7.2 Development of a Bill
7.2.1 Cabinet approval to prepare a Bill
Cabinet approval must be obtained for all proposals involving new or amending
legislation. In some instances, Ministers may wish Cabinet to consider
recommendations relating to matters involving both the development of policy and
legislative proposals. In such cases, the submission should foreshadow that
legislation will be required at a later date and indicate approximate
timetables.
Drafting instructions must be prepared at the same time as the Cabinet
Authority to Prepare a Bill submission. Ministers and departments who are
consulted on the policy proposals set out in the Authority to Prepare a Bill
submission should also be given the opportunity to comment on the preliminary
drafting instructions.
The instructing department must forward drafting instructions to the Office
of the Queensland Parliamentary Counsel within two working days of receiving
Cabinet Authority to Prepare a Bill approval unless alterations to the
instructions need to be made. In the latter case, instructions must be forwarded
to the Office of the Queensland Parliamentary Counsel within five working days
of Cabinet Authority to Prepare a Bill approval.
An example body of an Authority to Prepare a Bill submission indicating
submission headings and layout appears as Chapter 5.8. Further information on the preparation of
this type of submission including recommendation wording is contained in Chapter 5.1.3 "Authority to Prepare a Bill", Chapter
5.4.1 "Preparation of a Cabinet submission coversheet" and Chapter 5.4.3 "Preparation of a body of a Cabinet submission".
There should be a period of at least 20 days between approval by Cabinet for
Authority to Prepare a Bill and the lodgement of the advance copy of a
submission seeking Authority to Introduce a Bill. This period is to allow for
full consultation with all stakeholders. Ministers must receive the written
approval of the Premier to relax this requirement.
7.2.2 Legislation to bind the State
Legislation that has the potential to bind the State must expressly declare
whether or not it binds the State. This matter should be specifically addressed
in the submission seeking Cabinet's Authority to Prepare a Bill.
7.2.3 Consistency with Commonwealth legislation
Care must be taken to ensure consistency between Commonwealth legislation and
proposed Queensland legislation. Section 109 of the Commonwealth
Constitution provides that State legislation which is inconsistent with
Commonwealth legislation is inoperative to the extent of the inconsistency. In
addition, the High Court has interpreted section 109 to the effect that if the
Commonwealth expresses an intention in legislation to "cover the field" of law,
any State legislation in the same field is inconsistent and therefore
inoperative.
7.2.4 International treaties
Consistency with Australia's obligations under international treaties,
particularly those that have been ratified, should be considered in the drafting
of legislation. Legal advice should be sought as necessary.
7.2.5 Fundamental legislative principles
The Legislative Standards Act 1992 defines fundamental legislative
principles (FLPs) as "principles relating to legislation that underlie a
Parliamentary democracy based on the rule of law". These principles ensure that
legislation has sufficient regard to the civil and legal rights of citizens and
also that it pays sufficient regard to the institution of Parliament.
Under the Legislative Standards Act 1992, the Office of the
Queensland Parliamentary Counsel has a function to advise Ministers, departments
and agencies on the application of fundamental legislative principles to
proposed government legislation. This advice is given directly to Ministers and
instructing officers.
While fundamental legislative principles are important guiding principles,
they are not absolute. Sometimes the application of these principles needs to be
modified to achieve important policy objectives in the public interest. Cabinet
submissions must clearly identify where it is intended that proposed legislation
(including Subordinate Legislation) will depart from a fundamental legislative
principle and Cabinet approval for the proposed departure must be sought.
Appropriate arguments must be included in the Cabinet submission in support
of any departure from a fundamental legislative principle.
Detailed information on fundamental legislative principles can be found in
the Queensland Legislation Handbook.
7.2.6 Administrative Arrangements
Administrative Arrangements (the Arrangements) set out the principal
Ministerial responsibilities of Ministers and the Acts that they administer.
The Arrangements are determined solely by the Premier and are made by Order in
Council and published on a regular basis in the Queensland Government Gazette.
Any proposal by a Minister to transfer a Ministerial responsibility or an Act to
another Minister must be approved by the Premier. The administration of these
matters is undertaken by Constitutional and Administrative Law Services within
the Department of the Premier and Cabinet.
It is not necessary for the Minister responsible for the administration of a
particular Act or provisions of an Act to be specified in legislation unless
there are specific legislative requirements. The Arrangements set out the Acts
administered by each Minister and if more than one Minister is responsible for
the administration of the provisions of an Act this will be specified in the
Arrangements.
Entrusting departments with functions and responsibilities, relieving
departments of such functions and responsibilities, the amalgamation of part or
parts of departments, creating an entity and adding that entity to any
department and matters of a like nature, as specified within the Public
Service Act 1996, are determined by the Premier. Such actions are also made
by a Departmental Arrangements Notice and published in the Queensland Government
Gazette. The administration of these matters is undertaken by the Office of
Public Service Merit and Equity.
Similarly, matters of internal government arrangement should not be specified
in legislation unless there are special legal reasons requiring legislative
provision. It is not, for example, appropriate for one Minister to be required
to act with the consent of another Minister or after consulting with another
Minister. Such matters will, where necessary, be dealt with through the Cabinet
process.
Last reviewed: 17 July, 2009
Last updated: 22 July, 2009
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