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Justice and Other Legislation Amendment Bill 2005
Justice and Other Legislation Amendment
Bill 2005
Explanatory Notes for Amendments to be
moved during consideration in detail by the
Honourable Attorney-General and Minister for
Justice MP
Title of the Bill
Justice and Other Legislation Amendment Bill 2005
Objectives of the Amendments
The amendments achieve three purposes.
First, the amendments support the recently established review of the
substituted decision making by the Queensland Law Reform Commission
("Commission") by ensuring that certain information can be disclosed to
the Commission and to impose obligations of confidentiality on the
Commission members, consultants and staff in relation to the review.
Second, the amendments introduce certainty about which review
mechanism applies to decisions of the Small Claims Tribunal.
Third, the amendments respond to a request of the Scrutiny of Legislation
Committee to review the fee regime proposed under the Professional
Standards Act 2004.
Consistency with Fundamental Legislative Principles
The amendments will allow information about a proceeding or the
disclosure of the identity of a person involved in a proceeding before the
Guardianship and Administration Tribunal to be provided to members,
consultants and staff of the Queensland Law Reform Commission for the
purposes of their review of the system for substituted decision-making.
Allowing such disclosure may be seen as inconsistent with the right to
confidentiality of information of the adult with impaired capacity, a right
which is embraced by General Principle 11. However, it is intended that
while information about a proceeding will flow to the Commission, the
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Justice and Other Legislation Amendment Bill 2005
Commission will be able to publish only de-identified information about a
proceeding. It is expected that the Commission will operate on the basis of
respecting the confidentiality of information and the privacy of individuals,
particularly the primacy of the right of an adult with impaired capacity to
confidentiality of information.
Notes on Provisions
Clause 1 inserts after clause 107 of the Justice and Other Legislation
Amendment Bill 2005, a new Part 13A which amends the Guardianship
and Administration Act 2000.
Clause 107A states that Part 13A amends the Guardianship and
Administration Act 2000.
Clause 107B amends s. 112 of the Guardianship and Administration Act
2000 to allow a person to publish information about a proceeding or the
disclosure of the identity of a person involved in a proceeding to a reviewer
and to allow the reviewer to publish de-identified information about a
proceeding for the purposes of the substituted decision-making review. A
reviewer is defined as a member of the commission, its staff or a
consultant.
The Law Reform Commission has recently commenced a review of aspects
of the substituted decision-making regime. This is a very important area
of the law and touches upon the lives of adults with impaired capacity, their
families, friends, health professionals and support networks. It is an area
ripe for review, as it has been in operation for a number of years.
The Commission has requested that statutory amendments should be made
to ensure that people who make submissions to the review and the
members, consultants and staff of the Commission itself do not commit
offences against s112. This section prevents the publication of information
about a proceeding or the disclosure of the identity of a person involved in
a proceeding before the Guardianship and Administration Tribunal. The
purpose of this provision is to protect the privacy of those involved in such
proceedings, especially the interests of an adult with impaired capacity. It
is an extremely important provision in upholding the rights of an adult with
impaired capacity to confidentiality of information (consistently with
General Principle 11).
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Justice and Other Legislation Amendment Bill 2005
For the purposes of assisting the review, a limited exception will be made
to s.112 to allow information about a proceeding or the disclosure of the
identity of a person involved in a proceeding to a reviewer. A reviewer will
be able to publish information about a proceeding for the purpose of a
review (but not the identity of a person involved).
The amendments will lapse at the expected end of the review (1 January
2009).
Clause 107C amends section 249 of the Guardianship and Administration
Act. Section 249 imposes an obligation of confidence upon a person who
gains confidential information because of their involvement in the Act's
administration. This section is amended to recognise the fact of the review.
The amendments include a definition of "reviewer" to include a member of
the commission, its staff or a consultant. The amendments apply the
obligation of confidence to reviewers.
Clause 1 also inserts Part 13B in the Bill, which amends the Judicial
Review Act 1991.
Clause 107D states that Part 13B amends the Judicial Review Act 1991.
Clause 107E inserts new part 7 in that Act. The transitional arrangements
contained in new section 58 ensure that the insertion in schedule 1, part 1
of item 6AA does not affect a statutory order for review lodged with a
registry of a court before the commencement of the section and not heard
or decided at the commencement of the section. As the amendment
clarifies what was always intended to be the available means of review of a
decision of the Small Claims Tribunal, it is appropriate that it operates in
relation to applications which have been lodged but have not yet been heard
or decided.
Clause 107F amends sch 1, part 1 to insert item 6aa Small Claims Tribunal
Act 1973, section 19. The amendment restores a reference to section 19 of
the Small Claims Tribunals Act that was inadvertently omitted, and
possibly repealed, after the reprinting of the Act in 1997.
Clause 2 inserts Part 17A in the Bill, which amends the Powers of Attorney
Act 1998.
Clause 126A states that Part 17A amends the Powers of Attorney Act 1998.
Clause 126B amends section 74 of the Act to recognise the review of
substituted decision-making by the Commission and to apply the obligation
to preserve confidentiality of information upon a reviewer which is defined
to include members, staff and a consultant of the Commission.
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Justice and Other Legislation Amendment Bill 2005
Clause 3 amends clause 135 of the Bill, which establishes the power of the
Governor in Council to set fees under the Professional Standards Act 2004
by way of regulation. The amendment provides that the levels of fee
authorised are able to be set at levels which cover the costs of administering
the Act and funding the council in performance of its functions.
Clause 4 amends clause 136 of the Bill by making a consequential
amendment to the amendment of clause 135. The clause deletes the
proposed definition of "fee".
© State of Queensland 2005