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Legal Affairs, Police, Corrective Services and Emergency Services Committee LEGAL AFFAIRS, POLICE, CORRECTIVE SERVICES AND EMERGENCY SERVICES COMMITTEE Report No.4: Examination of Business Names (Commonwealth Powers) Bill 2011 October 2011 LEGAL AFFAIRS, POLICE, CORRECTIVE SERVICES AND EMERGENCY SERVICES COMMITTEE Acting Chair Hon Dean Wells MP, Member for Murrumba Deputy Chair Mr John‐Paul Langbroek MP, Member for Surfers Paradise Members Mrs Julie Attwood MP, Member for Mount Ommaney Mr Jarrod Bleijie MP, Member for Kawana Mr Chris Foley MP, Member for Maryborough Mrs Betty Kiernan MP, Member for Mount Isa Staff Ms Amanda Powell – Research Director Ms Amanda Honeyman – Principal Research Officer Mrs Gail Easton – Executive Assistant Legal Affairs, Police, Corrective Services and Contact details Emergency Services Committee Parliament House George Street Brisbane Qld 4000 Telephone 07 3406 7307 Fax 07 3406 7070 Email [email protected] Web www.parliament.qld.gov.au/lapcsesc EXAMINATION OF BUSINESS NAMES (COMMONWEALTH POWERS) BILL 2011 CONTENTS Recommendations .....................................................................................................................................5 Additional Findings .....................................................................................................................................5 1. The Committee.................................................................................................................................6 2. The Committee’s process.................................................................................................................6 2.1 Referral................................................................................................................... 6 2.2 Public submissions ................................................................................................. 7 2.3 Departmental assistance........................................................................................ 7 3. Business Names (Commonwealth Powers) Bill 2011.....................................................................8 3.1 Business names registration .................................................................................. 8 3.2 A text‐based referral of power............................................................................... 8 4. Background.....................................................................................................................................10 4.1 The Intergovernmental Agreement for Business Names..................................... 10 4.2 Revenue................................................................................................................ 10 5. Should the Bill be passed? .............................................................................................................11 6. Examination of the Bill ...................................................................................................................11 6.1 Definition of ‘Business’......................................................................................... 11 6.2 Trademarks........................................................................................................... 12 6.3 Non‐government entity access to registration data............................................ 12 6.4 Registration fees................................................................................................... 14 7. Consistency with Fundamental Legislative Principles ..................................................................15 7.1 Sufficient regard to the institution of the State Parliament ................................ 15 7.2 Rights and liberties of individuals ........................................................................ 19 7.3 Immunity from civil liability.................................................................................. 20 7.4 Administrative power........................................................................................... 20 8. Tabling of COAG decisions and Intergovernmental agreements.................................................21 9. Consideration of relevant legislation in other jurisdictions..........................................................22 9.1 Tasmania .............................................................................................................. 22 9.2 New South Wales ................................................................................................. 23 9.3 The Commonwealth............................................................................................. 23 Appendix A – Details of meeting and written material provided by the Department of Justice and Attorney‐General ...........................................................................................................................25 STATEMENT OF RESERVATION................................................................................................................26 Legal Affairs, Police, Corrective Services and Emergency Services Committee 3 EXAMINATION OF BUSINESS NAMES (COMMONWEALTH POWERS) BILL 2011 Legal Affairs, Police, Corrective Services and Emergency Services Committee 4 EXAMINATION OF BUSINESS NAMES (COMMONWEALTH POWERS) BILL 2011 RECOMMENDATIONS Recommendation 1 The committee recommends that the Business Names (Commonwealth Powers) Bill 2011 be passed. Recommendation 2 The committee recommends that the Business Names (Commonwealth Powers) Bill 2011 be amended to omit clause 8 (which provides for the delegation to the Governor in Council of the power to terminate the initial or amendment reference of power to the Commonwealth Parliament). Recommendation 3 The committee recommends that the Business Names (Commonwealth Powers) Bill 2011 be amended to include a definition of ‘unlawful conduct’ to ensure an appropriate limit to the referral of power under clause 5(1)(f). ADDITIONAL FINDINGS The power proposed to be referred to the Commonwealth Parliament under the Business Names (Commonwealth Powers) Bill is effectively defined by the content of the Commonwealth legislation. However, the Commonwealth legislation, which was introduced into the Commonwealth Parliament on 17 August 2011, has not been tabled in the Queensland Parliament. The committee considers that, in the case of national scheme legislation that relies on, or is defined by, proposed Commonwealth legislation or legislation in another jurisdiction (the accompanying legislation), the text of the accompanying legislation should be tabled at the time of introduction of the national scheme legislation into the Queensland Parliament. The availability of the text of the accompanying legislation is essential to the effective scrutiny of the Bill before the State Parliament. The committee strongly encourages the Government to ensure that the text of accompanying legislation is tabled at the time of introduction of future proposed national scheme legislation. Further, with an increasing focus on nationally uniform policy reforms, the committee strongly encourages the Government to table intergovernmental agreements, at the latest, when a Bill to implement the agreed policy reform is introduced into the Legislative Assembly. Legal Affairs, Police, Corrective Services and Emergency Services Committee 5 EXAMINATION OF BUSINESS NAMES (COMMONWEALTH POWERS) BILL 2011 1. THE COMMITTEE The Legal Affairs, Police, Corrective Services and Emergency Services Committee (the committee) is a statutory committee established by the Parliament of Queensland Act 2001 and the Standing Orders of the Legislative Assembly.1 The committee’s primary areas of responsibility include Attorney‐General and Justice (excluding Industrial Relations), Fair Trading, Police, and Community Safety. Section 93(1) of the Parliament of Queensland Act 2001 provides that a portfolio committee is responsible for examining each Bill and item of subordinate legislation in its portfolio area to consider – a) the policy to be given effect by the legislation; b) the application of fundamental legislative principles to the legislation; and c) for subordinate legislation – its lawfulness. Standing Order 132(1) provides that the committee shall: a) determine whether to recommend that the Bill be passed; b) may recommend amendments to the Bill; and c) consider the application of fundamental legislative principles contained in Part 2 of the Legislative Standards Act 1992 to the Bill and compliance with Part 4 of the Legislative Standards Act 1992 regarding explanatory notes. Standing Order 132(2) provides that a report by a portfolio committee on a Bill is to indicate the committee’s determinations on the matters set out in Standing Order 132(1). Standing Order 133 provides that a portfolio committee to which a Bill is referred may examine the Bill by any of the following methods: a) calling for and receiving submissions about a Bill; b) holding hearings and taking evidence from witnesses; c) engaging expert or technical assistance and advice; and d) seeking the opinion of other committees in accordance with Standing Order 135. 2. THE COMMITTEE’S PROCESS 2.1 Referral On 24 August 2011, the Legislative Assembly referred the Business Names (Commonwealth Powers) Bill 2011 (the Bill) to the committee for examination and report. Initially the committee was required under the Standing Orders to report to the House within six months of referral. However, the committee is now required to report to the House by 4 October 2011, as advised to the House on 7 September 2011. 1 Parliament
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