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Land Court 1999
LAND COURT BILL 1999
EXPLANATORY NOTES
Objectives of Legislation
The Bill is designed to provide a short, separate piece of legislation to
govern the constitution, composition, jurisdiction and powers of the Land
Court. The Land Appeal Court is also constituted (and continued) under the
Bill with power to hear appeals from the Land Court. Further appeals, on
questions of law only, can be taken to the Court of Appeal.
The Bill will provide the legislative foundation for extensive new Rules
and procedures to modernise and streamline the Court's operation.
With modern techniques of case-management (including Alternative
Dispute Resolution) to be adopted in the subsequent Court Rules, there is
likely to be an overall cost saving--both in the Courts operational costs and
to the wider community.
Reasons for Bill
1. The Land Court is presently established under provisions of the Land
Act 1962 (Part 2, Divisions 5, 6 and 7). These provisions were not
incorporated into the Land Act 1994 because of the uncertainty which then
existed as to the precise future of the Court. The provisions are essentially
all that remains of the Land Act 1962 --obviously only an interim measure
pending complete repeal.
2. Inclusion of the Court in Land Acts of the past (1897, 1910, 1962 etc)
is probably more of a historical reasoning. The Court jurisdiction then was
largely to do with rentals, freeholding and other miscellaneous matters of
Crown land administration. These matters are now of much less relative
significance in the current Court's jurisdiction and workload. A myriad of
other legislation now confers jurisdiction on the Court.
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3. There is strong justification for the separate Act model rather than
include in the Land Act 1994. A stand-alone Act can be assigned to the
most appropriate Minister under administrative arrangements.
4. The Land Court Bill makes little substantive change to the present law.
A main purpose is to provide the legislative base for extensive new
procedural Rules to govern the Court's operation. Proposals for these new
procedures were the subject of a report on the Powers Rules and
Procedures of the Land Court.
5. The Bill preserves the existing Land Court and rights of its Members
as well as retaining the references under Aboriginal Land Legislation. The
provisions relating to the operation of a Queensland Native Title Tribunal
(which were incorporated in the Land Act 1962) are not carried over here.
The Land and Resources Tribunal established under the Land and
Resources Tribunal Act 1999 now covers this aspect. Procedure of the
Court is continued to be governed by equity and good conscience with the
strict rules of evidence not applying. New features include the following:
· Uniform time limits (42 days) for lodgement of appeals under
the various Acts conferring jurisdiction.
There presently exists variations in the time limits governing appeals in
the range of Acts conferring jurisdiction. These appear to be more of
historical origin than of present need. To avoid user confusion and
promote uniformity, a single time limit is to apply. (Treasury have
requested a 30 day limit remain with any appeals to the Court from
Acts they administer).
· A right of appeal to the Land Appeal Court from all
decisions of the Land Court.
Some legislation conferring appeal rights prevents any appeal to a
higher level than the Land Court (e.g. the Water Resources Act).
Aggrieved persons who have wanted to further appeal have been using
alternative and inappropriate mechanisms such as Judicial Review as a
means of taking their case beyond the Land Court decision. The
proposal now is for all cases which are entitled to go to the Land Court
to also have the right to appeal through that appeal path rather than
alternatives.
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· A hearing by the Land Appeal Court to be essentially a
re-hearing of the evidence already presented in the Land
Court with very limited scope for additional evidence.
Rather than have the Land Appeal Court hearing as a fresh hearing (as
was the case prior to 1994) or allow additional evidence with the
consent of both sides, strict limitations are now to apply to any appeal.
The Land Appeal Court will have the discretion to allow new evidence
only if its admission is necessary to avoid grave injustice and there is
adequate reason as to why the evidence was not previously given.
Such conditions will ensure that the initial Land Court hearing is not
merely a "trial run" and will preserve valuable judicial time at the Land
Appeal Court level.
· Appeal from the Land Appeal Court to the Court of Appeal
would be by leave only. This is similar to the appeal
provisions in the Integrated Planning Act 1997.
As any case sought to be taken to the Court of Appeal will already
have been through two levels of hearing, it is considered appropriate
that further appeal should be on issues of law (as is the case now) and
only with leave. Citizens' rights will still be preserved but the Court of
Appeal will ensure that only appropriate cases proceed to it for full
appeal hearing.
· Creation of a new Judicial Registrar position to deal with the
new case-management and alternative dispute resolution
issues. (This is consistent with new enhanced powers of
Registrars in the new Uniform Court Rules prepared by the
Justice Department and the Judiciary).
The Judicial Registrar position is canvassed in paragraph 6.
6. While the `Judicial Registrar' position is effectively a new one, the
functions of the position should relieve some of the work load presently
placed on the five full-time Members. Two of the Members are temporary
only. The need for additional permanent Members can be assessed once the
new procedural processes (especially case-management and mediation),
largely to be the responsibility of the Judicial Registrar, have been
implemented.
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7. While the term "Land Court" has historically been used to describe the
body being constituted, it does not strictly meet all the recognised criteria
necessary to qualify for "court" status. While its decisions are
"determinations" rather than "recommendations", its members are not
appointed to permanent tenure. The existing practice of making
"permanent" appointments for 15 year (renewable) terms is to remain.
While the term "Land Court" is to remain, its precise legal status as a
"specialised judicial tribunal" is to be stated in the Bill.
8. The Justice Department, in close consultation with the Judiciary, has
recently finalised Uniform Procedural Rules for the Supreme, District and
Magistrates Courts. New Rules for the Land Court to follow this Bill will
be consistent with such Uniform Rules as far as possible. Some areas can
be adopted (by reference) with little or no change (eg Alternative Dispute
Resolution, Disclosure/Discovery rules, Service of Documents etc).
However, due to the specialist nature of the Land Court, additional
provisions will be necessary in the Land Court Rules. These have been
canvassed in the Report on the Review of the Land Court previously
referred to.
ADMINISTRATION COST
While no precise costings of the proposals--to be largely implemented in
the Rules--has been attempted, it would seem there is potential for savings
for a number of reasons.
· A streamlined system of court-supervised case management and
a range of pre-hearing steps (including mediation) should
encourage settlement and shorten the hearing time of those cases
that do proceed to trial.
· The Judicial Registrar--on a considerably lesser salary
package--can assume various functions presently performed by
court members.
· Telephone Conferences/Directions Hearings should shorten the
number and length of court circuits.
· More controlled Land Appeal Court hearings should shorten time
taken for those hearings.
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Projected savings should be not only for the Court, but also for the
parties--whether they be government departments, statutory authorities or
other private litigants.
FUNDAMENTAL LEGISLATIVE PRINCIPLES
The Bill is consistent with fundamental legislative principles contained in
section 4 of the Legislative Standards Act 1992.
CONSULTATION
· Client Groups
Representatives from key client groups (valuers, legal, departmental) were
consulted in preparation of the Report referred to above.
· Court President and Members
The Court President as well as other Court Members (including the two
temporary Members) have had detailed input.
· Steering Committee
A Steering Committee was appointed to oversee the implementation of the
Report on the Land Court Powers etc of which this proposed Bill was one
recommendation. This Committee, consisting of the Court President, a
senior partner of a leading Queensland law firm and a senior Departmental
representative, has been assisted in its task by a private consultant
experienced in Court administration.
· Government Departments
The 10 Government departments administering legislation conferring
jurisdiction on the Court have been consulted for comment on any impact
the proposal may have on their legislation.
In addition, Justice Department has been consulted for comment on
whether the proposal is consistent with current practices in or proposals for
the wider Court system.
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NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Bill.
Clause 2 provides for the commencement of the Act on a date to be fixed
by Proclamation.
Clause 3 refers to dictionary in a Schedule to the Bill which defines
certain of the key terms used throughout the Bill.
PART 2--LAND COURT
Division 1--Establishment and Jurisdiction of the Land Court
Clause 4 provides for the establishment of the Land Court. Later
provisions refer to any necessary transitional arrangements for the previous
Land Court. Although the name "Land Court" is retained, it's status is
stated to be a "specialised judicial tribunal."
Clause 5 provides that the Court has such jurisdiction as is given by any
conferring Act. Such jurisdiction is exclusive to the Land Court. Put
another way, a party cannot bring such action in, say, the Supreme Court.
Clause 6 abolishes the prior distinction between Court and Chambers; it
also states that Court business is deemed to be conducted in Court.
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Division 2--General powers
Clause 7 provides that the Court is not to be bound by the strict rules of
evidence as to how it informs itself; however, it must act according to equity
and good conscience but without regard to legal technicalities.
Clause 8 provides power for the Court to summon a person to attend
Court and to produce relevant documents. Penalties apply for refusal to
comply. However, there is protection against self-incrimination for a
person summoned.
Clause 9 contempt of court powers applying in the Supreme Court are
adopted here.
Clause 10 the Court is given power to make authorised orders on terms it
considers applicable to the case before it.
Clause 11 provides the Court with power to accept evidence by a variety
of means but imposes a duty to record such evidence.
Clause 12 provides a power to re-hear matters as opposed to appealing to
a higher Court. The circumstances where such power is likely to be used
would be relatively rare. It could occur where there was a valid reason (not
merely tactical) for not submitting evidence at the initial hearing but where
the absence of such had an important bearing on the decision.
Division 3--Composition and appointments
Clause 13 provides for the composition of the Court--the president and
the members.
Clause 14 provides that Court shall be normally constituted by a single
member sitting alone.
Clause 15 provides that the Court may sit in more than one place at the
one time.
Clause 16 provides for the Governor in a Council to appoint the president
and members. The president, but not the members, must be a barrister or a
solicitor of at least 5 years standing. Permanent members are to be
appointed for a fifteen year (renewable) terms. The president is to be
appointed for the balance of his term as a member.
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Clause 17 provides for any Aboriginal and Torres Strait Land Tribunals
members to be appointed as members of the Land Court.
Clause 18 provides for the appointment of a current member to act as
president.
Clause 19 provides for appointment of acting members either to fill a
vacancy or if the business of the Court so requires.
Clause 20 prohibits a member from having involvement in the practice
of a business or profession likely to be in conflict with his duty as a Court
member. For example, a member should not practice as a valuer or retain
an interest in a private valuation firm of which he was formerly a partner.
Further, a Court member must resign as a Court member if chosen as a
member of the Queensland Parliament.
Division 4--Rules and directions
Clause 21 provides for the making of rules governing the procedures of
the Land Court. Such rules are to be formally approved by the
Governor-in-Council after the concurrence of the Chief Justice and the Land
Court president.
Clause 22 provides for the issue of directions about procedure where a
matter is not covered by the rules. Such directions can be of a general
nature or relate to a particular case.
Division 5--Sittings, parties, adjournments and loss of presiding
member
Clause 23 provides that the Court may sit in any place (in Queensland).
Clause 24 provides that a party having a case before the Court may
appeal personally (without legal or other representation) or he may be
represented by a lawyer or agent (for example, a valuer).
Clause 25 makes provision for adjournment of proceedings either to a
future specific time and/or place or to a time and/or place to be fixed in the
future.
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Clause 26 provides for a "stay" or freeze on the decision, on order of the
Court, until a decision on the re-hearing application (and eventual re-hearing,
if any) is made. Similar provision for "stay" is made for appeals to the
Land Appeal Court (see clause 69).
Clause 27 provides for the situation where a presiding member dies or
becomes incapacitated before the completion of the hearing or delivering the
decision.
The Court president on his own initiative or on the application of a party
to the case has three options open:
· a rehearing
· adjournment, until the incapacitated member is able to continue
· with the consent of the parties, make any other appropriate order
In the case of a re-hearing, power is given to the member re-hearing the
case to make an order as to costs in relation to the initial hearing.
Division 6--Judicial Registrars
Clause 28 provides for the Governor-in-Council to appoint judicial
registrars. While this is a new position for the Land Court, it follows the
proposal to introduce equivalent positions in the Supreme and District Court
systems. The appointee must be eligible for appointment as a barrister or
solicitor of the Supreme Court. Restrictions on removal are listed--only on
the basis of proven incapacity or misbehaviour.
Clause 29 provides for the judicial registrar to deal with matters that will
be listed in the Rules of Court. One limitation on his powers is that he
cannot exercise the contempt powers of the Court.
Clause 30 provides for the independence of judicial registrars--they are
not subject to control other than the direction and control as provided for
under this Act.
Clause 31 provides for the situation where a party is dissatisfied with a
judicial registrar's decision. Only with leave of a member--not as of
right--the matter may be re-heard. Conditions may be placed on any
re-hearing that is granted.
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Clause 32 provides that the judicial registrar may exercise any powers
granted to the registrar under any Act. A member of the Court may also
exercise any of the powers of a judicial registrar.
Division 7--General matters
Clause 33 the Court is given power to make declarations about actions
taken or proposed under Acts conferring jurisdiction on the Court.
The Court can also make a declaration as to the interpretation of any
legislation relating to matters dealt with by the Court.
Clause 34 the general rule is that parties to a proceeding bear their own
costs.
However, the Court may make an order as to costs it considers
appropriate. For example, a successful party may be granted an order that
the other side pay all or part of their (the successful party's) costs.
Clause 35 the legal protection provided to judicial figures, lawyers (or
agents) and witnesses in the wider Court system is granted to the
corresponding persons in the Land Court system.
Clause 36 provides for the holding of preliminary conferences to identify
issues in an attempt to negotiate a settlement. A party's representation at the
conference must have authority to settle the matter on any issue raised. A
presiding member or judicial registrar may dispose of any matter in the
manner agreed. Alternatively, if agreement is not reached but the parties
agree to its finalisation, the Court may still dispose of the matter. If the
matter proceeds further, two restrictions apply unless the parties' consent.
First, the presiding member or judicial registrar at the preliminary
conference cannot hear the matter at the future stage. Second, any evidence
given (or admission made) at the preliminary conference cannot be
addressed at further proceedings.
Division 8--Alternative Dispute Resolution
Clause 37 adopts the Alternative Dispute Resolution provisions of the
Supreme Court Act. These essentially relate to mediation and case
appraisal.
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This clause also provides for a member (or judicial registrar) to be
appointed a mediator on case appraiser. Thus, it is not necessary for an
external mediator--for whom the parties would pay--to be appointed.
Division 9--Conditions of members
Clause 38 provides for the remuneration of the president and members to
be decided (as is the case with Judges) by the Judges' Salaries and
Allowances Tribunal.
Clause 39 provides similar conditions for long (service) leave as apply to
judges.
Clause 40 provides for similar conditions for pensions as apply to
judges. Separate provisions apply to members who are members of the
State Service Superannuation Fund at the time of the member's
appointment if they elect to remain with that fund.
Clause 41 provides for the periods to be taken into consideration in
calculation of a member's length of service.
Clause 42 provides that a member must retire on reaching 70 years of
age. However, the member who starts a hearing before 70 years of age,
may continue with the hearing until it ends.
Clause 43 provides that a member can only be removed from office by
the vote of Parliament for incapacity or misbehaviour. The latter terms are
not separately defined in the Act. Reliance is placed on their established
meaning.
If Parliament is not sitting, a member may be suspended by the
Governor-in-Council. Provision is then made for consequent action once
Parliament resumes. Grounds for suspension must be presented to
Parliament where the suspension can be confirmed or lifted.
Clause 44 provides that certain of the conditions applicable to members
under Division 9 do not apply to those appointed only be virtue of their
membership of the land tribunal.
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Division 10--Conditions of Judicial Registrars
Clause 45 provides for the conditions of appointment of judicial
registrars. The position's independence is preserved with appointment
being under this Act rather than the Public Service Act.
Details of the appointment, including salary, not provided for in this Act
must be published in the Government Gazette. Unlike members, the
appointment is not related to the Judges (Salaries and Allowances) Act
1967.
Clause 46 provides a maximum retiring age for the judicial registrar at 70
years. This is consistent with that for members.
Clause 47 provides for the preservation of accrued rights for a person
appointed as a judicial registrar who was formerly a public servant. Service
as a judicial registrar is deemed to be a continuation of public service in so
far as such rights are concerned.
Division 11--Other Land Court Officials and registry
Clause 48 provides for the appointment of certain court officials. They
are to be employed under the Public Service Act although the registrar must
be appointed by the Governor-in-Council.
Clause 49 provides for the registrar and deputies to exercise functions
granted under this or another Act. They are given powers to do anything
necessary to perform those functions. Unlike members or judicial
registrars, they cannot exercise judicial or quasi-judicial powers.
Clause 50 provides for the registrar to delegate his functions to a deputy.
Clause 51 provides for a single registry located in Brisbane. It is under
the control of the registrar who may give directions to registry officers.
Clause 52 provides a duty on the registrar to keep minutes of court
proceedings and records of its decisions.
It also provides that any person, not limited to a party to proceeding
before the court, may examine and take copies of any notes of evidence or
any documents produced in evidence to the court.
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PART 3--LAND APPEAL COURT
Division 1--Establishment and jurisdiction
Clause 53 provides for the establishment of the Land Appeal Court.
Transitional provisions cover the provisions of the Land Appeal Court.
Formalities of it being a court of record and having a court seal are also
included.
Clause 54 jurisdiction to hear matters is that conferred on the Court by
any Act.
Division 2--General powers
Clause 55 similar general rules apply to the Land Appeal Court as to the
Land Court. The strict rules of evidence do not apply; and regard is to be
had to the substantial merits of the case without regard to legal technicalities.
The limits of these rules have been established by various Court
decisions on corresponding provisions in the repealed provisions.
Clause 56 provides the general rule that an appeal to the Land Appeal
Court is to be decided on the evidence already presented to the Land Court
in the case appealed against. The appeal case is not a re-hearing as was the
case prior to 1994.
However, new evidence can be admitted in a fairly limited range of cases.
The Court is given a discretion to admit such evidence if the nominated
conditions are met. These conditions are stricter then those applying under
the previous provisions.
Clause 57 as an alternative to finally deciding the matter itself, the Land
Appeal Court may return the case back to the Land Court for certain
reasons. These include an error or mistake of law or for the matter to be
re-decided with or without further evidence.
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Division 3--Constitution for appeals
Clause 58 provides for how the Land Appeal Court is to be constituted,
namely by a Supreme Court judge and two members other than the
member who gave the original decision appealed against.
Clause 59 covers the case of appeals from the land tribunal as opposed to
the Land Court. Provision is made for at least one member of the land
tribunal (other than the initial decision-maker) to sit on the appeal court.
Clause 60 provides for the composition of the Land Appeal Court where
there is a question of law referred to that court for determination from a land
tribunal. The power to so refer is conferred by the Aboriginal Land Act
1991.
Clause 61 provides for the Court president to hear the final decision on
composition of the Land Appeal Court for all appeals to that Court, whether
they be from the Land Court or the Land Tribunal.
Clause 62 provides for the Chief Justice to nominate the Supreme Court
Judge who is to sit on the Land Appeal Court in Brisbane. The Supreme
Court Judge appointed to the three districts in Queensland--central,
northern and far northern--sit on the Land Appeal Court whenever it sits in
their districts.
Clause 63 provides that the Court, as with the Land Court, may be
constituted in more than one place at the one time.
Division 4--Appeals, sittings, parties, adjournments, proceedings and
loss of presiding members
Clause 64 provides a right for a party to proceedings to appeal the whole
of the decision of the Land Court or specific parts of it.
Clause 65 provides for appeals to be made within 42 days of the Land
Court decision. Notice of appeal must be served on all the parties and the
Land Appeal Court registrar.
The notice of appeal must state the grounds on which the appeal is made.
Clause 66 As with the Land Court, the Land Appeal Court may sit in any
place in Queensland.
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Clause 67 As in the Land Court, any party to the appeal may appear
personally or be represented by a lawyer or agent (eg. a valuer).
Clause 68 This adjournment power corresponds to that of the Land Court
provided for in clause 25.
Clause 69 an appeal against a decision of the Land Court does not, in
itself, prevent that decision from coming into effect or being carried out.
However, the Land Appeal Court may order such decision not be carried
out (`stayed') pending the outcome of the appeal.
The reason for granting such a stay would be to ensure any varied
decision on appeal could be effectively carried out eg. payment of a large
compensation award to a financially vulnerable company may be stayed if
there were serious doubt about recovery of excess should a much lower
figure be awarded on appeal.
Any stay ordered cannot operate past the time of the Land Appeal Court
decision.
Clause 70 If one member of the Land Appeal Court dies or becomes
incapacitated before the Court's decision is delivered, the clause provides
that the case may proceed with the other 2 only. However, this can only
happen with the consent of all parties to the appeal.
Clause 71 provides that, where a decision is not unanimous, a decision of
the majority of the Court is the decision of the Court.
Division 5--General matters
Clause 72 Rather than repeat certain provisions applying to the Land
Court, this clause makes them apply, with any necessary adaptations, to the
Land Appeal Court. These provisions relate to:
· subpoenas;
· contempt;
· rules of Court;
· directions; and
· costs.
Clause 73 provides for the Registrar and other officers of the Land Court
are to hold similar positions in the Land Appeal Court.
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PART 4--APPEALS TO COURT OF APPEAL
Clause 74 provides for appeal from the Land Appeal Court to the Court
of Appeal. Such appeal is limited to questions of law or absence or
excesses of jurisdiction in the Courts below. Appeal, even on these limited
grounds, is now only `with leave' from the Court of Appeal.
This "leave" requirement follows the recently introduced model for
appeals from the Planning and Environment Court to the Court of Appeal.
The leave requirement should ensure only issues of sufficient merit proceed
to full appeal.
Clause 75 provides the procedural requirements for appealing to the
Court of Appeal. Time limits and service provisions are included.
Clause 76 The Court of Appeal is given a number of options as to the
course it takes. It may return the matter to the Land Appeal Court to make a
decision in accord with the Court of Appeal decision on, for example, a
legal issue; it may substitute its own decision; or it may make any order it
considers proper in the circumstances of the case.
PART 5--MISCELLANEOUS
Clause 77 provides that the appointment and signature of office holders
under this Act can be accepted in a court situation on their face without
further formal proof.
Clause 78 provides for the making of regulations including those relating
to fees and costs.
PART 6--SAVINGS AND TRANSITIONAL
Clause 79 provides for the continuance of the Land Court established
under earlier legislation.
Clause 80 makes a similar provision for continuance of the Land Appeal
Court.
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Clause 81 provides for the continuation of the appointments of the
existing President and members. Existing members (including the
president) have their present appointments continue for the stipulated period.
Clause 82 provides for the continuation of all existing entitlements the
members have, including long leave rights.
Clause 83 provides for the continuation of the appointments of the
Registrar and other Court officers together with any accrued rights they
presently have.
Clause 84 provides for Court orders made before the commencement of
this Act, but still current, to continue to have legal effect. Such orders can
be discharged or amended under this new Act.
Clause 85 provides that any matters commenced under prior legislation
can be continued and completed under this Act.
PART 7--CONSEQUENTIAL AMENDMENTS
These provisions amend various Acts which refer disputed issues to the
Land Court. The amendments cover two areas. First, a uniform time
period (42 days) in which to lodge appeals is provided (except with the
Land Tax Act where the limit of 30 days is retained).
Second, three Acts--the Water Resources Act, State Housing Act and
Soil Conservation Act, previously prohibited any decisions of the Land
Court being further appealed on matters referred to by such Acts. These
restrictions are now lifted.
© The State of Queensland 1999