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1
Land Court and Other Legislation Amendment Bill
2007
Land Court and Other Legislation
Amendment Bill 2007
Explanatory Notes
Objectives of the Bill
The purpose of the Bill is to improve the system for administration of
justice by conferring upon the Land Court most of the jurisdiction of the
Land and Resources Tribunal ("the Tribunal").
The Bill provides for the current members of the Tribunal and the Mining
Referee to be offered alternative positions in the court system, consistently
with the principles of judicial independence.
The Tribunal's jurisdiction with respect to the Alternative State Provisions
("ASP's") is preserved. Under the Native Title Act 1993 (Cth) States and
Territories can set up alternative regimes to resolve native title matters. In
2000, the Queensland Government set up a system to deal with mining and
exploration applications over areas where native title might exist and these
were processed in the Tribunal. However, from 31 March 2003 applications
for mineral tenements on land, where native title may exist, are processed
under the Native Title Act 1993 (Cth) future act provisions. The
jurisdiction of the LRT is preserved only to the extent that it is required to
protect the rights and interests that arose before 31 March 2003 thus
ensuring those applications will be processed under the pre-existing ASPs.
The Bill allows for acting appointments to be made to allow this
jurisdiction to be exercised. The Bill contains a repeal clause which retains
the Land Resources Tribunal Act 1999 ("the LRT Act") until 31 December
2011.
The Bill makes amendments to achieve reforms in other areas of the court,
namely allowing retired Magistrates to act as Magistrates and introducing a
framework for a new system for costs assessment.
Reasons for the Bill
The Tribunal was established in 1999 by the LRT Act, but has not had
sufficient workload to justify its resources. The Tribunal shares premises
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Land Court and Other Legislation Amendment Bill
2007
with the Land Court and the work of these bodies is similar in nature. The
Bill ensures that access to our courts (and through them, to justice) is
improved for all Queenslanders by re-allocating the resources of the
Tribunal into other parts of the justice system.
Achievement of the Objectives
It is proposed to merge the jurisdiction of the Tribunal into the Land Court.
The jurisdiction of the Tribunal under many Acts will be exercised by the
Land Court. Those Acts are amended by the Bill. The Tribunal's Cultural
Heritage and Indigenous Land Use Agreements jurisdiction under the
Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander
Cultural Heritage Act 2003 will be exercised by the Land Court in a new
Cultural Heritage and Indigenous Land Use Agreement Division ("the
Cultural Heritage Division"), established in the Land Court Act 2000
("LCA"). The Bill provides for the appointment of indigenous assessors to
perform functions in the Land Court in its new Cultural Heritage Division.
The Bill provides for offers of appointment to different positions to be
made to the existing members of the Tribunal and to the Mining Referee.
The Bill preserves the Tribunal's jurisdiction under the Alternative State
Provisions and provides for the way that this jurisdiction can be exercised.
Estimated Cost for Government Implementation
The implementation is not expected to have additional costs to
Government, other than as provided in new section 86 of the LCA.
Consistency with Fundamental Legislative Principles
The Bill affects the rights of parties to existing matters in the Tribunal.
Their disputes will cease to be dealt with by the Tribunal and will then be
dealt with by the Land Court. In order to cure any procedural deficit, under
new s.91 of the LCA, the Land Court will have a wide power to make
directions about how the proceeding is to be dealt with by the Land Court
instead of the Tribunal and provides for indemnity certificates to be granted
in appropriate cases for the purposes of the Appeal Costs Fund Act 1973.
In relation to the Tribunal, the Bill provides for the President (who enjoys
the salary and allowances of a Supreme Court judge) and the deputy
President (who enjoys the salary and allowances of a District Court judge)
to be appointed to the District Court and to the Land Court, respectively.
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Land Court and Other Legislation Amendment Bill
2007
In relation to the President, provision is made for the difference in salary
until the President is eligible to retire on an annual pension under s.4 of the
Judges (Pensions and Long Leave) Act 1957. At that time the President
will be able to retire with a pension assessed as if he were a Supreme Court
Judge. The Bill excludes any right to compensation for the changes, though
it provides for an amount of compensation to be paid to the President,
calculated under the Bill.
The current Mining Referee of the Tribunal is to be offered appointment as
a Judicial Registrar of the Land Court. There will be no loss of conditions
or tenure. The Mining Referee's long expertise in resource matters will be
of great value to the Land Court.
These arrangements have been drawn to preserve the principles of judicial
independence. All the proposed arrangements are contained in the Bill and
are open to scrutiny.
Consultation
The proposal has been discussed with the members of the Tribunal, the
President of the Land Court, the Chief Judge of the District Court, Agforce,
National Farmers Federation and the Queensland Resources Council,
officers from the Department of Natural Resources and Water, the
Department of Mines and Energy, Queensland Treasury, Department of the
Premier and Cabinet, and Environmental Protection Agency.
There has been consultation with the Commonwealth Attorney-General.
In relation to the provisions in relation to costs assessment there has been
consultation with the Chief Justice, the Queensland Law Society, and the
Rules Committee, established under the Supreme Court of Queensland Act
1991, s.118C. The Chief Magistrate proposed the amendment to the
Magistrates Act 1991 to allow retired Magistrates to act as Magistrates.
Notes On Provisions
Part 1 Preliminary
Clause 1 states the short title of the Act.
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Land Court and Other Legislation Amendment Bill
2007
Clause 2 states that commencement of certain provisions (those other
provisions containing the arrangements for the President, Deputy President
and Mining Referee) are on assent. Other provisions commence by
proclamation.
Part 2 Amendment of Land and
Resources Tribunal Act 1999
Clause 3 states that this part amends the LRT Act.
Clause 4 omits sections 10 to 12 (Salaries and Allowances, pension and
leave of absence arrangements, and conditions of appointment for
presiding members)
Clause 5 inserts new Part 2, division 2, which inserts new section 14A
(Land Court member filling vacancy of presiding member) which allows a
Land Court member to fill the vacancy of a presiding member.
Clause 6 inserts new section 19A (Land Court officer filling vacancy of
referee non-presiding member) which allows the Judicial Registrar or other
officers of the Land Court to fill the vacancy of any referee non-presiding
member.
Clause 7 amends s29 (Registrar of Tribunal) to omit reference to the
direction of the President. This is because, due to the small workload of
the Tribunal under the ASP's, a President will only be appointed on an
acting basis.
Clause 8 omits s38 (Arrangement of Business) providing for the
arrangement of business of the Tribunal. This is because it is envisaged
that the workload under the ASP's will be small and this provision will be
unnecessary.
Clause 9 amends s39 (General requirements for constituting for
proceedings) to simplify the arrangements for constituting a panel.
Clause 10 amends s43 (Reconstituting Tribunal- single member) to
simplify the arrangements for reconstituting a panel.
Clause 11 omits sections 51A to 53A (General provisions regarding
jurisdiction). These sections of the LRT Act confer the jurisdiction under
the Native Title Act 1993 (Cth), the jurisdiction of the Tribunal for
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Land Court and Other Legislation Amendment Bill
2007
registered indigenous land use agreements, the exclusive jurisdiction for
negotiated agreements, the exclusive jurisdiction for certain cultural
heritage matters and the exclusive jurisdiction for contract conditions.
Under the Bill, this jurisdiction is conferred on the Land Court.
Clause 12 amends section 54 (Tribunal a court of record) by omitting
reference to the President and replacing this with a reference to the
Registrar, as it is likely given the small workload of the Tribunal under the
ASP's that the President will only be appointed on an acting basis, but there
will be a permanent appointment of a Registrar.
Clause 13 omits section 78 (Annual Report), which refers to the
requirement for the Tribunal to prepare an Annual Report on the operations
of the Tribunal. A new Section 77A of the LCA requires the Land Court to
prepare an Annual Report which includes the operations of the Tribunal. A
transitional section is inserted for the Tribunal's report for the financial
year ending 30 June 2007.
Clause 14 omits section 80 (Preservation of rights of non-presiding
member).
Clause 15 inserts new section 82A (Expiry of Act) which states the LRT
Act expires on 31 December 2011.
Clause 16 replaces Part 6 and inserts new Part 6 headed "Transitional
provisions for Land Court and Other Legislation Amendment Act 2007".
This inserts new s.87. This pivotal provision confirms that the purpose of
the Bill is to transfer the Tribunal's jurisdiction to the Land Court. It
describes the Tribunal's ongoing jurisdiction under the ASP's. The section
ensures that the Governor-in-Council is not obliged to appoint presiding or
non-presiding members of the tribunal but may act as convenient to appoint
persons to act in those positions. This is to support the jurisdiction under
the ASP's. The section continues to provide that persons may hold dual
appointments in the Land Court and Tribunal registries.
New section 88 deals with transitional arrangements for the Tribunal's
annual report for the financial year ending 30 June 2007.
New section 89 provides arrangements for the President of the Tribunal.
These arrangements are consistent with the principles of judicial
independence. The section provides that the Minister must offer to the
person that if the person resigns that the Minister will recommend to the
Governor in Council that the person be appointed as a District Court Judge
and that the person will receive the entitlements mentioned in the LCA,
s.86 (a new section). The provision ensures that if the person accepts the
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Land Court and Other Legislation Amendment Bill
2007
offer within 30 days, the Minister must recommend to the Governor in
Council that the person should be appointed a District Court Judge. The
appointment of the President to the District Court would mean that the
President would join this distinguished group of judges, who serve
honourably through this State, deciding important matters arising within its
civil, criminal, planning and appellate jurisdictions. Any issues of
financial loss are dealt with by s.86 of the LCA.
New section 90 provides arrangements for the Deputy President of the
Tribunal. These arrangements are consistent with the principles of judicial
independence. The section provides that the Minister must offer to the
person that if the person resigns that the Minister will recommend to the
Governor in Council that the person be appointed as a member of the Land
Court and that the person will receive the entitlements mentioned in the
LCA, s.87 (a new section). The provision ensures that if the person accepts
the offer within 30 days, the Minister must recommend to the Governor in
Council that the person should be appointed a member of the Land Court.
The Deputy President is already a part-time member of the Land Court.
The Deputy President will enjoy essentially the same conditions as under
his present appointment and continue to work at similar tasks.
New section 91 provides arrangements for the Mining Referee of the
Tribunal. These arrangements are consistent with the principles of judicial
independence. The section provides that the Minister must offer to the
person that if the person resigns that the Minister will recommend to the
Governor in Council that the person be appointed as a judicial registrar of
the Land Court and that the person will receive the entitlements mentioned
in the LCA, s.88 (a new section) which guarantees current salaries and
allowances. The provision ensures that if the person accepts the offer
within 30 days, the Minister must recommend to the Governor in Council
that the person should be appointed a judicial registrar of the Land Court.
The Land Court does not have an equivalent position of Mining Referee,
however, the judicial registrar is able to exercise decision-making authority,
conferred by rule of court. It is intended that by rule of court, the decision-
making authority that the Mining Referee currently exercises will be
conferred upon a judicial registrar.
New section 92 provides for the effect of the repeal of sections 10-12 on a
person still holding appointment under section 7 as President or Deputy
President. This section would come into effect only after the offers of
appointment had been made under sections 89 and 90, and the time had
lapsed for acceptance.
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Land Court and Other Legislation Amendment Bill
2007
Clause 17 omits entries from schedule 1 (requirements for constituting
Tribunal), consequent upon the jurisdiction in those matters having been
conferred upon the Land Court in Part 3 of the Bill.
Clause 18 omits schedule 2 in relation to negotiated agreements, because
this jurisdiction is conferred upon the Land Court in Part 3 of the Bill.
Part 3 Amendment of Land Court Act
2000
Clause 19 provides that Part 3 amends the Land Court Act 2000 ("LCA")
Clause 20 amends s.5 (Jurisdiction of Land Court) which explains the
jurisdiction of the Land Court. The reference to "any Act" in s.5 (1) and
(2) is replaced with a reference to "an Act". A new subsection is inserted
to provide that the subsection does not limit parts 3 and 4 and a further
subsection is inserted to ensure that the jurisdiction of the Land Court is not
ousted merely because a proceeding is about claims or interests of an
equitable nature or involves making a decision about title to land. This
provision exists in the LRT Act, section 51( 2). It has been added into the
LCA, because it is essential to ensure that the Land Court has full
jurisdiction to deal with matters under the jurisdiction acquired by this Bill,
including the Cultural Heritage Division.
Clause 21 inserts new part 2, division 1A after section 6 of the LCA to
establish the Cultural Heritage Division. New section 6A is inserted
dividing the Land Court into the general division and the Cultural Heritage
Division. This section clarifies that any member can sit in either division,
as nominated by the President, but members may be nominated for both.
New section 6B is inserted which states the purpose of the Cultural
Heritage Division.
Clause 22 amends s.16 to add as criterion for appointment as a member of
the Land Court extensive experience in land related matters, mining or
petroleum issues, or indigenous issues. The inclusion of these additional
areas of knowledge will mean members will be able to be appointed to the
Land Court who possess these additional areas of expertise.
Clause 23 inserts new pt 2, divisions 6A to 6C after s.32.
New Division 6A provides for Indigenous Assessors.
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Land Court and Other Legislation Amendment Bill
2007
New s.32A provides for the appointment of indigenous assessors by
Governor in Council. It sets out the conditions for eligibility for
appointment and provides that an indigenous assessor who is allocated to a
proceeding in the Cultural Heritage Division is an officer of the Land Court
for that proceeding.
New section 32B provides that the Governor in Council may decide the
remuneration, allowances and conditions of an indigenous assessor and
provides how an indigenous assessor may resign. It further provides that
an indigenous assessor is appointed under the LCA and not under the
Public Service Act 1996.
New section 32C allows the President of the Land Court to allocate an
indigenous assessor to a proceeding in the Cultural Heritage Division if
satisfied that this will help achieve the prompt and efficient conduct of the
proceeding.
Section 32D defines the role of an indigenous assessor. Importantly, the
role is clearly defined as providing advice to the court about matters
relevant to the proceeding within the indigenous assessor's knowledge or
experience. It is clear that this advice must be disclosed to the parties and
they must have an opportunity to make submissions about the advice.
New Division 6B deals with the Jurisdiction of the Land Court in its
Cultural Heritage Division.
New section 32E confers jurisdiction under the Native Title Act 1993 (Cth).
This jurisdiction was exercised by the LRT, pursuant to the LRT Act, s.51A
- which is repealed by this Bill.
New section 32F confers jurisdiction for registered indigenous land use
agreements. This jurisdiction was exercised by the LRT, pursuant to the
LRT Act, s.51B - which is repealed by this Bill.
New section 32G confers jurisdiction for negotiated agreements. This
jurisdiction was exercised by the LRT, pursuant to the LRT Act, s.52 -
which is repealed by this Bill.
New section 32H confers jurisdiction for particular cultural heritage
matters. This jurisdiction was exercised by the LRT, pursuant to the LRT
Act, s.53 - which is repealed by this Bill.
New section 32I confers jurisdiction for contract conditions. This
jurisdiction was exercised by the LRT, pursuant to the LRT Act, s.53A -
which is repealed by this Bill.
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Land Court and Other Legislation Amendment Bill
2007
New Division 6C is inserted dealing with additional power of the Land
Court when exercising particular jurisdiction.
New section 32J confers upon the Land Court various powers of the
Supreme Court in relation to the jurisdiction, which the Land Court
acquires under this Bill. The powers include powers to grant any relief or
remedy or give effect to every ground of defence or matter of set-off
whether equitable or legal. These powers are being conferred because
when the LRT exercised this jurisdiction, the LRT also exercised those
powers under the LRT Act, s.65. These powers are additional to those of
the Land Court.
Clause 24 inserts a new subsection (2) into section 39 of the Land Court
Act 2000. The amendment maintains the current position by providing that
the Governor in Council is the prescribed authority for section 15 of the
Judges (Pensions and Long Leave) Act 1957 in relation to leave of absence
of members of the Land Court. This amendment is consequential on an
amendment to the Judges (Pensions and Long Leave) Act 1957 contained in
the Justice and Other Legislation Amendment Bill 2007.
Clause 25 inserts new section 77A dealing with the Annual Report. This
establishes a new reporting obligation for the Land Court to provide an
annual report, beginning with the financial year ending 30 June 2008. The
report must include a report on the operations of the LRT, until the LRT
Act is repealed (see clause 15 of the Bill). This new requirement will bring
new transparency to the operations of the Land Court.
Clause 26 inserts new Division heading "Division 1 Savings and
transitional provisions for Act No. 1 of 2000."
Clause 27 inserts new part Part 6, division 2 dealing with transitional
provisions for the Land Court and Other Legislation Amendment Act 2007.
New section 86 provides the entitlements for a person who holds
appointment as the LRT President and who resigns that office and is
appointed as a District Court Judge. The section provides that from the
new appointment, the person is eligible to be paid as a District Court judge.
It provides for the single payment (on appointment) of an amount equal to
the difference between the salary, allowances and rates of allowances
payable to a Supreme Court judge and those payable for a District judge for
the period between the day of appointment and the day the person becomes
eligible to receive a pension under the Judges (Pensions and Long Leave)
Act 1957("Judges Pensions Act"), s.4. Otherwise the section provides that
the State has no other liability to compensate the person because of any
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Land Court and Other Legislation Amendment Bill
2007
reduced salary after the person becomes eligible to receive a pension. The
section preserves any other entitlements accrued by the person while the
President of the LRT, but in relation to accrued leave of absence under the
Judges Pensions Act, the leave is to be paid at the salary applicable to a
District Court Judge. This is because the section already provides for a
single payment for the difference in salary, otherwise there would be a risk
of a double payment. Finally, the section specifically provides for the
benefit of the person (and any spouse or child) that the Judges Pensions Act
applies as if the person had been appointed a Supreme Court Judge when
appointed president of the LRT until the person's retirement or death and
had been paid a Supreme Court Judge's salary at the time of retirement or
death. It is considered that the arrangements provided in this section are
fair and reasonable.
New section 87 provides the entitlements for a person who holds
appointment as the LRT Deputy President, and who resigns that office, and
is appointed as a member of the Land Court. From the new appointment
the person's salary and allowances are those payable to a Land Court
member. There is no provision for compensation as the terms are
commensurate with those of a District Court Judge. The person retains all
accrued but not yet received entitlements. The section specifically provides
for the benefit of the person (and any spouse or child) that service for the
purposes of the Judges Pensions Act is taken as if the person had been a
District Court Judge from their appointment as a Deputy President.
New section 88 provides for the entitlements for a person who holds
appointment as a Mining Referee of the LRT, who resigns the persons'
office as Mining Referee and at the same time the resignation takes effect,
is appointed Judicial Registrar of the Land Court. The section applies
from the time of the new appointment until 16 July 2008, which is when
the Mining Referee's current appointment expires, and entitles the person
to the same salaries, allowances and conditions as under the instrument of
appointment as a Mining Referee. The person retains any benefits accrued
but not received as Mining Referee. The section specifically provides that
the person's entitlements must not be reduced under this section.
New section 89 provides for the entitlements for a person who held
appointment under the LRT Act section 7, as Deputy President of the LRT
before the commencement of this section, and who resigned from the
persons' office as Deputy President and took up an appointment as a
District Court judge. In relation to that person, the section clarifies that for
the purposes of the Judges Pensions Act, the Act applies as if the person
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Land Court and Other Legislation Amendment Bill
2007
had been a District Court judge for the entire period from their appointment
as a Deputy President of the LRT.
New section 90 provides for the assumption by the Land Court of the role
of Warden, and Wardens' Court under particular acts.
New section 91 provides that the Land Court is to assume jurisdiction for
proceedings already before the LRT. The Land Court has jurisdiction to
finish such proceedings and the President may give any necessary
directions about how the proceeding is to be dealt with by the Land Court
instead of the LRT. The section allows the Land Court to grant an
indemnity certificate for the purposes of the Appeal Cost Funds Act 1973.
Clause 28 amends Schedule 2 (Dictionary) to insert new definitions
required for this Bill.
Part 4 Amendment of Mineral
Resources Act 1989
Clause 29 provides that this part amends the Mineral Resources Act 1989.
Clause 30 amends section 86 (Appeal against Tribunals' determination
upon compensation) and omits reference to Tribunal and Tribunal (appeal)
and inserts Land Court and Land Appeal Court.
Clause 31 inserts new section 86A dealing with security for costs for an
appeal lodged under section 86. The amendment provides an orderly
administrative process for the Land Court including appropriate
notification and time periods in which the court must act, as well as clearly
setting out the consequences for non compliance by applicants.
Clause 32 Amends s282 (Appeal against Tribunal's determination upon
compensation) by omitting reference to the Tribunal and the Tribunal
(appeal) and inserting references to the Land Court and the Land Appeal
Court and by omitting s.282 (2) (c).
Clause 33 inserts new section 282A dealing with security for costs of
appeal under section 282. New section 282A requires the registrar of the
Tribunal to determine the level of security for costs when an appeal
application is lodged. Commonly appeals may be lodged on the last day of
the appeal lodgement time. The consequence is that the registrar does not
have adequate time to make a considered decision as to an appropriate level
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Land Court and Other Legislation Amendment Bill
2007
of security. The amendment provides a more orderly administrative process
for the Tribunal including appropriate notification and time periods in
which the court must act, as well as clearly setting out the consequences for
non compliance by applicants.
Clause 34 deals with renumbering and relocation of part 19, division 6, first
occurring, heading (Transitional provisions for Mineral Resources and
Other Legislation Amendment Act 2005). The section relocates and
renumbers part 19, division 6 as part 19, division 7.
Clause 35 amends s739, first occurring (Application of particular
provisions) and relocates and renumbers section 739 in part 19, division 7
as section 764.
Clause 36 inserts a new Part 19, Division 8 dealing with transitional
provisions for Land Court and Other Legislation Amendment Act 2007.
New section 765 states that particular references to the Land Court are to
be taken to be references to Tribunal where native title provisions and other
circumstances apply. This section is necessary to allow the Tribunal to
exercise effectively its continuing jurisdiction under the ASP's. New
section 766 provides that the reference in s.764(7) to the Tribunal, is for a
Land Court recommendation (made after s.766 commences), taken to be a
reference to the Land Court.
Part 5 Amendment of Supreme Court of
Queensland Act 1991
Clause 37 provides that this part amends the Supreme Court of Queensland
Act 1991.
Clause 38 inserts a new Part 7, division 5A providing for costs assessors.
The new part contains a provision 93LA conferring upon a costs assessor
the protection and immunity conferred on a judge performing the functions
of a costs assessor. The provision continues to provide protection and
immunity upon the parties and witnesses, as if they were before the
Supreme Court in a proceeding and confers protection upon documents as
if they were produced before the Supreme Court. New section 93LB
imposes an obligation of confidence upon a costs assessor in relation to
confidential information.
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Land Court and Other Legislation Amendment Bill
2007
New section 93LC preserves privilege despite disclosure to a costs
assessor.
Clause 39 amends schedule 1, item 18(d) of the Act by inserting a new
subject matter for rules of assessment of costs, specifically including a
rule-making power for the appointment and removal of persons other than
registrars to assess costs under the Uniform Civil Procedure Rules 1999.
Clause 40 amends the schedule 2 (Dictionary) by inserting definitions of
"costs assessment" and "costs assessors".
Part 6 Amendment of other Acts
Clause 41 provides that the schedule amends the Acts mentioned in it.
Primarily, the schedule amends other Acts to change references to the
Tribunal to references to the Land Court. These references are changed so
as to confer jurisdiction upon the Land Court.
In addition, the schedule amends the Legal Profession Act 2007, to repeal
sections 350 to 352. This is because of the changes made by this Bill to the
Supreme Court of Queensland Act 1991.
Also, the schedule amends the Magistrates Act 1991, section 6(1) to allow
retired Magistrates to be appointed to act as Magistrates.
© State of Queensland 2007