2.12 Matters needing consideration
2.12.1 General application provisions
Generally
Legislation tends to be expressed as applying generally to all persons and things. This is sufficient for the vast majority of legislative purposes. However, there are some occasions when it may be necessary to make overarching statements about the application of the whole legislation. For example, an issue may arise about whether the legislation is to bind the State or another Australian body politic, or whether the legislation is to have extraterritorial effect.
Binding on the State or another Australian body politic
The instructing department must specifically consider and address whether or not the Bill is to bind the State (and the other States and the Commonwealth).
In Queensland, the Acts Interpretation Act 1954, section 13 provides that an Act does not bind the State unless express words are included for that purpose. However, clarity is required in legislation and case law suggests that the issue should be dealt with expressly or by necessary implication in each Act.
Indeed, The Queensland Cabinet Handbook requires legislation that has the potential to bind the State to expressly declare whether or not it binds the State, and also requires that this matter be specifically addressed in the Authority to Prepare a Bill submission.
The State's ability to bind the other States and the Commonwealth is limited. For example, the Australian Constitution, section 114 provides:
A State shall not, without the consent of the Parliament of the Commonwealth, ... impose any tax on property of any kind belonging to the Commonwealth ...
If an ability to bind the Commonwealth or the other States to achieve a particular outcome is essential, legal advice on the validity of the proposal should be obtained at the earliest possible stage.
Extraterritorial application
If the nature of the legislation is such that the implementation of its policy will require persons and events outside the State to be covered by the legislation, then it is essential that this be made clear in the legislation.
The Criminal Code, sections 12(2) to (4), 13, and 14 and the Crimes at Sea Act 2001 go a considerable way towards ensuring that the substantive criminal law of Queensland has an appropriate extraterritorial application.
However, other aspects of legislation may also require specific application to persons and circumstances outside the State generally or require provisions making it clear the legislation has effect offshore under the offshore settlement. (See Chapter 1.4.)
2.12.2 Commencement and expiry
An Act commences on the date of assent unless the Act expressly provides otherwise (Acts Interpretation Act 1954, s. 15A). Often, an Act will include specific arrangements for its commencement, for example by specifically stating a commencement date for the whole Act or for particular provisions of the Act, or by providing for the commencement of the Act or particular provisions of the Act on a day to be fixed by a proclamation.
An Act or provision of an Act that has not commenced within one year of the assent day automatically commences on the next day, although a regulation may extend the period of one year by a further maximum period of one year ( Acts Interpretation Act 1954, s. 15DA).
Legislation may not be commenced in a way that results in it having an effect different to that which Parliament intended when the legislation was enacted.
For practical reasons, the timetable for the commencement into effect of provisions of an Act should be known at the earliest possible stage. If possible, the timetable for commencement should be stated in the Bill instead of being left to proclamation. Overlapping, complex, delayed and excessively separated commencement of provisions can make it unacceptably difficult to understand what is the applicable law at a particular time.
The timely, efficient and accurate preparation of reprints of legislation also requires that the timing of the commencement of legislation be known as soon as possible and be kept as simple as possible.
Occasionally, because of particular policy considerations, Acts provide for their own expiry at some specified future time. (Expiry provisions are seen more frequently in subordinate legislation, usually arising out of the declaratory or transient nature of some subordinate legislation.)
There are no statutory or other arrangements requiring OQPC to warn departments of the forthcoming automatic commencement of any Act or provision of an Act. Nor are there arrangements for warning of the forthcoming expiry of any Act. (OQPC is required to give advice about the forthcoming expiry of subordinate legislation, but only in the context of staged automatic expiry under the Statutory Instruments Act 1992.)
2.12.3 Consequential amendments
Research should be conducted on the impact of the proposed Act on existing legislation and other laws. All provisions of Acts requiring amendment as a consequence of the proposed Act should be identified.
2.12.4 Enforcement of provisions
A provision imposing a liability or obligation must make it clear how the liability or obligation is to be enforced. In particular, if it is proposed that a breach of a provision creates a liability to a penalty, that should be made clear. However, it may not be necessary or desirable to create an offence if other legislation already covers the intended offence. In particular, if the Criminal Code provides for an offence, it is undesirable that another Act should erode its nature as a comprehensive code by providing for the same or essentially the same offence.
Appropriate provision needs to be inserted about the enforcement process to be followed. For example, for the prosecution of an offence, it should be clear whether the prosecution is to be on indictment or to be dealt with in summary proceedings.
Penalties in a Bill are presented as fines or, for more serious offences, terms of imprisonment. Fines are generally expressed as a specified number of penalty units. See the Penalties and Sentences Act 1992, section 5 for the value of a penalty unit. See that Act also for penalty options other than imprisonment or a fine.
Penalties must be internally consistent and also consistent with government policy and other legislation. They should reflect the seriousness with which the Parliament views a contravention of the provision to which the penalty attaches.
Offences that are dealt with summarily, that is, simple offences, and indictable offences when dealt with summarily, should not ordinarily carry a penalty greater than two years imprisonment.
Penalties for a contravention of subordinate legislation should generally be limited to not more than 20 penalty units. (Policy No. 2 of 1996 of the Scrutiny of Legislation Committee, in Alert Digest No. 4 of 1996 at pages 6-7, deals with the delegation of legislative power to create offences and prescribe penalties.)
In relation to enforcement matters generally, it should be noted that The Queensland Cabinet Handbook requires that the Department of Justice and Attorney-General be consulted about legislative proposals involving the creation of new offences or the giving of increased powers to police (see also Chapter 2.12.7) or other State officials, and proposals affecting court or tribunal processes or resources.
Depending on the nature of the legislation, it may be necessary to make express statements about the enforcement or non-enforcement of the legislation against children. In preparing legislation, it may be necessary to test the enforcement provisions in the legislation against the Childrens Court Act 1992, the Juvenile Justice Act 1992, the Police Powers and Responsibilities Act 2000 and other legislation making special provision for children to gain an understanding of whether the proposed enforcement provisions are appropriate for children.
2.12.5 Forms
If forms are required for an Act, current legislative drafting practice is generally to provide for the forms to be administratively approved, rather than prescribed by the Act or subordinate legislation. Administratively approved forms are generally approved by the chief executive of the department administering the legislation. These forms can be amended quickly if a deficiency becomes apparent. Each administratively approved form is required to be given a unique number and approval or availability of the form must be notified in the gazette ( Statutory Instruments Act 1992, s. 58).
2.12.6 National Competition Policy
The Treasury Department is responsible for the coordination of National Competition Policy implementation across departments. All legislative proposals for Cabinet consideration with competition policy implications or financial implications should be the subject of consultation with the relevant business group within the Treasury Department.
For further information, policy or instructing officers should refer to The Queensland Cabinet Handbook, and consult with relevant officers in the Treasury Department.
2.12.7 Police powers
A principal objective of the Police Powers and Responsibilities Act 2000 is to consolidate all powers relating to police officers in one Act. Generally, any action to give additional powers to police officers should be by amendment of that Act.
2.12.8 Regulation-making power
The Statutory Instruments Act 1992, particularly in sections 21 to 31, provides for specific regulation-making powers. Consideration must be given to the extent of intended regulations so that any additional regulation-making power needed is expressly stated in the Bill.
2.12.9 When Act operates
An Act has prospective operation, unless a contrary intention appears. Retrospective operation of an Act requires considerable clarity of objective and expression. A retrospective operation is most easily accepted by a court if it has a beneficial effect for members of the community affected by the retrospectivity. If the intention is to have an adverse effect operating retrospectively, the policy objectives need to be particularly clear and capable of express provision in the Act.
Achieving retrospectivity in the criminal law in particular requires a considerable degree of express precision. The retrospectivity is limited to matters of process and other incidental matters. Criminal liability is not imposed retrospectively.
2.12.10 Statutory bodies and statutory office holders
If an Act establishes a statutory body, the nature of the body should be clear on the following points:
- whether or not the body represents the State
- how appointments to the body are made
- the status of employees of the body (for example, whether the Public Service Act 2008 applies)
- whether particular Acts of general application apply to the body, including, for example:
- Crime and Misconduct Act 2001
- Equal Opportunity in Public Employment Act 1992
- Financial Administration and Audit Act 1977
- Public Records Act 2002
- Statutory Bodies Financial Arrangements Act 1982
- if the body is a corporation, the extent to which it is subject to the corporations legislation.
It is important to keep in mind the corporate or non-corporate nature of a body being established by, or dealt with in, legislation. If a body is non-corporate, it is not the practice to give it attributes normally reserved for bodies with legal personality. Responsibility for something done or omitted to be done, or power to take legal or significant action, is normally allocated only to someone or something with legal personality.
It is also important to ensure unnecessary statutory bodies, particularly corporate bodies, are not created. If the activity involved is a government activity and those concerned are able to act under the ordinary authority of the State, there needs to be a substantial justification for the creation of the statutory body. Creation of statutory bodies, when administrative arrangements would be sufficient, erodes the flexibility of executive government and causes unnecessary problems when administrative changes in responsibilities happen. It can also be difficult for the community to understand where responsibility for something lies.
In preparing a provision authorising appointment of a member of a statutory body, issues concerning conflict of interest should be considered. If it is intended that the holder of an existing class of office may be appointed as a member of the statutory body and a conflict of interest arises between the two offices, it may be necessary to expressly authorise such an appointment and provide for ways to avoid the conflict. (See The Australian Law Journal, Volume 51, page 317.)
If it is proposed that criminal history checks must or may be made in relation to persons proposed to be appointed as members of a statutory body, appropriate provisions should be included authorising the public sector entities holding the required information (for example, the Commissioner of the Police Service) to be approached and to disclose the information.
Sometimes an Act provides for a new statutory office (as opposed to a new statutory body). An Act that creates an office must contain provisions securing the independence of the holder of the office to the degree appropriate to the office.
2.12.11 Time
The time factor should always be carefully considered when developing new or amending provisions.
For example, if a provision deals with a set of circumstances, some of which could happen before the provision commences and some after, consideration should be given as to whether specific provision is needed to bring in or isolate the earlier circumstances. This is essential when introducing a criminal offence, penalty or process change. Existing processes that need to be examined with care when legislative change happens include any litigation, enforcement, appeal, review or administrative application processes. See also Chapter 2.12.12.
Also, if the Bill requires a person to do something, when the thing is to be done needs to be stated. If no express statement is made, reasonability is implied. (See the Acts Interpretation Act 1954, s. 38(4).) But this can sometimes be an impractical concept to administer.
2.12.12 Transitional and savings provisions
Proper, timely consideration should be given to transitional and savings provisions. Some examples of matters to be considered include:
- the application of the existing legislation or the proposed legislation to cases that arose before the change
- rights or expectations a person may have under the existing legislation
- the extent to which things done under the existing legislation are to have effect under the proposed legislation.
Some occasions when express transitional or savings provisions may be required have been mentioned in relation to provisions taking account of the time factor (see Chapter 2.12.11). Transitional provisions are also often required when amending or replacing schemes for the grant of any form of property, right, privilege, authority or licence, and in order to continue decisions, appointments or appeals or the right to decide, appoint or appeal.
The Acts Interpretation Act 1954, Part 6, contains standard provisions applying to all legislative change. In deciding whether specific transitional or savings provisions should be prepared that replace or supplement the standard provisions, it is relevant to consider whether specific provisions would merely confuse the operation of the standard provisions, or whether there is at least one good reason for including a specific provision. A difficulty with the standard provisions is that there is much case law about their interpretation. If the impact of the legislative change on existing matters is sensitive or difficult to decide, specific transitional or savings provisions should be prepared.
If possible, subordinate legislation made under a repealed Act should not be carried over under a new Act. Even when the repealed Act and the new Act remain similar, changes to language and concepts can make administering and interpreting any subordinate legislation carried forward very difficult. If the new Act carries forward subordinate legislation made under the repealed Act, the new Act should provide that the subordinate legislation is repealed at a stated time.
2.12.13 Delegations
An Act commonly authorises an official to whom a power is given under the Act to delegate the power to another suitably qualified person. The actual delegation of the power is the subject of a separate instrument. However, if an amending Act will, in substance, vary a delegated power, including by adding to the power, a prudent instructing officer will note this during the drafting process and prepare for any adjustment of delegations necessary for when the amending Act commences. It should not be assumed that an existing delegation, no matter how widely drawn, will still be effective to delegate the power as expanded or varied.
2.12.14 Inconsistency with Corporations Act 2001 (Cwlth)
If proposed legislation could be inconsistent with the Corporations Act 2001 (Cwlth) and will require notification to, and approval of, the Ministerial Council for Corporations, The Queensland Cabinet Handbook requires that this should be the subject of consultation with the Department of Justice and Attorney-General.
Last reviewed: 17 July, 2009
Last updated: 22 July, 2009
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