5.2 Matters for consideration by Governor in Council

Matters which require consideration and approval by the Governor in Council include:

• issuing of Commissions;
• certain appointments including Judges, Magistrates, Chief Executives, members of some boards and statutory bodies, and Justices of the Peace (see Other Appointments 5.2.2);
• commencement of high value projects valued over the limits prescribed from time to time;
• the fixing of numbers and levels of Senior Executives to be employed in a Department under the Public Service Act 2008;
• Proclamations setting dates for the commencement of legislation;
• Orders in Council relating to borrowings by local governments, statutory bodies; exemptions from stamp duties; town plans; boundaries of local governments; acquisition of land; and declaration of National Parks;
• notices for the resumption of land and easements;
• Administrative Arrangements;
• new and amending subordinate legislation to be made or approved by the Governor in Council;
• loan guarantees; and
• unforeseen expenditure.

This list is not intended to be exhaustive. A large proportion of the legislation enacted by the Queensland Parliament has delegated power to the Governor in Council which is the principal subordinate legislation instrumentality in the State. Each Department must be familiar with its legislation, both principal and subordinate, and matters requiring Governor in Council approval. If there is any uncertainty regarding the necessity for a matter to be submitted to the Governor in Council for approval, advice should be sought from the Executive Council Secretariat in the first instance.

Each Department must be familiar with matters which require Governor in Council approval.

A brief outline of some of the most common matters submitted by Departments to the Governor in Council follows. A detailed overview of the format of Executive Council documents is at Chapter 8 - Executive Council Documents.

• 5.2.1 Commissions and Letters Patent
• 5.2.2 Other Appointments
• 5.2.3 Project Commencement Approvals
• 5.2.4 Significant Variance to Project Approval
• 5.2.5 Grants
• 5.2.6 Proclamations
• 5.2.7 Subordinate legislation
• 5.2.8 Statutory Instruments
• 5.2.9 Approval of matters retrospectively

5.2.1 Commissions and Letters Patent

A number of Acts require that certain persons should be appointed to office by the Governor by Commission or Letters Patent. Appointments by Letters Patent are restricted to a few office holders, notably Commissioners or Chairpersons of Commissions of Inquiry.

Each Commission should be prepared in the standard format and settled by the Crown Solicitor.

Two copies of the Commission must be signed by the Minister before submission to the Executive Council Secretariat.

A sample Commission is at Appendix 2 (.doc, 46 KB).

5.2.2 Other Appointments

Appointments under the Public Service Act 2008.

The appointment of Chief Executives under the Public Service Act 2008 is by the Governor in Council. A sample Minute for the appointment of a Chief Executive is at Appendix 3 (.doc, 55 KB). These Minutes are prepared by the Public Service Commission.

Appointments to the judiciary and selected quasi-judicial appointments do not appear in the ordinary Schedule of Minutes for Cabinet. These appointments are not submitted for Cabinet's consideration but are counter-initialled by the Premier prior to entry on a Special Schedule of Minutes for Governor in Council consideration.

Other statutory appointments.

Appointments of Justices of the Peace and Chairpersons and Members of the Boards of Statutory Bodies are normally made by the Governor in Council. These appointments take effect from the date of approval by the Governor in Council, unless a later date is stated, and not from the date of approval by Cabinet. Crown Law advice must be obtained as to whether such appointments can be made retrospectively (see 5.2.9 below).

Appointment Minutes must include a short curriculum vitae.

Where an appointment is being proposed as a result of a recruitment and selection process, details of this process should be included in the Explanatory Memorandum to the Minute. Also included in an appointment Executive Council Minute, must be a short curriculum vitae (two pages or less) for each appointee, including re-appointees under the Public Service Act 2008. This is for the information of the Governor and Executive Councillors.

Remuneration must be reflected in dollar amounts.

Where a new member is being proposed for appointment to an existing board or statutory body, the Explanatory Memorandum accompanying the Minute (see Chapter 8) should indicate whom the person is replacing and the reason for the replacement. Where fees are payable the dollar amount of fees is to be included in the Minute recommendation or schedule, not a Category description from the Public Service Commission's Procedures for the Remuneration of Part-time Chairs and Members of Government Boards, Committees and Statutory Authorities. ⁵ A sample schedule for a Minute seeking approval of remuneration is at Appendix 5 (.doc, 32 KB).

5. This is the reverse of arrangements applying in Cabinet submissions, where the Category generally is provided. This is because the Public Service Commission Categories are Cabinet policy and do not have statutory status, while the various statutory provisions relating to appointments require that remuneration (i.e. not a category of fees) be determined by the Governor in Council.

Ministers are required to raise all proposed appointments, regardless of whether they are significant or not, with the Premier in writing in accordance with section 5.1.7 of the Cabinet Handbook.

Where an appointment is required to be made by gazette notice, a copy of the proposed notice should be included with the relevant Minute.

Irrespective of whether appointing or re-appointing a member(s) to a board, the title on the Minute cover should read AN APPOINTMENT or APPOINTMENTS. A sample Minute recommending an appointment to a statutory body is at Appendix 6 (.doc, 127 KB).

Following Governor in Council approval of an appointment to a statutory body or statutory office, a congratulatory letter including a copy of Welcome Aboard: A Guide for Members of Queensland Government Boards, Committees and Statutory Authorities is forwarded by the Premier.

Departments are asked to provide the Executive Council Secretariat with appointees' current addresses, with the lodged Minute, to assist with the congratulatory letter process. Letters of appointment should also be signed by the Minister or the Chief Executive citing the authority for the appointment as the Governor in Council and outlining the role to be performed.

Letters should be sent advising members of their appointment.

5.2.3 Project Commencement Approvals

The commencement of high value projects exceeding the maximum level prescribed for Ministers from time to time requires the approval of the Governor in Council. A sample Minute proposing a project commencement approval is at Appendix 7 (.doc, 191 KB).

A project is defined as a discrete collection of activities to achieve a specified result within a defined timeframe and can comprise one or more contracts.

Governor in Council approval must be sought for the commencement of high value projects valued over $10 000 000 (including GST).

Once this approval is obtained, it is not necessary for further Governor in Council approval to be sought for contracts within the approved total  value.

A number of salient issues are outlined below to assist with the preparation of Executive Council Minutes for project commencement approvals. This section should be read in conjunction with Chapter 8 - Executive Council Documents.

The Executive Council documentation required for a project commencement approval Minute is the same required for all Executive Council Minutes i.e. a Minute cover outlining the sponsoring department, title and recommendation, and an Explanatory Memorandum consisting of standard headings. (Note: as Governor in Council approval for commencement of a high value project is generally required by Government policy only, an Act of Parliament should not be referenced on the Minute cover or in the Explanatory Memorandum).

As a minimum, the recommendation should include the quantum of the total project value (inclusive of GST) in respect of which approval is sought and an adequate description of the subject of the proposed project . The use of a Schedule referenced in the recommendation on the Minute cover may be useful in providing a simpler way of presenting relevant information for the consideration of the Executive Council.

The Explanatory Memorandum should include the name of the project, a description of the project, the total estimated value of the project, the departments seeking the approval as well as the departments involved in the project and details of major key milestone dates associated with the project. If the Minute is seeking approval for the commencement of a number of projects, this detail should be provided for each project.

Information should also be provided regarding how the project is to be funded, for example, Cabinet Budget Review Committee approval decision number (where appropriate) or where a special funding allocation has been made or where funding is to be provided from a particular departmental budget.

Where relevant, reference should also be made to any employment impact, for example, the number of person weeks of employment the project is expected to generate. Departments that do not have a specific formula used to calculate employment impact should refer to Queensland Treasury and Trade's most recent instructions for completing Budget Paper No 3 - Capital Statement. These instructions, which should be available from departmental finance areas, provide a pro-forma for calculating employment impacts. Otherwise, contact should be made with the department's Treasury Analyst.

A copy of the Project Commencement Approval Policy is available on the Queensland Treasury and Trade website.

5.2.4 Significant Variance to Project Approval

An Executive Council Minute seeking approval for a variance to a project should be prepared as soon as there is an indication that a project approved by the Governor in Council will exceed the original approved amount by 10% or more or where a project previously approved by the Minister or accountable officer or delegate exceeds $10 000 000 (including GST) – Variations of up to 10% of the original approval may be approved by the Minister or delegate. The Minute cover should indicate the total project value, that is, the sum of the original approval and the additional amount sought.

The Explanatory Memorandum seeking approval for significant variations to a project should include the name of the project, details of any previous consideration by the Governor in Council or Cabinet Budget Review Committee (including decision numbers where appropriate), for the project as well as the revised total estimate for the project, reasons for the variations, and how the additional costs are to be funded.

The quantum of the additional amount required and the total amount now requiring approval are best shown in a Schedule referenced in the Minute recommendation. A sample revised project approval Minute including the Explanatory Memorandum and Schedule is at Appendix 8 (.doc, 197 KB).

5.2.5 Grants

Governor in Council approval is also sought where an agency grants significant sums of money to another entity for various purposes rather than contracting directly for goods and services. For the allocation or distribution of funds through grants, the Project Commencement Approval policy and its delegation levels apply. If the total allocation is in excess of a Minister's delegation level but the total includes allocations within the Minister's delegation level, Governor in Council approval must be sought for the total allocation amount. This also applies when the source of funding is other than the State Government e.g. Commonwealth funding, given that the State has the ultimate administrative responsibility for making the allocation.

Project commencement approvals in the form of a grant should follow the same format as for a project commencement approval Minute. A sample Project Commencement Approval Minute in the form of a grant is at Appendix 9 (.doc, 207 KB).

5.2.6 Proclamations

Some legislation does not commence until proclaimed. Such proclamations are subordinate legislation. Each Department must ensure that all Proclamations are signed by the Minister prior to submission to the Executive Council Secretariat.

Proclamations which are subordinate legislation must be drafted by the Office of the Queensland Parliamentary Counsel (OQPC) and notified in the Queensland Government Gazette. Other Proclamations must be published in the Queensland Government Gazette in full.

5.2.7 Subordinate legislation

OQPC drafts all subordinate legislation other than exempt subordinate legislation. ⁶ Where OQPC has drafted an instrument, a copy of the instrument certified by OQPC must be included with the Minute. The title of an amending instrument always includes a number e.g. the number (2) in the title " Corrective Services Amendment Regulation No. (2) 2003". The number must be filled in by the sponsoring agency before the instrument is forwarded to the Executive Council Secretariat. If uncertain as to the number, consult the Executive Council Secretariat before finalising the Minute for the sponsoring Minister's signature.

6. Exempt subordinate legislation is defined by section 2 of the Legislative Standards Act 1992. Exempt subordinate legislation is a statutory rule (other than a regulation) declared to be exempt subordinate legislation by an Act or a Regulation under the Legislative Standards Act 1992.

OQPC arranges the gazettal and tabling of subordinate legislation.

The making of subordinate legislation must be notified in the Queensland Government Gazette. The notice must specify the places where copies of the legislation can be obtained (section 47 of the Statutory Instruments Act 1992). OQPC arranges for notification of subordinate legislation and tabling in Parliament if (and only if) it drafts the subordinate legislation. Agencies must ensure that, in relation to exempt subordinate legislation and other statutory instruments, the prescribed notification and tabling requirements are met. Subordinate legislation ceases to have effect notwithstanding Governor in Council approval if it is not tabled in the Legislative Assembly within 14 sitting days of its making.

Significant subordinate legislation must be considered by Cabinet prior to the Governor in Council.

Departments should note that significant subordinate legislation must also be considered by Cabinet prior to being presented to the Governor in Council for approval. (See Section 7.4 of the Cabinet Handbook for what is significant subordinate legislation in this context.)

The need for Compliance Certificates.

All Executive Council Minutes relating to subordinate legislation should include a Compliance Certificate signed by the Chief Executive to indicate that the requirements of the Scrutiny of Legislation Committee in relation to Regulatory Impact Statements have been taken into consideration unless specifically exempted. Subordinate legislation commencing the provisions of primary legislation (section 46 of the Statutory Instruments Act 1992) and Court Rules (section 118B of the Supreme Court Act 1991) are examples of subordinate legislation exempted from the requirements for a Regulatory Impact Statement.

If a Regulatory Impact Statement or Explanatory Notes have been prepared for subordinate legislation, a copy of the statement or notes must be included with the relevant Minute. This also applies to any National Scheme Regulatory Impact Statement prepared in another jurisdiction. If the subordinate legislation was drafted by OQPC, the Regulatory Impact Statement or Explanatory Notes for the subordinate legislation must be formatted by OQPC and bear its stamp evidencing the formatting. This allows OQPC to arrange for their tabling with the subordinate legislation and, in due course, to publish them in the annual volumes of Queensland Subordinate Legislation. If the statement or notes do not bear OQPC's stamp, the progress of the Minute to Executive Council may be delayed.

Where subordinate legislation deals with fees or charges the explanatory memorandum should indicate whether the proposed action represents an increase, decrease or no change to previous structures. Where proposed changes relate to an increase in the Consumer Price Index, this should be noted.

Samples of subordinate legislation are at Appendices 11 (.doc, 45 KB) and 12 (.doc, 44 KB).

A sample a Compliance Certificate is at Appendix 13 (.doc, 31 KB).

5.2.8 Statutory Instruments

The meaning of statutory instruments is defined in section 7 of the Statutory Instruments Act 1992.

Statutory instruments must be settled by the Crown Solicitor.

Statutory instruments, other than subordinate legislation, should be settled by the Crown Solicitor. Any statutory instrument settled by the Crown Solicitor must be certified by the Crown Solicitor and the certified copy included in the Executive Council Minute.

Departments must arrange publication and tabling, where applicable, of statutory instruments not drafted by OPC (see also 7.1 below). All Orders in Council must be either notified or published in the Government Gazette (section 10 of the Statutory Instruments Act 1992).

Where a statutory instrument deals with interests in or over land, the explanatory memorandum should indicate whether Native Title implications have been considered.

A sample statutory instrument is at Appendix 14 (.doc, 35 KB).

5.2.9 Approval of matters retrospectively

Generally the Governor in Council will not approve matters retrospectively. However, where the Minister proposes, for a particular reason, that a matter should be approved retrospectively (irrespective of the means in which the retrospective matter is being proposed), the advice of the Crown Solicitor should be obtained regarding the legality of the action. A copy of that advice should be included with the Executive Council Minute and referenced in the Explanatory Memorandum.

The Crown Solicitor's advice must be obtained for proposed retrospective matters other than subordinate legislation.

In general, beneficial provisions contained in a statutory instrument may be approved retrospectively. Beneficial provisions are those which do not operate to the disadvantage of a person (other than the State, a State statutory body or a local government) by decreasing the person's rights or imposing liabilities on the person. Section 34 of the Statutory Instruments Act 1992 provides that a beneficial provision of a statutory instrument may be given retrospective operation if the instrument expressly provides for that operation.

The Crown Solicitor's advice is not necessary where the retrospective matter is contained in subordinate legislation that is drafted by OQPC.

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