constitution Act 1867,
modernising the provision and updating the references in the footnotes.
Clause 11 provides that the Legislative Assembly is to consist of 89
members.
Clause 12 provides that the State is to be divided into the same number
of electoral districts as there are members of the Legislative Assembly (that
is, 89). A note advises that the Electoral Act 1992 sets out the process for
dividing the State into electoral districts.
Clause 13 provides that each member of the Legislative Assembly is to
represent one electoral district.
Clause 14 provides that Parliament has the specific power to alter the
system of electoral representation.
Clauses 10 to 14 recognise the democratic and representative nature of
Queensland's Parliament by providing for the members of the Legislative
Assembly to be directly elected by the eligible voters of Queensland, for
the State to be divided into electoral districts and for each member to
represent one electoral district.
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Constitution of Queensland 2001
PART 2--PROCEDURAL REQUIREMENTS FOR THE
LEGISLATIVE ASSEMBLY
Provisions consolidated:
· Constitution Act 1867, s 3 One session of Parliament to be held each
year
· Constitution Act 1867, s 12 Place and time of holding Parliament
· Constitution Act 1867, s 27 Constitution of Legislative Assembly
Provisions signposted (but not consolidated):
· Constitution Act Amendment Duration of Legislative Assembly to be 3
Act 1890, s 2 years only
Clause 15 empowers the Governor to summon the Assembly and, when
the Governor considers it expedient, to prorogue or dissolve the Assembly.
Clause 16 states that section 2 of the Constitution Act Amendment Act
1890 provides for the duration of the Legislative Assembly. A note to this
clause indicates that section 2 is subject to, or entrenched by, section 4 of the
Constitution Act Amendment Act 1934 and a footnote advises that a copy of
these sections is included at attachment 2 of the Act.
Clause 17 clarifies that on the ending of the Sovereign's reign, the
Assembly continues in existence, subject to its dissolution by the Governor,
for as long as it would have continued if the Sovereign's reign had not
ended.
Clause 18 empowers the Governor to set the time and place for holding
Parliament as the Governor considers appropriate.
Clause 19 prescribes how regularly the Parliament must sit. The
Legislative Assembly must sit at least twice in every calender year.
Further, six months must not pass between a sitting of the Legislative
Assembly and the next sitting of the Legislative Assembly.
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Constitution of Queensland 2001
PART 3--APPROPRIATION FOR LEGISLATIVE
ASSEMBLY
Clause 20 provides that there must be a Bill, separate from any other Bill
for appropriations, for the Assembly and the parliamentary service. This
has been the practice for a number of years.
PART 4--MEMBERS
Division 1--Generally
Provisions consolidated:
· Constitution Act 1867, s 4 No member to sit or vote until the
member has taken the following oath of
allegiance
· Constitution Act 1867, s 5 Affirmation may be made instead of oath
· Constitution Act 1867, s 7 Election of disqualified persons void
· Electoral Act 1992 s 83(1) Who may be nominated
Clause 21 is a basic statement about eligibility to be a candidate and to
be elected as a member of the Legislative Assembly. Subclause (1)
provides that a person is eligible if the person:
· is an adult Australian citizen living in Queensland;
· has any further qualification required under an Act; and
· is not disqualified under an Act.
Subclause (2) provides that subsection (1) is subject to any conditions
imposed by an Act. For example, in order for a person to nominate as a
candidate for election, an Act may require a person to nominate by a certain
time or to pay a fee. The Act may further provide that failure to meet these
conditions precludes the person from being a candidate for election.
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Constitution of Queensland 2001
Clauses 64 and 72 of the Parliament of Queensland Bill 2001 are where
most existing provisions regarding the eligibility and disqualification of
candidates and the disqualification of sitting members are consolidated.
Clause 22 requires a member of the Legislative Assembly to take the
oath of allegiance and of office provided in schedule 1, or to make a
corresponding affirmation, before the member can sit or vote in the
Assembly. Subclause (3) declares that the member takes the member's seat
in the Legislative Assembly upon taking the oath or making the affirmation
required by subclause (1).
Division 2--Members who are Ministers or Parliamentary Secretaries
Provisions consolidated:
· Constitution Act 1867, s 57 Appointment of Parliamentary
Secretaries
· Constitution Act 1867, s 58 Functions of Parliamentary Secretary
· Constitution Act 1867, s 59 Duration of appointment as
Parliamentary Secretary
· Officials in Parliament Act Parliamentary Secretary not officer liable
1896 s 6(1) to retire on political grounds
Clause 23 refers the reader to chapter 3, part 3 for provisions relating to
the appointment of members of the Legislative Assembly as Ministers or
acting Ministers.
Clause 24 provides for the Governor in Council to appoint members of
the Legislative Assembly as Parliamentary Secretaries. A Minister or
member of the Executive Council may not be appointed as a Parliamentary
Secretary.
Clause 25 provides that a Parliamentary Secretary has the functions
decided by the Premier.
Clause 26 sets out when the appointment of a Parliamentary Secretary
ends.
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Constitution of Queensland 2001
CHAPTER 3--GOVERNOR AND EXECUTIVE
GOVERNMENT
PART 1--INTERPRETATION
Provisions consolidated:
· Acts Interpretation Act Definitions"Governor in Council"
1954 s 36
Clause 27 states that the Governor in Council is the Governor acting
with advice of the Executive Council.
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Constitution of Queensland 2001
PART 2--GOVERNOR
Provisions consolidated:
· Constitution Act 1867, s 14 Officers liable to retire from office on
political grounds
· Constitution (Office of Governor
Governor) Act 1987, s 3
· Constitution (Office of Authorities and powers of Governor
Governor) Act 1987, s 4
· Constitution (Office of Publication of Governor's commission-
Governor) Act 1987, s 5 declaration of Governor's allegiance
· Constitution (Office of Specific power of Governor
Governor) Act 1987, s 8
· Constitution (Office of Administration of Government in
Governor) Act 1987, s 9 absence etc. of Governor
· Constitution (Office of Appointment of deputy for Governor
Governor) Act 1987, s 10
· Royal Powers Act 1953, s 2 Exercise of statutory powers by Her
Majesty
Provisions signposted (but not consolidated):
· Constitution Act 1867, Office of Governor
s 11A
· Constitution Act 1867, Definition of Royal Sign Manual
s 11B
This part contains provisions that relate to the office of Governor.
The Constitution (Office of Governor) Act 1987 was introduced to give
legislative effect to the Letters Patent issued by Her Majesty The Queen on
14 February 1986 (proclaimed by the Governor on 6 March 1986). Those
Letters Patent reconstituted the office of Governor in anticipation of the
commencement of the Australia Acts 1986 (Cth and Imp) on 3 March 1986.
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Constitution of Queensland 2001
Section 13 of the Constitution (Office of Governor) Act 1987 suspended
the operation of the 1986 Letters Patent so long as the various provisions of
the Constitution (Office of Governor) Act 1987 were in force. This Bill
repeals the Constitution (Office of Governor) Act 1987 and the 1986 Letters
Patent, however, section 13 of the Act is not re-enacted in this Bill. This
follows recommendations made by the Electoral and Administrative
Review Commission and the Parliamentary Legal, Constitutional and
Administrative Review Committee to repeal the 1986 Letters Patent on the
basis that all of the matters previously dealt with by the Letters Patent are
contained in this Bill and there is now sufficient protection to deter any
unconsidered amendment or repeal of those provisions by a future
Parliament.
The Australia Acts themselves confirm the status and functions of the
Governors of each State.
Section 7 of the Australia Acts provides that:
· the Governor is the Queen's representative in each State;
· all powers and functions of the Queen in respect of each State are
exercisable only by the Governor, but this:
-- does not apply to the power to appoint and to terminate the
appointment of the Governor; and
-- does not preclude the Queen, while personally present in the
State, from exercising any of the Queen's powers and
functions in respect of the State (see the notes to clause 40);
and
· the Premier shall advise the Queen in relation to the powers and
functions of the Queen in respect of the State.
Section 7 describes the powers and functions of the Queen as being
exercisable "only" by the Governor to avoid the possibility of Her Majesty
being advised to override a decision reached by the Governor, or of Her
Majesty being advised to act in respect of a matter which has not been
placed before the Governor. Section 7 was framed this way at Her
Majesty's suggestion.
Clause 28 defines the Royal Sign Manual for chapter 3, part 2 of the Bill
to mean the signature or royal hand of the Sovereign. This is a restatement
of the definition of Royal Sign Manual contained in section 11B of the
Constitution Act 1867 with minimal stylistic changes.
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Constitution of Queensland 2001
(Section 11B of the Constitution Act 1867, is currently entrenched by the
requirement for a referendum under section 53 of the Constitution Act
1867. However, clause 28 does not trigger the requirement for a
referendum because it merely applies the definition in section 11B for the
relevant part of the Bill without in any way affecting section 11B itself.)
Clause 29 provides for the office of Governor of Queensland. The
Governor is appointed by commission under the Royal Sign Manual.
Clause 30 states that sections 11A and 11B of the Constitution Act 1867
provide for the office of Governor. A note to this clause indicates that
sections 11A and 11B are subject to, or entrenched by, section 53 of that Act
and a footnote advises that a copy of sections 11A, 11B and 53 of the
Constitution Act 1867 is included at attachment 1 of the Act.
Clause 31 provides that a person appointed as Governor must do certain
things before the person undertakes any duties of that office.
Firstly, the appointee must ensure that the commission of his or her
appointment is read and published at the seat of government of the State
(that is, Brisbane). Secondly, the appointee must make the oath or take the
affirmation of allegiance and of office contained in schedule 1. Both of
these things must be done in the presence of the Chief Justice (or next most
senior judge of the Supreme Court who is able to act) and at least two
Executive Councillors.
In the past, the reading of the Governor's commission and taking or
making of the oath or affirmation occurs at a swearing-in ceremony held at
Parliament House in Brisbane. The commission is then published in the
Queensland Government Gazette.
Clause 32 provides that the appointment of a person as Governor may be
terminated only by instrument under the Royal Sign Manual. Importantly,
the instrument takes effect only on its publication in the gazette or at a later
time stated in the instrument.
Clause 33 authorises the Governor to do all things that belong to the
Governor's office under any law. The long held democratic convention
fundamental to the Westminster system of government requires the
Governor to act in accordance with advice from his/her Ministers.
Clause 34 provides that the power to appoint and dismiss Ministers is
vested in the Governor alone by providing for Ministers to hold office at the
pleasure of the Governor. The clause further provides that the Governor is
not subject to direction by any person and is not limited as to his or her
sources of advice in exercising the power to appoint and dismiss Ministers.
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Constitution of Queensland 2001
More specific provision about the appointment of Ministers in contained in
clause 43 of the Bill.
Clause 35 empowers the Governor--so far as it is in the Governor's
power to do so and if the Governor considers there is sufficient cause--to
remove or suspend from office a person appointed under authority of the
Sovereign. Clause 35 does not limit the operation of other provisions of
the Bill (for example, clause 61) or another Act.
The current phrase in section 8(a) of the Constitution (Office of
Governor) Act 1987, so far as it is within the powers of Her Majesty, is
replaced in clause 35(2) by the phrase, To the extent that it is within the
Governor's power. This is because the reference to the Sovereign's power
is redundant. Whatever power the Sovereign has to remove or suspend an
officer, the power is now vested solely in the Governor by section 7 of the
Australia Acts, except when the Sovereign is personally present in the State
(see section 7(4) of the Australia Acts and clause 39).
Clause 36 empowers the Governor, in the name of the Sovereign, to
grant an offender a pardon, a commutation of sentence or a reprieve of
execution of sentence or remission of a fine or other consequence of
conviction. Clause 36 does not limit the operation of another Act.
Clause 37 provides that the Governor may keep and use the Public Seal
of the State for sealing instruments made or passed in the Sovereign's
name.
Clause 38 has similar effect to clause 17 clarifying that upon the ending
of the Sovereign's reign, a seal for Queensland issued by the Sovereign
(which includes the Public Seal of the State and other seals such as the
Governor's seal), in existence immediately before the end of the
Sovereign's reign, may continue to be used until a new seal is issued by the
next Sovereign as if the Sovereign's reign had not ended.
Clause 39 provides, amongst other things, that when the Sovereign is
personally present in the State, the Sovereign may exercise any statutory
power exercisable by the Governor.
Section 7(2) of the Australia Acts terminated the Sovereign's power to
exercise all powers and functions of the Sovereign in respect of Queensland
except the power to appoint and dismiss the Governor (section 7(3)) and
except when the Sovereign is personally present in Queensland (section
7(4)). Thus, section 7(4) of the Australia Acts allows the Sovereign, when
present in Queensland, to exercise those powers which are actually vested
in the Sovereign. Clause 39(1) confers the additional power on the
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Constitution of Queensland 2001
Sovereign when present in Queensland to exercise any of the statutory
powers which are actually vested in the Governor.
Clause 40 provides for the delegation of the Governor's powers to a
Deputy Governor when the Governor is:
· temporarily absent for a short period from the seat of government
(irrespective of whether or not the Governor has left Queensland)
but not if that absence is due to the Governor administering the
Government of the Commonwealth; or
· ill for what is expected to be a short period.
In these circumstances, the Governor may delegate the Governor's
powers to the Lieutenant-Governor or, if there is no Lieutenant-Governor,
to the Chief Justice or, if the Chief Justice is unavailable, to the next most
senior judge of the Supreme Court of Queensland. The delegation must
specify the powers being delegated (that is, whether a Deputy Governor
can exercise and perform all, or only some, of the Governor's powers and
functions) and it must be made by an instrument under the Public Seal of
the State. There has not been a Lieutenant-Governor in Queensland since
1949.
Clause 40 refers to a `delegation' of the Governor's powers to a person
who serves as a Deputy Governor; the original provision (section 10 of the
Constitution (Office of Governor) Act 1987) refers to the `appointment' of
the Governor's deputy. Reference in the Bill to a delegation, rather than an
appointment, more accurately reflects the situation that is in fact currently
provided for by section 10 of the Constitution (Office of Governor) Act
1987.
As clause 40 now expressly refers to a delegation, subclauses 10(2) to
(4) of the Constitution (Office of Governor) Act 1987 are not re-enacted.
They are superfluous in light of sections 27A(1), (2) and (10) of the Acts
Interpretation Act 1954 and the insertion of `may' in clause 40(1).
Clause 41 provides that a specified person must administer the
Government whenever:
· the office of Governor becomes vacant;
· the Governor assumes the administration of the Government of
the Commonwealth;
· the Governor is absent from the State and a Deputy Governor is
not exercising the Governor's powers under a delegation under
clause 40; or
20
Constitution of Queensland 2001
· the Governor is incapable of performing the duties of office (for
example, because of a long term illness) and a Deputy Governor
is not exercising the Governor's powers under a delegation under
clause 40.
The person who must administer the government during these periods is
the Lieutenant-Governor or, if there is no Lieutenant-Governor available,
the Chief Justice or, if the Chief Justice is not available, the next most
senior judge of the Supreme Court of Queensland who is available and able
to act. There has not been a Lieutenant-Governor in Queensland since
1949.
The person who administers the Government of the State under this
clause acts in the office of Governor and performs the functions and
exercises the powers of the Governor under the title of Acting Governor.
Subclause (5) requires the person to have taken the oath or made the
affirmation in schedule 1 in the manner outlined in subclauses (6) and (7).
It is not necessary for the person to take the requisite oath (or make the
requisite affirmation) on every occasion prior to assuming the
administration of the Government of the State. It is sufficient that the
person has complied with subclause (5) at least once prior to assuming the
administration of the Government of the State.
The person must cease administering the Government when the
conditions outlined in clause 41(8) occur. That is, the Governor resumes
or, as there is currently no Lieutenant-Governor in Queensland, a judge
holding an office prior in title to administer the Government assumes the
administration of the Government.
The corresponding provision in existing law (section 9(4) of the
Constitution (Office of Governor) Act 1987) makes a distinction between
the manner in which the Governor notifies that he or she has resumed
administration of the State (by proclamation) and how a judge holding an
office prior in title assumes administration (by notification published in the
gazette upon the advice and under the hand of the Premier of the State).
Currently, in practice, a judge assuming the administration of the State
from another Administrator does so by also making a proclamation, which
satisfies the requirements of section 9(4) because it is counter-signed by the
Premier (signifying it is issued upon his advice) and published in the
gazette. For this reason, clause 41(8) makes provision for both the
Governor and a more senior Administrator to assume the administration of
the State by making a proclamation which, by continuing current practice,
will be published in the gazette.
21
Constitution of Queensland 2001
Clause 41 restates section 9 of the Constitution (Office of Governor) Act
1987 in such a way as to make it clear that section 24C of Acts
Interpretation Act 1954 (Acting appointments) applies to the clause. One
consequence is that the title of Administrator, given to the person who
would have assumed administration of the Government under the existing
section 9 of the Constitution (Office of Governor) Act 1987, is changed to
Acting Governor.
Other parts of this Bill also deal with specific powers and functions of
the Governor. These include:
· summoning, proroguing and dissolving the Legislative Assembly
(clause 15);
· setting the time and place for sessions of the Legislative
Assembly (clause 18);
· appointing and dismissing Ministers and acting Ministers
(clauses 34, 43, 45 and 46) and Executive Councillors
(clauses 48 and 49); and
· recommending Bills for the appropriation of amounts from or to
the consolidated fund (clause 68).
22
Constitution of Queensland 2001
PART 3--CABINET AND MINISTERS OF THE STATE
Provisions consolidated:
· Officials in Parliament Act Governor may declare what Ministers
1896 s 3(1) may sit in Legislative Assembly
· Officials in Parliament Act Sick leave
1896 s 3(2)
· Officials in Parliament Act When member of Legislative Assembly
1896 s 3(3) may act as officer
· Officials in Parliament Act Duties imposed by law on any Minister
1896 s 8 may be ordered to be performed by other
Minister
· Officials in Parliament Act Attorney-General is a Minister
1896 s 8A
· Acts Interpretation Act Administrative arrangements
1954 s 33(14)
Clause 42 provides statutory recognition for the first time in Queensland
of the existence of Cabinet which comprises the Premier and other
Ministers appointed under clause 43. The clause also provides a statement
reflecting the principle of collective ministerial responsibility. That is, that
Cabinet is collectively responsible to the people through the Parliament.
The statement is not intended in any way to alter the recognised
constitutional position of the Cabinet. The constitutional relationship
between the Cabinet and the Parliament recognised and practised by
convention prior to the enactment of this clause is to continue in the same
manner unaffected by the enactment of this clause.
Clause 43 provides for Ministers of the State.
While Queensland statutes are replete with references to Ministers, this
clause includes for the first time the word Ministers within the
constitutional provisions dealing with their appointment. Currently, the
antiquated phrase officers liable to retire from office on political grounds is
used to refer to Ministers in such fundamental provisions as section 14 of
the Constitution Act 1867 (clause 34 of this Bill), which provides that
23
Constitution of Queensland 2001
Ministers hold office at the pleasure of the Governor, and section 3(1) of
the Officials in Parliament Act 1896, which is the basis of this clause 43.
Clause 43(1) provides that the Governor, by proclamation, may declare
the Ministerial offices that are to comprise the Ministry. The proclamation
issued under this clause reflects current practice and is, in part, based on the
proclamation required to be issued under section 3(1) of the Officials in
Parliament Act 1896. Generally, this proclamation lists the Ministerial
officers in order of seniority.
Clause 43(2) provides that the Governor may appoint a person to be a
Minister of the State by commission. The subclause takes into account
section 14 of the Constitution Act 1867 and intends to give at least partial
effect to the existing section 3(1) of the Officials in Parliament Act 1896.
Clause 43(3) clarifies that the Attorney-General is a Minister. The clause
replicates Officials in Parliament Act 1896, section 8A. More detailed
provisions dealing with the functions and powers of the Attorney-General
are contained in the Attorney-General Act 1999.
Clause 43(4) provides that there are to be no more than 19 Ministers at
any one time. The clause is based on Officials in Parliament Act 1896,
section 3(1).
Subclauses 43(5) and (6) provide that a Ministerial appointee must take
the oath or make the affirmation of allegiance and of office in schedule 1.
The oath or affirmation must be made in the presence of the Governor or a
person authorised by the Governor to administer the oath.
Clause 44 provides that the Governor in Council may make
administrative arrangements for the distribution of the public business
among Ministers and the declaration of the administrative units, or some of
them or parts of them, and the Acts, or some of them or parts of them,
administered by Ministers. Administrative arrangements are made by
order published in the gazette.
(Note the proposed section 43A to be inserted into the Evidence Act
1977 included in the consequential amendments in schedule 2 of this Bill,
which provides for judicial notice to be taken of administrative
arrangements made under this provision.)
Clause 45 provides that the Governor may appoint a Minister to act for
another Minister. Clause 45 also provides that the Premier may appoint a
Minister to act for another Minister for a period of up to 14 days. In both
cases, the Minister may be appointed to perform all or part of the other
Minister's functions and exercise all or part of the other Minister's powers.
24
Constitution of Queensland 2001
Clause 118(1) of the Parliament of Queensland Bill 2001 provides for a
Minister acting as another Minister to be paid a higher additional salary in
certain circumstances.
Clause 46 provides that the Governor may appoint a member of the
Legislative Assembly to act for a Minister. Such an appointment, which is
made by proclamation, may be made when a Minister is absent from the
State in the course of Ministerial duties or when a Minister is absent from
duty due to sick leave approved under clause 47.
The member may be appointed to perform all or part of a Minister's
functions and exercise all or part of a Minister's powers. Before assuming
the duties of office, a member who is appointed to act as a Minister must
make the oath or affirmation of allegiance and of office in schedule 1
before the Governor or a person authorised by the Governor.
Clause 46(6) allows a member to be appointed to act as a Minister even
though there are already 19 Ministers, the maximum number allowed under
clause 43(4).
Clause 118(2) of the Parliament of Queensland Bill 2001 provides for
the member to be paid additional salary as a Minister if the member acts as
a Minister for a continuous period of 30 days or more.
Clause 47 provides for the Governor, by proclamation, to grant leave of
absence with pay--for a period not exceeding six months--for Ministers
who are ill.
25
Constitution of Queensland 2001
PART 4--EXECUTIVE COUNCIL
Provisions consolidated:
· Constitution (Office of Governor) Executive Council
Act 1987 s 6
· Constitution (Office of Governor) Meetings of Executive Council
Act 1987 s 7
Clause 48 provides for the Executive Council which consists of the
persons appointed as members of Executive Council by the Governor by
instrument under the Public Seal of the State. Before performing any
duties, an Executive Council appointee must take the oath or make the
affirmation of office and of secrecy contained in schedule 1.
Clause 49 provides that the appointment of a person as a member of
Executive Council ends upon:
· the person's resignation as a member of Executive Council; or
· the person's removal as a member of the Executive Council by
the Governor.
Clause 50 provides for Executive Council meetings. The clause requires
the Governor to preside over Executive Council meetings (even though the
Governor is not a `member' of the Executive Council as such) and specifies
who is to preside over meetings when the Governor is not able to do so.
The clause also provides that Executive Council may not meet to dispatch
business unless it has been summoned by the Governor's authority and the
defined quorum of at least two members is satisfied.
26
Constitution of Queensland 2001
PART 5--POWERS OF THE STATE
Provisions consolidated:
· Acts Interpretation Act Meaning of "State" in part
1954, s 47A
· Acts Interpretation Act Powers of the State
1954, s 47B
· Acts Interpretation Act Commercial activities by State
1954, s 47C
· Acts Interpretation Act Commercial activities by Minister
1954, s 47D
· Acts Interpretation Act Delegation by Minister
1954, s 47E
Division 1--General
Clause 51 declares that the State (the Executive Government of
Queensland) has all the powers and legal capacity of an individual and that
those powers may be exercised beyond the boundaries of Queensland.
Division 2--Commercial Activities
Clause 52 provides definitions for the division, including a wide
definition of "commercial activities", and a definition of "State" which
includes public sector units. Departments of government are public sector
units (see section 36 of the Acts Interpretation Act 1954).
Clause 53 is a statutory grant of power to the State (the Executive
Government) to carry out commercial activities.
Clause 54 provides that a Minister may carry out commercial activities
for the State.
Clause 55 provides that a Minister may delegate a power of the State to
an appropriately qualified officer of the State. In turn, an officer of the
State may sub-delegate delegated powers to another appropriately qualified
officer of the State.
27
Constitution of Queensland 2001
CHAPTER 4--COURTS
Provisions consolidated:
· Constitution Act 1867, s 15 Judges continued in the enjoyment of
their offices during their good behaviour
notwithstanding any demise of the Crown
· Constitution Act 1867, s 16 But they may be removed by the Crown
on the address of Parliament
· Constitution Act 1867, s 17 Their salaries secured during the
continuance of their commissions
· District Court Act 1967, s 4 Establishment of the District Court
· District Court Act 1967, s 9 Appointment and qualification of judges
· District Court Act 1967, Removal from office
s 15
· Supreme Court Act 1995, Commission of judges
ss 195
· Supreme Court Act 1995, Judges' salaries
s 196
· Supreme Court Act 1995, Laws of England to be applied in the
s 199 administration of justice
· Supreme Court Act 1995, Common law and general jurisdiction of
s 200 the court-jurisdiction at common law
· Supreme Court Act 1995, Equitable jurisdiction
s 201
· Supreme Court Act 1995, Criminal jurisdiction
s 202
· Supreme Court of Continuance
Queensland Act 1991, s 7
· Supreme Court of Jurisdiction generally
Queensland Act 1991, s 8
· Supreme Court of Appointment of judges
Queensland Act 1991, s 12
28
Constitution of Queensland 2001
· Supreme Court of Resignation
Queensland Act 1991, s 25
· Criminal Justice Act 1989 Commission's report insufficient for
s 28 judge's removal from Supreme Court
Clause 56 defines the terms `judge' and `office' for the purposes of this
chapter of the Bill. The term `judge' refers to a judge of the Supreme Court
or District Court. The definition of `office' lists the various judicial offices
to which the provisions of this chapter apply.
Clause 57 provides that there must be a Supreme Court of Queensland
and a District Court of Queensland. This Act, through both this clause and
consequential amendments made to the District Court Act 1967 (see
schedule 2), effects a change in the name of the District Court to the
District Court of Queensland. The District Court is not presently
acknowledged in the Constitution Act 1867.
Clause 58 provides that the Supreme Court has all jurisdiction necessary
for the administration of justice in Queensland. The clause also provides
that the Supreme Court:
· is the superior court of record in Queensland;
· is the supreme court of general jurisdiction in and for the State;
and
· has, subject to the Commonwealth Constitution, unlimited
jurisdiction at law, in equity and otherwise.
A transitional provision has been included in clause 88(2) of the Bill out
of an abundance of caution to make it clear that the jurisdiction of the
Supreme Court is unaffected by the commencement of the Constitution of
Queensland 2001. This caution is taken particularly as provisions of the
Supreme Court Act 1995, which deal with specific aspects of the court's
jurisdiction, are repealed by the Bill.
Clause 59 provides that the Governor in Council may, by commission,
appoint judges. Appointees must be barristers or solicitors of the Supreme
Court of at least five years standing.
Subclauses (2) and (3) require a judge to take an oath or make an
affirmation of allegiance and of office before entering on the duties of an
office (defined in clause 56).
29
Constitution of Queensland 2001
Clause 60 provides that a judge of the Supreme Court or District Court
holds office as a judge indefinitely during good behaviour. Currently,
section 15 of the Constitution Act 1867 provides that the commissions of
judges of the Supreme Court shall remain in full force during their good
behaviour. (Provision for the length of a judge's appointment to another
judicial office, such as Chief Justice of Queensland or Chief Judge of the
District Court, is made in the legislation providing for appointment to such
offices.)
Clause 60 also:
· refers to the Supreme Court of Queensland Act 1991 and the
District Court Act 1967 which provide that a judge must retire at
age 70 (although the judge may finish hearing a proceeding that
commenced before the judge reached age 70); and
· provides that a judge may resign a judicial office by giving
written notice of his or her resignation to the Governor.
Clause 60 represents an important change to the law by referring to the
tenure of District Court judges alongside Supreme Court judges.
Currently, the Constitution Act 1867 makes no reference to the District
Court or to District Court judges. Further, there is currently no express
provision enabling a District Court judge to resign his or her judicial office.
Clause 61 provides that a judge may be removed from an office only by
the Governor in Council on the address of the Legislative Assembly asking
for the judge to be removed for proved misbehaviour or proved incapacity.
An address is the form ordinarily used by Houses of Parliament for
making their desires and opinions known to the Crown.1 In this case, the
address may only be made after the Assembly has accepted a finding of a
tribunal that, on the balance of probabilities, the person to be removed has
misbehaved in a way that justifies removal from office or is incapable of
performing the duties of office.
By providing for removal from office rather than for removal of a judge,
clause 61 prescribes the manner in which a judge might be removed from
one office, say Chief Justice of the Supreme Court or Chief Judge of the
District Court, without being altogether removed as a judge of the Supreme
or District Court.
D Limon & W R McKay (eds) 1997, Erskine May's Treatise on The Law, Privileges,
1
Proceedings and Usages of Parliament, 22 ed, Butterworths, London, pp. 606-609.
nd
30
Constitution of Queensland 2001
Clause 61 further provides for a tribunal, to consist of at least 3
members, to be established by an Act to inquire into the conduct or
capacity of a judge. The tribunal members, who (subject to subclause 10)
must be former judges or justices of Australian State or Federal superior
courts, are to be appointed by resolution of the Legislative Assembly.
Subclause (10) provides that a person cannot be a member of a tribunal if
that person and the judge who may be removed were judges of the same
court at the same time. The tribunal has the functions, powers, protection
and immunity given by an Act. See, for example, the Parliamentary
(Judges) Commission of Inquiry Act 1988.
Clause 61 makes important changes to the present law about the removal
of judges from office. For Supreme Court judges, the grounds of removal
by the Governor on an address of the Legislative Assembly are confined in
the Bill to proved misbehaviour and proved incapacity. Under section 16
of the Constitution Act 1867 and section 195(2) of the Supreme Court Act
1995, the power of removal is not presently confined to any specific
grounds (although judicial commissions are referred to in section 15 of the
Constitution Act 1867 and section 195(1) of the Supreme Court Act 1995 as
continuing during the judge's good behaviour). The two prescribed
grounds reflect the accepted grounds for removal of judges in Australia and
those provided for under section 72 of the Commonwealth Constitution for
the removal of Federal Justices. Both grounds are currently prescribed for
the removal of District Court judges under section 15 of the District Court
Act 1967, albeit without the specific requirement for the ground to be
proved.
Largely, clause 61 reflects the procedure taken in respect of the
Honourable Mr Justice Vasta of the Supreme Court of Queensland in 1989.
The tribunal in that case was established by section 3 of the Parliamentary
(Judges) Commission of Inquiry Act 1988 and comprised three former
judges appointed by resolution of the Legislative Assembly. The tribunal
considered the civil standard of proof (that is, the balance of probabilities)
appropriate.
Any other possible avenues for removing a judge from all or any of the
judicial offices he or she may hold are now abrogated by clause 61, which
is in turn supported by clause 63.
Clause 62 provides that a judge must be paid a salary applicable to the
judge's office and that the amount of the salary may not be decreased. Note
that the Judges' (Salaries and Allowances) Act 1967 is relevant to
clause 62.
31
Constitution of Queensland 2001
By comparison, section 17 of the Constitution Act 1867 merely provides
that salaries of judges of the Supreme Court, as provided for in an Act or
otherwise, shall ...be paid and payable to every such judge and judges for
the time being so long as the patents or commissions of them or any of them
respectively shall continue and remain in force.
Clause 62 is a basic statement about judges' salaries. Other legislation
makes more specific provision for judges salaries, for example, how the
rate of salary is set, and other allowances payable to judges. See, in
particular, the Judges (Salaries and Allowances) Act 1967.
Clause 63 provides protection for a judge who holds a judicial office that
is abolished directly or because a court or part of a court is abolished. The
judge is entitled to hold, without loss of salary, a judicial office of
equivalent or higher status in the same court in which the judge held the
abolished judicial office or in another court. Clause 63 has no counterpart
in existing Queensland law. The provision attempts to prevent the removal
of Supreme Court judges and District Court judges from office without
following the formal procedure outlined in clause 61.
CHAPTER 5--REVENUE
Provisions consolidated:
· Constitution Act 1867, s 18 No money vote or Bill lawful unless
recommended by Governor
· Constitution Act 1867, s 34 All duties and revenues to form
consolidated revenue fund
· Constitution Act 1867, s 35 Such fund permanently charged with
expenses of collection
· Constitution Act 1867, s 39 Consolidated fund to be appropriated by
Act of the legislature
Clause 64 provides that all taxes and other revenues of the State are to
form one consolidated fund to be appropriated for the public service of the
State in the manner, and subject to the charges, specified in an Act. See, for
32
Constitution of Queensland 2001
example, clauses 65 to 68 of the Bill, as well as the Financial
Administration and Audit Act 1977.
Clause 65 provides that a requirement to pay a tax, impost, rate or duty
must be authorised by an Act of Parliament.
Clause 65 provides one of the two rules which provide for the important
principle that Parliament controls public finance: Government cannot raise
revenue through taxation except as authorised by Parliament through
legislation. That rule is provided for in article 4 of the Bill of Rights 1688
(Imp) which states: That levying money for or to use of the Crown, by
pretence of prerogative, without grant of Parliament ... is illegal.
Clause 66 provides that expenditure from the consolidated fund must be
authorised by an Act. Further, the Act authorising the payment must
specify the purpose of the payment. The clause replaces the existing
phrase in section 39(1) of the Constitution Act 1867, that the consolidated
fund shall be subject to be appropriated to such specific purposes as by any
Act of the legislature of the State shall be prescribed in that behalf.
Clause 66 provides the second rule concerning parliamentary control of
public finance, namely, the Government cannot spend public revenue
without Parliament's authorisation. Acts which authorise the expenditure
of public money are known as Appropriation Acts and, in Queensland, are
generally introduced into Parliament in conjunction with the Government
of the day handing down the State budget, or reviewing the budget during
the financial year.
Clause 67, which is an exception to clause 66(1), provides that expenses
related to the collection and management of the consolidated fund are
charged to the fund--as the first charge--without requiring specific
appropriations for that purpose. This is an exception to the rule contained
in clause 66 that payment from the consolidated fund must be authorised
by an Act of Parliament.
Clause 68 represents a further balance between the Executive and
Parliament in relation to finance. While clause 66 provides that the
Executive must not spend public money without the Legislative
Assembly's authorisation, clause 68 provides that the Legislative Assembly
must not originate or pass a vote, resolution or Bill for the appropriation of
an amount from, or an amount required to be paid to, the consolidated fund
unless it has first been recommended by message of the Governor. The
clause further provides that the message must be given to the Legislative
Assembly during the session of Legislative Assembly in which the vote,
resolution or Bill is intended to be passed.
33
Constitution of Queensland 2001
CHAPTER 6--LANDS
Provisions signposted (but not consolidated):
· Constitution Act 1867, s 30 Legislature empowered to make laws
regulating sale and other disposal of
waste lands
· Constitution Act 1867, The entire management of Crown lands
s 40(1) and all revenues thence arising to be
vested in the local legislature
Clause 69 provides that:
· section 30 of the Constitution Act 1867 gives Parliament law-
making power in relation to the waste lands of the Crown in
Queensland; and
· section 40 of the Constitution Act 1867 vests particular rights in
relation to the waste lands of the Crown in Queensland in the
Parliament.
A copy of these sections of the Constitution Act 1867 is contained in
attachment 4 of the Bill.
Sections 30 and 40 of the Constitution Act 1867 have not been
consolidated into this Bill because of concerns that the re-enactment of
these sections would affect native title holders differently than it would
affect freehold title holders and would therefore not be a valid future act
under the Commonwealth Native Title Act 1993.
A future act that affects native title is not allowed by the future act
regime in the Native Title Act 1993 and under section 240A of that Act is
invalid to the extent that it affects native title.
Sections 30 and 40 of the Constitution Act 1867 only relate to the waste
lands of the Crown and have no affect on ordinary title holders as the waste
lands, as currently held, are not subject to ordinary (freehold) title. As
native title may still exist over some of the waste lands, re-enacting these
sections would permit dealings with land in respect of which there may be
native title but not ordinary title. The re-enactment may affect native title
holders whereas ordinary title holders would not be affected because the
legislation has no effect on them.
34
Constitution of Queensland 2001
The proviso contained in Constitution Act 1867, section 40(2) is
repealed because it is spent. The High Court of Australia in Mabo & Anor
v. The State of Queensland & Anor (1988) 166 CLR 186 (Mabo No. 1) per
Dawson at 239, with Wilson J at 201 and Mason CJ at 195 concurring, held
that any contract, promise, engagement or right of the type referred to in
the proviso to section 2 of the New South Wales Constitution Act 1855
(Imp), which is the same as that contained in section 40(2) of the
Constitution Act 1867, had long since ceased to exist nor were they in 1985
the source of any limitation upon the power of the Queensland parliament
to deal with any waste lands. It would seem to follow that the repeal of
section 40(2) of the Constitution Act 1867 would not have any implications
with respect to native title.
35
Constitution of Queensland 2001
CHAPTER 7--LOCAL GOVERNMENT
Provisions consolidated:
· Constitution Act 1867, s 54 System of local government
· Constitution Act 1867, s 55 Manner of appointing persons to exercise
powers, authorities, duties and functions
of local government
· Constitution Act 1867, s 56 Procedure on Bills affecting local
government
Clauses 70 to 78 are founded on sections 54 to 56 of the Constitution Act
1867 which purport to give constitutional status to the State's system of
local government. Sections 54 to 56 of the Constitution Act 1867 were
inserted by the Constitution Act Amendment Act 1989.
The local government provisions have been redrafted to enhance the
logic and language of the provisions, to reflect the passage of the Local
Government Act 1993 and to adopt the terminology contained in that Act.
PART 1-- SYSTEM OF LOCAL GOVERNMENT
Clause 70 provides that there must be a system of local government in
Queensland which consists of a number of local governments.
Clause 71 defines a local government as an elected body that is charged
with the good rule and local government of the area allocated to it. At the
same time, the clause makes it clear that the constitution of a local
government and its functions and powers are subject to control by statutes
of the Parliament, for example, the Local Government Act 1993, the City of
Brisbane Act 1924, the Community Services (Aborigines) Act 1984 and the
Community Services (Torres Strait) Act 1984.
36
Constitution of Queensland 2001
PART 2--PROCEDURE LIMITING DISSOLUTION OF
LOCAL GOVERNMENT AND INTERIM
ARRANGEMENT
Clauses 72 to 76 transcribe the provisions of the lengthy section 55 of
the Constitution Act 1867, essentially providing that an instrument
purporting to dissolve a local government must be approved by the
Legislative Assembly before it can have effect.
Clause 72 defines the term `Minister' for the part as the Minister who
administers the provision under which the local government may be
dissolved. This definition identifies the Minister that must act in order for
the Legislative Assembly to consider ratifying an instrument that purports
to dissolve a local government.
Clause 73 provides that the Minister must table a copy of an instrument
seeking to dissolve a local government in the Legislative Assembly within
14 sitting days of the instrument being made.
Section 164 of the Local Government Act 1993 provides that the
Governor in Council may dissolve a local government by regulation if the
Minister is satisfied that the local government has acted unlawfully,
corruptly, or in a way that puts at risk its capacity to exercise its jurisdiction
or that the local government is incompetent or cannot properly exercise its
jurisdiction. See also section 13F of both the Community Services
(Aborigines) Act 1984 and the Community Services (Torres Strait) Act
1984.
Clause 74 provides that until the instrument purporting to dissolve a
local government is ratified by the Legislative Assembly, the instrument
only has the effect of suspending the local government's councillors from
office.
Clause 75 provides that if the Legislative Assembly--upon the motion
of the Minister (identified by the definition in clause 72)--ratifies the
dissolution of a local government within 14 sitting days of the tabling of
the instrument purporting to dissolve the local government, the local
government is dissolved in accordance with the instrument.
Clause 76 provides that the effect of the instrument ends if a copy of the
instrument is not tabled in Parliament within 14 sitting days of its making
or the Legislative Assembly refuses to, or does not, ratify the dissolution
within 14 sitting days of a copy of the instrument being tabled.
37
Constitution of Queensland 2001
When the effect of the instrument ends:
· the local government's suspended councillors are reinstated in
their respective offices; and
· the appointment of a body or a person appointed to perform the
functions and exercise the powers of the local government
because of its purported dissolution ends.
PART 3--SPECIAL PROCEDURES FOR PARTICULAR
LOCAL GOVERNMENT BILLS
Clause 77 provides that a member who proposes to introduce any Bill
for an Act that would be administered by a Minister who administers a
provision of the Local Government Act 1993 and would affect local
governments generally or any of them, must--if the member introducing
the Bill thinks it practicable--circulate a summary of the Bill to a local
government representative body within a reasonable time before the Bill is
introduced.
Clause 78 is a reproduction of sections 56(2) to (6) of the Constitution
Act 1867 and provides that a referendum on a proposal to end the system of
local government must be held if a Bill would end the system of local
government. However unlike, say, section 53(1) of the Constitution Act
1867, clause 78 does not entrench itself and could be expressly repealed by
an ordinary Act of Parliament.
38
Constitution of Queensland 2001
CHAPTER 8--MISCELLANEOUS
Provisions consolidated:
· Constitution (Office of Issue of compliance not justiciable
Governor) Act 1987, s 11
· Demise of the Crown Act Effect of demise of the Crown on holding
1910, s 2 of office
Clause 79 provides that the issue of compliance with the following
clauses is not justiciable. In other words, whether or not the requirements
contained in the following clauses have been followed cannot be
challenged in court. The clauses are:
· clause 31 (Requirements concerning commission and oath or
affirmation)section 5 of the Constitution (Office of Governor)
Act 1987;
· clause 40 (Delegation by Governor to Deputy Governor)
section 10 of the Constitution (Office of Governor) Act 1987;
· clause 41 (Administration of Government by Acting
Governor) section 9 of the Constitution (Office of Governor)
Act 1987;
· clause 48 (Executive Council)section 6 of the Constitution
(Office of Governor) Act 1987; and
· clause 50 (Meetings of Executive Council)section 7 of the
Constitution (Office of Governor) Act 1987.
Clause 79 relocates section 11 of the Constitution (Office of Governor)
Act 1987 and ensures that the five Constitution (Office of Governor) Act
1987 sections (5, 6, 7, 9 and 10) that are declared not to be justiciable in
that Act continued to be so declared here.
The phrase [w]ithout affecting the justiciability of any other issue under
this Act is inserted in clause 79. This is done to prevent the clause being
misinterpreted to affect the justiciability or otherwise of the other
provisions in this Bill which might have occurred if section 11 of the
Constitution (Office of Governor) Act 1987 was simply reproduced outside
its limited original environment of the provisions of the Constitution
(Office of Governor) Act 1987.
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Constitution of Queensland 2001
Clause 80 consolidates the only substantive provision of the Demise of
the Crown Act 1910. This provision continues the holding of any office
under the Crown in the event of the end of the Sovereign's reign and makes
provision about the continuing effect of oaths.
CHAPTER 9--TRANSITIONAL PROVISIONS
Clauses 81 to 93 provide for transitional arrangements for when the Bill
is introduced.
CHAPTER 10--CONSEQUENTIAL AMENDMENTS
AND REPEALS
This chapter provides for consequential amendments and repeals for
when the Bill is introduced.
Clause 94 refers to consequential amendments to Acts listed in schedule
2 of the Bill.
Clause 95 refers to the repeal of Acts listed in schedule 3 of the Bill and
Imperial Laws listed in schedule 4 so far as they are part of the law of
Queensland.
SCHEDULE 1--OATHS AND AFFIRMATIONS
Schedule 1 contains the oaths and affirmations of allegiance and of office
referred to in the Bill to be taken by the following office holders:
· members of the Legislative Assembly (clause 22);
· the Governor (clause 31) and an Acting Governor (clause 41);
· Ministers (clause 43) or a member appointed to act as a Minister
(clause 46); and
· judges (clause 59).
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Constitution of Queensland 2001
Schedule 1 also contains the oath and affirmation of office and secrecy
taken by members of the Executive Council under clause 48.
SCHEDULE 2--GENERAL AMENDMENTS
Schedule 2 contains the consequential amendments made to a number of
Acts by clause 94 of the Bill. The Acts amended are as follows.
The Acts Interpretation Act 1954 is amended to:
· change a reference to Ministers of the Crown to Ministers of the
State;
· omit section 33(14) which provides for administrative
arrangements to be made which is provided for by clause 44 of
the Bill;
· update the general definitions of Constitution of Queensland,
Governor, Acting Governor (formerly Administrator) and Deputy
Governor and omit the existing definition of District Court; and
· omit part 12 of the Act which is relocated to chapter 3 (Governor
and Executive Government), part 5 (Powers of the State) of the
Bill.
The Community Services (Aborigines) Act 1984, the Community
Services (Torres Strait) Act 1984 and the Local Government Act 1993 have
been amended to update references to section 55 of the Constitution Act
1867 (Manner of appointing persons to exercise powers, authorities, duties
and functions of local government) which is being relocated into chapter 7
(Local Government), part 2 (Procedure limiting dissolution of local
government and interim arrangement).
The Constitution Act 1867 is amended to repeal all of the provisions that
are consolidated into the Bill; that is, all of the sections of the Constitution
Act 1867 except for sections 1, 2, 2A, 11A, 11B, 30, 40(1) and 53.
The Crime and Misconduct Act 2001 is amended to remove provision for
the establishment of a tribunal to consider the conduct of a Supreme Court
or District Court judge in light of clause 61 of the Bill. Section 70 of the
Act has been recast to require the Crime and Misconduct Commission to
provide to a tribunal established to inquire into the conduct or capacity of a
41
Constitution of Queensland 2001
judge any material it has that relates to the inquiry, including any relevant
reports.
The District Court Act 1967 is amended to:
· change the court's name from the District Court to the District
Court of Queensland and to change the short title of the Act to
the District Court of Queensland Act 1967, including the
insertion of a transitional provision to make it clear that the
change is one of name only;
· make provision for the seniority of District Court judges; and
· repeal sections 4, 9, 14(3) and 15 which have been consolidated
into chapter 4 (Courts) of the Bill.
Note that the provision for the seniority of District Court judges does not
refer to senior judges of that court. This is because the office of senior
judge of the District Court no longer exists, although judges who held that
office retain the right to use the title `Senior Judge'. The seniority of these
judges is determined by the date of the commission originally appointing
them as a judge of the District Court and is unaffected by their continued
right to use the title `Senior Judge'.
The Evidence Act 1977 is amended to:
· replace a reference to the seal of Queensland with `Public Seal of
the State';
· provide for judicial notice to be taken of administrative
arrangements set out in an order made under clause 44 of the Bill
and published in the gazette and of documents under the Royal
Sign Manual; and
· to replace a reference to the Constitution Act 1867 with
Constitution of Queensland 2001 in relation to the certification of
a copy of Letters Patent as conclusive evidence.
The Oaths Act 1867 is amended to omit reference to the judicial oath of
office in section 3 and a reference to section 4 of the Constitution Act 1867.
The Public Sector Ethics Act 1994 is amended to update a reference to
section 57 of the Constitution Act 1867 which is to be repealed.
The Registration of Births, Deaths and Marriages Act 1962 is amended
to declare issuing a commemorative birth certificate to be a commercial
activity for clause 52 of this Bill. This matter was previously dealt with by
the Acts Interpretation Regulation 1997.
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Constitution of Queensland 2001
The Statutory Instruments Act 1992 is amended to update the references
in schedule 1A (Statutory rules that are not subordinate legislation) to
instruments made under various provisions which are to be repealed with
references to the corresponding provisions in the Bill.
The Supreme Court Act 1995 is amended to repeal provisions that are
consolidated into the Bill.
The Supreme Court of Queensland Act 1991 is amended to:
· repeal provisions that are consolidated into the Bill;
· provide for the appointment of the Chief Justice of Queensland,
to support the provisions of chapter 4 of the Bill; and
· insert cross-references to the requirement to take the oath or
make the affirmation of allegiance and of office required by
clause 59 of this Bill.
SCHEDULE 3--REPEALED LAWS
Schedule 3 lists the following Acts which are repealed by clause 95(1) of
the Bill:
· Legislative Assembly Act 1867;
· Queensland Coast, Islands and Waters Proclamation dated 22
August 1872 and published in the gazette on 24 August 1872 at
pages 1325-6;
· Officials in Parliament Act 1896;
· Demise of the Crown Act 1910;
· Constitution Act Amendment Act 1922;
· Royal Powers Act 1953;
· Australia Acts (Request) Act 1985;
· Proclamation of Letters Patent for Governor dated 6 March 1986
and published in the gazette on 8 March 1986 at pages 903-6;
· Constitution (Office of Governor) Act 1987; and
· Acts Interpretation Regulation 1997.
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Constitution of Queensland 2001
SCHEDULE 4--REPEALED IMPERIAL LAWS
Schedule 4 lists the Imperial Laws which are repealed so far as they are
part of the law in Queensland by clause 95(2) of the Bill.
ATTACHMENT 1
Attachment 1 is a copy of sections 1, 2, 2A, 11A, 11B and 53 of the
Constitution Act 1867 which are referred to in clauses 6, 7, 8 and 30 of the
Bill as containing the substantive law relating to the Parliament, the
Legislative Assembly and the law-making power in Queensland and about
the office of Governor.
ATTACHMENT 2
Attachment 2 is a copy of section 2 of the Constitution Act Amendment
Act 1890 and section 4 of the Constitution Act Amendment Act 1934 which
are referred to in clause 16 of the Bill as containing the substantive law
relating to the duration of the Legislative Assembly.
ATTACHMENT 3
Attachment 3 is a copy of section 3 of the Constitution Act Amendment
Act 1934 which is referred to in the footnote to clause 6 of the Bill as
prohibiting the establishment of another legislative body in Queensland
except by referendum.
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Constitution of Queensland 2001
ATTACHMENT 4
Attachment 4 is a copy of sections 30 and 40 of the Constitution Act
1867 which are referred to in clause 69 of the Bill as containing the
substantive law relating to the Parliament's law-making power in relation
to the waste lands of the Crown and the vesting of particular rights in
relation to the waste lands of the Crown in the Parliament.
© State of Queensland 2001