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    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. As drafting instructions are an integral part of the submission, Cabinet confidentiality should be maintained by ensuring that their preparation is only done “in house” within the instructing department. 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 Premier may authorise drafting to start before the Authority to Prepare has been approved by Cabinet. Departments should firstly contact Policy Division, Department of the Premier and Cabinet to discuss the necessity for early drafting, after which Ministers must write seeking the Premier's approval, with drafting instructions attached.

    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 Compatibility with human rights

    The Human Rights Act 2019 (the Act) requires human rights to be taken into account when developing legislation. After the commencement of the substantive provisions of the Act all Bills introduced into Parliament must be accompanied by a Statement of Compatibility (PDF, 37KB) (as per section 38 of the Act). This applies to government Bills and Private Members’ Bills.

    A Statement of Compatibility must set out whether, in the opinion of the Member who has introduced the Bill, the Bill is compatible or incompatible with the human rights set out in the Act, and set out reasons that explain how a Bill is compatible or otherwise, and the nature and extent of an incompatibility.

    In exceptional circumstances (such as a war, state of emergency, or exceptional crisis situation) an override declaration may be made (as per s 43 of the Act). This has the effect of declaring that an Act or provision has effect despite being incompatible with one or more human rights or with anything else in the Human Rights Act. Policy officers considering use of an override declaration should consult with the Human Rights Unit at Department of Justice and Attorney-General before proceeding with drafting instructions.

    Further guidance about how to address human rights when developing policy and legislation can be found at the Queensland Government Human Rights Portal.

    7.2.7 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 2008, 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 Public Service Commission.

    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.

    7.2.8 Absolute Majority

    Section 4A of the Constitution of Queensland 2001 provides that a Bill to amend an Act respecting the constitution, powers or procedure of the Parliament must not be presented to the Governor for assent unless the Bill has been passed by an absolute majority of the Legislative Assembly.

    An absolute majority means a majority of the total number of members of the Legislative Assembly. For example, if the Legislative Assembly consists of a total number of 89 members, then a Bill to amend an Act respecting the constitution, powers or procedure of the Parliament would need to be passed with at least 45 members voting in favour at the third reading stage. If an absolute majority was not achieved at the third reading stage then the Bill would not be able to be presented to the Governor for assent.

    The term constitution, powers or procedure of the Parliament comes from section 6 of the Australia Act 1986 (the Australia Act) of the Commonwealth.

    The constitution, powers and procedure of the Parliament include the nature and composition of the Parliament, rules for its conduct, laws about its own legislative authority, the duration of the Parliament, the number of members, procedures, privileges and immunities of the Parliament (including the power to make standing orders and requirements as to the passage of bills), and the power to enact legislation. (RD Lumb, The Constitution of the Australian States (University of Queensland Press, 5th ed 1992) 119.)

    Any Bill which expressly amends provisions of the Constitution of Queensland 2001 with respect to the constitution, powers or procedure of the Parliament requires the support of an absolute majority at the third reading stage of the Bill. These provisions are contained principally in Chapter 2 of the Constitution of Queensland 2001. In addition to this, any Bill which indirectly (consequentially or impliedly) amends provisions of the Constitution of Queensland 2001 with respect to the constitution, powers or procedure of the Parliament will be required to be passed by an absolute majority.

    Any Bill that impliedly amends the Constitution of Queensland 2001 with respect to the constitution, powers or procedure of the Parliament should be identified and drafted to clearly state the amendments.

    Where a Bill may expressly or impliedly amend the constitution, powers or procedure of the Parliament, Crown Law advice should be sought by the administering department at the drafting stage of the Bill.

    Information about whether an absolute majority is required should be included under the Issues section of the Authority To Introduce Cabinet Submission.

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    Last updated:
    17 June, 2021
    Last reviewed:
    31 January, 2020