Bills Digest no. 42,
2016–17
PDF version [1154KB]
Christina Raymond
Law and Bills Digest Section
22
November 2016
Contents
Purpose of the Bill
History of the Bill
Structure of the Bill
Schedule 1—Amendments to the Regulatory
Powers Act
Schedules 2–15—Triggering
legislation
Background
Key standard powers
in the Regulatory Powers Act
Part 2—Standard compliance monitoring
powers
Part 3—Standard investigation powers
Parts 4–7—Standard
enforcement powers
Legislative history
of the Regulatory Powers Act
Policy objectives of the Regulatory
Powers Act
Triggering the application of the Regulatory
Powers Act
Implementation of
the Regulatory Powers Act
Committee consideration
Consideration of the Bill in the 45th
Parliament
Consideration of the Bill in the 44th
Parliament
Relevant consideration of the
Regulatory Powers (Standard Provisions) Bills, 2012–2014
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Schedule 1—Amendment of the standard
provisions of the Regulatory Powers Act
Schedule 2—Amendment of the Australian
Sports and Anti-Doping Authority Act 2006
Schedule 3—Amendment of the Building
Energy Efficiency Disclosure Act 2010
Schedule 4—Amendment of the Coal
Mining Industry (Long Service Leave) Legislation
Schedule 5—Amendment of the Defence
Act 1903
Schedule 6—Amendment of the Defence
Reserve Service (Protection) Act 2001
Schedule 7—Amendment of the Greenhouse
and Energy Minimum Standards Act 2012
Schedule 8—Amendment of the Horse
Disease Response Levy Collection Act 2011
Schedule 9—Amendment of the Illegal
Logging Prohibition Act 2012
Schedule 10—Amendment of the Industrial
Chemicals (Notification and Assessment) Act 1989
Schedule 11—Amendment of the Paid
Parental Leave Act 2010
Schedule 12—Amendment of the Personal
Property Securities Act 2009
Schedule 13—Amendment of the Privacy
Act 1988
Schedule 14—Amendment of the Tobacco
Plain Packaging Act 2011
Schedule 15—Amendment of the Weapons
of Mass Destruction (Prevention of Proliferation) Act 1995
Legal policy issues—Application of
the Regulatory Powers Act to existing legislation
Absence of
information about progress towards reviewing existing regulatory legislation
Absence of
information about the decision-making methodology in relation to
standardisation
Absence of information about the
possible future use of ‘omnibus’ triggering Bills
Absence of information about, or
enabling, the evaluation of the Regulatory Powers Act
Concluding comments
Date introduced: 12
October 2016
House: Senate
Portfolio: Attorney-General
Commencement: Sections
1–3 commence on Royal Assent. Schedule 1 commences on the day
after Royal Assent. Schedules 2–15 commence on a day to be fixed by
proclamation, or 12 months from the day of Royal Assent (whichever is
earlier).
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at November 2016
Purpose of
the Bill
The purpose of the Regulatory Powers (Standardisation Reform)
Bill 2016 (the Bill) is to:
- amend
15 Commonwealth Acts that establish regulatory regimes by:[1]
- repealing
certain of their existing provisions conferring powers of investigation,
compliance monitoring and enforcement (as applicable) on the relevant
regulatory agency administering each scheme
- substituting
each provision repealed with a corresponding ‘standard’ provision of the Regulatory
Powers (Standard Provisions) Act 2014 (Regulatory Powers Act or
RPA)[2]
- providing
for the continuation of certain, existing regulatory powers and related
provisions—generally because there are no equivalent provisions in the RPA,
and it is considered necessary for the relevant regulatory agencies to continue
to exercise these powers to perform their statutory functions, and
- amend
the RPA to give effect to the Government’s intended interpretation
of certain standard provisions, and to remove some procedural requirements
which it has assessed as imposing ‘unreasonable administrative burdens’[3]
on agencies exercising powers under the RPA.[4] The
Government has described the proposed amendments to the RPA as ‘minor’.[5]
The
Regulatory Powers (Standard Provisions) Act 2014
The RPA contains a standard suite of
provisions containing investigative, compliance monitoring and enforcement
powers which can be applied to individual pieces of Commonwealth regulatory
legislation.
According to the Explanatory Memorandum to
the originating Bill, the Regulatory Powers (Standard Provisions) Bill 2014
(2014 Bill), the standard provisions in the RPA are based on powers
which are commonly available to many Commonwealth regulatory agencies in their
various pieces of governing legislation.[6]
The RPA does not have a direct
legal effect, in the sense of conferring powers on regulatory agencies, or
imposing duties or liabilities on regulated entities. Rather, its provisions
have effect if a new Act is drafted, or if an existing Act is amended,
to apply the standard provisions of the RPA to a particular regulatory
scheme.[7]
Legislation applying the provisions of the RPA to
an individual regulatory scheme is commonly referred to as triggering legislation.
The process of ‘triggering’ the application of the RPA to a piece of
regulatory legislation is commonly referred to as standardisation.
The objective of standardisation is to ‘simplify and
streamline Commonwealth regulatory powers across the statute book’ by creating
a general framework of powers which can be applied to multiple regulatory
schemes.[8]
The standardisation of Commonwealth regulatory powers is also said to ‘support
the Government’s regulatory reform agenda’ by reducing the volume of
Commonwealth regulatory legislation. This is said to be because triggering
legislation can be drafted to cross-refer to (or ‘incorporate by reference’)
the relevant provisions of the RPA, rather than reproducing them in full
in each enactment.[9]
Standardisation is also said to ‘increase legal certainty’
for individuals and businesses subject to the relevant regulatory powers.[10]
(These persons or bodies are referred to in this Bills Digest as regulated
entities.)
History of
the Bill
The Government introduced an almost identical Bill in the
Senate in the 44th Parliament. That Bill lapsed upon the dissolution of the
Parliament on 9 May 2016 and had not been debated.[11]
Structure
of the Bill
The Bill contains 15 schedules of amendments, which are as
follows.
Schedule
1—Amendments to the Regulatory Powers (Standard Provisions) Act 2014
Schedule 1
contains proposed amendments to the standard compliance monitoring and
enforcement provisions of the RPA, with the objective of:
- giving effect to the Government’s intended interpretation of certain
standard provisions, and
- removing some procedural requirements which the Government has
assessed as imposing ‘unreasonable administrative burdens’ on agencies
exercising powers under the RPA.[12]
In particular, Schedule 1 contains
the following measures:
- proposed amendments to the standard
compliance-monitoring powers to:
- extend the maximum age of photographs on identity cards which must
be carried by persons exercising compliance monitoring and investigation
powers, from one year to five years[13]
- extend the power to secure evidence of a contravention of a
provision of a regulatory law, if a suspected contravention is identified while
an authorised person is exercising compliance monitoring powers on a regulated
entity’s premises. (In particular, the Bill seeks to extend the types of
contraventions in relation to which the power to secure evidence on premises may
be exercised),[14] and
- proposed amendments to the standard enforcement
powers to:
- extend the time period within which an application can be made to
the court for the enforcement of a civil penalty, from four years to six years,[15] and
- clarify the details that must be included in an infringement notice
which relates to multiple contraventions of a single civil penalty provision.[16]
Schedules 2–15—Triggering legislation
Schedules 2–15 amend the regulatory schemes established under 15 Acts (triggering
legislation) administered by seven portfolios.[17] The amendments repeal
certain investigation, compliance monitoring and enforcement provisions of
these Acts, and substitute them with corresponding provisions of the RPA.
The amendments variously trigger the
RPA provisions in full, or with some modifications. These modifications
preserve some agencies’ existing regulatory powers that do not have an
equivalent in the RPA, and are said to remain necessary for the relevant
agencies to perform their functions.[18]
According to the Government, the proposed amendments in Schedules
2–15 are ‘the first substantial tranche’ of amendments to trigger the
application of the standard provisions of the RPA to existing
regulatory regimes.[19]
The 15 pieces of triggering
legislation and their respective schedules to the Bill are as follows:
Background
Detailed background to the RPA is
provided in the Bills Digest to the originating Bill, the Regulatory Powers
(Standard Provisions) Bill 2014 (the 2014 Bill).[21]
Following is a summary of the key standard
powers in the RPA, the policy objectives of the RPA, and details
of its implementation in relation to individual regulatory regimes.
Key standard powers in the Regulatory Powers Act
Part 2—Standard compliance monitoring powers
Part 2 of the RPA contains standard compliance
monitoring powers, including related authorisation and procedural requirements, which enable an agency to monitor a regulated entity’s
compliance with the provisions of regulatory legislation. These powers can also
be exercised to determine whether information given in compliance, or purported
compliance, with a provision of regulatory legislation is correct.
The standard compliance monitoring
powers include the power to:
- enter
and search premises, and observe activity carried out on the premises[22]
- deal
with evidence found on premises, including by inspecting, examining, making
recordings of and securing things (pending the regulatory agency obtaining
authorisation to seize them under investigation powers),[23]
and
- require
persons on the premises to answer questions and produce documents.[24]
The standard provisions prescribe the authorisation
process for the exercise of monitoring powers (under warrants issued by a
judicial officer acting in a personal capacity, or with the consent of the
occupier of the premises).[25]
They also set out limits on the monitoring powers that may
be authorised,[26]
the obligations applying to persons exercising monitoring powers (such as
providing the occupier with details of a warrant, and carrying identification),[27]
and the rights and responsibilities of persons occupying the premises being
searched.[28]
The standard provisions also state that the compliance monitoring powers do not
abrogate legal professional privilege and the privilege against
self-incrimination.[29]
Part 3—Standard
investigation powers
Part 3 of the RPA contains standard investigation
powers, including related authorisation and procedural requirements,
which enable an agency to gather evidence of contraventions of criminal
offences and civil penalty provisions within its statutory enforcement
functions. Standard investigation powers include the power to:
- enter
and search premises for evidential material[30]
- seize
evidential material,[31]
and
- require
persons on the premises to answer questions and produce documents.[32]
The standard investigation powers must be
authorised under a warrant issued by a judicial officer acting in a personal
capacity, or exercised with the consent of the occupier of the premises.[33]
They set out the conditions and limits of
the investigation powers able to be authorised[34]as
well as the obligations of persons exercising powers and the rights and
responsibilities of persons occupying the premises being searched.[35] Like the compliance
monitoring powers, the investigation powers expressly do not abrogate
self-incrimination or legal professional privilege.[36]
Parts 4–7—Standard enforcement powers
Parts 4–7 of the RPA contain standard enforcement
mechanisms for contraventions of regulatory legislation, principally through the use of civil penalties, infringement notices,
enforceable undertakings and injunctions.
The standard provisions prescribe
requirements governing a regulatory agency’s ability to:
- apply
to the court for a civil remedy in relation to the contravention (a civil
penalty or an injunction)[37]
- issue
an infringement notice to a regulated entity (which means that the regulated
entity can pay an amount of money specified in the notice, as an alternative to
having court proceedings brought against them for a contravention) and to
commence enforcement action in court if the regulated entity does not pay the
amount specified in the notice,[38]
and
- accept
an enforceable undertaking from a regulated entity (for example, to cease
engaging in activities that contravene regulatory requirements) and to commence
proceedings in court if the regulated entity does not adhere to the terms of
the undertaking.[39]
Legislative history of the Regulatory Powers Act
The RPA had its genesis in the Gillard Government’s
‘Clearer Laws Project’, which was undertaken in 2011 to develop various policy,
administrative and legislative measures to improve the clarity and reduce
complexity of Commonwealth laws.[40]
The (then) Government introduced a Bill into the 43rd
Parliament on 10 October 2012, the Regulatory Powers (Standard Provisions)
Bill 2013 (the 2012–13 Bill), which lapsed upon prorogation on
5 August 2013.[41]
In the 44th Parliament, the Abbott Government introduced a
modified version of the 2013 Bill on 20 March 2014 (the 2014 Bill).[42]
It was passed on 10 July 2014 and received Royal Assent on 21 July
2014. Its substantive provisions commenced on 1 October 2014.[43]
Policy objectives
of the Regulatory Powers Act
Broad
policy objectives of standardisation
The objective of standardisation is to ‘simplify and
streamline Commonwealth regulatory powers across the statute book’ by creating
a general framework of powers which can be applied to multiple regulatory
schemes.[44]
The standardisation of Commonwealth regulatory powers is
also said to reduce the volume of Commonwealth regulatory legislation, because
triggering legislation can be drafted to cross-refer to (or ‘incorporate by reference’)
the relevant provisions of the RPA, rather than reproduce them in full
in each enactment.[45]
Standardisation is also said to increase legal certainty
for regulatory agencies and individuals and businesses subject to the relevant
regulatory powers.[46] The Attorney-General’s Department (AGD)
explained:
The application of standard provisions to Commonwealth
regulatory regimes would benefit both regulators and those subject to
regulation. Agencies that exercise powers across multiple regimes are less likely
to make inadvertent procedural errors if the regimes provide for consistent
powers and procedures. The result would be greater compliance and enforcement
outcomes for the Commonwealth.
Standard legal frameworks would also help to reduce the
unnecessary compliance burden for individuals and businesses that are subject
to multiple regimes. Small differences between regimes make it more difficult
for individuals and businesses to be aware of, and to exercise, their rights
and obligations in compliance with various laws.[47]
Specific
policy objectives of standardising existing regulatory legislation
According to the Government, the standardisation of existing
regulatory legislation is important, in addition to applying the standard
provisions to new regulatory regimes, because:
Over the last 20 years there has been an enormous
proliferation of regulatory powers and associated provisions across the
Commonwealth statute book. Those powers and provisions vary in their breadth
and detail, resulting in inconsistency or unnecessary duplication across
regimes.[48]
This suggests that, prior to the enactment of the RPA
in 2014, whole-of-statute-book consistency may not have been a consistently
significant legal policy priority in the development of regulatory legislation.
Hence, the standardisation of existing legislation, via the application of the RPA,
appears to be a form of remedial action.
The objective of standardisation is greater consistency,
not necessarily uniformity
The Government has indicated that the policy intent of
standardising existing regulatory legislation is not necessarily to achieve absolute
uniformity of all provisions on the Commonwealth statute book.[49]
Standardisation is intended to improve the degree of consistency across
regulatory legislation, while maintaining adequate flexibility ‘to ensure that
agencies with specialised functions can operate effectively’.[50]
Some regulatory legislation may be unsuited to
standardisation
The Government has indicated that some regulatory
legislation may not be suitable for standardisation, including the legislation
governing ‘law enforcement and security agencies which deal with national
security or serious or organised crime’.[51]
Some regulatory agencies, including the Australian
Securities and Investments Commission and the Fair Work Ombudsman,
have contended that their legislation is not suited to standardisation. They
have commented that their legislation contains specialised powers, which are
necessary to perform their respective statutory functions, and that the RPA
does not contain equivalent provisions.[52]
In addition, the Government has acknowledged that
standardisation is not intended to result in the wholesale enlargement of
Commonwealth agencies’ existing regulatory powers (which might occur if the
standard powers in the RPA are more extensive than those currently
available to a regulatory agency under its governing legislation). The
Government has stated that the standard provisions of the RPA are ‘intended
to only be triggered where they would provide appropriate and sufficient powers
in the context of the particular regulatory scheme’.[53]
Determining the ‘appropriateness’ and ‘sufficiency’ of an
agency’s regulatory powers appears to involve the exercise of a value judgment
in the context of individual regulatory regimes. The Government has
acknowledged that the Parliamentary scrutiny of each piece of triggering
legislation is an important safeguard in ensuring ‘the suitability of
powers in the particular context in which it is proposed that they be exercised’.[54]
A number of Parliamentary committees have made similar
findings, and have made recommendations setting out several requirements or
expectations for the contents of explanatory memoranda accompanying future triggering
Bills.[55]
(These findings and recommendations are discussed below in relation to
committee consideration.)
Triggering
the application of the Regulatory Powers Act
Importantly, the application of the RPA
can only be triggered by a primary Act and not by subordinate legislation such
as regulations. This means that the Parliament has control of every instance in
which the standard provisions are triggered, including the ability to amend
triggering legislation.[56]
Triggering legislation may apply some, or
all, parts of the RPA to an individual regulatory regime. This will
involve a policy decision as to which standard powers are suitable for
application to the particular regulatory regime.
For example, in some cases it may be
determined that a regulatory agency requires monitoring and civil enforcement
powers to administer a particular regulatory scheme, but it does not have an
operational need for investigation powers. In this event, triggering
legislation could be drafted to apply only the standard monitoring and civil
enforcement powers in the RPA.[57]
Commonwealth First Parliamentary Counsel has issued a drafting direction on the
application of the RPA, which sets out requirements that all drafters in
the Office of Parliamentary Counsel (OPC) must follow in preparing triggering
legislation.[58]
Triggering the standard provisions subject to modifications
In some cases, it may be determined that
a regulatory agency requires specialised powers to perform its functions, and
that such powers are not covered adequately by the standard provisions of the RPA.
This could be managed in two broad ways.
The first option is that the agency’s governing legislation might be
assessed as wholly unsuited to standardisation, in which case there would be no
need to trigger the RPA.
The second option is that
triggering legislation could be drafted to apply some standard provisions of
the RPA to the agency’s governing legislation, with specified modifications.[59] Such modifications could
do one of the following:
- modify
the content of the standard provisions of the RPA as they are to be
applied to an individual agency.
For instance, a modification might alter the applicable thresholds in the
criteria in the RPA for the granting of authorisation to exercise
standard powers (such as entering and searching premises). A modification might
also, for example, alter the procedural requirements set out in the RPA
which govern the exercise of a standard power once an authorisation is obtained,
such as applicable time limits
- trigger
the standard powers in the RPA and authorise the agency to exercise
additional powers.
For instance, a modification might confer an additional investigative power on
an agency to undertake bodily searches of a person on premises, as well as
triggering the standard power in the RPA to search premises and to
require a person on the premises to answer questions and produce documents upon
request
- preserve
some of an agency’s existing powers for which there are no equivalent
provisions in the RPA.
Those of the agency’s existing powers which have equivalent standard provisions
in the RPA could be repealed and substituted with the standard
provisions in the RPA, while retaining in original form those of the
agency’s powers which do not have an equivalent in the RPA.
Impact of modification
on the policy objectives of standardisation
The objective of the RPA is to improve the overall
degree of consistency of Commonwealth regulatory laws. Hence, ‘triggering
legislation’ that applies the standard provisions with some modifications is not
necessarily inconsistent with the policy objective of standardisation. However,
the number and nature of modifications will impact on the extent to which the RPA
can be said to meet its stated policy objective of improving the consistency of
Commonwealth regulatory legislation.
The effectiveness of the RPA will, therefore,
depend significantly on how the standard provisions are applied in practice.
This will require ongoing scrutiny and assessment over time, as new regulatory
legislation is drafted and existing regulatory legislation is amended and
utilised by the relevant regulatory agencies. As outlined below, to date, only
a small number of existing regulatory Acts have applied the standard provisions
of the RPA.
Implementation of the Regulatory Powers Act
Implementation process
In his second reading speech on the 2014
Bill, the Minister for Justice outlined the Government’s intention to implement
the standard provisions of the RPA in the following (apparently concurrent)
stages:
- new laws, which confer investigation,
monitoring or enforcement powers upon regulatory agencies, will be drafted to
trigger the application of the standard provisions of the RPA
- recently
enacted legislation, which was drafted in reliance upon precedent
provisions that informed the development of the RPA, will be reviewed
and amended to trigger the corresponding provisions of the RPA
- existing
legislation, which pre-dates the RPA and is not based on standard drafting
precedents, may be reviewed and amended to trigger provisions of the RPA.[60]
The Attorney-General circulated a replacement Explanatory Memorandum
to the 2014 Bill, which included the following information about the intended process
for implementing the second and third stages:[61]
Over time, existing regulatory regimes will be reviewed and,
if appropriate, amended to instead trigger the relevant provisions of the
Regulatory Powers Bill.
The [Attorney-General’s] Department, in conjunction with the
Office of Parliamentary Counsel, has identified Acts passed in the last session
of Parliament that include provisions modelled on the Bill. Once the Bill is
passed, the Department will contact each of the responsible agencies inviting
them to remove those provisions from the relevant Acts and instead trigger the
provisions of this Bill. Preliminary work has already begun in drafting
amendments of some Acts, so that agencies can gain a clear understanding of
what the provisions of their Acts would look like once amended.
In addition, the Department will contact agencies in all
portfolios inviting them to identify Acts within their portfolio which include
provisions that, although not modelled wholly on the provisions of this Bill,
could be replaced with provisions triggering this model. This may require
adjustments to the relevant triggering Acts to deal with any novel issues
raised because of the environment in which the powers are to be exercised.[62]
Implementation progress
Post-2014—Enactment of ad-hoc triggering legislation
Various pieces of triggering
legislation have been enacted since 2014, which have applied provisions of the RPA
to new and existing regulatory regimes.
However, the Government does not appear
to have published a consolidated list of all regulatory legislation that
applies the standard provisions of the RPA. In addition, it does not
appear to have released information identifying the existing Acts which have
been reviewed to assess their suitability for standardisation. Accordingly, it
is not known which Acts have been assessed as unsuitable for
standardisation, or the methodology and process used to conduct reviews of
existing regulatory legislation to determine its suitability.
A search of the Federal Register of Legislation
in November 2016 identified 12 Acts as having triggered the standard
provisions of the RPA. (That is, these Acts have incorporated the
standard provisions of the RPA, through the inclusion of triggering
provisions which make explicit reference to the relevant provisions of the RPA.)
These Acts are as follows:
Pre-2014—Enactment of legislation applying drafting precedents on
which the RPA is modelled
As noted above in the passage quoted from
the Minister’s second reading speech on the 2014 Bill, several Bills were
passed prior to 2014 that contained regulatory provisions modelled on drafting
precedents developed by OPC. These drafting precedents influenced the
development of the standard provisions now enacted in the RPA.
There does not appear to be a publicly
available list of all such legislation, which is not readily identifiable
through searching the Federal Register of Legislation.[63] However, in March 2013,
AGD gave evidence to the Senate Legal and Constitutional Affairs Committee
which identified 15 such Acts and a further three Bills (two of which are now
Acts) as at 6 March 2013.[64]
This legislation is listed below. Seven Acts (identified
with footnotes in the below list) are now the subject of proposed amendments in
Schedules 2–15 of the Bill. The proposed amendments in the present Bill would,
if enacted, repeal the ‘drafting precedent’ provisions enacted prior to
the RPA and replace them with the corresponding standard provisions of
the RPA, with some minor variations in some cases.
Committee
consideration
Consideration
of the Bill in the 45th Parliament
On 10 November 2016, the Senate Standing Committee for
the Selection of Bills decided that the Bill should not be referred to
committee for inquiry.[72]
The Senate Standing Committee for the Scrutiny of Bills
had no comment on the Bill.[73]
The Parliamentary Joint Committee on Human Rights ‘welcome[d]
the detailed human rights assessment contained in the statement of
compatibility to the Bill’ and considered that, based on the information
provided, the Bill was likely to be compatible with human rights.[74]
Consideration
of the Bill in the 44th Parliament
The Senate Standing Committee for the Selection of Bills
twice deferred its consideration of the Bill as introduced in the 44th
Parliament. It had not reported to the Senate on a decision about the referral
of the Bill to a committee prior to the dissolution of the Parliament on 9 May
2016.[75]
The Parliamentary Joint Committee on Human Rights
identified the Bill as introduced in the 44th Parliament as among those which
did not raise human rights concerns.[76]
The Senate Standing Committee for the Scrutiny of Bills
raised concerns about two broad aspects of the Bill as introduced in the 44th
Parliament in Alert Digest No 4 of 2016. It identified both aspects as potentially
trespassing unduly on personal rights and liberties of regulated entities.[77]
First, the Committee drew the Senate’s attention to
certain proposed amendments to the RPA, which would extend the power of
regulatory agencies to secure evidence of contraventions of relevant regulatory
laws, in the course of exercising compliance monitoring powers.[78]
The Committee noted that these provisions may result in
an increased impact on the privacy of regulated entities by expanding the
circumstances in which a regulatory agency may apply intrusive measures to
secure evidence on a regulated entity’s premises—for example, by placing the
relevant evidence under armed guard.[79]
Second, the Committee sought the advice of the
Attorney-General about the Government’s justification for certain ‘triggering
provisions’ in Schedules 2–15 to the Bill, which sought to modify the
application of the standard civil penalty provisions in Part 4 of the RPA
that deal with the burden of proof in enforcement proceedings arising from an
alleged contravention of a civil penalty provision.[80]
The RPA provides that the applicant bears the legal
burden of proof,[81]
but the respondent bears an evidential burden[82]
in relation to any exceptions, exemptions, excuses, qualifications or
justifications that may be provided for in individual civil penalty
provisions.[83]
As the Committee noted, some proposed amendments in
Schedules 2–15 to the Bill modify the application of the RPA, with the
result that the respondent has the legal burden of proof in relation to some exceptions
to civil penalty provisions. This means that the respondent must prove, on the
balance of probabilities, that the exception is established.[84]
Pending receipt of the Attorney-General’s advice on this
matter, the Committee drew these provisions to the attention of the Senate as a
potential instance of undue trespass on personal rights and liberties.[85]
In its Fifth Report of 2016, tabled on 3 May 2016, the Committee
reported that it had not yet received a response from the Attorney-General to
its request for advice.[86]
Relevant
consideration of the Regulatory Powers (Standard Provisions) Bills, 2012–2014
Several Parliamentary committees conducted inquiries into
the 2012–13 and 2014 Bills. Their reports emphasised the importance of Parliamentary
scrutiny of future triggering legislation. They identified some scrutiny issues
in relation to future triggering legislation (detailed below) that may warrant
attention.[87]
Senate
Standing Committee for the Scrutiny of Bills
Consideration
of the 2012–13 Bill
In its consideration of the 2012–13 Bill, the Senate
Standing Committee for the Scrutiny of Bills commented that ‘the
appropriateness of coercive regulatory powers will depend on the particular
statutory context to which they are applied’.[88]
It noted that each provision of future triggering legislation must be assessed
individually against the matters listed in its terms of reference.[89]
The Committee indicated that legislation triggering the
standard civil penalty provisions should be accompanied by a justification of
why it is appropriate—in the context of the individual regulatory regime—to
place an evidential burden on a person wishing to rely on any exception,
exemption excuse or justification.[90]
(The Committee’s request for the Attorney-General’s advice on the Bill as
introduced in the 44th Parliament in Alert Digest No 4 of 2016, summarised
above, appears to reflect this area of interest.)
The Committee, as constituted in 2012, also articulated a
general expectation that future triggering legislation should be: ‘accompanied
by detailed consideration in the Explanatory Memorandum explaining the
appropriateness of the standard provisions adopted’ in order to ‘facilitate
adequate Parliamentary scrutiny of such legislation’.[91]
Consideration
of the 2014 Bill
The Committee reiterated the above expectation in relation
to Explanatory Memoranda accompanying future triggering legislation in its
consideration of the 2014 Bill.[92]
The Committee also noted its particular interest in
scrutinising future triggering legislation that applies the investigation power
now contained in section 59 of the RPA, relating to the execution of an
investigation warrant.[93]
(This provision enables an authorised person, and persons assisting, who
are executing an investigation warrant to temporarily cease its execution,
leave the premises, and return to complete execution without further
authorisation, provided that the warrant is still in force and certain other
conditions are satisfied.)
The Committee noted its interest in scrutinising future
triggering legislation to determine whether individual regulatory regimes
demonstrate an operational need for this power.[94]
The Committee also identified its ‘future interest in whether any
reporting requirements will apply to these situations’.[95]
Senate
Legal and Constitutional Affairs Committee
Consideration
of the 2012–13 Bill
The Senate Legal and Constitutional Affairs Committee
conducted inquiries into the 2012–13 and 2014 Bills.
In its inquiry into the 2012–13 Bill, the Committee described Parliamentary
scrutiny of future triggering legislation as a matter of the ‘utmost importance’.[96]
The Committee expressed a ‘strong view that the Bill should not be used as
an opportunity for agencies to augment existing powers and, in particular, the Bill’s
coercive powers without strong justification’.[97]
As an aid to the future scrutiny of triggering
legislation, it recommended that the Explanatory Memorandum to each
triggering Bill should:
- explicitly
identify and explain the status of the Bill as triggering legislation for the
purpose of the RPA[98]
- clearly
set out the relevant agency’s current regulatory powers in comparison with the
standard provisions of the RPA which the Bill proposes to trigger, and
- if
the application of the standard provisions of the RPA to the agency’s
governing legislation results in any expansion of the relevant agency’s
existing powers—provide a detailed justification for this outcome.[99]
Consideration
of the 2014 Bill
The Committee affirmed its support for the above approach to
Explanatory Memoranda accompanying future triggering Bills in its report on its
inquiry into the 2014 Bill.[100]
The Committee also commented on the absence of
information in the extrinsic materials to the 2014 Bill about the Government’s process
for reviewing existing legislation to determine its suitability or otherwise
for standardisation. It noted that there was an absence of detailed information
about individual Acts or broad areas of regulation that had been reviewed to
date, to determine their suitability for standardisation.[101]
The Committee commented that ‘for the Bill to realise its
intended deregulatory effect, legislation affecting multiple Commonwealth
agencies would need to be amended to rely on this Bill’ and indicated it would
be ‘useful’ for the Parliament to be provided with contextual information about
‘progress in discussions with other Commonwealth agencies’ and ‘specific areas
of deregulation’ identified to date.[102]
The Committee recommended that the Government amend the Explanatory Memorandum to
the 2014 Bill to include this information.[103]
The replacement Explanatory Memorandum (quoted above) included a general
statement that AGD would contact individual regulatory agencies with a view to
identifying legislation potentially suitable for standardisation.[104]
Parliamentary
Joint Committee on Human Rights
Consideration
of the 2012–13 Bill
In its consideration of the 2012–13 Bill, the Parliamentary
Joint Committee on Human Rights commented that it was difficult to reach a
definitive conclusion on the human rights compatibility of the standard powers
in the abstract, as ‘each application of its provisions would need to be
assessed on a case by case basis’.[105]
The Committee appeared to place particular emphasis on
scrutinising the compatibility of future Bills that sought to trigger the
standard civil penalty provisions in Part 4 of the RPA. The Committee
identified a possibility that such provisions could, in some instances of their
application, be characterised as laws imposing ‘criminal penalties’ upon
regulated entities for the purpose of international human rights law.
The Committee emphasised that it would be necessary to
consider the compatibility of such triggering provisions with the criminal
process requirements in Articles 14 and 15 of the International Covenant on
Civil and Political Rights (ICCPR).[106]
Consideration
of the 2014 Bill
In its report on the 2014 Bill, the Committee again emphasised
the importance of scrutinising the human rights impacts of individual pieces of
triggering legislation.[107]
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independent members of Parliament do not appear to have commented publicly on
the Bill, or on the previous Bill as introduced to the 44th Parliament.
Position of
major interest groups
Comments on
the Bill and the Bill introduced to the 44th Parliament
At the time of writing, interest groups do not appear to
have commented publicly on the Bill, or on the previous Bill as introduced to the
44th Parliament.
Comments on
the 2012–13 and 2014 Bills—Scrutiny of future triggering legislation
In the course of Parliamentary scrutiny of the 2012–13 and
2014 Bills to enact the RPA, some interest groups commented on the
importance of the scrutiny of future triggering legislation.
For example, in its submission to the Senate Legal and
Constitutional Affairs Committee inquiry into the 2012–13 Bill, the Law Council
of Australia identified a risk that future triggering legislation could operate
to ‘complicate existing regulatory regimes’ rather than fulfil the Government’s
stated policy objective of reducing complexity and promoting legal certainty by
enabling the adoption of more uniform regulatory powers.[108]
In particular, the Law Council identified the possibility
that triggering legislation could be drafted to preserve parts of an agency’s
existing regulatory powers—which may already be contained in multiple
Acts—while seeking to augment them by applying some standard powers.[109]
The Law Council cautioned that such an approach could
increase legislative complexity because it would require regulatory agencies
and regulated entities to consult multiple pieces of legislation to identify
powers, duties, obligations and liabilities arising under the regulatory scheme
or schemes administered by the agency.[110]
Financial
implications
According to the Explanatory Memorandum, the Bill will
have a ‘nil or insignificant’ financial impact on the relevant regulatory
agencies performing functions under the legislation to be amended by the Bill,
as the amendments ‘generally do not alter the effect of the law’.[111]
It does not comment on potential or anticipated financial impacts on regulated
entities.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[112]
The Statement of Compatibility acknowledges the emphasis
that the Parliamentary Joint Committee on Human Rights has previously placed
upon the need to assess the compatibility of triggering provisions in their
particular regulatory context (as outlined above).[113]
To this end, the Statement of Compatibility provides an individualised assessment
of the compatibility of each Act amended by Schedules 2–15. Two significant
issues identified in relation to most schedules to the Bill are:
- civil penalties—the issue of whether the civil penalty
provisions in the triggering legislation in Schedules 2–15 amount to
‘criminal penalties’ which attract the criminal process rights in Articles
14 and 15 of the ICCPR,[114]
and
- monitoring and investigation powers—the issue of whether
the amendments to the standard monitoring and investigation powers in Parts 2
and 3 of the RPA (in Schedule 1) and their application by the
triggering legislation (in Schedules 2–15) are permissible limitations on the
right of regulated entities under Article 17 of the ICCPR to
protection against unlawful and arbitrary interferences with their privacy.[115]
Key issues
and provisions
Schedule 1—Amendment of the standard powers in the RPA
Outline of proposed amendments
Schedule 1 to the Bill amends certain of the standard
compliance monitoring, investigation and enforcement provisions in Parts 2–5 of
the RPA. The amending items are as follows:
- items 1–3 (compliance monitoring powers)
amend section 22 of the RPA (securing evidence of contraventions) as
follows:
- items 1 and 2 extend the power
of an ‘authorised person’ to secure evidence of a contravention of a provision
of a regulatory law, if the authorised person identifies such evidence while
exercising compliance monitoring powers on a regulated entity’s premises. Specifically,
item 2 substitutes a new paragraph 22(1)(b) which extends the
types of contraventions in relation to which the power to secure evidence may
be exercised (as discussed below). Item 1 makes a consequential
amendment to the heading of section 22
- item 3 further amends section 22
to correct an apparent typographical error in the provision.
(It replaces a reference to ‘equipment’ in subsection 22(1) with a
reference to a ‘thing’ as is consistent with the use of the latter term in all
other provisions of section 22)
- items 4 and 5 (compliance monitoring and
investigation powers) extend the maximum age of photographs on identity
cards which are required to be issued to ‘authorised persons’
who are permitted to exercise compliance monitoring or investigation powers.
The current maximum age of one year is extended to five years[116]
- item 6 (enforcement powers) extends the time period within which an authorised person must make
an application to a court for a civil penalty order, seeking the imposition of
a pecuniary penalty against a person who is alleged to have contravened a
designated civil penalty provision in the relevant regulatory legislation. The
current period of four years is extended to six years[117]
- items 7 and 8 (enforcement powers) make minor amendments to provisions governing the matters that must
be included in an infringement notice, including the amount of money payable
under the notice, and details of alleged contraventions. These amendments purport
to clarify the way in which these requirements apply to an infringement notice
which relates to multiple contraventions of a single civil penalty provision[118]
- items 9–12 (application provisions)[119] deal with the application of the proposed
amendments in items 1–8 as follows:
- items 9 and 11–12 have the effect that
the amendments made by items 1–3 and 6–8 are of prospective
application. (That is, they apply to compliance monitoring powers exercised,
civil penalty order applications made, and infringement notices issued on, or
after, the commencement of Schedule 1)
- item 10 provides for the
retrospective application of the amendments made in items 4 and 5
with respect to identity cards. It provides that the amendments in items
4 and 5 apply to identity cards issued during the period of 12 months immediately
before the commencement of those items. This means that identity cards which
were valid at the time of commencement will remain valid for a further four
years.
Analysis of proposed amendments
The proposed amendments contained in items 1 and 3–12
appear to be technical or otherwise non‑controversial. Reasonably detailed
justification is provided in the Explanatory Memorandum.[120]
The proposed amendments in item 2 may warrant
closer attention, as they expand the circumstances in which an intrusive compliance
monitoring power (namely, securing things on premises) may be exercised.
Existing section 22
Existing section 22 of the RPA enables an
authorised person to secure a thing found on premises during the exercise of
monitoring powers, if he or she believes on reasonable grounds that a ‘related
provision’ (explained below) has been, is being or will be contravened.[121]
The authorised person must also believe on reasonable
grounds that securing the thing is necessary to prevent it from being
concealed, lost or destroyed before a seizure warrant is obtained (under the
standard investigation powers in Part 3 of the RPA); and that it is
necessary to secure the thing without a warrant because the circumstances are
serious and urgent.[122]
The authorised person may secure the thing for a
(renewable) period of up to 24 hours.[123]
The relevant thing can be secured by locking it up, placing it under guard or
via any other means.[124]
Part 2 of the RPA provides that the standard
compliance monitoring powers can be applied to three broad types of matters, as
may be specified by the relevant triggering Act. These are:
- the
so-called ‘core provisions’[125]
of a regulatory Act which are specified in that Act as being ‘provisions
subject to monitoring’ via the application of the standard monitoring
powers in Part 2 of the RPA (section 8)
- ‘information
subject to monitoring’, being information given in compliance or purported
compliance with a provision of a regulatory Act or a legislative instrument, as
specified by that Act or instrument as being ‘subject to monitoring’ via the
application of Part 2 of the RPA (section 9)
- ‘related
provisions’ of a regulatory Act which are specified in that Act as being
related to another provision that is subject to monitoring via the application
of the standard monitoring powers in Part 2 of the RPA (section 10).
The RPA does not prescribe any subject-matter requirements
for a provision of a regulatory Act to qualify as a so-called ‘core provision’
under section 8 or a ‘related provision’ under section 10, or any conceptual or
functional framework for distinguishing between the two types of provisions.[126]
The power to secure things in existing section 22 is
expressed as applying only to potential contraventions of ‘related provisions’.[127]
The other monitoring powers in Part 2 apply to monitoring compliance with so-called
‘core provisions’ and information subject to monitoring.[128]
Proposed amendment made by item 2—Extended
application of section 22
Item 2 proposes to extend the application of the
power in section 22 of the RPA in two ways:
- it
extends the application of section 22 to so-called ‘core provisions’ subject to
monitoring (in addition to ‘related provisions’) so that an authorised
person can secure a thing if he or she believes on reasonable grounds that a
core provision or a related provision has been, is being, or will be
contravened,[129]
and
- it
extends the application of section 22 to information subject to monitoring,
so that an authorised person can secure a thing if he or she believes on
reasonable grounds that it affords evidence that information subject to
monitoring is not correct.[130]
The Explanatory Memorandum initially describes item 2
as correcting a ‘drafting error’ which limits the power to suspected
contraventions of ‘related provisions’.[131]
Elsewhere, however, the Explanatory Memorandum seems to suggest that the
proposed amendment is merely or primarily declaratory in nature—stating that
its effect will be to ‘clarify’[132]
and place ‘beyond doubt’[133]
the application of the power in section 22 of the RPA to so-called
‘core provisions’ and information subject to monitoring. It further states that
the proposed amendment to section 22 is ‘necessary for the purposes of an
effective monitoring scheme’ but does not advance reasons in support of this
position.[134]
Comment—Item 2
Three issues are worth noting in relation to the proposed
expansion of section 22 by item 2. They arise from the practical impact
of the proposed amendment, and the limited justification provided in the
Explanatory Memorandum.[135]
Breadth of application of the proposed amendment
The first issue relates to the breadth of
application of the proposed amendment, and its potential to have a significant,
adverse impact on regulated entities.
The expanded compliance monitoring power in section 22
will, if enacted, be available to all Commonwealth regulatory agencies whose
governing legislation currently triggers the application of Part 2 of the RPA,
as well as those regulatory agencies whose governing legislation may be amended
or enacted in future to trigger the application of Part 2.
The power to deprive a regulated entity of the
ability to use or deal with its property for a period of time may have a
significant adverse impact on that entity. That impact may extend beyond
intrusions into personal privacy as identified by the Senate Scrutiny of Bills
Committee in its consideration of the Bill in the 44th Parliament and the
Statement of Compatibility in the Explanatory Memorandum. For example,
securing a thing on the entity’s premises may render it inoperative, and may consequently
limit or prevent a regulated entity from conducting its business and therefore deriving
an income for a period of time.
This breadth of application and the potentially
significant adverse impact on regulated entities arguably warrants an
explanation—including by reference to existing operational experience in
applying section 22—of the assertion at page 79 of the Explanatory
Memorandum that the expanded power is ‘necessary’ in order for the scheme of
monitoring powers in the RPA to be ‘effective’.
At a conceptual level, the conferral of a monitoring
power to secure a thing on premises for the purpose of facilitating the
subsequent exercise of investigative powers (namely seizure of the
thing) arguably extends the scope of the monitoring powers beyond the strict
purpose of determining compliance with a regulatory requirement, or the
accuracy of information provided in purported compliance with a disclosure or
notification requirement. On this view, a proposal to further expand
the circumstances in which a monitoring power may be exercised for purposes
which extend beyond the actual monitoring of a regulated entity’s compliance
requires a thorough justification, including details of operational need arising
from evidence of use of the power to date.[136]
Anticipated practical impact of the proposed amendment
This leads to a second issue, which is that the practical
impact of the proposed amendment to section 22 will depend on the way in which
individual pieces of regulatory legislation have demarcated so-called ‘core provisions’
subject to monitoring, ‘related provisions’ and ‘information subject to
monitoring’ for the purpose of triggering the application of the monitoring
powers in Part 2 of the RPA. The more broadly individual triggering Acts
define these terms for the purpose of individual regulatory regimes, the more
expansive the practical application of the standard monitoring powers,
including that in section 22.
Given this context, the potentially broad application of
the proposed amendments to section 22 lends further support to the need for a
more substantive justification of the need asserted at page 79 of the Explanatory
Memorandum. This issue also reinforces the importance of examining carefully
the definitions of these terms in individual triggering Bills, and the adequacy
of supporting justification for broad definitions.
Description of the intended legal effect of the
proposed amendment
The third issue relates to the description of the
intended effect of item 2 (at page 78 of the Explanatory Memorandum)
as clarifying or placing beyond doubt the application of section 22 to so-called
‘core provisions’ and ‘information subject to monitoring’, in addition to ‘related
provisions’.
As mentioned above, this description may be construed as
suggesting that the proposed amendments are merely or largely declaratory of the
legal interpretation of the existing provision. Such an interpretation would
not be an accurate explanation of the legal effect of the proposed amendment.
While this might have been the subjective policy intent underlying the
provisions as originally drafted, it is not their legal effect.
Rather, item 2 will, if enacted, remove the express
limitation of the application of the power in section 22 to
‘related provisions’ by extending it to two additional matters (so-called ‘core provisions’
and ‘information subject to monitoring’). Hence, it would materially change the
legal application of the provision. Future Explanatory Memoranda would benefit
from precision of language in this regard.
Schedule 2—Amendment
of the Australian Sports and Anti-Doping Authority Act 2006
Overview of regulatory scheme
The Australian Sports and Anti-Doping Authority Act
2006 (ASADA Act) gives effect to Australia’s international
anti-doping obligations under the United Nations Educational, Scientific and
Cultural Organisation (UNESCO) International Convention Against Doping in
Sport.
The ASADA Act relevantly provides for the
establishment and administration of a National Anti-Doping (NAD) Scheme (Part
2) and establishes ASADA and prescribes its statutory functions and powers
(Part 3). In general terms, ASADA is the Australian government agency
responsible for efforts to eliminate doping in Australian sport. More
specifically, ASADA’s statutory function is to support its Chief Executive
Officer (CEO) in the performance of his or her statutory functions conferred
under the ASADA Act.[137]
The CEO’s functions are, in broad terms, the
administration of the NAD Scheme and other sports doping and safety matters—including
activities directed to stakeholder engagement, deterrence (education and
awareness), detection (testing and investigation) and enforcement (management
of cases involving possible violations).[138]
The ASADA Act contains several civil penalty
provisions which apply to persons who fail to comply with obligations or
requirements prescribed by the Act—for example, failure to comply with a
disclosure notice requiring a persons to give information, produce documents or
things, or attend an interview and answer questions.[139]
Part 8A establishes an enforcement regime for civil
penalty provisions, which authorises the CEO to apply to a court for a civil
penalty order in relation to an alleged contravention of a civil penalty
provision. Section 80 (Part 9) also makes provision for the Regulations to
establish a scheme of infringement notices for civil penalty provisions.[140]
Part 8A and section 80 were enacted in 2013, and the
amending legislation[141]
was among the legislation identified by AGD in March 2013 as applying OPC’s
drafting precedent provisions which subsequently informed the development of
the standard provisions of the RPA.[142]
Application of the Regulatory
Powers Act—Enforcement powers (civil penalties, infringement notices)
Item 7 proposes to repeal Part 8A of the ASADA
Act and substitute it with a new Part 8A, which applies the standard
civil penalty enforcement provisions in Part 4 of the RPA.[143]
Item 7 also proposes to enact a new Part 8B,
which triggers the application of the infringement notice provisions in Part 5
of the RPA. Item 8 proposes to make a consequential amendment to
repeal existing section 80 (regulation making power with respect to
infringement notices).
Items 9 and 10 provide for the prospective
application of the proposed amendments to the ASADA Act, and preserve
the application of existing Part 8A and section 80 (and the regulations made under
section 80) in relation to alleged contraventions of the civil penalty
provisions which occur prior to the commencement of the amendments in Schedule
2, if enacted.
Comment
Limited substantive legal effect of
the proposed amendments
The proposed amendments in Schedule 2 to the Bill do not
appear to extend substantively the scope of ASADA’s existing enforcement powers.
Rather, they apply the corresponding provisions of the RPA, in
preference to continued reliance on stand-alone provisions that pre-date the RPA
(and are, in any case, very similar to those in the RPA).[144]
Minor extensions of existing
powers, consequential to the proposed amendments in Schedule 1
As the Explanatory Memorandum acknowledges, three areas of
minor difference arise from the proposed amendments to the standard civil
penalty and infringement notice provisions in the RPA itself in items
6–8 of Schedule 1. (Namely, a two year increase in the time limit
for bringing enforcement proceedings; and the contents of civil penalty orders
and infringement notices dealing with multiple contraventions or alleged
contraventions).[145]
These minor differences would not appear to have a significant effect on the
existing obligations or powers of ASADA, or the rights and liabilities of regulated
entities, under the ASADA Act.
Redundancy of the infringement
notice regime in the ASADA Regulations
The proposed elevation to primary legislation of the
infringement notice regime currently prescribed by the Australian Sports
Anti-Doping Authority Regulations 2006 (ASADA Regulations) via the repeal
of section 80 and the enactment of new Part 8B of the ASADA
Act is also considered a positive development. This will promote greater
transparency and accessibility of the details of the scheme for regulated
entities without needing to consult multiple sources, and will enable a greater
degree of Parliamentary oversight of any proposed amendments to the regime in
future, as compared to the tabling and potential disallowance of amending
regulations.
As the Explanatory Memorandum notes, the infringement
notice provisions of Part 5 of the ASADA Regulations will become
redundant if new Part 8B of the ASADA Act is enacted. The
Explanatory Memorandum also indicates that the Government intends to recommend
that the Governor-General makes regulations repealing Part 5 of the ASADA Regulations
upon the commencement of Schedule 2 to the Bill, if enacted.[146]
Arguably, the present Bill could have streamlined this process and provided for
the repeal of Part 5 of the Regulations, thereby avoiding the retention of
spent regulations on the statute book for any period of time. (Although it is
acknowledged that there may be practical reasons that the administering
portfolio may prefer to develop repealing regulations separately.)
Schedule
3—Amendment of the Building Energy Efficiency Disclosure Act 2010
Overview of regulatory scheme
The Building Energy Efficiency Disclosure Act 2010 (BEED
Act) establishes the Commercial Building Disclosure Scheme, which imposes
several disclosure requirements on sellers, lessors and sub-lessors of
commercial buildings with respect to the energy efficiency of the relevant
building.[147]
The BEED Act also establishes a scheme for the
energy efficiency certification of commercial buildings;[148]
a register of certifications issued, varied and revoked;[149]
and the accreditation and auditing of assessors.[150]
The regulatory regime is administered principally by the Secretary of the
Department of Environment.
The BEED Act contains various civil penalty
provisions for failure to comply with certification and disclosure obligations.[151]
Part 5 of the BEED Act contains a compliance monitoring and enforcement
regime, empowering the Secretary to issue disclosure notices for the purpose of
monitoring compliance with obligations under the BEED Act;[152]
to apply to the Federal Court or Federal Circuit Court for civil penalty
orders;[153]
and to issue infringement notices for alleged contraventions of civil penalty
provisions.[154]
Application of the Regulatory
Powers Act—Enforcement powers (civil penalties, infringement notices)
Key proposed amendments
The key amending provision in Schedule 3 to the
Bill is item 8. It proposes to repeal the civil penalty and infringement
notice provisions in Divisions 2 and 3 of Part 5 of the BEED Act and
substitute them with new Divisions 2 and 3 which trigger the application of
Parts 4 and 5 of the RPA.[155]
The Explanatory Memorandum provides a detailed comparison of the existing
provisions of the BEED Act and the standard provisions of the RPA
sought to be triggered by the Bill.[156]
Application of Parts 4 and 5 of the
Regulatory Powers Act with some minor modifications
The proposed amendments in item 8 apply Parts 4 and
5 of the RPA to the BEED Act subject to some minor modifications.
These modifications seek to preserve certain provisions of existing Divisions 2
and 3 of Part 5 of the BEED Act, which do not have an equivalent in the RPA
and are said to reflect the specific regulatory environment in which the BEED
Act operates.
The main area of modification is the maximum pecuniary
penalty amounts able to be imposed under a civil penalty order or specified in
an infringement notice. The RPA provides a standard formula for the
calculation of these amounts,[157]
however, the BEED Act currently provides for higher penalty amounts.[158]
Item 8 (which contains proposed new subsection 51(6) and proposed new
section 52) preserves the existing penalty amounts in the BEED Act.
The Explanatory Memorandum states that the higher quantum
in the BEED Act is tailored to the application of that regulatory regime
to large commercial operations, and is necessary to appropriately reflect the
relevant compliance costs and provide a suitable deterrent to non-compliance.[159]
Gaining of new provisions in the
BEED Act, consequential to the triggering of the Regulatory Powers Act
The Explanatory Memorandum acknowledges that the
application of Parts 4 and 5 of the RPA to the BEED Act will
result in the gaining of some procedural provisions not part of the existing
enforcement framework under the BEED Act.[160]
The new provisions proposed to be gained are as follows.
Civil penalty provisions gained
The key provisions gained via the application of the civil
penalty provisions in Part 4 of the RPA relate to:
- the
commencement of criminal proceedings after civil penalty proceedings,[161]
and the stay of civil penalty provisions in the event criminal proceedings are
commenced while civil proceedings are on foot[162]
- the
inadmissibility in criminal proceedings of evidence given in civil penalty
proceedings,[163]
and
- requirements
of proof, including:
- the
application of the evidential burden on the respondent who seeks to rely on an
exception, excuse, justification or qualification to a civil penalty provision
(meaning that the respondent must adduce or point to evidence suggesting a
reasonable possibility that the facts constituting the exemption exist)[164]
- the
attribution of liability to a body corporate for a contravention of a civil
penalty provision, where the conduct constituting the contravention was
undertaken by an employee, agent or officer who was acting within the apparent
scope of his or her employment or authority.[165]
In relation to the proposed new provisions relating to the
interaction of civil and criminal proceedings, the Explanatory
Memorandum emphasises the importance of ensuring that the civil enforcement
framework under the RPA does not preclude or dissuade criminal law
enforcement in the event the contravention also amounts to a criminal offence.[166]
In relation to the proposed new provisions governing the requirements
of proof, the Explanatory Memorandum does not explain the reasons for the
imposition of an evidential burden on the respondent who seeks to rely on an
exception (et cetera) to a civil penalty provision under the BEED Act.
Five exceptions or qualifications to the existing civil
penalty provisions in the BEED Act are likely to be affected by the
application of section 96 of the RPA, only one of which currently
imposes an evidential burden on a respondent who seeks to rely upon it. These provisions
are as follows:
- subsections
11(6) and 11(7)—exceptions to the civil penalty provisions for contravening
the prohibitions in subsections 11(1)–11(4) on selling, leasing or
subleasing a building or an area of a building without a building energy
efficiency certificate. (The exceptions apply to offers or invitations for
offers to let or sublet for a term of 12 months or less)
- subsection
15(6)—exception to the civil penalty provisions in subsections 15(1)–15(4)
for contravening the prohibitions on advertising a building for lease or sublease
without including a current energy efficiency rating. (The exception applies to
leases or subleases for a term of 12 months or less)
- section
17A—the application of ‘automatic exceptions’ from the disclosure
obligations, certification requirements and prohibitions on selling, leasing or
advertising without a certificate in sections 11, 12 and 15, if the Secretary
has made a legislative instrument under paragraph 21(1)(d) which designates the
relevant building or area as being exempt, and
- section
57—the general excuse of mistake of fact, which applies to all civil
penalty provisions in the BEED Act. This excuse imposes an evidential
burden on the respondent.[167]
Therefore, the alignment of this provision with Part 4 of the RPA will
not result in a substantive change.
Infringement notice provisions gained
The provisions gained via the application of the infringement
notice provisions in Part 5 of the RPA to the BEED Act relate
to the ability to issue two or more infringement notices to a person for the
alleged contravention of a civil penalty provision subject to an infringement
notice.[168]
The Explanatory Memorandum describes this as ‘merely procedural in nature’.[169]
Prospective application of the
proposed amendments
Items 13–15 provide for the prospective application
of the proposed amendments applying Parts 4 and 5 of the RPA to the BEED
Act (that is, in relation to contraventions or alleged contraventions of
the BEED Act occurring on or after the commencement of Schedule 3, if
enacted). These amending items also provide for the continuation of the
pre-existing provisions of the BEED Act in relation to contraventions or
alleged contraventions of that Act committed prior to the commencement of the
proposed amendments.
No standardisation of compliance
monitoring powers
Schedule 3 to the Bill does not propose to
standardise the compliance-monitoring provisions in the BEED Act which
are significantly less intrusive than those available under the RPA.
(Division 1 of Part 5 of the BEED Act provides for a notice-based
information disclosure regime, whereas Part 2 of the RPA provides for authorised
persons to enter premises and undertake compliance monitoring activities
including searches.)
Comment
Limited substantive legal effect of
the proposed amendments in Schedule 3
On balance, the proposed amendments to the BEED Act are
fairly characterised as minor and technical.
Justification for applying Parts 4
and 5 of the Regulatory Powers Act subject to minor modifications
The justification provided in the Explanatory Memorandum
for the minor variations to Parts 4 and 5 of the RPA (summarised above) appears
to be a reasonable explanation. Applying the RPA without the proposed
modifications would result in an arbitrary reduction in the quantum of civil
penalties, which is not referrable to the regulatory context in which the BEED Act
operates.
Redundancy of the Regulations
The proposed amendments in item 8 of Schedule 3
will repeal the regulation-making power in section 64 of the BEED Act with
respect to infringement notices. This proposed amendment will consequently make
redundant the infringement notice provision in Part 7 of the Building Energy
Efficiency Disclosure Regulations 2010 (BEED Regulations). The Explanatory
Memorandum states that Part 7 of the BEED Regulations will be repealed by
regulation following the commencement of Schedule 3, if enacted.[170]
As with the proposed amendments to the ASADA Act
in Schedule 2 (discussed above) it is desirable that matters relating
to infringement notices will be dealt with in primary legislation, since this
promotes greater transparency and accessibility, and ensures that the
Parliament has an opportunity to scrutinise any proposed amendments to measures
which impact upon the legal liability of regulated entities to a greater extent
than through the tabling and potential disallowance of regulations. However, as
with the earlier comments on Schedule 2 a more streamlined and efficient course
of action would arguably be for the amending legislation itself to repeal the Part
7 of the BEED Regulations (although it is acknowledged that there may be
practical reasons why the administering portfolio may wish to separately
prepare repealing regulations).
Exceptions to civil penalty
provisions—Imposition of evidential burden on respondent
The Explanatory Memorandum does not justify the
appropriateness of imposing an evidential burden on the respondent in relation
to the qualifications to the civil penalty provisions in subsection 11(6),
11(7) and 15(6) and section 17A of the BEED Act.
It is not self-evident, on the face of these civil penalty
provisions, that the matters which constitute the relevant qualifications or
exceptions are likely to be peculiarly within the knowledge of the respondent, or are likely to be significantly more difficult and costly for the enforcing
Department (as applicant) to disprove than for the respondent to discharge an
evidential burden.[171]
Consistent with the remarks of the Senate Scrutiny of
Bills Committee and the Parliamentary Joint Committee on Human Rights on the 2012–13
and 2014 Bills regarding the scrutiny of future triggering legislation (as discussed
above), the Explanatory Memorandum would benefit from an explanation of these
matters.
The application of section 96 of the RPA to all
civil penalty provisions in the BEED Act also means that any future
legislative proposals to amend the BEED Act to enact new exemptions or
amend existing exemptions to its civil penalty provisions should be examined
carefully, to determine whether it is appropriate that section 96 should apply
to them. The application of section 96 will mean that the default position is
that the respondent bears the evidential burden.
Schedule
4—Amendment of the Coal Mining Industry (Long Service Leave) Legislation
Overview of regulatory scheme
The Coal Mining Industry (Long Service Leave) Legislation[172]
establishes a portable long service leave scheme for coal mining industry
employees. The scheme involves the collection of levies from employers, which are
held in a fund administered by a statutory corporation, the Coal Mining
Industry (Long Service Leave) Corporation (the Corporation).[173]
The Coal Mining Industry (Long Service Leave) Payroll
Levy Collection Act 1992 (Payroll Levy Collection Act) imposes the
obligation on employers to pay the levy and provides for related procedural
matters.[174]
The Coal Mining Industry (Long Service Leave) Administration Act 1992
(Administration Act) establishes the fund and the Corporation, and
sets out the Corporation’s functions and powers.[175]
It also establishes employees’ entitlement to long service leave and prescribes
arrangements for the making of payments out of the fund (primarily as
reimbursements to employers).[176]
The Payroll Levy Collection Act and the Administration
Act contain various civil penalty provisions, primarily in relation to
contraventions by employers of their obligations to make payments and to grant
long service leave to eligible employees.[177]
The Administration Act contains enforcement provisions, which authorise
the Corporation to seek the enforcement of civil penalty provisions (in both
Acts) in the Federal Court or the Federal Circuit Court in the event of an
alleged contravention.[178]
Application of the Regulatory
Powers Act—Enforcement powers (civil penalty provisions)
Key proposed amendments
Schedule 4 to the Bill proposes to repeal the
existing enforcement scheme for civil penalties in Divisions 1 and 2 of Part 7A
of the Administration Act and substitute new provisions that apply
the equivalent standard provisions of Part 4 of the RPA.[179]
It also proposes to amend the Payroll Levy Collection Act to insert a
new enforcement scheme for civil penalty provisions in that Act, which applies
the corresponding standard provisions in Part 4 of the RPA.[180]
Minor variations to the application
of Part 4 of the Regulatory Powers Act—Application to bodies corporate
The proposed amendments in Schedule 4 would apply
Part 4 of the RPA with some minor variations.[181]
These are primarily to continue certain civil penalty provisions in the
Coal Mining Industry (Long Service Leave) Legislation for which there are no
equivalent provisions in the RPA. These provisions relate to:
- contraventions
of civil penalty provisions by ‘executive officers’[182]
of employers which are bodies corporate,[183]
and
- the
provision of specific statutory guidance to courts in determining the pecuniary
penalty amount to be ordered against a body corporate that is found to have
contravened a civil penalty provision (within the maximum amount set by the
relevant provision).[184]
The Explanatory Memorandum indicates that the continuation
of these provisions is considered necessary to reflect the specific regulatory
context of the Coal Mining Industry (Long Service Leave) Legislation, which
arises from the corporate status of most regulated entities (that is, employers).
In particular, the Explanatory Memorandum states that the
preservation of specific civil penalty provisions for executive officers will
recognise the ‘important role’ that such persons play in ‘directing and
controlling the actions of an employer body’.[185]
The Explanatory Memorandum further indicates that the
preservation of specific statutory guidance to courts in determining pecuniary
penalty amounts (within the maximum set by the relevant penalty provision) will
ensure that courts impose penalties that ‘reflect the actions and culture of
compliance of the body corporate that has contravened the provision’.[186]
Provisions gained—Evidential burden
in relation to exceptions to civil penalty provisions
The Explanatory Memorandum acknowledges that the
triggering of Part 4 of the RPA[187]
will result in the enactment of one new type of enforcement provision that is
not present in the existing Coal Mining Industry (Long Service Leave)
Legislation, in the form of section 96 of the RPA.[188]
As mentioned above, section 96 of the RPA deals
with the evidentiary burden in relation to civil penalty provisions subject to
the enforcement arrangements prescribed by Part 4. It provides that a
respondent to a civil penalty proceeding who wishes to rely upon any exception,
exemption, excuse, justification or qualification to a civil penalty provision
bears the evidential burden in relation to that matter.
This means that the respondent must adduce or point to
evidence suggesting a reasonable possibility that the facts constituting the
relevant exception (et cetera) exist. The Explanatory Memorandum characterises
the legal effect of the application of section 96 of the RPA to the
Coal Mining Industry (Long Service Leave) Legislation as ‘merely procedural’.[189]
Prospective application of proposed
amendments
Item 45 provides that the proposed amendments in
Schedule 4 would, if enacted, apply prospectively from their commencement. The existing
provisions of the Coal Mining Industry (Long Service Leave) Legislation would
apply to contraventions or alleged contraventions which occurred prior to the
commencement of Schedule 4.
Comment
Limited substantive legal effect of
the proposed amendments in Schedule 4
The proposed amendments are fairly and reasonably described
as minor and technical in nature. On balance, they do not appear to result in a
significant expansion of regulatory powers, or expose regulated entities to
significant new liabilities.
Minor modifications to the
application of Part 4 of the Regulatory Powers Act
The modified application of Part 4 of the RPA
appears to reflect a reasonable operational need arising from the specific regulatory
context in which the Coal Mining Industry (Long Service Leave) Legislation
operates.
The retention of specific civil penalty provisions for
executive officers of employer bodies preserves the policy intention to hold
senior officers of employer bodies to a high standard of conduct in relation to
the performance of the obligations imposed on employer bodies under the scheme.
Further, even in the absence of a specific provision, it
may be open to a court to consider matters such as corporate culture, due
diligence and the seniority of employees involved in a contravention in
determining a pecuniary penalty amount.[190]
However, enacting these matters as mandatory considerations will continue to
give effect to the policy intention that these matters should be given routine
consideration in all civil penalty proceedings, while also avoiding
arbitrariness or other unintended consequences that may arise if these matters were
prescribed as aggravating (or mitigating) factors.
Justification for provisions
gained—Section 96 of the Regulatory Powers Act
The Explanatory Memorandum does not provide reasons for its
assessment that the application of section 96 of the RPA is merely
procedural. However, this assessment appears to be accurate because the one
exception to the civil penalty provisions presently provided for in the Administration
Act—namely, mistake of fact in section 49CB—already provides that the
respondent bears an evidential burden.[191]
(Existing section 49CB is repealed by item 29 of Schedule 4, so that the
corresponding standard provision in section 95 of the RPA applies.
Subsection 95(5) expressly provides that the respondent bears the evidential
burden.)
In the event that any new exemptions to the civil penalty
provisions in the Administration Act or Payroll Levy Act are
proposed in the future, it will be important to consider whether section 96 of
the RPA should (as a matter of policy) apply to them, or whether the
Corporation as applicant should bear the legal and evidential burdens.[192]
Schedule
5—Amendment of the Defence Act 1903
Overview of regulatory scheme
The Defence Act 1903 (Defence Act) provides
for the naval and military defence and protection of the Commonwealth and the states
and territories. Part VIB relevantly creates a regulatory framework for non‑Defence
personnel to gain conditional access to the Woomera Prohibited Area (being an
area used for the testing of war materiel) through an application-based permit
system, and Ministerial permission in some cases. Offences apply to persons who
are present in the area without a permit or permission, and to persons who
contravene the conditions of a permit or permission.[193]
The Defence Minister (with the agreement of the Industry
Minister) is authorised to make rules to give effect to the requirements of
Part VIB, including provision for an infringement notice system as an alternative
to prosecution for offences against Part VIB relating to the contravention of
conditions in a permit or permission to enter the area.[194]
The Woomera Prohibited Area Rule 2014 establishes an
infringement notice scheme. An Australian Defence Force (ADF) member or an
Australian Public Service employee of the Department of Defence may be
authorised by the Secretary of the Department of the Defence to issue
infringement notices. The issuing threshold is that the authorised officer must
believe on reasonable grounds that the other person has contravened section
72TG of the Act (that is, by failing to comply with a condition of the
permission granted under Part VIB of the Defence Act).[195]
The Woomera Prohibited Area Rule also establishes a scheme
of ‘demerit points’ for the contravention of permit conditions, which can lead
to the suspension or cancellation of a permit issued under Part VIB.[196]
Application of the Regulatory
Powers Act—Enforcement powers (infringement notices)
Schedule 5 proposes to apply the standard
infringement notice provisions in Part 5 of the RPA to Part VIB of
the Defence Act.
The key proposed amendment is item 3, which proposes
to insert a new section 72TO which makes provision for the issuing of
infringement notices via the application of Part 5 of the RPA.[197]
This item proposes to apply the infringement notice
provisions of Part 5 of the RPA to one offence provision in Part VIB of
the Defence Act, namely the offence of contravening the conditions
of a permission or permit in subsection 72TG(1). (This offence is currently the
only offence subject to the infringement notice provisions in the Woomera
Prohibited Area Rule.)
Minor variation to the application
of Part 5 of the Regulatory Powers Act
Variations to preserve the ‘demerit points’ regime
The Explanatory Memorandum identifies some instances of
minor variation of the standard provisions in Part 5 of the RPA,
and notes that these are mainly directed to preserving the demerit point regime
provided for in Part 7 of the Woomera Prohibited Area Rule to the extent
it applies to contraventions of the offence provisions in section 72TG.[198]
In particular, proposed new subsection 72TO(5) provides that
demerit points under Part 7 of the Woomera Prohibited Area Rule may be incurred
in addition to an infringement notice, and requires infringement notices to
include an express statement to this effect. Proposed new subsection 72TO(7)
also provides that a person who pays the amount specified in an infringement
notice may also incur demerit points.
Other variations—Withdrawal of infringement notices
One further variation unrelated to the demerit point scheme
is proposed new subsection 72TO(6), which authorises the Secretary of the
Department of Defence to consider additional matters to those prescribed by the
RPA when determining whether to withdraw an infringement notice. In
particular, it authorises the Secretary to consider whether a court has
previously imposed a penalty on the person for contravention of offence
provisions in Part VIB of the Defence Act.[199]
The Explanatory Memorandum notes that this will have the
effect of ensuring that the Secretary is able to consider whether a person has
a history of offences against Part VIB but does not explain why it was
considered necessary to retain this factor.
Prospective application of the
proposed amendments
Item 5 provides for the prospective application of
the proposed amendments to contraventions of Part VIB of the Defence
Act occurring on or after the commencement of the proposed amendments, if
enacted.[200]
Item 5 also preserves the appointment of authorised
persons under the infringement notice scheme in Part 6 of the Woomera
Prohibited Area Rule, and the authority of the Secretary to rescind such
appointments.[201]
It further preserves the continuation of the demerit point scheme in Part
7 of the Woomera Prohibited Area Rule.[202]
Minor variation to the application
of Part 5 of the Regulatory Powers Act
Variations to preserve the ‘demerit points’ regime
The Explanatory Memorandum identifies some instances of
minor variation of the standard provisions in Part 5 of the RPA,
and notes that these are mainly directed to preserving the demerit point regime
provided for in Part 7 of the Woomera Prohibited Area Rule to the
extent it applies to contraventions of the offence provisions in section 72TG.[203]
In particular, proposed new subsection 72TO(5) provides that
demerit points under Part 7 of the Woomera Prohibited Area Rule may be incurred
in addition to an infringement notice, and requires infringement notices to
include an express statement to this effect. Proposed new subsection 72TO(7)
also provides that a person who pays the amount specified in an infringement
notice may also incur demerit points.
Other variations—Withdrawal of infringement notices
One further variation unrelated to the demerit point scheme
is proposed new subsection 72TO(6), which authorises the Secretary of the
Department of Defence to consider additional matters to those prescribed by the
RPA when determining whether to withdraw an infringement notice. In
particular, it authorises the Secretary to consider whether a court has
previously imposed a penalty on the person for contravention of offence provisions
in Part VIB of the Defence Act.[204]
The Explanatory Memorandum notes that this will have the
effect of ensuring that the Secretary is able to consider whether a person has
a history of offences against Part VIB but does not explain why it was
considered necessary to retain this factor.
Comment
Limited substantive legal effect of
the proposed amendments
The proposed amendments in Schedule 5 do not appear to raise
significant issues. The modified application of certain provisions of Part 5 of
the RPA enable the continued application of the demerit point system
under Part VIB of the Defence Act and the Woomera Prohibited Area
Rule.
As noted above, the Explanatory Memorandum does not
identify why it is considered necessary to expressly retain the additional considerations
to those in the RPA with respect to the withdrawal of an infringement
notice. However, it does not seem unreasonable for the statute to expressly
authorise the Secretary to take into account the totality of a person’s history
of compliance (or non-compliance) with the requirements of Part VIB of the Defence
Act, and not merely their history of contravening permit conditions under section
72TG.
This is arguably already permissible under
subparagraph 106(3)(b)(iv) of the RPA, which permits the
decision-maker to take into account any other matter he or she considers
relevant. However, the inclusion of an express statutory requirement to
consider a person’s history of contraventions of Part VIB of the Defence
Act may facilitate consistency and transparency in decision-making in this
respect.
Redundancy of provisions of the
Woomera Prohibited Area Rule
As with the infringement notice provisions in the relevant regulations
discussed in relation to Schedules 2 and 3 above, it is desirable, in the
interests of transparency and Parliamentary oversight, that the infringement
notice scheme currently established under the Woomera Prohibited Area Rule is elevated
to primary legislation.
The proposed amendments would also make redundant the
infringement notice provisions in the Woomera Prohibited Area Rule. The
Explanatory Memorandum indicates an intention to repeal this part of the Rule
upon the commencement of the amendments in Schedule 5, if enacted. As mentioned
in relation to Schedules 2 and 3 above, a more streamlined and efficient course
of action would be for the amending legislation to simply repeal the relevant
part of the Rule, in order to avoid the retention of a spent legislative
instrument for any period of time (although, as with Schedules 2 and 3, there
may be practical reasons why the administering portfolio may wish to separately
develop a repealing instrument).
Schedule
6—Amendment of the Defence Reserve Service (Protection) Act 2001
Overview of regulatory scheme
The Defence Reserve Service (Protection) Act 2001 (the
DRSPA) protects members of the Australian Defence Force Reserves in
their employment and education, to facilitate their return to civilian life. It
sets out several entitlements of persons who are rendering, or have rendered,
defence service as members of the Reserves (and their dependents in some
cases).[205]
It also includes prohibitions on conduct that discriminates against Reserve members,
including in their employment or other work, and creates offences for contravention
and a scheme of compensation orders in relation to persons who are found guilty
of an offence.[206]
The DRSPA provides for civil remedies, including
injunctions to restrain contraventions, and a civil enforcement regime under
which a person who suffers loss and damage as a result of a contravention of
the DRSPA can commence civil proceedings to recover the amount of the
loss or damage, whether or not the contravention also constitutes an offence.[207]
Application of the Regulatory
Powers Act—Enforcement powers (injunctions)
Item 2 proposes to repeal the injunction provisions
in section 75 of the DRSPA and substitute them with new provisions
triggering the injunction provisions in Part 7 of the RPA.[208]
The Explanatory Memorandum contains a comparative table of the existing and
amended provisions.[209]
Item 3 provides for the prospective application of
the proposed amendments in items 1 and 2 to contraventions or alleged
contraventions occurring on or after the commencement of Schedule 6 (if
enacted) and for the continuation of existing section 75 in relation to alleged
contraventions occurring prior to the commencement of Schedule 6 (if enacted).
This item also provides that persons who are prescribed by the Regulations as
having standing to apply to the court for an injunction will continue to have
standing after the commencement of the proposed amendments.
Comment
The proposed amendments to the DRPSA do not appear
to raise significant issues with respect to the modified application of the
standard provisions of the RPA, or the extension of existing regulatory powers,
but rather appear to modernise and standardise matters of drafting.
Schedule
7—Amendment of the Greenhouse and Energy Minimum Standards Act 2012
Overview of regulatory scheme
The Greenhouse and Energy Minimum Standards Act 2012 (GEMS
Act) is the principal piece of legislation establishing a national
framework for product energy efficiency in Australia, known as the Equipment
Energy Efficiency (E3) Program. The GEMS Act establishes a scheme of minimum
standards for the energy efficiency and labelling of commercial products that
use energy, or affect the energy used by another product.
The GEMS Act and legislative instruments made under
the GEMS Act regulate the commercial supply and use of regulated
products (GEMS products) by prescribing minimum requirements relating to
matters including energy consumption, greenhouse gas production, labelling and
some other matters including the environment and human health.[210]
In particular, the GEMS Act authorises the
Environment Minister to make determinations via legislative instrument (GEMS determinations)
prescribing the standards and other requirements for different classes of GEMS products.[211]
The GEMS Act also establishes the GEMS Register
under which manufacturers and importers of GEMS products (or others
connected to the supply of the model in Australia) may apply for the
registration of specific models of products against the corresponding GEMS
determination for the class of products to which the model belongs. To be
registered against a GEMS determination, the model must comply with the
requirements of the relevant determination.[212]
The GEMS Act imposes offences and civil penalty
provisions for the commercial supply, offers of supply or use of GEMS products
that do not comply with the applicable GEMS determination and registration
requirements.[213]
The GEMS Act also establishes the office of the GEMS Regulator and
invests it with functions and powers relating to the conduct of educational, compliance
monitoring, investigation and enforcement activities (including civil penalty
orders, infringement notices, enforceable undertakings and injunctions).[214]
The GEMS Act was among the legislation identified
by AGD in March 2013 as having been drafted on the basis of precedent
provisions which informed the development of the RPA.[215]
Consequently, the proposed amendments in Schedule 7 do not appear to materially
alter the substantive legal effect of the regulatory regime established under
the GEMS Act, but rather update its provisions to apply the
corresponding provisions of the RPA.
Application of the Regulatory
Powers Act—Monitoring, investigation and enforcement powers
Schedule 7 proposes to apply the full suite of
standard monitoring, investigation and enforcement provisions in Parts 2–7 of
the RPA to the GEMS Act. Only a small number of standard
provisions of the RPA are applied with modifications, most of which are
relatively minor in nature and preserve existing powers in the GEMS Act.[216]
Key amending items
The key amending items are:
- item
35, which inserts new Divisions 4 and 5 of Part 7 of the GEMS Act (applying
the standard monitoring and investigation powers in Parts 2 and 3 of the RPA),
and
- item
39, which inserts new Divisions 2–5 of Part 8 of the GEMS Act (applying
the standard civil penalty, infringement notice, enforceable undertaking and
injunction provisions in Parts 4–7 of the RPA).
Other amending items make consequential amendments, such
as inserting definitions and other cross-references to the standard provisions
of the RPA as applied to the GEMS Act.
Modifications to the application of
the standard provisions of the Regulatory Powers Act
The Explanatory Memorandum identifies eight instances in
which Schedule 7 proposes to modify the application of the standard compliance
monitoring, investigation and enforcement provisions of the RPA in
relation to the GEMS Act.[217]
It states that these instances of modification are intended to retain existing
powers in the GEMS Act that do not have an equivalent in the RPA,
and are said to be necessary for the effective operation of the regulatory
regime established under the GEMS Act.[218]
The majority of proposed modifications are relatively minor
variations to procedural requirements in the RPA, such as the use of
identity cards by authorised persons exercising investigation powers,[219]
the content of infringement notices and enforceable undertakings[220]
the publication of enforceable undertakings,[221]
and the issuing of injunctions by consent.[222]
However, two instances of proposed modification would maintain
a substantive difference in the legal rights and liabilities of regulated
entities under the GEMS Act, as compared to the position if the
corresponding provisions of the RPA were applied without modification.
These are as follows.
Use of force in the execution of warrants—Proposed new
subsections 87(14) and 88(13) (item 35)
These provisions state that authorised persons and persons
assisting authorised persons to execute a monitoring warrant or an
investigation warrant may use such force against things as is necessary and
reasonable in the circumstances. There is no equivalent authorisation in the RPA.
The Explanatory Memorandum states that it is necessary to
retain this power because a GEMS inspector ‘may need to open locked doors,
cabinets, drawers and other similar objects that the inspector reasonably
suspects contain evidential material’ that would demonstrate a contravention of
the GEMS Act.[223]
It further states that the general obligations in sections 31 and 63 of the RPA
to provide reasonable assistance and facilities to a person executing a
monitoring warrant or an investigation warrant may not be sufficient to ensure
that GEMS inspectors gain the access necessary to exercise their powers.[224]
Burden of proof in relation to exceptions to civil
penalty provisions—Proposed new subsection 129(4) (item 39)
This provision excludes the application of section 96 of
the RPA to certain civil penalty provisions in Part 3 of the GEMS Act
(namely, contraventions by suppliers and commercial users of GEMS products
of obligations to comply with GEMS determination and registration
requirements).
As mentioned earlier in this Bills Digest, section 96 of
the RPA imposes an evidential burden on the respondent in civil penalty
proceedings, in relation to any exceptions or exemptions upon which he or she
seeks to rely. Currently, several exceptions to civil penalty provisions in
Part 3 of the GEMS Act contain multiple limbs, some of which impose an
evidential burden on the applicant for a civil penalty order, and others on the
respondent.[225]
The Explanatory Memorandum states that the retention of
the existing approach to the allocation of the legal and evidential burdens is
appropriate because the matters for which the respondent has the burden of
proof are solely within his or her knowledge, whereas evidence of the matters
for which the applicant has the burden of proof is reasonably available to the
applicant.[226]
Accordingly, it states that the application of section 96 of the RPA to
the civil penalty provisions in Part 3 of the GEMS Act would have the
adverse effect of requiring a respondent to adduce or point to evidence
suggesting a reasonable possibility that all limbs of the relevant exception
are established, based upon information or material that is reasonably
available to the prosecution.[227]
It further states that the non-application of section 96 of the RPA
will ensure that ‘the onus of proof continues to be reversed for only those
matters that are uniquely within the knowledge’ of the respondent.[228]
Provision gained through the
application of the Regulatory Powers Act
The Explanatory Memorandum identifies one new provision
gained through the application of the standard investigation powers in Part 3
of the RPA to the GEMS Act, which does not currently contain an
equivalent provision.[229]
This is the application of section 69 of the RPA, which is a
standard constitutional savings provision with respect to the ‘just terms’
guarantee in section 51(xxxi) of the Constitution.[230]
The Explanatory Memorandum notes that the application of this provision will
ensure the constitutional validity of the power in section 68 of the RPA,
and will protect regulated entities against unjust acquisitions.[231]
The Explanatory Memorandum also identifies one new
provision gained through the application of the standard civil penalty
provisions in Part 4 of the RPA. This is the ‘attribution’ provision in section
97 of the RPA which provides for the circumstances in which a body
corporate will be liable for the contravention of a civil penalty provision by
an employee, officer or agent who is acting within his or her apparent authority.[232]
Other minor amendments to the
existing provisions of the GEMS Act
Item 8 amends the definition of ‘relevant court’ in
section 5 of the GEMS Act for the purpose of the enforcement provisions.
It inserts the Federal Circuit Court, in addition to the Federal Court
which is already included.
The Explanatory Memorandum notes that this is consistent
with Commonwealth policy with respect to the conferral of federal jurisdiction.
In particular, where the Federal Court is invested with jurisdiction, it is
considered appropriate to confer concurrent jurisdiction upon the Federal
Circuit Court unless the matter requires the specialised knowledge and
expertise of judges appointed to the Federal Court. This is intended to ensure
the widest possible conferral of jurisdiction to ensure efficient dispute
resolution at the lowest possible level of court, and the distribution of
workload between courts.[233]
Retrospective application of some
proposed amendments.
Items 48–59 provide for the saving of actions taken
under the existing provisions of the GEMS Act prior to the commencement
of Schedule 7, if enacted. (For example, they preserve the validity of
identity cards issued and enforcement orders made.)
These items also provide for the monitoring and
investigation powers in the RPA to be exercised in relation to alleged
or potential contraventions of the GEMS Act occurring before, on or
after the commencement of Schedule 7, if enacted. The Explanatory Memorandum
states that the retrospective application of the proposed amendments is
considered appropriate because the proposed amendments in Schedule 7 do not ‘impact
rights or impose liabilities’ on regulated entities because they do not ‘expand
the existing regulatory framework of the GEMS Act’.[234]
Comment
Limited substantive legal effect of
most proposed amendments
With one exception, the proposed amendments made by
Schedule 7 do not appear to raise significant issues. The exception (discussed
below) relates to the safeguards attending the power to exercise reasonable
force against things in the execution of monitoring and investigation warrants.
Exception—Use of force in the
execution of monitoring and investigation warrants
While Schedule 7 proposes to continue the application of
existing use of force powers under the GEMS Act, the proposed
application of the RPA arguably makes it appropriate to give further
consideration to the scope and safeguards applied to the power. In particular,
the absence of a use of force provision in the standard monitoring and
investigation powers in Parts 2 and 3 of the RPA makes it clear that
such powers are exceptional, in that they were not considered appropriate for
inclusion in the standard suite of regulatory powers.[235]
Although the Explanatory Memorandum outlines the perceived
operational need for retaining the use of force powers in the GEMS Act,
it does not provide an explanation of the breadth of the power conferred or
applicable safeguards.
Breadth of the classes of persons who may use force
In particular, the Explanatory Memorandum does not
identify why it is considered appropriate to confer the power upon all GEMS
inspectors and all persons assisting them. It does not explain why the power
could not be conferred upon a more limited class of authorised persons with the
necessary training and proficiency in the use of reasonable force. (For
example, by limiting the power to GEMS inspectors who are police officers, or
conferring the power on police officers who may accompany GEMS inspectors
executing warrants for the purpose of exercising reasonable force against
things if necessary.)
Absence of mandatory qualification and training
requirements, and information about oversight arrangements
The GEMS Act also does not appear to prescribe
statutory requirements for the training or qualifications that GEMS inspectors
or persons assisting must hold in relation to the use of force. Nor does it
appear to prescribe any requirements for the documentation, reporting and
internal oversight of the use of force by GEMS inspectors or persons assisting
them in the course of individual warrant operations. Further, the Explanatory
Memorandum does not identify any administrative arrangements in relation to
these matters, nor explain the application of independent oversight
arrangements under the Ombudsman Act 1976.
Redress mechanism for the use of excessive or
unnecessary force against things
In addition, the GEMS Act does not make provision
for the payment of compensation or provision of other redress to persons whose
property is damaged by the use of excessive or unnecessary force. This seems
somewhat anomalous in light of section 29 of the RPA (which is applied
to the GEMS Act by proposed new section 87 in item 35).
Section 29 of the RPA requires the Commonwealth to
pay compensation for damage to electronic equipment, data or programs caused by
the exercise of monitoring powers under Part 2 of the RPA, if the person
executing the warrant takes insufficient care.
This means, for example, if a regulated entity's computer
system is damaged (or if data held on that system is lost or corrupted) because
a GEMS inspector or an assistant fails to take reasonable care, section 29 of
the RPA provides for the Commonwealth's statutory liability to pay
compensation. It also provides for a statutory remedy if agreement is not
reached on the amount of compensation payable (via application to the court).
In contrast, if a regulated entity's physical property
(such as a storage cabinet) is damaged due to the use of unnecessary or
excessive force, there is no comparable statutory liability or remedy. The
regulated entity must commence civil proceedings against the GEMS Regulator
seeking compensation, or may be reliant upon a discretionary payment by the
Commonwealth in the nature of a settlement or an ex gratia payment.
The absence of a corresponding provision to section 29 of
the RPA for the use of unnecessary or excessive force means that
physical objects or things and electronic equipment are treated differently
under the GEMS Act.
It is not clear why this differential treatment is proposed to be preserved via
the modified application of the RPA to the GEMS Act. In the
absence of a justification in the Explanatory Memorandum, this distinction
seems arbitrary. Arguably, the modified application of Parts 2 and 3 of the RPA
to the GEMS Act to permit the use of force against things should be
accompanied by a corresponding provision to section 29 of the RPA, in
relation to the payment of compensation for the use of unreasonable or
unnecessary force against things.
Schedule
8—Amendment of the Horse Disease Response Levy Collection Act 2011
Overview of regulatory scheme
The Horse Disease Response Levy Collection Act 2011 (Horse
Disease Act) and the Horse Disease Response Levy Act 2011 (Levy
Act) were enacted to give effect to the Emergency Animal Disease Response
Agreement (EADRA) in relation to the horse industry.
The EADRA is a contractual agreement between the
Commonwealth, state and territory governments and livestock industry groups to
improve Australia's capacity to prepare for and respond to emergency animal
disease incidents.[236]
According to the Department of Agriculture and Water Resources:
The EADRA assures the horse industry of access to the
necessary resources and finances to mount an emergency response to an exotic
disease incursion. The Horse Disease Response Levy is necessary so that the
horse industry can fund its share of obligations in responding to a national
emergency disease outbreak affecting the industry.[237]
The Horse Disease Act provides the Commonwealth
with the authority to collect and administer levies on horse feed and worm
treatments.[238]
The levies are imposed, and their amounts determined, under the Levy Act.[239]
In particular, the Horse Disease Act imposes
penalties for unpaid levies, allows the Commonwealth to recover levies that are
due, and provides for refunds where necessary.[240]
The Horse Disease Act confers compliance monitoring powers on the
Secretary of the Department of Agriculture and Water Resources and persons
authorised by the Secretary.[241]
These include powers to seek the compulsory provision of information or
documents, and to enter premises and conduct searches for evidential material
and to exercise various monitoring powers, which are similar to those in Part 2
of the RPA (such as inspecting things, taking extracts or images or
recordings, and operating electronic equipment to access relevant data). The
monitoring powers in the Horse Disease Act also include a power to seize
a thing found on the premises, which is not among the monitoring powers in Part
2 of the RPA.
The Horse Disease Act was among the legislation
identified by AGD in March 2013 as being drafted in accordance with precedent
provisions that subsequently informed the development of the RPA.[242]
(However, as noted above, the seizure powers exceed the monitoring powers
available under Part 2 of the RPA.)
Application of the Regulatory
Powers Act—Compliance monitoring powers
Schedule 8 proposes to amend the Horse Disease
Act to replace its compliance monitoring powers with the corresponding
monitoring powers in Part 2 of the RPA, subject to modifications
primarily to retain the existing seizure powers in Part 3 of the Horse
Disease Act. The key amendments are in items 3 and 4, which enact a
new Division 2 of Part 3, comprising Subdivision A (monitoring powers) and
Subdivision B (provisions relating to seizure).
Modifications to the application of
the standard provisions of the Regulatory Powers Act
Item 4 modifies the application of the standard
monitoring powers in Part 2 of the RPA through the insertion of proposed
new subsections 13(12) and 13(13) which confer the additional power to seize
any thing at any premises entered under section 18 of the RPA. Proposed
new Subdivision B of Division 2 of Part 3 of the Horse Disease Act also
preserves the existing procedural provisions relating to seizure, including
requirements to provide copies of and receipts for things seized; and
provisions governing the return, retention or disposal of things seized.
The justification for the proposed retention of power of
seizure as part of the monitoring powers is discussed below in the ‘comments’
section relating to Schedule 8.
Provisions gained through the
application of the Regulatory Powers Act
One provision is proposed to be gained through the
application of the RPA, as there is presently no equivalent in the Horse
Disease Act. This is the application of section 33 of the RPA, which
prescribes a process for obtaining extensions of the 24-hour time period in
which electronic equipment or a thing may be secured under sections 21 and 22
of the RPA. The Explanatory Memorandum states that this provision is ‘merely
procedural’ in nature.[243]
Retrospective application of some
proposed amendments
Items 6 and 7 contain application and savings
provisions. Sub item 6(1) provides for the retrospective application of
the monitoring powers in Part 2 of the RPA, for the purpose of
monitoring compliance with obligations under the Horse Disease Act before,
on or after the commencement of Schedule 11, if enacted.
The Explanatory Memorandum states that this
retrospective operation is considered necessary to ensure continuity in the
monitoring powers under the Horse Disease Act, and is appropriate
because the proposed amendments in Schedule 8 do not expand the existing
regulatory framework and therefore will not impact rights or impose liabilities
on persons subject to monitoring provisions.[244]
Sub item 6(2) preserves the validity of actions
taken under the existing monitoring provisions of the Horse Disease Act prior
to the commencement of Schedule 11, including monitoring warrants issued and
warrant applications made, and things seized or secured. Item 7 is a
savings provision in relation to identity cards.
Comment
Limited substantive legal effect of
most proposed amendments
With one exception, the proposed amendments in Schedule 8
are fairly described as procedural or otherwise minor in nature. The exception
is the proposal to modify the application of the monitoring powers in Part 2 of
the RPA to preserve the powers of seizure and related procedural
provisions in existing Part 3 of the Horse Disease Act.
Exception—Power of seizure as part
of compliance monitoring powers
There is a threshold policy question as to whether powers
of seizure should be conferred as part of monitoring powers, or whether they
should be reserved to investigative powers (and therefore subject to separate
authorisation requirements, which require the suspected commission of a
contravention of the relevant regulatory legislation). The RPA takes the
latter approach, presumably in recognition of the intrusive nature of seizure
and its adverse impacts on regulated entities in denying them the opportunity
to have possession and use of their property.[245]
Accordingly, the proposed retention of the seizure powers in the Horse
Disease Act arguably represents a significant departure from the approach taken
to the framing of the RPA.
This departure calls into question the adequacy of the
justification provided in the Explanatory Memorandum of the operational need
for seizure powers as part of the monitoring powers in the Horse Disease Act.
The Explanatory Memorandum refers briefly to the voluminous and complex nature
of evidential material, which may preclude its thorough examination on the
premises during the exercise of compliance monitoring powers, and notes that
the power of seizure will prevent evidence from being concealed, lost or
destroyed.[246]
However, the Explanatory Memorandum does not provide
further information explaining why the exercise of the general monitoring
powers under Part 2 of the RPA to take copies, extracts, recordings or
images would not be practicable or effective. In addition, the power of
seizure in proposed new subsection 13(13) of the Horse Disease Act is
not limited to circumstances in which the authorised person believes, on reasonable
grounds, that the exercise of less intrusive monitoring powers would be
ineffective or impracticable (including by reason of circumstances of emergency
or urgency; or a risk that the relevant evidence may be concealed, lost or
destroyed unless seized in the course of exercising monitoring powers).[247]
Accordingly, there do not appear to be clear statutory safeguards to ensure
that the power of seizure can only be exercised in the circumstances described
in the Explanatory Memorandum.
However, the Explanatory Memorandum also notes that there
are comparable seizure powers in other legislation governing the collection of
emergency animal disease response levies from other industries, including the Primary
Industry Levies and Charges Collection Act 1991. It states that the
Department is scheduled to undertake a review of the regulatory powers in all
legislation governing the collection of the levy in the next 12 months.[248]
At the time of writing this Bills Digest, the Department’s
website indicates that a review of the Horse Disease Levy was in progress, with
a consultation period running from 29 July to 29 August 2016. Submissions to
the review do not appear to have been published, and the website does not
provide an indicative reporting date or timeframe.[249]
Members of the Parliament may be content to leave the question of the necessity
and appropriateness of seizure provisions (as part of compliance monitoring
rather than investigative powers) to the Departmental review, and to consider
any future legislative proposals that may arise from its recommendations.
Schedule
9—Amendment of the Illegal Logging Prohibition Act 2012
Overview of regulatory scheme
The Illegal Logging Prohibition Act 2012 (Illegal
Logging Act) establishes a regulatory framework to prohibit the importation
and sale of illegally logged timber products in Australia, and the processing
in Australia of illegally logged raw logs.[250]
It also requires importers of regulated timber products and processors of raw
logs to conduct due diligence in relation to whether the products or raw logs
were logged illegally.[251]
The Illegal Logging Act confers monitoring,
investigation and enforcement powers on inspectors appointed by the Secretary
of the Department of Agriculture and Water Resources.[252]
These are substantially similar to the monitoring, investigation, civil penalty
and infringement notice provisions in Parts 2, 3, 4 and 5 of the RPA.
This reflects that the Illegal Logging Act was
among the legislation identified by AGD in March 2013 to have been drafted in
accordance with precedent provisions which subsequently informed the
development of the RPA.[253]
Application of the Regulatory
Powers Act—Monitoring, investigation and enforcement powers
Schedule 9 proposes to amend the Illegal Logging
Act to apply the standard provisions of Parts 2, 3, 4 and 5 of the RPA.
The key amendments are contained in item 8, which inserts new Divisions
2–5 in Part 4 of the Illegal Logging Act to trigger the application of
the above provisions of the RPA.
Modifications to the application of
the standard provisions of the Regulatory Powers Act
The Explanatory Memorandum identifies a small number of
proposed modifications to the standard monitoring and investigation powers in
Parts 2 and 3 of the RPA, which preserve existing powers in the Illegal
Logging Act for which there are no equivalent provisions in the RPA.[254]
The two main areas of modification are the power to sample any thing on the
premises in the exercise of monitoring and investigation powers,[255]
and the power to use reasonable force against things in the course of executing
an investigation warrant.[256]
The Explanatory Memorandum states that the power to take
samples is an essential element of the monitoring and investigation powers, as
it enables inspectors to take a physical DNA sample of a timber or wood-based
product in order to verify the characteristics of timber (such as genus,
species, and country or region of harvest) which can determine whether the
product is what the importer or processor claims it to be. The Explanatory
Memorandum further states that ‘the importance of this power is likely to
increase in the future, as improved DNA sampling techniques will enable
inspectors to gather detailed evidence from timber samples’ and notes similar
regulatory arrangements in the United Kingdom and Germany.[257]
The Explanatory Memorandum further states that the power
to exercise reasonable force against things in the course of executing an
investigation warrant is considered to be necessary because an inspector (or a
person assisting) ‘may need to open locked doors, cabinets, drawers and other
similar objects’ that are suspected to contain evidential material that would
demonstrate a contravention of the Illegal Logging Act.[258]
It also states that the offence provision in section 63 of the RPA in
relation to occupiers (or others) of premises who fail to provide reasonable
facilities and assistance to persons executing an investigation warrant may be inadequate
to ensure that inspectors can gain access to evidential material.[259]
Provisions gained through the
application of the Regulatory Powers Act
The Explanatory Memorandum also identifies a small number
of provisions gained through the proposed application of the RPA to the Illegal
Logging Act.[260]
These include procedural provisions relating to the extension of the period of
time for which things may be secured under the exercise of monitoring and
investigation powers,[261]
the procedure for retaining a thing seized in the exercise of investigation
powers,[262]
and requirements of proof in relation to civil penalty provisions.[263]
Other proposed amendments to the
existing provisions of the Illegal Logging Act
Proposed new subsection 21(9) (item 8) extends
jurisdiction in relation to provisions and information subject to monitoring to
the Federal Circuit Court, in addition to the Federal Court. The Explanatory
Memorandum indicates that the conferral of concurrent jurisdiction upon both
courts is consistent with Commonwealth policy with respect to federal
jurisdiction. (Namely, concurrent jurisdiction should be conferred unless the
matter requires the specialised expertise of the Federal Court.)[264]
Retrospective application of some
proposed amendments
Item 10 provides for the retrospective application
of the proposed amendments regarding monitoring and investigation powers in
relation to contraventions or alleged contraventions occurring before the
commencement of Schedule 9, if enacted (as well as contraventions or alleged
contraventions occurring at or after the commencement of Schedule 9).
The Explanatory Memorandum states that the retrospective
application of the proposed amendments to the monitoring and investigation
powers in Schedule 9 is considered appropriate because the measures do not
expand the existing regulatory framework under the Illegal Logging Act. Therefore,
it suggests that retrospective application does not impact rights or impose
liabilities on a person who is subject to the monitoring and investigation
powers.[265]
Items 9–12 also contain savings provisions, which
preserve the validity of actions done under the provisions of the Illegal
Logging Act prior to the commencement of Schedule 9. Items 11 and 12
further provide for the prospective application of the proposed amendments
relating to civil penalty provisions and infringement notices. (That is, the
provisions of Parts 4 and 5 of the RPA will apply to alleged
contraventions of the civil penalty provisions of the Illegal Logging Act occurring
on or after the commencement of Schedule 9.)
Comment
On balance, the proposed amendments are fairly described
as procedural or otherwise minor in their legal effect. However, as with the
above discussion of the proposed amendments to the GEMS Act in Schedule
7, the proposed retention of the use of force provisions in the Illegal
Logging Act merits further scrutiny.
Use of force against things in the
course of executing an investigation warrant
The Explanatory Memorandum does not
contain justification for the breadth of the classes of persons who may use
force (inspectors and persons assisting) including an explanation of why the
power could not be limited to police officers accompanying inspectors, or
others who are trained in the lawful use of force. Nor does the Explanatory
Memorandum describe applicable administrative oversight and accountability
arrangements to ensure that force is used only where necessary and appropriate,
and is limited to reasonable force, and that any instances of unnecessary or
unreasonable force are identified and remediated.
The Illegal Logging Act does not appear
to prescribe mandatory qualification or training requirements with respect to
the use of force. Like the use of force provisions in the GEMS Act (discussed
above in relation to Schedule 7) the Illegal Logging Act does not make
provision for the payment of compensation or the provision of other redress for
persons whose property is damaged by the use of excessive or unnecessary force.
The absence of such a provision produces
an anomaly with the protection provided in section 61 of the RPA,
which requires the Commonwealth to pay compensation to the owner or user of
electronic equipment on the premises, if an authorised person operating that equipment
in the course of exercising investigative powers fails to take reasonable care,
and the equipment or data stored on the equipment is damaged. This means that
physical things and electronic equipment on a regulated entity’s premises could
be treated differently under the investigation provisions of the Illegal
Logging Act without any apparent justification in the Explanatory Memorandum.
Such differential treatment is arguably
arbitrary and could be resolved through the enactment of a similar provision to
section 61 of the RPA with respect to property damage caused by the use
of unreasonable or unnecessary force against things.
These matters are also discussed below in
relation to similar provisions in Schedule 10, which proposes to
preserve the use of force provisions in the Industrial Chemicals
(Notification and Assessment) Act 1989; and Schedule 14, which
proposes to preserve the use of force provisions in the Tobacco Plain
Packaging Act 2011.
Schedule
10—Amendment of the Industrial Chemicals (Notification and Assessment) Act 1989
Overview of regulatory scheme
The Industrial Chemicals (Notification and Assessment)
Act 1989 (ICNA Act) establishes the National Industrial Chemicals
Notification and Assessment Scheme (NICNAS) which is administered by the
Department of Health and provides for the notification and assessment of
industrial chemicals for the protection of human health and the environment.[266]
The ICNA Act provides that the NICNAS is administered by a Director who
is appointed by the Governor-General under the ICNA Act.[267]
The ICNA Act contains an enforcement regime, under
which the Director may appoint inspectors who may exercise compliance
monitoring and investigation powers in relation to offences against the ICNA
Act or Regulations, or the ancillary and inchoate offences in sections
11.1, 11.4 and 11.5 of the Criminal Code 1995 (attempt, incitement and
conspiracy) and section 6 of the Crimes Act 1914 (accessory after the
fact).[268]
The ICNA Act also authorises the Health Minister or any other person to
apply to the Federal Court seeking an injunction to restrain a contravention of
one of the above offence provisions.[269]
Application of the Regulatory
Powers Act—Monitoring, investigation and enforcement powers
Schedule 10 proposes to amend the ICNA Act to
apply the standard compliance monitoring, investigation and injunction
provisions of Parts 2, 3 and 7 of the RPA.
The key amendments are contained in item 5 (new
section 83—injunctions), item 6 (new Divisions 3 and 4 of Part
4—monitoring and investigation) and item 7 (new Division 5 of Part 4—exempt
information, such as confidential commercial information, given to inspectors
in the exercise of monitoring and investigation powers).
Modifications to the application of
the standard provisions of the Regulatory Powers Act
The Explanatory Memorandum identifies several proposed
modifications to the standard provisions of the RPA, which seek to
retain aspects of the existing provisions of the ICNA Act for which
there are no equivalent provisions in the RPA.[270]
Key modifications relate to:
- injunctions—the
power of the court to grant an injunction, whether or not the conduct sought to
be restrained would constitute a serious or immediate risk of adverse health
effects or adverse environmental effects (or in the case of injunctions
compelling a person to act, whether or not there would be a serious or
immediate risk of the kind described above if the person fails or refuses to do
the thing).[271]
The Explanatory Memorandum states that the retention of this power is necessary
to ensure that the Court can make orders restraining potential danger, without
needing to wait for the harm or danger to manifest[272]
- taking
and keeping samples—the power to take and keep samples of materials in the
exercise of monitoring powers.[273]
The Explanatory Memorandum states that this power is necessary so that tests
can be conducted on relevant items and substances to determine whether they are
compliant with the ICNA Act[274]
- use
of force—the power to use reasonable force against things in the course of
exercising a monitoring warrant or an investigation warrant. [275]
The Explanatory Memorandum repeats the justification provided for the use of
force provisions in the GEMS Act (Schedule 7) and the Illegal Logging
Act (Schedule 9) that this power is necessary for inspectors to gain access
to evidential material by opening locked doors, cabinets, drawers and other
similar objects. It states that the use of force power will ensure that the
execution of monitoring and investigation warrants are not frustrated, and will
prevent concealment, loss, destruction of evidential material, or the continued
use of things in contravention of the ICNA Act[276]
- exempt
information—the ability of an occupier to make an application to the NICNAS
Director to have certain information or evidence compulsorily disclosed to an
inspector exercising compliance monitoring or investigative powers treated as
‘exempt information’ under section 75 of the ICNA Act. [277] This
means that the relevant information cannot be published and its disclosure is
restricted. (Under section 75, the Director may grant an application if
satisfied that the publication of the information could reasonably be expected
to prejudice substantially the commercial interests of the applicant, and the
prejudice outweighs the public interest in publication.) The Explanatory
Memorandum states that it is necessary to ensure that the exempt information
provisions apply to information obtained via the exercise of the standard
monitoring and investigation powers in the RPA, in the same way that the
exempt information provisions apply to the existing monitoring and
investigation provisions in the ICNA Act.[278]
Provisions gained through the
application of the Regulatory Powers Act
As the ICNA Act pre-dates the RPA,
and the use of drafting precedent provisions that informed the development of
the RPA, a number of new provisions are gained via the application of
the RPA to the ICNA Act. These are primarily procedural
provisions relating to the authorisation and exercise of monitoring and
investigation powers,[279]
and the extension of the existing monitoring powers in the ICNA Act to
information subject to monitoring.[280]
Other minor amendments to the ICNA
Act
Items 5 and 6 also confer concurrent jurisdiction
on the Federal Circuit Court with that already conferred on the Federal Court
to hear and determine injunction applications, and matters relating to
monitoring and investigation powers. The Explanatory Memorandum indicates that
this is consistent with policy on the conferral of federal jurisdiction
(namely, that both courts should be conferred with concurrent jurisdiction,
unless the matter requires the specialist expertise of the Federal Court alone).[281]
Retrospective application of some proposed
amendments
Part 2 of Schedule 10 (items 9–13) provides for the
prospective application of the majority of the proposed amendments to the ICNA
Act, and the saving of the existing provisions in relation to actions
undertaken before the commencement of Schedule 10 (if enacted).
However, item 11 provides for the retrospective
application of the monitoring powers in Part 2 of the RPA, and certain
of the investigation powers in Part 3 of the RPA (that is, to alleged
contraventions occurring prior to the commencement of Schedule 10).
The Explanatory Memorandum states that this retrospective
application is considered appropriate because the application of the standard
monitoring and investigation powers does not expand the existing regulatory
framework of the ICNA Act, and therefore retrospective application does
not impact rights or impose liabilities on regulated entities.[282]
Comment
Limited substantive legal effect of
most proposed amendments
The majority of proposed amendments are largely procedural
and do not appear to result in a material expansion of the powers, duties and
liabilities imposed by the ICNA Act. Several of the provisions gained
via the application of the RPA to the ICNA Act will enhance
safeguards in relation to the execution of intrusive powers.
Use of force in the execution of
monitoring and investigation warrants
As with the previous discussion of the proposed amendments
to the GEMS Act (Schedule 7) and the Illegal Logging Act (Schedule
9), the proposed retention of the use of force provisions in the ICNA
Act with respect to monitoring and investigation powers may warrant further
scrutiny.
The comments made earlier in relation to the use of force
provisions in Schedules 7 and 9 apply equally to the equivalent provisions in
Schedule 10.[283]
Possible further standardisation-related
amendments to the ICNA Act
In addition to the proposed amendments in Schedule 10 to
the present Bill, the ICNA Act is currently under review and may be the
subject of further proposed amendments in the future. The Department of Health released
a consultation paper on 4 October 2016, which relevantly sought stakeholder
views as to whether the standard infringement notice, civil penalty and
enforceable undertaking provisions in the RPA may be suitable for
application to the ICNA Act.[284]
Schedule
11—Amendment of the Paid Parental Leave Act 2010
Overview of regulatory scheme
The Paid Parental Leave Act 2010 (PPL Act)
establishes the Paid Parental Leave Scheme (PPL Scheme), which is a
Government-funded payment that complements the entitlement to unpaid leave
under the National Employment Standards (NES) in the Fair Work Act 2009.
The PPL Scheme comprises two main payment types—‘Parental
Leave Pay’ and ‘Dad and Partner Pay’.
Parental Leave Pay is an 18-week payment at the rate of the national minimum
wage for eligible primary carers of newborn and recently adopted children. Dad
and Partner Pay is a two-week payment at the rate of the national minimum wage
for eligible dads or partners caring for newborn or recently adopted children.[285]
Determinations about eligibility are made by the Secretary of the Department of
Social Services.
The PPL Act contains a number of civil penalty provisions
for the contravention of obligations placed upon employers.[286]
It further establishes a framework of compliance and enforcement powers,
exercisable primarily by the Secretary. This includes a request-based
information disclosure regime for the purpose of compliance monitoring, the
power to refer matters to the Fair Work Ombudsman, the power to issue
compliance notices and infringement notices, the power to apply to the Federal
Court or Federal Circuit Court for the enforcement of an alleged contravention
of certain civil penalty provisions, and debt recovery provisions.[287]
Application of the Regulatory
Powers Act—Enforcement powers (civil penalties, infringement notices)
Schedule 11 proposes to amend the PPL Act to
apply the standard civil penalty and infringement notice provisions in Parts 4
and 5 of the RPA.[288]
Schedule 11 does not propose to replace the existing request-based
information-gathering powers and disclosure requirements in Part 4–1 of the PPL Act
with the standard compliance monitoring powers in Part 2 of the RPA
(which are more intrusive in nature).
Key amending items
The key proposed amendments are contained in item 17
(proposed new section 147, applying the standard civil penalty provisions in
Part 4 of the RPA) and item 20 (proposed new Division 5 of Part 4–2,
applying the standard infringement notice provisions in Part 5 of the RPA).
Modifications to the application of
the standard provisions of the Regulatory Powers Act
The Explanatory Memorandum identifies four instances in
which Schedule 11 proposes to modify the application of the standard provisions
of the RPA in relation to the PPL Act.[289]
These relate to the following matters.
The power to obtain, use and disclose ‘protected
information’ (items 7–9)
These items propose to amend existing sections 127
and 128 of the PPL Act which permit persons administering the PPL
Act to obtain certain personal information (deemed ‘protected information’)
for the purpose of administering the PPL Act, and to use that
information for the purpose of administering the PPL Act or other social
security laws, and to disclose it to certain designated officials performing
functions under the PPL Act.
Items 7–9 provide that information may also be obtained,
used and disclosed for the purpose of exercising the standard powers in the RPA,
as applied to the provisions of the PPL Act. There is no corresponding
provision in the RPA. The Explanatory Memorandum notes that these
amendments will ensure that the provisions of the RPA can be applied
effectively, since enforcement action may require the collection and use of
protected information.[290]
The obligation on persons to assist in applications for
civil penalty orders (items 18 and 19)
These items amend the requirement in existing section 156
of the PPL Act for a person to comply with a written request from the
Secretary to give all reasonable assistance in connection with an application
for a civil penalty order. They extend the requirement to civil penalty orders
under Part 4 of the RPA as it applies to the provisions of the PPL
Act. There is no equivalent obligation in Part 4 of the RPA. The
Explanatory Memorandum indicates that these amendments will ensure that section
156 remains effective following the application of the RPA to the PPL
Act.[291]
The time limit for issuing an infringement notice and
the amount to be stated in an infringement notice (item 20)
Proposed new subsections 159(5) and (6) modify the
application of the infringement notice provisions in Part 5 of the RPA
to preserve existing arrangements under the PPL Act. In particular:
- proposed
new subsection 159(5) modifies the time period for issuing infringement
notices in subsection 103(2) of the RPA, with respect to the civil
penalty provision in subsection 157(4) of the PPL Act relating to a
failure to comply with the requirements of a compliance notice issued under the
PPL. It provides that infringement notices must be issued within 12
months of the end of the 14-day period in which a person is required to comply
with the requirements of a compliance notice. This is in contrast to subsection 103(2)
of the RPA which provides that an infringement notice must be issued
within 12 months of the contravention. The Explanatory Memorandum indicates
that this is necessary to accommodate the compliance notice requirements in the
PPL Act which do not have an equivalent in the RPA[292]
- proposed
new subsection 159(6) modifies the application of subsection 104(2) of the RPA,
which prescribes the maximum penalty amounts to be included in infringement
notices, being the lesser of one-fifth of the maximum pecuniary penalty a court
could impose for the contravention, or 12 penalty units (currently $2,160) for
an individual, or 60 penalty units (currently $10,800) for a body corporate.
Proposed new subsection 159(6) preserves the existing, lesser amounts
specified in the PPL Act, which are one-tenth of the maximum pecuniary
penalty a court could order for the relevant civil penalty provisions. The Explanatory
Memorandum states that these penalty amounts are consistent with the penalties
applicable to employer contraventions of civil penalty provisions in the Fair
Work Act 2009 and have been set at these levels to deter non-compliance
without causing financial hardship to businesses.[293]
Provisions gained through the
application of the Regulatory Powers Act
Civil penalty provisions—Requirements of proof and other
procedural matters relating to civil penalty orders
The Explanatory Memorandum acknowledges that the application
of the standard civil penalty provisions in Part 4 of the RPA will
result in the addition of some new provisions to the PPL Act. These are
the requirements of proof and other procedural matters relating to the
enforcement of civil penalty provisions (such as multiple and ancillary
contraventions, and the attribution of liability to bodies corporate for the
conduct of their employees, agents and officers).[294]
While the Explanatory Memorandum provides a general
explanation of the relevant provisions of the RPA that will be gained,
it does not provide details of their specific legal effect on the civil penalty
provisions in the PPL Act, or explain the reasons that the
application of these provisions is considered appropriate.
In particular, it does not explain how section 96 of the RPA
(which imposes an evidential burden on a respondent who seeks to rely upon an
exemption to a civil penalty provision) will apply to the existing civil
penalty provisions in the PPL Act. However, the civil penalty provisions
in the PPL Act do not appear to include any exemptions, exceptions or
qualifications.
Infringement notices—Extensions of time
The Explanatory Memorandum also indicates that one provision
will be gained through the application of the infringement notice provisions in
Part 5 of the RPA.[295]
This is the power in section 105 of the RPA to grant a person who is
issued with an infringement notice an extension of time in which to pay the amount
specified in the notice. The Explanatory Memorandum notes that this provision
ensures that a person is not prevented from paying an infringement notice due
to financial hardship or other difficulties.[296]
Prospective application of the
proposed amendments
Items 27 and 28 provide for the prospective
application of the proposed amendments, in relation to contraventions or
alleged contraventions of civil penalty provisions occurring on or after the
commencement of Schedule 11 (if enacted). These items also preserve the
application of the existing enforcement provisions of the PPL Act in
relation to contraventions or alleged contraventions occurring prior to the
commencement of Schedule 11.
Comment
On balance, the proposed amendments in Schedule 11 do not
appear to raise significant issues of concern. The proposed modifications
of the application of the RPA are fairly described as procedural or
otherwise minor in nature.
However, it should be noted that the application of
section 96 of the RPA to the civil penalty provisions in the PPL Act means
that the default position will be that the respondent to an application for a
civil penalty order will bear the evidential burden in relation to any
exceptions he or she may seek to rely upon.
While the application of section 96 of the RPA does
not appear to impact upon the existing civil penalty provisions in the PPL Act
(which do not include specific exceptions), it will be important to
consider the appropriateness (or otherwise) of the application of section 96 to
any future amendments to the PPL Act.
Schedule
12—Amendment of the Personal Property Securities Act 2009
Overview of regulatory scheme
The Personal Property Securities Act 2009 (PPS
Act) establishes a national regime for the creation, registration, priority
and enforcement of security interests in personal property.[297]
It also provides for the establishment and maintenance of the Personal Property
Securities Register (PPSR), which provides an authoritative public record of
interests in personal property.[298]
Registration is said to provide parties with a means of publicising and
protecting their interests, and provides third parties (such as financiers,
lenders, insolvency practitioners and prospective purchasers) with a means of
identifying interests in personal property that is the subject of a transaction
or potential transaction in which they are involved.[299]
The PPS regime is administered by a Registrar of Personal
Property Securities, as supported by a Deputy Registrar. The offices of the
Registrar and Deputy Registrar are established under Part 5.9 of the PPS Act,
which also prescribes their functions and powers, and the conditions and other
requirements for their appointment and engagement.
The PPS Act contains several civil penalty
provisions.[300]
Part 6.3 of the PPS Act contains an enforcement framework under which
the Registrar may commence proceedings seeking civil penalty orders in relation
to the contravention of civil penalty proceedings, and may obtain and enforce
undertakings in relation to compliance with the requirements imposed by the Act.[301]
The PPS Act was among the legislation identified by
AGD in March 2013 as being drafted in accordance with precedent provisions that
informed the development of the RPA.[302]
As such the proposed amendments (discussed below) do not appear to
substantively change the legal effect of the existing enforcement provisions.
Application of the Regulatory
Powers Act—Enforcement powers (civil penalties, enforceable undertakings)
Schedule 12 proposes to replace the existing
enforcement provisions in Part 6.3 of the PPS Act dealing with civil
penalties and enforceable undertakings with the corresponding standard
provisions of Parts 4 and 6 of the RPA.[303]
Key amending items
The key proposed amendments are contained in item 12,
which repeals existing Part 6.3 of the PPS Act and substitutes a new
part which triggers the application of the civil penalty provisions in Part 4
of the RPA (proposed new section 221) and the enforceable
undertaking provisions in Part 6 of the RPA (proposed new section 222).[304]
Provisions gained through the
application of the Regulatory Powers Act
Eight civil penalty provisions are gained through the proposed
application of Part 4 of the RPA to the PPS Act, as the PPS
Act does not currently contain corresponding provisions. The provisions proposed
to be gained relate to the requirements of proof in civil penalty proceedings,
and other procedural arrangements including multiple and continuing
contraventions.[305]
The Explanatory Memorandum describes the addition of all
but one of these provisions as ‘merely procedural’.[306]
The application of the remaining provision of the RPA—section 93—is said
to result in a ‘minor expansion’ of the current regulatory powers in the PPS
Act.[307]
(Section 93 of the RPA makes provision for 'continuing contraventions'
of civil penalty provisions which require a person to do an act or thing within
a particular period or before a particular time. A person who fails to meet the
relevant deadline is deemed to commit a separate contravention in respect of
each day during which he or she fails to do the act or thing required.) The
Explanatory Memorandum states that the proposed application of section 93 is ‘necessary
to ensure that failure to comply with an obligation does not excuse a person
from meeting that obligation’.[308]
Other minor amendments to the
existing provisions of the PPS Act
Proposed new subsections 221(3) and 222(3) (item 12)
modify the relevant courts with jurisdiction to determine applications for
civil penalty orders and the enforcement of undertakings. Currently, the PPS
Act confers jurisdiction on the Federal Court.[309]
The proposed amendments extend jurisdiction to the Federal Circuit Court and
courts of states and territories that have jurisdiction in relation to matters
arising under the PPS Act.
The Explanatory Memorandum states that the conferral
of jurisdiction on the Federal Circuit Court is consistent with existing policy
in relation to the conferral of federal jurisdiction, which provides that it is
appropriate to afford concurrent jurisdiction upon the Federal and Federal
Circuit Courts unless the matter requires the specialist knowledge or expertise
of the Federal Court.[310]
The Explanatory Memorandum also states that the conferral of jurisdiction on state
and territory courts is appropriate to ensure that jurisdiction is:
... conferred as widely as possible to ensure that disputes can
be resolved in the lowest level of court appropriate, and that workload is
distributed between courts to encourage efficiency in dealing with related
matters.[311]
Prospective application of the
proposed amendments
Items 13 and 14 provide for the prospective
application of the proposed amendments in relation to contraventions or alleged
contraventions of the PPS Act, or the provision of undertakings, on or
after the commencement of Schedule 12, if enacted. These items also provide for
the continued application of the existing enforcement provisions of the PPS
Act in relation to contraventions or alleged contraventions occurring, or
undertakings given, prior to the commencement of Schedule 12.
Comment
The proposed application of Parts 4 and 6 of the RPA
to the PPS Act would not result in significant change to the existing
enforcement provisions in Part 6.3 of the PPS Act. The Explanatory
Memorandum also provides justification for the civil penalty provisions
proposed to be gained via the application of Part 4 of the RPA,
particularly the effect of the application of section 96 of the RPA to
existing civil penalty provisions in the PPS Act (which already impose
an evidential burden on a respondent who seeks to rely upon them).[312]
Schedule
13—Amendment of the Privacy Act 1988
Overview of regulatory scheme
The Privacy Act 1988 regulates the handling of
personal information about individuals. ‘Personal information’ for the purpose
of the Privacy Act is information or an opinion about an identified individual
or an individual who is reasonably identifiable.[313]
The Privacy Act includes thirteen Australian
Privacy Principles (APPs) which set out requirements for the collection,
handling, use, storage and disclosure of personal information. The APPs apply
to certain private sector organisations and most Australian Government
agencies.[314]
The Privacy Act also regulates consumer credit reporting.[315]
Several obligations prescribed by the Privacy Act apply civil penalty
provisions to contraventions.[316]
Other prohibitions are subject to criminal offences for contraventions.[317]
The regulatory regime established under the Privacy Act
is administered by the Privacy Commissioner, whose office, conditions and
other requirements of appointment, functions and powers are established under or
prescribed by Part IV.
Part VIB contains an enforcement regime in relation
to the civil penalty provisions, authorising the Privacy Commissioner to make
an application to the Federal Court or Federal Circuit Court for a civil
penalty order in relation to an alleged contravention.
Section 98 also authorises the Privacy Commissioner to
seek an injunction to restrain an alleged contravention of a provision of the Privacy
Act (covering both civil penalty and offence provisions).
Division 3B of Part IV further authorises the
Privacy Commissioner to accept enforceable undertakings from a regulated
entity in relation to its compliance with the provisions of the Privacy Act (covering both
criminal and civil penalty provisions), and to commence enforcement proceedings
in the Federal Court or Federal Circuit Court in the event of an alleged
contravention.
Part VIB and Part IV, Division 3B of the Privacy Act were
enacted in 2012.[318]
The relevant amending Act was among the legislation identified by AGD in March
2013 as being prepared using drafting precedents which informed the development
of the RPA.[319]
Application of the Regulatory
Powers Act—Enforcement powers (civil penalties, injunctions, enforceable
undertakings)
Key amending items
Schedule 13 proposes to amend Part VIB, and repeal Division
3B of Part IV and section 98 of the Privacy Act to apply the standard
civil penalty, enforceable undertaking and injunction provisions of Parts 4, 6
and 7 of the RPA.
The key amending items are item 7 (which repeals
existing Part VIB and substitutes a new Part VIB which provides for civil
penalties, enforceable undertakings and injunctions) and items 6 and 8
(which repeal the existing provisions in Division 3B of Part IV and section 98
regarding enforceable undertakings and injunctions).[320]
Given that the existing provisions of the Privacy Act dealing
with civil penalties and enforceable undertakings are reportedly based on
precedent provisions upon which the RPA was later based, the proposed
amendments do not appear to significantly change their legal effect.
The Explanatory Memorandum indicates that six new
provisions are gained as a result of the application of the RPA, and one
provision of the RPA is modified to retain an additional power in the Privacy
Act.[321]
Provisions gained through the
application of the Regulatory Powers Act
Civil penalty provisions—Requirements of proof, enforcement
of ‘continuing contraventions’
The application of the civil penalty provisions in Part 4
of the RPA to the Privacy Act will, if enacted, result in the
gaining of five new provisions governing the requirements of proof in civil
penalty proceedings, and the imposition of penalties for continuing
contraventions.[322]
The Explanatory Memorandum describes the general effect of these provisions but
does not provide a specific justification for their proposed application to the
Privacy Act or provide specific details of how they will apply to the
civil penalty provisions in that Act.[323]
In particular, it does not provide information about how
section 96 of the RPA (which provides that the respondent bears the
evidential burden in relation to exceptions to civil penalty provisions) will
apply to existing exceptions to the civil penalty provisions in the Privacy
Act. In this regard, a number of existing civil penalty provisions contain
exemptions for permitted uses and disclosures and do not impose an evidential
burden on a respondent who seeks to rely upon them.[324]
Enforceable undertakings—enforcement of alleged
contraventions
The application of Part 6 of the RPA, via proposed
new subsection 80V(1) (item 7) results in the gaining of one new
provision relating to the enforcement of an undertaking, for which there is
presently no express equivalent in the Privacy Act.
Subsection 115(2) of the RPA provides for the
orders that a court may make, if it finds that a regulated entity has breached
an enforceable undertaking. This includes orders to comply with the
undertaking, to pay compensation to persons who have suffered loss or damage as
a result of the breach, and any other order the court considers appropriate.
These provisions are broadly equivalent to existing subsection 33F(2) of the Privacy
Act. However, paragraph 115(2)(b) of the RPA includes an additional
order, namely an order directing the person to pay the Commonwealth an amount
up to the amount of any financial benefit that the person has obtained directly
or indirectly and that is reasonably attributable to the breach.
The Explanatory Memorandum describes this proposed
amendment as ‘merely procedural in nature’.[325]
While it does not explain the reasons for this position, it would be open to a
court to make an order of the kind specified in paragraph 115(2)(b) of the RPA
in the absence of an express conferral of jurisdiction. Existing paragraph
33F(2)(c) of the Privacy Act provides that the court may make any other
order that it considers appropriate.
Modifications to the application of
the standard provisions of the Regulatory Powers Act
Proposed new subsection 80V(4) of the Privacy Act (item
7) retains the existing discretionary power of the Privacy Commissioner in
subsection 33E(5) to publish an enforceable undertaking provided by a regulated
entity on the Commissioner’s website. There is no equivalent provision in Part
6 of the RPA. The Explanatory Memorandum indicates that the retention of
this power is considered necessary to promote compliance with the obligations
under the Privacy Act.[326]
Prospective application of the proposed
amendments
Items 10–12 provide for the prospective application
of the proposed amendments on or after the commencement of Schedule 13, if
enacted. These items also preserve the existing enforcement provisions of the Privacy
Act in relation to contraventions or alleged contraventions occurring, or
enforceable undertakings given, before the commencement of the proposed
amendments.
Comment
On balance, for the reasons set out below, the proposed
amendments in Schedule 13 do not appear to raise significant issues of concern.
Modification of the standard
provisions of the Regulatory Powers Act
The single instance of modification of the standard
provisions of the RPA, relating to the publication of enforceable
undertakings, is fairly described as minor in nature and supported by a
reasonable policy justification. (Namely, the retention of an existing tool available
to the Privacy Commissioner to promote compliance with the Privacy Act.)
Gaining of new provisions,
consequential to the application of the Regulatory Powers Act
The small number of civil penalty and enforceable
undertaking provisions gained as a result of the application of Part 4 of the RPA
do not appear to materially alter existing arrangements under the Privacy
Act.
However, the Explanatory Memorandum would, ideally, have
outlined the reasons for the application of these provisions to the Privacy
Act, and in particular the application of section 96 to the existing civil
penalty provisions (noting that some existing exceptions do not appear to
impose an evidential burden on the respondent).
Some of these exemptions relate to the state of mind of
the respondent and might therefore warrant the imposition of an evidential
burden on the respondent on the basis that they are peculiarly (if not
exclusively) within the respondent’s knowledge.[327]
However, other exemptions relate to uses and disclosures that are required or
authorised by law or under a court or tribunal order, and would not seem to be
peculiarly within the respondent’s knowledge.[328]
It does not seem self-evident, on the face of these provisions, that there
would be an unreasonable burden on the Privacy Commissioner as applicant in the
event that the respondent did not bear the evidential burden.
Further, as with other proposed amendments in other
schedules to the Bill which seek to apply section 96 of the RPA, it will
be important to scrutinise carefully any future legislative proposals which
seek to enact new exceptions, or amend existing exceptions, to civil penalty
provisions in the Privacy Act. The application of section 96 of the
RPA means that default position will be that the respondent bears the
evidential burden, and it will be necessary to determine whether this is
appropriate in the context of individual proposed exemptions.
Schedule
14—Amendment of the Tobacco Plain Packaging Act 2011
Overview of regulatory scheme
The Tobacco Plain Packaging Act 2011 (TPP Act)
sets out the requirements for the plain packaging and appearance of tobacco
products. It prescribes mandatory requirements for the retail packaging and
appearance of tobacco products, and imposes offences and civil penalties for
the supply, purchase and manufacturing of products that do not comply with the
requirements.[329]
The TPP Act also includes an investigation and
enforcement framework. It invests officers authorised by the Secretary of the
Department of Health with investigative powers similar to those in Part 3 of
the RPA (including search and seizure and the compulsory production of
evidence).[330]
The TPP Act also provides for the Secretary (or delegate)
to apply to the court for a civil penalty order in relation to an alleged
contravention, and empowers an authorised officer to issue an infringement
notice as an alternative to enforcement proceedings. These provisions are
similar to Parts 4 and 5 of the RPA.[331]
Application of the Regulatory
Powers Act—Investigation and enforcement powers
Schedule 14 proposes to
apply the standard investigation, civil penalty and infringement notice
provisions in Parts 3–5 of the RPA to the TPP Act, in relation to
the offences and civil penalty provisions in the TPP Act and offences
against the Crimes Act 1914 and Criminal Code 1995 that relate to
the TPP Act.[332]
As mentioned earlier in this Bills Digest, the TPP Act
was identified by AGD in March 2013 as among the legislation that was drafted
in reliance upon precedent provisions developed by OPC, which subsequently informed
the development of the standard provisions in the RPA (then a Bill
before the Parliament or under development).[333]
Accordingly, the main proposed amendments in Schedule 14 are
largely technical—repealing the existing, stand-alone provisions of the TPP Act
and substituting them with provisions triggering the application of the
corresponding standard provisions of Parts 3–5 of the RPA.
There are, however, a handful of variations to the
standard provisions of the RPA—largely to preserve existing arrangements
under the TPP Act that do not have an equivalent in the RPA—which
are outlined under the subheadings below.[334]
Relevant courts—Investigative
powers and civil penalty proceedings
The TPP Act presently confers jurisdiction on the
Federal Court to hear and determine applications for civil penalty proceedings
and matters relating to the exercise of investigation powers. Items 23 and
29 extend jurisdiction to the Federal Circuit Court.[335]
The Explanatory Memorandum indicates that the proposed
extension of jurisdiction to the Federal Circuit Court is consistent with
Commonwealth policy with respect to the conferral of federal jurisdiction. It
states:
Where an Act provides the Federal Court of Australia with
jurisdiction in relation to matters arising under that Act, it is appropriate
to also afford jurisdiction to the Federal Circuit Court for the same matters,
unless such matters would require the specialist knowledge or expertise of
judges appointed to the Federal Court.[336]
The Explanatory Memorandum further indicates:
Jurisdiction should be conferred as widely as possible to
ensure that disputes can be resolved at the lowest level of court appropriate,
and that workload is distributed between courts to encourage efficiency in
dealing with related matters.[337]
Additional investigative powers—Taking
samples of evidential material
Proposed new subsections 52(10) and (11) (item 23) provide
for additional investigative powers to those in Part 3 of the RPA,
in order to preserve existing powers in the TPP Act relating to the
taking of samples of evidential material (tobacco products) during the course
of an investigation.
The general investigation powers in section 49 of the RPA
permit an authorised person who has entered premises under the power of entry
in section 48 to search the premises for evidential material, and to deal in
various ways with any evidential material found. This relevantly includes the
power of seizure, and powers to inspect, examine, take measurements of, conduct
tests on, and take images or recordings. However, these powers do not squarely
cover the taking of samples.
The Explanatory Memorandum indicates that an explicit
power to take samples is necessary to enable the testing of tobacco products
found during the course of an investigation. It notes that the taking of
samples of tobacco products is, by necessity, destructive and cannot be carried
out by alternative means.[338]
Additional investigative powers—Use
of force against things in executing an investigation warrant
Proposed new subsection 52(12) (item 23) provides
that authorised persons, and persons assisting authorised persons, may in
executing an investigation warrant under Part 3 of the RPA use such force
against things as is necessary and reasonable in the circumstances. There is no
equivalent provision in the RPA.
The inclusion of proposed new subsection 52(12) will
preserve the effect of existing section 57 of the TPP Act. The
Explanatory Memorandum states that the retention of this power is necessary to,
for example:
... open locked doors, cabinets, drawers and other similar
objects that the authorised officer reasonably suspects contain evidential
material that would demonstrate that a provision in new subsection 52(1) of the
TPP Act has been contravened.[339]
It further notes that ‘this power is important in the
retail tobacco sector due to the retail display bans that are in place under
State and Territory legislation’ and that the power will ensure that the
execution of an investigation warrant is not frustrated.[340]
The Explanatory Memorandum further indicates that the
offence applying to regulated entities under section 63 of the RPA of
failing to provide reasonable facilities and assistance to an authorised person
exercising powers under Part 3 of the RPA may be an insufficient means
of ensuring compliance, and non-compliance may otherwise lead to the
concealment or loss of evidential material, or the continued contravention of
the obligations and prohibitions in the TPP Act.[341]
Abrogation of the privilege against
self-incrimination
Subsection 47(1) of the RPA expressly preserves the
privilege against self-incrimination in relation to regulated entities who are
required to provide information or evidential material, which would tend to
expose the person to a penalty.
However, proposed new subsections 52(14) (item 23)
and 80A(1) (item 25) of the TPP Act expressly abrogate this
privilege in relation to persons who are the subject of coercive investigative
powers to provide information, answer questions or produce evidential material
under the TPP Act. These provisions would retain the position in existing
subsection 83(1) of the TPP Act, which is repealed by item 27.
The Explanatory Memorandum states that it is necessary to
retain the abrogation of self-incrimination privilege ‘due to the difficulties
in obtaining relevant evidence’.[342]
In particular, it notes that authorised officers may not be in a position to
observe transactions throughout the supply chain which contravene the TPP
Act, particularly those transactions which occur early in the supply chain.
(For example, a transaction between a retailer and a tobacco company supplying
tobacco products for retail sale.) It also notes that parties to transactions
which contravene the TPP Act may not be forthcoming about their actions,
since disclosure may expose them to liability.[343]
The Explanatory Memorandum further states that the full
application of self-incrimination privilege would both ‘compromise investigation
and enforcement activities’ and could result in retailers ‘unfairly bearing the
burden of compliance with the requirements of the TPP Act as retailers
are the most readily accessible point for investigation and enforcement’.[344]
Availability of ‘use immunity’ and
‘derivative use immunity’
The potentially adverse effects of the abrogation of
self-incrimination privilege are mitigated to an extent by proposed new
subsections 52(15) (item 23) and 80A(2) (item 25) which confer ‘use
immunity’ and ‘derivative use immunity’ on persons who are subject to coercive
investigative and enforcement powers.
Use immunity means that the information
or evidential material given, and the fact that the person has given the
information or evidence, is not admissible evidence in criminal proceedings
against that person.[345]
Derivative use immunity means that any
information, document or thing obtained as a direct or indirect
consequence of the person having given information or evidence is not
admissible in criminal proceedings against that person.[346]
Such evidence is admissible in criminal proceedings
against other persons, or criminal proceedings against the person in relation
to the provision of false information or evidential material. However, the
explicit limitation of use immunity and derivative use immunity to criminal
proceedings against the person—rather than proceedings which may
expose the person to a penalty—means that he or she may still be liable to
civil penalty proceedings for contraventions of the TPP Act or any other
applicable civil penalty provisions.
New and expanded provisions
consequential to the application of the Regulatory Powers Act
The Explanatory Memorandum also identifies two procedural-type
provisions which are gained, and one provision which is expanded, as a result
of the application of the civil penalty and infringement notice provisions in
Parts 4 and 5 of the RPA.
New provisions gained—Civil penalties
The new provisions gained relate to civil penalties, namely
sections 93 and 96 of the RPA.[347]
Section 93 of the RPA makes provision for 'continuing
contraventions' of civil penalty provisions which require a person to do an act
or thing within a particular period or before a particular time.
A person who fails to meet the relevant deadline is deemed
to commit a separate contravention in respect of each day during which he or
she fails to do the act or thing required. The Explanatory Memorandum states
that the proposed application of section 93 is ‘necessary to ensure that
failure to comply with an obligation does not excuse a person from meeting that
obligation’.[348]
Section 96 of the RPA (as discussed above)
provides that a person who seeks to rely upon an exemption, exception,
qualification or excuse to a civil penalty provision bears the evidential
burden. The Explanatory Memorandum describes the proposed application of
section 96 as ‘merely procedural in nature’ because the existing exemptions to
civil penalty provisions in the TPP Act impose an evidential burden upon
a respondent who seeks to rely upon them.[349]
Existing provisions expanded—Infringement notices
Section 100 of the TPP Act would be expanded as a
result of the application of section 103 of the RPA.[350]
These provisions govern the circumstances in which an infringement notice
may be issued.
Existing subsection 100(3) of the TPP Act provides
that an infringement notice may only relate to a single contravention of a
single provision.
In contrast, subsection 103(4) of the RPA provides
for limited circumstances in which a single notice may be issued in respect of
multiple contraventions of a single provision (namely, where the provision
requires a person to do a thing within a particular period or before a
particular time, and the person fails to do the thing on more than one day).
The Explanatory Memorandum states that this expansion is
minor and is intended to complement the application of section 93 of the RPA
(as noted above).[351]
Retrospective application of some
proposed amendments
Item 31 provides for the retrospective application of
the proposed amendments applying the standard investigative powers in Part 3 of
the RPA to the TPP Act (that is, to contraventions or alleged
contraventions occurring before, on or after the commencement of Schedule 14,
if enacted). The Explanatory Memorandum states that this retrospective
application is considered appropriate because the proposed application of Part
3 of the RPA to the TPP Act would not expand the existing
regulatory framework and therefore would not impact upon the rights or
liabilities of regulated entities.[352]
Items 30–33 also provide for the saving of existing
actions done in compliance with the provisions of the TPP Act prior to
the commencement of Schedule 14 (including the issuing of identity cards,
applications for investigative warrants) and to alleged contraventions of civil
penalty provisions and strict liability offence provisions occurring before the
commencement of Schedule 14.
Items 32 and 33 provide for the prospective
application of the proposed amendments applying the standard civil penalty and
infringement notice provisions in Parts 4 and 5 of the RPA (that is, to
contraventions or alleged contraventions occurring on or after the commencement
of Schedule 14, if enacted).
Comment
Variations with a significant
impact on the legal rights and liabilities of regulated entities
Two of the proposed modifications of the investigative
powers in Part 3 of the RPA substantially alter the legal rights and
liabilities that would otherwise apply to regulated entities, in order to
retain existing provisions of the TPP Act. These are the use of force in
executing a search warrant, and the abrogation of the privilege against
self-incrimination.
Use of force against things in the
execution of an investigation warrant
While the Explanatory Memorandum contains a general explanation
of the perceived operational need for retaining the power to exercise
reasonable force against things in the execution of an investigation warrant,
it does not provide an explanation for the breadth of the power conferred, or
information about applicable safeguards.
In particular, the Explanatory Memorandum does not explain
why all classes of authorised officers appointed under section 81 of the
TPP Act must be conferred with the power to use force, and why it would
not be practicable to limit this power to authorised officers who are members
of the Australian Federal Police pursuant to paragraph 81(1)(b) of the TPP
Act.
Nor does the Explanatory Memorandum explain why it is
considered appropriate for persons who are assisting authorised officers to
exercise this power. Further, it does not provide information about the types
of qualifications, training and experience that authorised officers appointed
under paragraph 81(1)(a) (being persons who are engaged or appointed under the Public
Service Act 1999) must hold with respect to the use of force, or persons
assisting them.
Similarly, the Explanatory Memorandum does not identify
how the Secretary of the Department of Health makes a decision under subsection 81(2)
about whether he or she is satisfied that a person possesses the necessary
qualifications, training and experience to be an authorised person,
specifically with respect to the use of force.
The need for further justification for the retention of
the power
Although the present Bill seeks to continue the existence
of a power already conferred under the TPP Act, the case for its
continuation warrants further justification for three reasons.
The first reason is that—as outlined in the
Attorney-General’s second reading speech to the Bill—the standardisation
process ‘provides an opportunity to consider whether existing regulatory powers
or functions are still relevant and appropriate’.[353]
As such, it is reasonable to expect that the justification for the retention of
powers which exceed those in the RPA will be documented in the extrinsic
materials to triggering legislation.
Secondly, the absence of any corresponding ‘use of
force’ provisions in Part 2 of the RPA makes clear that investigative
powers of this kind go beyond what the Parliament has considered to be the
necessary and appropriate powers to be included in a general or ‘standardised’
suite of investigative provisions.
Thirdly, the TPP Act pre-dates the
commencement of the Human Rights (Parliamentary Scrutiny) Act 2011 with
the result that the human rights implications of the use of force provisions
were not the subject of dedicated analysis or scrutiny in the extrinsic
materials to the originating Bill, the Tobacco Plain Packaging Bill 2011.[354]
The need for further information about safeguards
applying to the power
The Explanatory Memorandum would also benefit from the
inclusion of information about safeguards applying to the use of the power, in
addition to the limitation of the use of force to that which is reasonable and
necessary against things (not persons). This includes information about independent
oversight, assurance and complaints handling mechanisms in relation to the use
of force. It would usefully include, for example, information about:
- oversight
by the Commonwealth Ombudsman[355]
- oversight
under the Australian Federal Police (AFP) professional standards framework in
relation to authorised officers who are AFP members[356]
- details
of any internal administrative reporting and documentation requirements with
respect to the use of force in the course of individual warrant operations, and
- information
about redress mechanisms available to regulated entities or others, in the
event that force used in the execution of an investigation warrant is found to
be unreasonable or unnecessary.
Potential
need for enhanced safeguards—Compensation for excessive or inappropriate use of
force
It also seems anomalous that section 61 of the RPA
(and existing section 66 of the TPP Act) makes express provision for the
Commonwealth to pay compensation for damage to electronic equipment, data or
programs caused by the exercise of investigative powers under Part 3 of the RPA,
but the TPP Act contains no comparable provision in relation to the use
of force against things.[357]
The proposed amendments in Schedule 14 do not include a comparable provision in
relation to the use of force.
This means, for example, if a regulated entity’s computer
system is damaged, or if data held on that system is lost or corrupted, because
an authorised person executing an investigation warrant takes insufficient
care, section 61 of the RPA provides for the Commonwealth’s
statutory liability to pay compensation, and provides for statutory remedy if
agreement on the amount is not reached. In contrast, if a regulated
entity’s physical storage cabinets are damaged as a result of an authorised
officer or his or her assistant using inappropriate or excessive force, the
regulated entity must commence proceedings in tort to establish the
Commonwealth’s liability and obtain compensation, or may be reliant upon the
Commonwealth’s agreement to make an ex gratia payment.
It is not clear why physical objects or things and
electronic equipment are treated differently under the TPP Act, and why
this differential treatment is proposed to be preserved via the modified
application of the RPA.
In the absence of a justification in the Explanatory
Memorandum, this distinction seems arbitrary. Arguably, the modified
application of the RPA to the TPP Act to permit the use of force
against things should be accompanied by a corresponding provision to section 61
of the RPA in relation to the payment of compensation and provision of
redress for the use of unreasonable or unnecessary force.
Abrogation of the privilege against
self-incrimination
The justification provided in the Explanatory Memorandum
for proposed new subsection 52(14) (item 23) and proposed new section
80A (item 25)—by reference to difficulties in obtaining relevant
evidence and the distribution of the compliance burden as between retailers and
tobacco companies—appears reasonable, having regard to the regulatory
environment in which the TPP Act operates.
The conferral of use immunity and derivative use immunity
upon the person who provides the relevant evidential material in compliance
with coercive information-gathering powers would likely mitigate the adverse
effects of the abrogation of privilege on that person, with respect to his or
her exposure to criminal liability.
However, the Explanatory Memorandum does not explain the
rationale for limiting the use immunity and derivative use immunity to criminal
proceedings against the person, to the apparent exclusion of civil penalty
proceeding against him or her (whether under the TPP Act or any other
enactment).
Schedule 15—Amendment of the
Weapons of Mass Destruction (Prevention of Proliferation) Act 1995
Overview of regulatory scheme
The Weapons of Mass Destruction (Prevention of
Proliferation) Act 1995 (WMD Act) prohibits the supply or export of
goods that will or may be used in, and the provision of services that will or
may assist in, the development, production, acquisition or stockpiling of weapons
capable of causing mass destruction or missiles capable of delivering such
weapons.
The WMD Act relevantly creates offences in relation
to persons who supply or export goods, or provide services, and who believe or
suspect on reasonable grounds that the goods or services will be used in a WMD
program.[358]
It also makes provision for the issuing of injunctions to restrain
contraventions or apprehended contraventions of its provisions.[359]
Application of the Regulatory
Powers Act—Enforcement powers (injunctions)
The amending items in Schedule 15 propose to
repeal the injunction provisions in section 16 and substitute them with the
standard provisions of Part 7 of the RPA.
The Explanatory Memorandum identifies two limited
instances in which the application of the RPA would result in the enactment
of new provisions for which there are presently no equivalent in the WMD Act,
and states that these are procedural only.[360]
(The relevant new provisions remove judicial discretion to require an applicant
for an interim injunction to provide an undertaking as to damages as a
condition of granting the injunction,[361]
and preserve the issuing court’s existing, general jurisdiction to grant
injunctions in addition to the specific statutory jurisdiction conferred under
the WMD Act via the application of Part 7 of the RPA.)[362]
Item 3 provides for the prospective application of
the proposed amendments in Schedule 15, and for the continued application of
the existing injunction provisions in the WMD Act in relation to alleged
contraventions occurring before the commencement of the proposed amendments, if
enacted.
Comment
The proposed amendments in Schedule 15 do not appear to
raise significant issues of concern with respect to the modified application of
the standard provisions of the RPA.
Subject to one matter of qualification (discussed below)
the justification provided in the Explanatory Memorandum for the minor
expansion of powers available under the WMD Act, consequential to the
triggering of the RPA, also appears to be reasonable and accurate.
Prohibition on undertakings as to
damages in applications for interim injunctions
The proposed application of subsection 122(2) of the RPA
(which prohibits the court from requiring an applicant for an interim injunction
to provide an undertaking as to damages) may have a legal effect that is more
than merely procedural as suggested by the Explanatory Memorandum. For the
reasons explained below, this may also impact adversely on the legal rights and
interests of regulated entities who are respondents to an application for an
injunction, and who are subsequently acquitted of an offence against the WMD
Act.
Current legal position
Currently, the WMD Act does not expressly prohibit
the court from requiring an undertaking as to damages as a condition to the
issuing of an interim injunction in relation to an alleged contravention of a
civil penalty provision in the WMD Act. This suggests that a court
considering such an application may exercise discretion to require the
applicant to provide any undertakings it may consider to be just in the
circumstances of the individual case.[363]
At common law, there is no absolute immunity in favour of
the Crown, as the applicant for an interim injunction, from the imposition of a
condition that it provides an undertaking as to damages. There is, however, a view
that judicial discretion to require the Crown to provide undertakings as a
condition to the issuing of interim relief will be exercised rarely in ‘law enforcement’
type actions, as compared to actions in which the Crown is seeking to enforce
rights of a kind which are held in common with private litigants (such as
contractual or property rights). Nonetheless, decisions on applications for
interim injunctions involve an assessment of the circumstances of the
individual application, and in the absence of a statutory prohibition there
remains a possibility that a court could require the Crown to provide an
undertaking as a condition of granting an interim injunction.[364]
Practical effect of the proposed amendments on
regulated entities
In proposing to replace general judicial discretion (which
is, perhaps, likely to be exercised in more exceptional cases) with a wholesale
statutory prohibition on requiring the provision of undertakings, the proposed
application of subsection 122(2) of the RPA to the WMD Act could
potentially have a substantial adverse impact on the interests of regulated
entities whose actions might subsequently be vindicated at trial.
For instance, a regulated entity who is subject to an
interim injunction, but who is ultimately found not to have contravened the WMD
Act, may suffer significant financial loss as a result of the interim
injunction. (For example, the entity may sustain loss arising from an
inability to perform a contractual obligation that is prohibited by the
injunction, or may lose a commercial opportunity.)
Absence of explanation
The potential loss sustained by a respondent whose
position is ultimately vindicated at trial is not, of course, conclusive of the
policy question of whether judicial discretion to require undertakings (as
informed by common law principles) should be replaced by a statutory
prohibition.
However, the Explanatory Memorandum could usefully have
expanded on how the balance of public policy considerations has been reached on
the proposed application of subsection 122(2) to the WMD Act. (That
is, an explanation of the apparent position that interests in law enforcement
should outweigh categorically the potential adverse impacts that a
prohibition on undertakings may have upon regulated entities under the WMD
Act.)
Legal
policy issues—Application of the Regulatory Powers Act to existing legislation
As mentioned in the earlier discussion of committee
consideration, the Senate Legal and Constitutional Affairs Legislation Committee,
as constituted in 2014, supported a transparent process for the standardisation
of existing regulatory legislation with the provisions in the RPA. The Committee
emphasised the importance of the Parliament having access to information that
explains the context and progress of the standardisation process, when it is called
upon to consider individual triggering Bills.[365]
There appears to have been a limited degree
of transparency in relation to these matters in the context of the present Bill,
and the lapsed Bill as introduced to the 44th Parliament. The extrinsic
materials do not provide current details of the Government’s process for
implementing the RPA.
The status of the present Bill as the first ‘omnibus’
triggering Bill may provide an opportunity for the Parliament to consider possible
procedural improvements, and for Senators and Members to convey any views,
expectations or preferences on this matter. Several areas of concern are
outlined below, together with some possible measures to improve transparency.
Absence of information about progress towards reviewing existing
regulatory legislation
The Explanatory Memorandum does not
identify how each of the 15 Acts in Schedules 2–15 were identified for
inclusion in the Bill.
For example, it is unknown whether their
inclusion might represent a completed review of all regulatory legislation in
the relevant administering portfolios and, by implication, a position that
other regulatory legislation administered by these portfolios is not intended to
be standardised, in full or in part.
The Explanatory Memorandum also does not
provide an indication of the status of any remaining work towards the review and
standardisation of further pieces of regulatory legislation. For example,
it does not identify a systematic process for reviewing any remaining regulatory
legislation, or provide details of progress made towards completing any such
process.
Absence of information about the decision-making methodology
Further, the extrinsic materials to the
Bill do not contain information about the methodology the Government has
applied to determine whether existing regulatory legislation is suitable (or
otherwise) for standardisation.[366]
In particular, there does not appear to be
publicly available information about the following matters:
- what,
if any, decision-making criteria or principles are applied (or what
matters are taken into consideration) to determine whether an individual regulatory
Act is suitable (or otherwise) for standardisation, and
- whether
the Government has implemented any centralised or coordinated pre-legislative
scrutiny arrangements to moderate the policy decisions of individual
departments or regulatory agencies about whether an individual piece of
regulatory legislation is suitable (or otherwise) for standardisation.
Details about any such arrangements might provide an
assurance to the Parliament that the Government has implemented internal
measures to promote consistency of decision-making and, consequently, whole-of-statute-book
integrity.
In particular, evidence of pre-legislative scrutiny and
moderation arrangements of the kind outlined above could provide an assurance
that there is a process in place to prevent inconsistencies that might arise if
individual regulatory agencies with broadly similar sorts of functions were to
adopt significantly different policy positions about the necessity or
desirability of standardisation of their respective governing legislation.
Evidence of such arrangements might also help manage the
risk that individual portfolios may adopt different policy approaches to the
standardisation of regulatory legislation within their administrative
responsibilities. If variation is not attributable to the particular
statutory functions of individual regulatory agencies, but rather reflects a
broader policy position or practice adopted by an administering portfolio, this
could undermine the objective of the RPA to remove arbitrary or
unnecessary differences between the provisions of different regulatory schemes.
Potential release of legislative
design and scrutiny guidance materials
The AGD website indicates that, in 2015,
AGD was developing a consolidated Legislative Design and Scrutiny Guide to
provide comprehensive information to Australian Government agencies ‘when
designing policy and new legislative approaches’.[367]
The AGD website states that the guide was ‘expected to be available later
in 2015’ although such a resource does not appear to have been published as at November
2016.[368]
If there remains an intention to release
a consolidated scrutiny guide, it may be an appropriate location for
information about decision-making about the application of the RPA to
existing legislation.
Alternatively, existing guidance materials
such as the Australian Government Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers might be updated to provide
explicit guidance about decision-making about the application of the RPA,
including decision-making about the variation of standard provisions (noting
that this resource was last updated in September 2011, prior to the enactment
of the RPA).
Absence of
information about the possible future use of ‘omnibus’ triggering Bills
The present Bill is an ‘omnibus’ Bill in
that it proposes to amend multiple pieces of unrelated regulatory legislation,
administered by several different portfolios. The Government has described the
Bill as ‘the first substantial tranche’ of amendments to trigger
the application of the standard provisions of the RPA to existing
regulatory regimes (emphasis added).[369]
It is therefore possible that the use of this type of Bill may
represent a new practice in implementing the RPA to existing regulatory
legislation. (That is, the possible periodic introduction of ‘omnibus’
standardisation amendment Bills.)
Given the potential for the further use of
‘omnibus’ Bills, it is worth noting that the specific form of amending
legislation can have implications for the Parliament’s capacity to conduct
effective scrutiny of legislative proposals.
One potential risk associated with the
use of omnibus Bills arises from their normally sizeable volume and breadth.
This could potentially limit opportunities for the detailed scrutiny of
proposed amendments, particularly in the event that an omnibus Bill contained
proposed amendments of a legally significant or potentially controversial or
sensitive nature.
A further risk is that regulated entities
may not become aware of proposed amendments to individual pieces of regulatory
legislation contained in an omnibus Bill, since the short title of the Bill may
not convey clearly its relevance to them.
Potential
Parliamentary guidance on the use of ‘omnibus’ triggering Bills and
‘stand-alone’ triggering Bills
Members and Senators may wish to consider
providing guidance, or otherwise conveying their expectations or views, about the
circumstances in which the use of an ‘omnibus’ triggering Bill is considered to
be appropriate from a Parliamentary scrutiny perspective; and the circumstances
in which it would be considered preferable for the Government to introduce a
separate Bill that amends an individual regulatory Act to apply the RPA (or
to introduce a Bill that amends multiple, related regulatory Acts).
This might include, for example, conveying
a general expectation or preference that explanatory memoranda accompanying any
future ‘omnibus’ triggering Bills should contain the following content:
- a statement or certification that the Government considers the
proposed measures are appropriate for inclusion in an ‘omnibus’ Bill. (For example, a statement or certification that the Government is
satisfied that the relevant measures do not involve significant expansions of
existing powers, or have significant impacts on the rights or liberties of
regulated entities, and are not otherwise of a potentially controversial or
sensitive nature that would warrant Parliamentary scrutiny of a stand-alone
amending Bill), and
- details of outreach or consultation undertaken with regulated
entities that will be affected by the proposed
amendments, to ensure their awareness of the potential changes included in an
omnibus Bill.
Absence of information about, or enabling, the evaluation
of the Regulatory Powers Act
The extrinsic materials to the Bill (and those accompanying
the 2014 Bill, the 2012–13 Bill, and other triggering legislation) do not
explain how the effectiveness of the RPA in achieving its stated policy
objectives is being measured and evaluated, or reported to the Parliament and
the public.
The introduction of the Bill may provide an opportunity for
the Government and the Parliament to give further consideration to this matter—including
mechanisms for the disclosure of information about the implementation of the RPA
to enable the Parliament and other stakeholders to undertake evaluation or
analysis, if desired.
Potential publication of a
consolidated list of legislation applying the RPA
A useful starting point may be a suggestion that the Government
maintains a consolidated, public list of regulatory legislation that has
applied the standard provisions of the RPA. Such a list might be updated
progressively or periodically. Such a resource could provide a reliable and
efficient means of identifying all such legislation, which could provide a
foundation for evaluating the way in which the RPA has been implemented.
It may also assist the Parliament in scrutinising future triggering legislation
by enabling it to more readily compare approaches taken to the standardisation
of individual regulatory legislation.
Potential annual reporting on
implementation—Possible inclusion in annual reports on legislative repeals
A further possible initiative to aid the evaluation of the
implementation of the RPA would be for the Government to include
information about the implementation of the RPA in its future ‘annual red
tape reduction reports’ which include details of the Government’s performance
in repealing spent legislation, and outlining a course of proposed reform over
the coming year, as announced in February 2016.[370] This information
could update the Parliament about the progress and anticipated next steps in
the process of standardising existing regulatory legislation, and help ensure
that the Parliament has access to contextual information necessary to scrutinise
effectively future triggering legislation.
Commissioning a review of the implementation
of the Regulatory Powers Act after a period of time
Another common evaluation tool for new legislative schemes
is to commission a review (internal or independent) after the scheme has been operational
for a reasonable period of time (for example, five years). There is significant
precedent for reviews of this kind, including the enactment of statutory
provisions requiring the Government to commission or establish a review and to
table its report in Parliament.[371]
Concluding
comments
The Bill represents the first piece of ‘omnibus’
legislation seeking to trigger the application of the RPA to several,
unrelated pieces of regulatory legislation administered by multiple portfolios.
Provisions
of the Bill
‘Standardisation’ amendments
(Schedules 2-15)
The proposed ‘standardisation’ amendments in Schedules
2–15 do not appear to make significant, substantive changes to the relevant
regulatory agencies’ existing powers under their respective governing
legislation. This reflects, in part, that the relevant provisions of at
least seven of the 15 Acts proposed to be amended by the Bill were drafted in
accordance with standard drafting precedents that informed the development of
the RPA.[372]
Potential improvements to the
Explanatory Memorandum
The justification provided in the Explanatory Memorandum for
the application of certain provisions of the RPA could withstand greater
elaboration in some respects. In particular:
- the
justification provided for the proposed application of section 96 of the RPA
(which imposes an evidential burden upon a respondent seeking to rely upon an
exception to a civil penalty provision) by reference to the existing civil
penalty provisions in the relevant Act. In particular:
- identifying
whether the Act contains civil penalty provisions with exceptions that do not
currently impose an evidential burden on the respondent, and
- if
so, explaining why it is appropriate to depart from this approach via the
application of section 96,[373]
and
- the
justification provided for the proposed application of subsection 122(2) of the
RPA (which provides that the relevant regulatory authority cannot be
required to provide an undertaking as to damages as a condition for the issuing
of an interim injunction) in relation to regulatory legislation that does not
already contain such a prohibition.[374]
The justification provided in the Explanatory Memorandum
for the proposed modification of some provisions of the RPA could also
withstand greater elaboration in some respects. In particular, the
justification for the following investigative powers:
- the
authorisation of the use of reasonable force against things, particularly
the breadth of the classes of persons who are authorised to use such force, and
the applicable oversight and redress mechanisms in relation to the use of
inappropriate or excessive force,[375]
and
- the
abrogation of self-incrimination privilege in relation to coercive
investigative powers requiring the production of evidence or provision of
information, and the limitation of use and derivative use immunity in relation
to that evidence to criminal proceedings against the person (and not civil
penalty proceedings).[376]
Potential amendments to the Bill
Consideration might also be given to two amendments to the
provisions of the Bill—namely:
- strengthening
statutory safeguards in relation to the use of reasonable force against things
in the course of exercising monitoring or investigative powers, including
to:
- limit
the classes of authorised persons who may exercise such force—for
example, by prescribing specific qualifications or training requirements,
excluding or limiting persons assisting authorised persons, or conferring a
power on police officers accompanying authorised persons to use reasonable
force, and
- provide
for a compensation mechanism analogous to that in sections 29 and 61 of the RPA
(in relation to damage caused by the operation of electronic equipment in the
execution of monitoring and investigation powers) for the use of unreasonable or
unnecessary force against things,[377]
and
- providing
for the repeal by statute of legislative instruments, or parts of legislative
instruments, that will be made redundant by the proposed amendments to the
primary Acts, which elevate matters currently dealt within in regulations and
rules (generally infringement notice regimes) to statutory status.[378]
Amendments to the Regulatory
Powers Act (Schedule 1)
The majority of the proposed amendments to the RPA
in Schedule 1 are fairly described as minor in terms of their legal
substance and effect.
However, the proposed amendments in item 2 will
extend the range of regulatory provisions in relation to which intrusive
compliance monitoring powers may be exercised. (Namely, the power to secure
evidence of a suspected contravention, pursuant to section 22 of the RPA.)
The proposed amendment will apply the expanded power to all regulatory
legislation that currently applies section 22 of the RPA, and any
regulatory legislation which triggers the application of section 22 in
future.
The Explanatory Memorandum to the Bill characterises the
proposed amendment in item 2 as correcting a ‘drafting error’ in section
22 of the RPA as originally enacted, with the objective of enabling the power
to be exercised in ‘all appropriate circumstances’.[379]
While this may be the subjective policy intention, the extrinsic materials to
the Bill do not provide an explanation or an indication of the likely practical
impact of the proposed amendment on the existing regulatory regimes which have
triggered the application of section 22 of the RPA.
The impact of this proposed amendment will depend on the
specific provisions of individual regulatory legislation which have been designated
as (or which are in future designated as) ‘related provisions’ and
so-called ‘core provisions’ or ‘information subject to monitoring’ for the
purpose of the standard monitoring powers.
Information about the way in which section 22 of the RPA
has been applied by individual regulatory legislation triggering its
application—and the operational experience of individual regulatory agencies in
the use of this provision—may assist the Parliament in scrutinising the anticipated
impact of the proposed amendment.
Legal
policy issues—Implementation of the RPA to existing regulatory legislation
There appears to have been limited public transparency
about the process the Government has engaged to apply the RPA to
existing regulatory legislation. The Government does not appear to have provided
public information about the following matters relating to the context,
progress and evaluation of the process:
- a
progressively or periodically updated list of the regulatory legislation to
have applied the RPA to date, which could assist the Parliament in:
- comparing
or contrasting the approaches taken to the application (and modification)
of standard provisions in the RPA to different regulatory regimes, in
the course of scrutinising individual pieces of triggering legislation
- monitoring
progress towards the implementation of the RPA, and evaluating the
impact of the RPA
- information
about the process engaged to review existing regulatory legislation to
determine its suitability or otherwise for standardisation, in particular
details of:
- the
decision-making methodology used to determine whether legislation is suitable
or otherwise for standardisation, and what steps are taken to promote
consistency in decision-making (or at least to avoid arbitrary differences in
the treatment of similar regulatory schemes, or as between portfolios)
- progress
made to date, including details of legislation that has been reviewed and
assessed as unsuited to standardisation, and the status of any ongoing
or outstanding work in reviewing existing legislation
- information
about the intended future process for implementing the RPA to existing
regulatory legislation, including:
- whether
there is an intention to make routine use of ‘omnibus Bills’ in the future to
implement the RPA to multiple pieces of unrelated regulatory legislation
- if
so, confirmation of the circumstances in which ‘stand-alone’ triggering Bills
will be introduced in preference to ‘omnibus Bills’. (For example, in relation
to proposed amendments that would result in a material expansion of an agency’s
existing regulatory powers, or which are otherwise of a potentially
controversial or sensitive nature that would warrant Parliamentary scrutiny of
a stand-alone Bill)
- confirmation
that outreach or consultation has been undertaken with regulated entities to
alert them to the inclusion of proposed amendments to relevant regulatory
legislation in an ‘omnibus Bill’, and
- information
explaining how the effectiveness of the RPA in achieving its stated
policy objectives is being measured, evaluated and reported to the
Parliament, stakeholders and the public.
Members and Senators may wish to seek additional
information about these matters in the course of scrutinising or debating the
Bill, and consider whether they wish to convey any general views, expectations
or preferences for the routine provision of such information to the Parliament.
This might include, for example:
- conveying
an expectation or a preference for the inclusion of contextual information
about the process for implementing the RPA in Explanatory Memoranda
accompanying future triggering legislation—perhaps building upon the
matters recommended by the Senate Legal and Constitutional Affairs Legislation
Committee in its report on the 2012–13 Bill,[380]
and
- requesting
or expressing support for the provision of separate implementation progress
reports to the Parliament—for instance, the inclusion of a standing item on
the implementation of the RPA in the Government’s future ‘annual
red-tape reduction reports’.[381]
[1]. Regulatory
Powers (Standardisation Reform) Bill 2016, Schedules 2–15.
[2]. Regulatory Powers
(Standard Provisions) Act 2014 (Regulatory Powers Act or RPA).
[3]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, pp. 2, 4,
77, 79; and G Brandis, ‘Second
reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’,
Senate, Debates, 12 October 2016, p. 1641.
[4]. Regulatory
Powers (Standardisation Reform) Bill 2016, Schedule 1.
[5]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 2, 4; and Brandis, ‘Second reading speech: Regulatory Powers
(Standardisation Reform) Bill 2016’, op. cit., p. 1642.
[6]. Replacement
Explanatory Memorandum, Regulatory Powers (Standard Provisions) Bill 2014,
p. 2.
[7]. RPA,
subsection 7(2) (application of monitoring powers), subsection
37(2)(application of investigation powers), section 79 (application of
civil penalty provisions), sections 99 and 100 (application of infringement
notice provisions), sections 110 and 111 (application of enforceable
undertaking provisions) and sections 117 and 118 (application of injunction
provisions).
[8]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 2,
4.
[9]. Ibid.,
p. 2; Brandis, ‘Second reading speech: Regulatory Powers (Standardisation
Reform) Bill 2016’, op. cit., p. 1642.
[10]. Ibid.,
p. 1642.
[11]. Parliament
of Australia, ‘Regulatory
Powers (Standardisation Reform) Bill 2016 homepage (44th Parliament)’, Australian
Parliament website. (The Bill as introduced in the 45th Parliament does
not include the provisions in Schedule 16 to the Bill as introduced in the 44th
Parliament. Schedule 16 in the Bill as introduced to the 44th Parliament
contained some contingent amendments in the event that another Bill before the
44th Parliament, the Fairer Paid
Parental Leave Bill 2015, was passed and commenced first in time. The Fairer
Paid Parental Leave Bill 2016 was introduced in the House of
Representatives on 20 October 2016, and Part 2 of Schedule 2 to that Bill
contains contingent amendments in the event the Regulatory Powers
(Standardisation Reform) Bill 2016, if enacted, does not commence first in
time.)
[12]. Explanatory
Memorandum,
Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 2, 4, 77, 79.
[13]. Regulatory
Powers (Standardisation Reform) Bill 2016, op. cit., Schedule 1, items 4 and 5.
[14]. Ibid.,
Schedule 1, items 1–3.
[15]. Ibid.,
Schedule 1, item 6.
[16]. Ibid.,
Schedule 1, items 7 and 8.
[17]. These
are: Agriculture and Water Resources; Attorney-General’s; Defence; Employment;
Health; Industry, Innovation and Science; and Social Services.
[18]. Explanatory
Memorandum,
Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 3;
Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform)
Bill 2016’, op. cit., p. 1641.
[19]. Brandis,
‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’,
op. cit., p. 1641.
[20]. These
Acts are referred to collectively in the Bill and Explanatory Memorandum, and
in this Bills Digest, as the ‘Coal Mining Industry (Long Service Leave)
Legislation’.
[21]. J
Murphy, Regulatory
Powers (Standard Provisions) Bill 2014, Bills digest, 73, 2013–14,
Parliamentary Library, Canberra, 2014.
(See also: Parliament of Australia, ‘Regulatory Powers
(Standard Provisions Bill) 2014 homepage’, Australian Parliament website.)
[22]. RPA,
section 18, paragraphs 19(a) and (b).
[23]. Ibid.,
paragraphs 19(c)–(g).
[24]. Ibid.,
section 24.
[25]. Ibid.,
sections 18, 25 and 32.
[26]. Ibid.,
Part 2, Division 2, Subdivision A.
[27]. Ibid.,
sections 26–28 and section 35.
[28]. Ibid.,
Part 2, Division 4.
[29]. Ibid.,
section 17.
[30]. Ibid.,
section 48, paragraph 49(a).
[31]. Ibid.,
paragraph 49(b), section 52, and Part 3, Division 5.
[32]. Ibid.,
section 54.
[33]. Ibid.,
section 48 and Part 3, Division 6.
[34]. Ibid.,
Part 3, Divisions 3, 5 and 6.
[35]. Ibid.,
Part 3, Division 4.
[36]. Ibid.,
section 47.
[37]. Ibid.,
Part 4, Division 2 (civil penalties), Part 7, Division 2 (injunctions).
[38]. Ibid.,
Part 5.
[39]. Ibid.,
Part 6.
[40]. Information
about this project is summarised in Murphy, Regulatory Powers (Standard
Provisions) Bill 2014, Bills digest, op. cit. See also: Attorney-General's
Department (AGD), ‘Reducing
the complexity of legislation’, AGD website; and Office of
Parliamentary Counsel (OPC), ‘Clearer Commonwealth
law’, OPC website.
[41]. Parliament
of Australia, ‘Regulatory
Powers (Standard Provisions) Bill 2013 homepage’, Australian Parliament
website. (Note that this Bill was originally cited as the Regulatory Powers
(Standard Provisions) Bill 2012. The Parliamentary Library published a Digest
on this Bill, while it was cited as the 2012 Bill: M Biddington and
L Ferris, Regulatory
Powers (Standard Provisions) Bill 2012, Bills digest, 99, 2012–13,
Parliamentary Library, Canberra, 2013.
[42]. Parliament
of Australia, ‘Regulatory
Powers (Standard Provisions) Bill 2014 homepage’, Australian Parliament
website.
[43]. Regulatory Powers
(Standard Provisions) Commencement Proclamation 2014, 18 September 2014.
[44]. Brandis,
‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’,
op. cit., p. 53.
[45]. M
Keenan, ‘Second
reading speech: Regulatory Powers (Standard Provisions) Bill 2014’, House
of Representatives, Debates, 20 March 2014, p. 2576. (The Minister
for Justice, Michael Keenan, stated that ‘provisions relating to the
enforcement of a regulatory regime can easily increase the length of
legislation by 30 pages, and by up to 80 pages for some regimes’.)
[46]. Ibid.
(See also: Brandis, ‘Second reading speech: Regulatory Powers (Standardisation
Reform) Bill 2016’, op. cit., p. 1641.)
[47]. AGD,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs
Legislation, Inquiry into the Regulatory Powers (Standard Provisions)
Bill 2014 [Provisions], 16 April 2014, p. 1.
[48]. Keenan,
‘Second reading speech: Regulatory Powers (Standard Provisions) Bill 2014’,
op. cit., p. 2576.
(This statement was reproduced in Brandis, ‘Second reading speech: Regulatory
Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1642.)
[49]. See,
for example: R Glenn (AGD), Evidence
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Regulatory Powers (Standard Provisions) Bill 2012, 12
February 2013, pp. 9–10.
[50]. Brandis,
‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’,
op. cit., p. 1641.
[51]. Keenan,
‘Second reading speech: Regulatory Powers (Standard Provisions) Bill 2014’,
op. cit., p. 2577. See also: OPC, Drafting direction
no. 3.5A: regulatory powers, document release 1.0, issued
February 2015, p. 8.
[52]. Australian
Securities & Investments Commission (ASIC), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs Legislation,
Inquiry into the Regulatory Powers (Standard Provisions) Bill 2014
[Provisions], April 2014, pp. 1–3; Fair Work Ombudsman, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs Legislation,
Inquiry into the Regulatory Powers (Standard Provisions) Bill 2014
[Provisions], April 2014, p. 1.
[53]. AGD,
Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry
into the Regulatory Powers (Standard Provisions) Bill 2014, op. cit.,
p. 2.
[54]. Keenan,
‘Second reading speech: Regulatory Powers (Standard Provisions) Bill 2014’, op.
cit., p. 2577.
[55]. Senate Legal
and Constitutional Affairs Committee, Regulatory
Powers (Standard Provisions) Bill 2014 [Provisions], The Senate,
Canberra, 8 May 2014, pp. 6–7. See also: Parliamentary Joint Committee on
Human Rights, Fifth
report of the 44th Parliament, 25 March 2014, p. 20.
[56]. The
limitation of triggering legislation to primary Acts (to the exclusion of
subordinate legislation) implements a recommendation of the Senate Standing
Committee on Legal and Constitutional Affairs on the 2012–13 Bill. See: Senate Committee
on Legal and Constitutional Affairs, Inquiry
into the Regulatory Powers (Standard Provisions) Bill 2012: government response,
The Senate, Canberra, 2013, p. 1 (response to recommendation 1). The
Senate Scrutiny of Bills Committee commented favourably on this matter in its
consideration of the 2014 Bill: Senate Standing Committee for the Scrutiny of
Bills, Alert
digest, 4, 2014, The Senate, Canberra, 26 March 2014, pp. 23–24.
[57]. Replacement
Explanatory Memorandum, Regulatory Powers (Standard Provisions) Bill 2014,
p. 2.
[58]. OPC, Drafting
direction no. 3.5A: regulatory powers, op. cit. (See also OPC, Drafting direction
no. 4.2: referral of drafts to agencies, document release 8.7, reissued
August 2016, pp. 11–13, which requires drafters to refer draft Bills to
AGD for policy scrutiny before they are finalised in certain circumstances.
This includes where a draft Bill purports to apply the standard provisions of
the RPA subject to variations which depart from the general policy of
the RPA, and where a draft Bill does not apply the RPA despite
covering the same subject matter.)
[59]. OPC
Drafting direction no.
3.5A identifies this possibility and contains some precedent provisions for
commonly requested variations
(see p. 4 and Attachment A).
[60]. Keenan,
‘Second reading speech: Regulatory Powers (Standard Provisions) Bill 2014’, op.
cit., p. 2577.
[61]. The
replacement Explanatory Memorandum to the 2014 Bill was circulated further to a
recommendation of the Senate Legal and Constitutional Affairs Committee report
on its inquiry into the 2014 Bill, that the Government should provide
additional information about its intended approach to implementing the Regulatory
Powers Act. See: Senate Committee on Legal and Constitutional Affairs
Legislation, Regulatory
Powers (Standard Provisions) Bill 2014 [Provisions], The Senate,
Canberra, 8 May 2014, pp. vii and 6 (recommendation 1).
In particular, the Committee commented that ‘there is little detail from the
Attorney-General's Department on how it intends to progressively implement the
Bill and specifically which agencies have agreed that their legislation should
be amended to trigger the Bill’ at (p. 6). It recommended that the
Explanatory Memorandum to the Bill be amended ‘to provide more detail on
the government's strategy for progressively implementing the Bill including
outlining any discussions, proposals or agreements with other agencies to
develop or amend legislation to trigger the provisions in the Bill’
(recommendation 1).
[62]. Replacement
Explanatory Memorandum, Regulatory Powers (Standard Provisions) Bill 2014,
p. 2.
[63]. This reflects that the relevant drafting precedents had no formal
legal status, as they were internal drafting aids developed and used by OPC in
the preparation of Bills. Accordingly, there are no common search terms that
could identify authoritatively all such legislation in the
Federal Register of Legislation.
[64]. Senate Standing
Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, Attorney
General’s Department, Inquiry into the Regulatory Powers
(Standard Provisions) Bill 2012, 6 March 2013.
(Note that the third Bill, which was not enacted, was the Biosecurity Bill
2012. This Bill lapsed at the conclusion of the 43rd Parliament in November
2013, and was replaced with the Biosecurity Bill 2014, which was enacted in May
2015.)
[65]. Regulatory
Powers (Standardisation Reform) Bill 2016, Schedule 2.
[66]. Ibid.,
Schedule 4.
[67]. Ibid.,
Schedule 7.
[68]. Ibid.,
Schedule 8.
[69]. Ibid.,
Schedule 9.
[70]. Ibid.,
Schedule 13.
[71]. Ibid.,
Schedule 14.
[72]. Senate
Standing Committee for Selection of Bills, Report,
8,2016, The Senate, 13 October 2016, p. 4.
[73]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 8, 2016, The Senate, 9 November 2016, p. 39.
[74]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
8, 2016, The Senate, 9 November 2016, pp. 47–49.
[75]. Senate
Standing Committee for Selection of Bills, Report,
4, 2016, The Senate, 17 March 2016; Senate Standing Committee for
Selection of Bills, Report,
3, 2016, The Senate, 3 March 2016.
[76]. Parliamentary
Joint Committee on Human Rights (PJCHR), Thirty-sixth
report of the 44th Parliament, 16 March 2016, pp. 1–2.
[77]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 4, 2016, The Senate, 17 March 2016, pp. 10 and 12.
[78]. These
comments related to items 1–3 of Schedule 1 to the 2014 Bill, which sought to
amend section 22 of the RPA. Identical amending provisions are included
in Schedule 1 to the Bill as introduced in the 45th Parliament (as discussed in
the ‘key issues and provisions’ section of this Bills Digest).
[79]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2016, op.
cit., p. 10.
[80]. Ibid.,
p. 12. (An evidential burden requires the defendant or respondent to
adduce or point to evidence suggesting a reasonable possibility that the
matters prescribed in the relevant exception exist. If the defendant or
respondent discharges his or her evidential burden, the relevant regulatory
authority is required to discharge its legal burden to negate the exception to
the legal standard.)
[81]. That
is, the obligation imposed on the applicant to prove, on the balance of
probabilities, that the respondent contravened the relevant civil penalty
provision, and that there was no applicable exception, exemption, excuse,
qualification or justification.
[82]. RPA,
section 4 defines the term ‘evidential burden’ for the purpose of the RPA
as ‘the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’. The effect of imposing
an evidential burden on a respondent in civil proceedings is that it defers the
point in time at which the applicant must discharge his or her legal burden of
proof. That is, if the respondent seeks to rely on an exception to a
civil penalty provision and discharges his or her evidential burden by adducing
or pointing to evidence suggesting a reasonable possibility that the exception
exists, only then is the applicant required to negate the possibility
that the exception is made out. The applicant must do so to the civil standard
of proof (the balance of probabilities). If the respondent fails to discharge
his or her evidential burden in relation to an exception, the applicant is not
required to discharge his or her legal burden to negate the exception.
[83]. RPA,
section 96 (exceptions, et cetera to civil penalty provisions—burden of proof).
Note that exceptions (et cetera) are generally provided for in the specific
civil penalty provisions in individual pieces of regulatory legislation rather
than in Part 4 of the RPA. However, section 95 of the RPA
contains a standard excuse of ‘mistake of fact’. Subsection 95(3) provides that
the respondent bears the evidential burden.
[84]. The
Committee referred to item 39 of Schedule 7 to the Bill as introduced in
the 44th Parliament as an example of such provisions, and noted that similar
provisions are contained in other schedules amending ‘triggering Acts’. Its
request for information from the Attorney-General applied to item 39 of
Schedule 7 and ‘other instances in which this approach is taken in the
Bill’: Senate Standing Committee for the Scrutiny of Bills, Alert digest,
4, 2016, op. cit., pp. 11–12. (Item 39 of Schedule 7 to the Bill as
introduced in the 45th Parliament is identical to that provision in the Bill as
introduced in the 44th Parliament.)
[85]. Ibid.,
p. 12.
[86]. Senate
Standing Committee for the Scrutiny of Bills, Report,
5, 2016, The Senate, 3 May 2016, p. 350. (The Committee noted that the
request was made on 17 March 2016 and it had sought a reply
by 1 April 2016.)
[87]. Relevant
committee reports are summarised and cited in the paragraphs below. See also,
OPC, Drafting direction no. 3.5A: regulatory powers, op. cit.,
pp. 3–4. (The drafting direction refers to relevant Parliamentary
committees’ expectations of explanatory memoranda accompanying triggering
legislation and directs drafters of such Bills to bring these matters to their
instructors’ attention.)
[88]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 13, 2012, The Senate, 31 October 2012, p. 17.
[89]. Ibid.,
pp. 17–18.
[90]. Ibid.
[91]. Ibid.,
p. 18.
[92]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 4, 2014, The Senate, 26 March 2014, p. 23.
[93]. Ibid.,
pp. 24–25.
[94]. Ibid.,
p. 24.
[95]. Ibid.
[96]. Senate
Standing Committee on Legal and Constitutional Affairs Legislation, Regulatory
Powers (Standard Provisions) Bill 2012 [Provisions], The Senate,
Canberra, 18 March 2013, p. 16.
[97]. Ibid.
[98]. Ibid.,
pp. vii and 16 (recommendation 2).
[99]. Ibid.,
(recommendation 3).
[100]. Senate
Standing Committee on Legal and Constitutional Affairs Legislation, Report
on the Regulatory Powers (Standard Provisions) Bill 2014 [Provisions],
The Senate, Canberra, 8 May 2014, pp. 6–7.
[101]. Ibid.,
p. 6.
[102]. Ibid.
[103]. Ibid.,
pp. vii and 6 (recommendation 1).
[104]. Replacement
Explanatory Memorandum, Regulatory Powers (Standard Provisions) Bill 2014,
p. 2.
[105]. PJCHR,
Sixth
report of 2012, 31 October 2012, p. 23; PJCHR, Tenth
report of 2013, 27 June 2013, p. 97.
[106]. Ibid.,
p. 98.
[107]. PJCHR,
Fifth
report of the 44th Parliament, 25 March 2014, p. 20. (See also:
PJCHR, Guidance
note 2: offence provisions, civil penalties and human rights, December
2014.)
[108]. Law
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs
Legislation, Inquiry into the Regulatory Powers (Standard Provisions)
Bill 2012, 23 January 2013, p. 7.
[109]. Ibid.,
pp. 6–7 and Attachment B.
[110]. Ibid. See
also Murphy, Regulatory Powers (Standard Provisions Bill) 2014, Bills
digest, op. cit., pp. 6, 12–13, 15 and 18 (noting the possibility that the
partial or modified application of standard provisions may have the unintended
consequence of increasing legislative complexity, as triggering legislation may
vary considerably from the framework of standard provisions).
[111]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, p. 3.
[112]. The
Statement of Compatibility with Human Rights can be found at pages 4–74 of the
Explanatory Memorandum to the Bill.
[113]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 4.
[114]. The
Statement of Compatibility contains an explanation of the Government’s position
that the civil penalty provisions in each piece of triggering legislation in Schedules
2–15 do not constitute ‘criminal penalties’ for the purpose of the criminal
process requirements in Articles 14 and 15 of the International
Covenant on Civil and Political Rights (ICCPR), having regard
to their nature and purpose. In particular, the Statement of Compatibility
points to the express statutory classification of these provisions as civil
penalties, and their character as solely pecuniary (in the form of a
debt payable to the Commonwealth) which does not raise the possibility of
imprisonment. The Statement also points to various safeguards in the standard
provisions of the RPA, including caps on the maximum penalty amount a
court can order. See, for example: Explanatory Memorandum,
pp. 8–9 (amendments to the Australian Sports Anti-Doping
Authority Act 2006); pp. 11–12 (amendments to the Building
and Energy Efficiency Disclosure Act 2010); pp. 16–17
(amendments to the Coal Mining Industry (Long Service Leave) Legislation); pp. 25–27
(amendments to the Greenhouse and Energy Minimum Standards Act 2012); pp. 37–38
(amendments to the Illegal Logging Prohibition Act 2012); pp. 53–54
(amendments to the Paid Parental Leave Act 2010); pp. 59–60
(amendments to the Personal Property Securities Act 2009); pp. 62–64
(amendments to the Privacy Act 1988); and pp. 70–72
(amendments to the Tobacco Plain Packaging Act 2011).
[115]. The
Statement of Compatibility acknowledges that the triggering of the standard investigative
and monitoring powers in the RPA will engage (by limiting) the right to
privacy in Article 17 of the ICCPR. The Statement provides an
explanation of the Government's position that these limitations are directed to
a legitimate objective (generally by reference to the regulatory objects of
each triggering Act). The Statement further explains why the limitations are
considered to be rationally connected and proportionate to the achievement of
these regulatory objectives. (This is generally by reference to the triggering
of relevant procedural safeguards in the RPA. These safeguards include
warrant or consent-based authorisation requirements, and other constraints on
the exercise of intrusive powers, such as fixed maximum time periods in which
the authorised activities are to be undertaken.) See, for example: Explanatory
Memorandum, pp. 4–6 (amendments to the RPA),
pp. 22–23 (amendments to the Greenhouse and Energy Minimum
Standards Act 2012), pp. 29–32 (amendments to the Horse
Disease Response Levy Collection Act 2011), pp. 33–35
(amendments to the Illegal Logging Prohibition Act 2012), pp. 39–42
(amendments to the Industrial Chemicals (Notification and Assessment) Act
1989) and pp. 66–68 (amendments to the Tobacco Plain
Packaging Act 2011).
[116]. Item
4 of Schedule 1 amends paragraph 35(2)(b) of the RPA (identity
cards—standard compliance monitoring powers).
Item 5 of Schedule 1 amends paragraph 76(2)(b) of the RPA
(identity cards—standard investigation powers).
[117]. Item
6 of Schedule 1 amends subsection 82(2) of the RPA (civil penalty
orders—standard enforcement powers).
[118]. Items
7 and 8 of Schedule 1 amend paragraph 104(1)(e) and subsection 104(2) of
the RPA—matters to be included in an infringement notice.
[119]. Item
9—compliance monitoring powers (application of amendments made by items 2
and 3); item 10—identity cards (application of amendments made by items
4 and 5); item 11—civil penalty orders (application of amendments made
by item 6); and item 12—infringement notices (application of amendments
made by items 7 and 8).
[120]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 79
(items 3–5), pp. 79–80 (item 6), pp. 80–81 (items 7–8),
pp. 81–82 (items 9–12).
[121]. RPA,
paragraphs 22(1)(a)–(b).
[122]. RPA,
paragraph 22(1)(c).
[123]. RPA
subsection 22(1) (24-hour period) and subsections 22(2) and (4) (extensions of
24-hour period).
[124]. RPA
subsection 22(1).
[125]. The
term ‘core provision’ is used in this Bills Digest as a form of shorthand
reference to ‘provisions subject to monitoring’ under section 8 of the RPA.
[126]. However,
OPC, Drafting direction no. 3.5A: regulatory powers, op. cit., p. 4;
requires drafters to advise instructing agencies that an overly broad
definition of a ‘related provision’ in a triggering Bill may attract criticism
from the Senate Scrutiny of Bills Committee.
[127]. RPA,
paragraph 22(1)(b).
[128]. See
RPA, subsection 18(1) (entry to premises—an authorised person may enter
premises for the purpose of exercising the monitoring powers to determine
whether a regulated entity is compliant with a core provision subject to
monitoring, or whether information subject to monitoring is correct). The
monitoring powers in Part 2 of the RPA (in addition to section 22) are
as follows: section 19 (‘general monitoring powers’ exercisable upon entry to
premises, including: searching premises; observing activities carried on the
premises; inspecting things and documents on the premises; and taking images,
recordings, measurements, tests, extracts and copies of things or documents on
the premises); section 20 (operating electronic equipment on the premises for
the purpose of obtaining relevant data, for example from a computer or
electronic data storage device on the premises); and section 21 (securing
electronic equipment on the premises, such as computers or electronic data
storage devices, for up to 24 hours in order to obtain expert assistance to
operate it).
[129]. Proposed
new subparagraphs 22(1)(b)(i)–(iii).
[130]. Proposed
new subparagraph 22(1)(b)(iv).
[131]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p.
5.
[132]. Ibid.,
p. 78.
[133]. Ibid.
[134]. Ibid.,
p. 79.
[135]. To
clarify, the purpose of raising these issues is not to imply that the proposed
amendment to paragraph 22(1)(b) of the RPA in item 2 of Schedule
1 to the Bill is unnecessary or inappropriate. Rather, it is suggested that
the need for this proposed amendment has not been justified to an extent that
is proportionate to the breadth of its application and the potential magnitude
of its impact on regulated entities.
[136]. It
is acknowledged that the AGD, Guide to framing Commonwealth offences, infringement notices
and enforcement powers, AGD, Canberra, September 2011; indicates
(at p. 87) that monitoring warrants may, in appropriate circumstances,
confer a power to secure evidence of contraventions pending the issuing of a
search / seizure warrant. However, the Guide also states that the
conferral of entry, search and seizure powers (including monitoring powers)
must address an identified enforcement need (p. 76).
[137]. Australian Sports
and Anti-Doping Authority Act 2006 (ASADA Act), section
20.
[138]. ASADA
Act, section 21. See also, Explanatory Memorandum, Regulatory Powers (Standardisation
Reform) Bill 2016, op. cit., pp. 7–8, 83.
[139]. ASADA
Act, section 13C.
[140]. See
Australian Sports
Anti-Doping Authority Regulations 2006 (ASADA Regulations), Part 5.
[141]. Australian Sports
Anti-Doping Authority Amendment Act 2013, Schedule
1, item 13 (new Part 8A) and item 15 (new section 80).
[142]. AGD,
Senate Standing Committee on Legal and Constitutional Affairs Legislation,
Answers to Questions on Notice, op. cit.
[143]. Schedule
2, Part 1, item 7. (Note that items 1–6 make consequential
amendments including definitions of civil penalty provisions.)
[144]. See,
for example, Explanatory Memorandum, Regulatory Powers (Standardisation Reform)
Bill 2016, op. cit., pp. 84–85 (comparison tables of existing provisions
of the ASADA Act and Regulations with the proposed application of the RPA).
[145]. Ibid.,
pp. 83, 85 and 90.
[146]. Ibid.,
p. 90.
[147]. Building Energy
Efficiency Disclosure Act 2010 (BEED Act), Part 2
(obligations to disclose energy efficiency information).
[148]. Ibid.,
Part 2, especially sections 13 and 13A (applications for, and issuing of,
building energy efficiency certificates).
[149]. Ibid.,
Part 2, section 14 (establishment and maintenance of Building Energy Efficiency
Register).
[150]. Ibid.,
Part 3 (accreditation) and Part 4 (auditing). See also, Building Energy
Efficiency Disclosure Regulations 2010 (BEED Regulations), Part 4
(additional requirements for the accreditation of assessors—applications,
training and accreditation conditions, made under Part 3 of the BEED Act).
[151]. For
example, BEED Act, Part 2, especially section 11 (prohibition on sale,
leasing and subleasing without a building energy efficiency certificate);
section 15 (contravention of obligations to include energy efficiency rating in
an advertisement of a building for sale, lease or sublease); and subsection
18(3) (failure to comply with a notice issued by an accredited assessor to
provide information necessary for the purpose of conducting an assessment of
the building). Note that section 19 also contains a criminal offence for
misusing information supplied by another person in compliance with a disclosure
notice under subsection 18(3).
[152]. BEED
Act, Part 5, Division 1 (obtaining information and documents).
[153]. Ibid.,
Part 5, Division 2 (civil penalties).
[154]. Ibid.,
Part 5, Division 3 (infringement notices); and BEED Regulations, Part 7 as made
under section 64 of the BEED Act (additional requirements for the
content, service and payment of infringement notices, and the issuing of
evidentiary certificates in relation to non-compliance, extensions of time or
withdrawal of infringement notices).
[155]. Note
that amending items 1–7 and 9–12 make consequential amendments (for
example, to definitions and cross-references to the RPA).
[156]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, pp. 93–95
(summary table) and pp. 98–109 (discussion).
[157]. RPA,
subsection 82(5) (pecuniary penalties in civil penalty orders
are: for bodies corporate—five times the pecuniary penalty specified in the
civil penalty provision; and for natural persons--the pecuniary penalty
specified in the civil penalty provision); and subsection 104(2) (unless another
Act expressly provides otherwise, the amount specified in an infringement notice
must be the lesser of one-fifth of the maximum pecuniary penalty a court could
impose for contravention of the relevant civil penalty provision; or 12 penalty
units for a natural person, or 60 penalty units for a body corporate). Note
that one penalty unit is $180 at October 2016: Crimes Act 1914,
subsection 4AA(1).
[158]. BEED
Act, subsections 53(5)–(5D). (Subsection 53(5) provides that the penalty
must not exceed the relevant amount specified in the particular civil penalty
provision, subject to some exceptions in subsections 53(5A)–(5D) which relate
to continuing contraventions for failing to comply with statutory time periods
or deadlines for the performance of obligations. Subsections 53(5A)–(5D) set
out pecuniary penalties for each day of non-compliance with various regulatory
obligations, ranging from 100 penalty units, to 50 penalty units for bodies corporate
or 20 penalty units for individuals.) Existing subsections 53(5)–(5D) are
preserved by new subsection 51(6) and new section 52 (inserted by item 8).
[159]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp.
99–100 (civil penalties) and pp. 103–104 (infringement notices).
[160]. Ibid.,
pp.93–94 (comparative tables).
[161]. RPA,
section 90.
[162]. Ibid.,
section 89.
[163]. Ibid.,
section 91.
[164]. Ibid.,
section 96. (See also, section 95—the general excuse of mistake of fact, which
imposes an evidential burden on a respondent to civil penalty proceedings who
seeks to rely upon it.)
[165]. Ibid.,
section 97.
[166]. Ibid.,
p. 101.
[167]. BEED
Act, section 57.
[168]. RPA,
paragraph 108(c).
[169]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 105.
[170]. Ibid.,
p. 107.
[171]. These
circumstances are identified as commonly accepted legal policy justification
for offence-specific defences in the AGD, Guide to framing Commonwealth
offences, infringement notices and enforcement powers, op. cit., p. 50. Notably, the Senate Scrutiny of Bills Committee, in its
consideration of the Bill as introduced to the 44th Parliament, indicated its
intention to apply the scrutiny principles for offence-specific defences to its
consideration of civil penalty provisions which trigger section 96 of the RPA.
See: Senate Scrutiny of
Bills Committee, Alert digest, 4, 2016,
op. cit., p. 12.
[172]. This
comprises two Acts—the Coal Mining
Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Payroll
Levy Collection Act) and
the Coal Mining Industry
(Long Service Leave) Administration Act 1992 (Administration
Act).
[173]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 15–16, 111.
[174]. Payroll
Levy Collection Act, especially sections 3B–9.
[175]. Administration
Act, Part 2 (establishment, functions and powers of the Corporation), Part
6 (establishment of fund).
[176]. Ibid.,
Part 5A (entitlement to long service leave), Part 7 (payments out of the
fund).
[177]. For
example: Payroll Levy Collection Act section 5 and 10 (contravention of
employers' obligation to submit returns, provide reports to the Corporation,
etc.); and Administration Act, sections 39AB, 39AC, 39AD, 39BE
(employers’ contravention of obligations to grant long service leave and pay
entitlements) and sections 39C, 39CA, 39CB, 39CC (employers’ contravention of
obligations to pay employee entitlements on cessation, redundancy, death, etc.).
[178]. Administration
Act, Part 7A (civil penalty orders).
[179]. Schedule
4, items 27–29 (new section 49A, and consequential amendments). Further
consequential amendments to the Administration Act, such as the
insertion of definitions, cross-references to the RPA, the amendment of
headings and re-numbering of subsections in retained provisions, are in items
1–26 and items 28–36.
[180]. Schedule
4, item 44 (new sections 13A–13C). In other words, the existing civil
penalty scheme in the Administration Act will no longer apply to the Payroll
Levy Collection Act. Each Act will have a statute-specific scheme. (Note
that further consequential amendments to the Payroll Levy Collection Act,
such as the insertion of definitions and cross-references to the RPA,
the amendment of headings and re‑numbering of subsections in retained
provisions, are in items 37–43.)
[181]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp.
112–13 (comparative tables of existing provisions to the proposed application
of the corresponding provisions of the RPA, including new provisions
gained and instances of variation of the RPA).
[182]. Administration
Act, section 4 defines an executive officer of a body corporate as ‘a
person, by whatever name called and whether or not a director of the body, who
is concerned in, or takes part in, the management of the body’.
[183]. Schedule
4, items 31–34, which amend sections 49CE and 49CF of the Administration
Act. (See also, item 44 which inserts corresponding provisions in
the Payroll Levy Collection Act, in the form of proposed new sections
13B and 13C.)
Section 49CE of the Administration Act contains a specific civil penalty
provision in relation to contraventions by executive officers of bodies
corporate. It attributes liability to an executive officer on the basis that he
or she was in a position to influence the relevant conduct of the body
corporate in relation to the contravention, and failed to take all reasonable
steps to prevent the contravention. Section 49CF of the Administration Act sets
out the criteria for determining whether an executive officer failed to take
all reasonable steps to prevent the contravention for the purpose of section
49CE.
[184]. Schedule
4, item 27, which relevantly inserts a new subsection 49A(5) in the Administration
Act. This provision proposes to supplement the matters the court must take
into consideration under subsection 82(6) of the RPA with some
additional factors that are presently contained in subsection 49A(7) of the Administration
Act (including the level of the employee, officer or agent of the body
corporate who engaged in the conduct constituting the contravention, and the
due diligence and corporate culture of the body corporate). See also Schedule
4, item 44, which inserts a corresponding provision in proposed new
subsection 13A(5) of the Payroll Levy Collection Act.
[185]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp.
134, 135 (discussion of item 31—proposed amendments to sections 49CE and
49CF of the Administration Act). See also, pp. 144–46
(discussion of item 44—proposed new section 13A of the Payroll Levy
Collection Act).
[186]. Ibid.,
p. 131 (discussion of item 27—proposed amendment of the Administration
Act) and p. 146 (discussion of item 44—proposed amendment of
the Payroll Levy Collection Act).
[187]. Schedule
4, item 27 (new subsection 49A(1) of the Administration Act) and item
44 (new subsection 13A(1) of the Payroll Levy Collection Act) which
provide that the civil penalty provisions are enforceable under Part 4 of the RPA.
[188]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 112–113 (summary tables), pp. 132 and 146 (discussion of amending
items 27 and 44) and p. 17 (Human Rights Statement of Compatibility).
[189]. Ibid.,
pp. 131–132 (item 27—proposed new section 49A of the Administration
Act) and p. 146 (item 44—proposed new section 13A of the Payroll
Levy Collection Act).
[190]. This
is arguably consistent with the nature of judicial power, and is further
confirmed by subsection 82(6) of the RPA which requires the court to
take into account ‘all relevant matters’ in determining the amount of a
pecuniary penalty to be imposed.
[191]. Administration
Act, subsections 49CB(3) and (4).
[192]. As
mentioned above in relation to Schedule 3 to the Bill (proposed amendments to
the BEED Act) a useful analogy may be drawn from the legal policy
guidance on offence-specific defences at p. 50 of the AGD,
Guide to framing Commonwealth offences, infringement notices and enforcement powers,
op. cit. (The Guide states that offence-specific defences are generally
only appropriate only where the relevant matters are peculiarly within the
defendant's knowledge, and it would be significantly more difficult and costly
for the prosecution to disprove than for the defendant to establish.) The
Senate Scrutiny of Bills Committee, in its consideration of the Bill as
introduced to the 44th Parliament, indicated its intention to apply these
scrutiny principles to civil penalty provisions which trigger section 96 of the
RPA. See: Senate Scrutiny of Bills Committee, Alert digest, 4, 2016, op. cit., p. 12.
[193]. Defence Act 1903,
section 72TC (being in the area without permission) and section 72TG
(failing to comply with conditions in a permit).
[194]. Defence
Act, section 72TP. See also, the Woomera Prohibited
Area Rule 2014.
[195]. Woomera
Prohibited Area Rule 2014, Part 6 (infringement notices). See especially rule
43 (authorised officer) and rule 44 (when an infringement notice may be
issued).
[196]. Woomera
Prohibited Area Rule 2014, Part 7 (demerit points).
[197]. Note
that items 1–2 make consequential amendments in the form of updating
definitions and notes to make reference to the RPA, and item 4
repeals existing subsections 72TP(4) and 72TP(5) which authorise the rules to
make provision for infringement notices.
[198]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 149–150 (comparison tables) and pp. 152–153.
[199]. The
relevant provision of the RPA, subparagraph 106(3)(b)(i), provides that
the decision-maker may take into account whether a court has previously imposed
a penalty on the person for a contravention of a provision subject to an
infringement notice that is in the same Act or legislative instrument as the
provision in relation to which the current infringement notice is given.
(Proposed new subsection 72TO(6) expands this to cover several offence
provisions in Part VIB of the Defence Act.)
[200]. Schedule
5, sub items 5(1) and 5(2).
[201]. Schedule
5, sub items 5(3) and 5(4).
[202]. Schedule
5, sub item 5(5).
[203]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 149–150 (comparison tables) and pp. 152–153.
[204]. The
relevant provision of the RPA, subparagraph 106(3)(b)(i), provides that
the decision-maker may take into account whether a court has previously imposed
a penalty on the person for a contravention of a provision subject to an
infringement notice that is in the same Act or legislative instrument as the
provision in relation to which the current infringement notice is given.
(Proposed new subsection 72TO(6) expands this to cover several offence
provisions in Part VIB of the Defence Act.)
[205]. Defence Reserve
Service (Protection) Act 2001 (the DRSPA), section 11
(summary table of protections and benefits provided for in Parts 4–12).
[206]. DRSPA,
Parts 4–9 (protections against discrimination) and Part 11 (enforcement and
remedies).
[207]. DRSPA,
Part 11 (enforcement and remedies).
[208]. Schedule
5, item 2. (Item 1 is a consequential amendment, which inserts a
definition of the RPA for the purpose of proposed new section 75).
[209]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, p. 157.
See also p. 158 (‘application of the standard injunction provisions of the
Regulatory Powers Act will not result in an expansion of the current
regulatory powers framework of the Defence Reserve Service (Protection) Act’.)
[210]. Greenhouse and
Energy Minimum Standards Act 2012 (GEMS Act), Part
3 (requirements for supplies and commercial users of GEMS products). Examples
of GEMS products include certain types of heating and cooling devices such as
air conditioners, heaters and fans; whitegoods including clothes washing
machines, dryers, dishwashers and refrigerators and freezers; certain types of
lighting; and other products including televisions and computers. (See further,
Equipment Energy Efficiency (E3) Program, ‘Products’,
Australian Government Energy Rating website.)
[211]. GEMS
Act, Part 4 (GEMS determinations).
[212]. Ibid.,
Part 5 (registering models of GEMS products).
[213]. Ibid.,
sections 16 and 17 (offences and civil penalty provisions for non-compliance
with determination and registration requirements applying to the supply of GEMS
products), and sections 18 and 19 (offences and civil penalty provisions for
non-compliance with determination and registration requirements applying to the
commercial use of GEMS products).
[214]. Ibid.,
Part 6 (GEMS Regulator), Part 7 (monitoring and investigation) and Part 8
(enforcement).
[215]. AGD,
Senate Standing Committee on Legal and Constitutional Affairs Legislation,
Answers to Questions on Notice, op.
cit.
[216]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 163–167
(comparative table of provisions).
[217]. Ibid.
[218]. Ibid.,
p. 160.
[219]. Item
35—proposed new subsection 88(10) (obligation of the Secretary to issue an
identity card to the GEMS Regulator).
(See also: Explanatory Memorandum, Regulatory Powers (Standardisation Reform)
Bill 2016, op. cit., p. 193.)
[220]. Item
39—proposed new subsection 130(7) (infringement notices) and proposed new
subsection 131(4) (enforceable undertakings).
(See also: Explanatory Memorandum, Regulatory Powers (Standardisation Reform)
Bill 2016, op. cit., p. 199.)
[221]. Items
40–47—amendments to section 162 (publication of contraventions, etc.). (See
also: Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill
2016, op. cit., pp. 203–206.)
[222]. Item
39—proposed new subsection 132(4) (consent injunctions). (See also: Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 203.)
[223]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 189
(proposed new subsection 87(14)—monitoring) and p. 193 (proposed new
subsection 88(13)—investigation).
[224]. Ibid.,
pp. 189–190 (proposed new subsection 87(14)—monitoring) and
pp. 193–194 (proposed new subsection 88(13)—investigation).
[225]. For
example, GEMS Act, subsections 16(8), 17(8), 18(8) and 19(8).
[226]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016,
p. 197.
[227]. Ibid.
[228]. Ibid.
[229]. Ibid.,
pp. 165 (comparative table) and p. 194 (substantive discussion).
[230]. Section
69 of the RPA provides that, if the operation of section 68 (the power
to dispose of things seized under the investigative powers in Part 3 of the RPA)
would result in an acquisition of property from a person other than on just
terms (contrary to section 51(xxxi) of the Constitution) the
Commonwealth is liable to pay a reasonable amount of compensation to the
person.
[231]. Ibid.,
p. 194.
[232]. Ibid.,
pp. 166 and 198.
[233]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 169–170.
[234]. Ibid.,
p. 208 (item 51—monitoring powers), p. 209 (item 52—investigation
powers).
[235]. More
detailed discussion of this matter is provided below in the analysis of Schedule
14 to the Bill, which proposes to retain use of force powers under the Tobacco
Plain Packaging Act 2014. (See also the discussion below of Schedules 9
and 10 which propose to retain use of force powers under the Illegal
Logging Prohibition Act 2012 and the Industrial Chemicals (Notification
and Assessment) Act 1989.)
[236]. See
further, Animal Health Australia, ‘EAD
Response Agreement’, Animal Health Australia website, updated 22 September
2016.
[237]. Department
of Agriculture and Water Resources (DAWR), ‘Horse
disease response levy review’, DAWR website, updated 5 September 2016.
[238]. Horse Disease
Response Levy Collection Act 2011 (Horse Disease Act),
Part 2 (collection of levy).
[239]. Horse Disease
Response Levy Act 2011 (Levy Act), see especially section 5
(imposition of levy), section 6 (who is liable to pay levy) and section 7
(amount of levy).
[240]. Horse
Disease Act, Part 2 (collection of levy).
[241]. Ibid.,
Part 3.
[242]. AGD,
Senate Standing Committee on Legal and Constitutional Affairs Legislation,
Answers to Questions on Notice, op.
cit.
[243]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 219.
[244]. Ibid.,
pp. 223–224.
[245]. See,
for example, the Guide to framing Commonwealth offences, infringement notices
and enforcement powers at p. 87 which states that
monitoring warrants should follow the established principles set out in the Guide,
which relevantly limit the features of such warrants to the power to
temporarily secure evidence of suspected contraventions, if the authorised
officer has reasonable grounds to believe that evidence of a contravention
would be lost, destroyed or tampered with by the time a separate search
/ seizure warrant is obtained. (The Guide also states, at p. 82, that
seizure should only be allowed under a warrant, even if entry and search
without warrant are permitted, and that if entry is permitted under a
monitoring warrant or without warrant, then a temporary power to secure should
be provided, pending a search warrant application. It explains that ‘seizure is
a significant coercive power and the Commonwealth has consistently taken the
approach it should require authorisation under a search warrant’.)
[246]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 218.
[247]. Note
that the Guide to framing Commonwealth offences, infringement notices
and enforcement powers, (at p. 83) states that ‘there is a
very limited range of circumstances where it may be appropriate to allow
officers the ability to seize pending the issue of warrant’ and refers to
previous reports of the Senate Standing Committee for the Scrutiny of Bills
which identify examples including emergencies, serious dangers to public
health, or threats to national security. The Guide further states that
seizure in such circumstances ‘would only be appropriate where reasonably
necessary to resolve a situation of immediate emergency’.
[248]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 219.
[249]. DAWR,
‘Horse
disease response levy review’, DAWR website, updated 5 September 2016.
[250]. Illegal Logging
Prohibition Act 2012 (Illegal Logging Act), Part 2,
Division 1 (importing illegally logged timber) and Part 3, Division 1
(processing illegally logged raw logs).
[251]. Ibid.,
Part 2, Division 2 (importers' due diligence) and Part 3, Division 2
(processors' due diligence). The Regulations made under the Illegal Logging
Act contain civil penalty provisions relating to contraventions of due diligence
obligations: Illegal
Logging Prohibition Regulation 2012, regulations 9–16 (contravention of
obligations imposed on importers to comply with due diligence requirements),
regulations 17–25 (contravention of obligations imposed on processors to comply
with due diligence requirements).
[252]. Illegal
Logging Act, Part 4 (monitoring, investigation and enforcement).
[253]. AGD,
Senate Standing Committee on Legal and Constitutional Affairs Legislation,
Answers to Questions on Notice, op.
cit.
[254]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 227–231 (comparative table of provisions).
[255]. Schedule
9, item 8—proposed new subsection 21(11) (monitoring powers), and proposed
new subsection 22(10) (investigation powers).
[256]. Schedule
9, item 8—proposed new subsection 22(11).
[257]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 236 and p. 240.
[258]. Ibid.,
p. 240.
[259]. Ibid.,
p. 241.
[260]. Ibid.,
pp. 228–230.
[261]. RPA,
sections 33 and 74.
[262]. Ibid.,
subsection 67(3).
[263]. Ibid.,
section 96 (respondent bears evidential burden in relation to exceptions to
civil penalty provisions) and section 97 (liability of bodies corporate for contraventions
committed by employees, officers and agents acting within the scope of their
apparent authority).
Although the Explanatory Memorandum (at p. 243) does not provide
information about the potential impact of section 96 of the RPA on the
civil penalty provisions in the Illegal Logging Prohibition Regulation 2012,
these provisions do not contain exceptions or exemptions.
As such, it appears that section 96 of the RPA will not have a
substantive impact on existing civil penalty provisions. However, if new civil
penalty provisions containing exemptions are proposed in future, section 96
will apply to them unless excluded. This matter will require appropriate
scrutiny in the event any such amendments are subsequently proposed, either in
the Regulation (with a view to possible disallowance) or in amending Bills
(with a view to possible amendment during debate).
[264]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 236.
[265]. Ibid.,
p. 246.
[266]. Industrial
Chemicals (Notification and Assessment) Act 1989 (ICNA Act),
Part 2 (Australian Inventory of Chemical Substances), Part 3
(Notification and Assessment of Industrial Chemicals) and Part 3A (registration
of introducers of industrial chemicals). See further, National
Industrial Chemicals Notification and Assessment Scheme (NICNAS),
‘About us’, Department of Health website, updated 28 October 2016.
[267]. ICNA
Act, Part 5.
[268]. Ibid.,
Part 4.
[269]. Ibid.,
section 83.
[270]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp.
250–253.
[271]. Item
5—proposed new subsections 83(4)–(6).
[272]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 256.
[273]. Item
6—proposed new subsections 85(12) and 85(13).
[274]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 261.
[275]. Item
6—proposed new subsection 85(11) (monitoring powers) and proposed new
subsection 86(10) (investigation powers).
[276]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p.
260 (compliance monitoring) and p. 268 (investigation).
[277]. Item
7—proposed new section 89 (exempt information given to inspectors).
[278]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 276.
[279]. RPA,
sections 21–34 (monitoring powers) and sections 50–75 (investigation powers)
per item 6 (proposed new sections 85 and 86).
[280]. Ibid.,
section 9 (information subject to monitoring) per item 6—proposed new
subsection 85(2).
[281]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p.
256 (injunctions), pp. 259–260 (monitoring powers) and pp. 267–268
(investigation powers).
[282]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 278.
[283]. In
particular, these comments concern: the breadth of classes of persons who may
use force; the absence of a statutory provision prescribing mandatory
qualification and training requirements for the use of force; the absence of a
statutory redress mechanism of the use of excessive or unnecessary force
equivalent to the compensation provisions in sections 29 and 61 of the RPA
for damage to electronic equipment; and the absence of statutory requirements—or
a reference in the Explanatory Memorandum to existing administrative
arrangements—for the oversight of the exercise of the power to use force, including
measures to ensure that any use of unnecessary or unreasonable force is
identified and remediated. (See also, the below discussion of Schedule 14—retention
of use of force provisions in the Tobacco Plain Packaging Act 2011).
[284]. National
Industrial Chemical Notification and Assessment Scheme, Implementing
reforms to the NICNAS, Consultation paper, 4, Department of Health,
Canberra, October 2016, Part 13 (monitoring and enforcement).
[285]. Paid Parental Leave
Act 2010 (PPL Act), Chapter 2 (when parental leave pay is
payable to a person) and Chapter 3A (Dad and partner pay).
[286]. Ibid.,
section 146 (table of civil penalty provisions in the PPL Act which are
subject to the enforcement provisions in Chapter 4).
Broadly, these civil penalty provisions relate to contraventions by employers
of: the limitations on the deductions which are permitted to be made from
payments (section 70), the obligation to pay instalments to the
recipient each payday using one of the approved methods of payment (sections
72 and 74), obligations to give the person a record of the payment and
retain records for seven years (sections 80 and 81), obligations to
provide certain information to the Secretary (sections 103 and 105) and
the obligation to respond to a compliance notice (section 157).
[287]. PPL
Act, Chapter 4 (compliance and enforcement).
[288]. It
should also be noted that the Government introduced the Fairer
Paid Parental Leave Bill 2016 (FPPL Bill) to the House of Representatives
on 20 October 2016. The FPPL Bill reintroduces a previous Bill that lapsed
in the 44th Parliament, and proposes to implement the Government’s policy that
parental leave pay under the PPL Scheme will only be provided to parents who
have no employer-provided paid primary carer leave, or whose leave entitlements
are less than 18 weeks or are paid at a rate below the national minimum wage.
Schedule 2, Part 2 of the FPPL Bill contains some proposed amendments to the
infringement notice provisions in section 159 of the PPL Act, which are
also proposed to be amended by Schedule 11 of the present Bill to apply the
standard provisions of Part 5 of the RPA. However, clause 2 of the FPPL
Bill provides that the proposed amendments in Schedule 2, Part 2 of the FPPL
Bill will not commence if Schedule 11 to the Regulatory Powers
(Standardisation Reform) Act 2016 commence at or before the commencement of
the Fairer Paid Parental Leave Act 2016.
[289]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 281–82.
[290]. Ibid.,
p. 285 (item 7), p. 286 (item 8) and p. 287 (item 9).
[291]. Ibid.,
p. 293.
[292]. Ibid.,
p. 295.
[293]. Ibid.,
p. 296.
[294]. RPA,
sections 85 and 92–97. See also: Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, p. 282
(comparative table of provisions) and pp. 291–292 (substantive
discussion).
[295]. Ibid.,
p. 283 (comparative table of provisions) and p. 297 (substantive
discussion).
[296]. Ibid.,
p. 297.
[297]. Personal Property
Securities Act 2009 (PPS Act), especially Chapters
2–4 (rules relating to security interests and enforcement of security
interests)
[298]. Ibid.,
Chapter 5 (Personal Property Securities Register).
[299]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 301.
[300]. For
example, section 151 (registration—requirements for collateral to secure
obligation), subsection 172(3) (unauthorised searches of the PPSR) and section
195A (failure to comply with investigation notice issued by Registrar).
[301]. PPS
Act, Part 6.3, Divisions 2 and 3 (civil penalty orders) and Division 4
(enforceable undertakings).
[302]. AGD,
Senate Standing Committee on Legal and Constitutional Affairs Legislation,
Answers to Questions on Notice, op.
cit.
[303]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 302–303 (comparative table).
[304]. Items
1–11 make various consequential amendments, including to the simplified
outline of the Act and Part 6.3, definitions, and civil penalty amounts to
reflect the application of the provisions of the RPA.
[305]. RPA,
sections 85–87 and 93–97.
[306]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 301.
[307]. Ibid.
[308]. Ibid.,
pp. 301 and pp. 309–310.
[309]. PPS
Act, section 222 (civil penalty orders) and section 231 (enforcement of undertakings).
[310]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 309 and 311–312.
[311]. Ibid.
[312]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 305 (item 6—repeal of evidential burden provision in subsection
151(4) of the PPS Act, which applies to the civil penalty provisions in
section 151 relating to requirements for collateral to secure obligations) and
p. 307 (item 8—repeal of evidential burden provision in subsection 172(4)
of the PPS Act, which applies to the civil penalty provisions in section
172 relating to unauthorised access to the Personal Property Securities
Register (PPSR)).
[313]. Privacy Act 1988
, section 6 (definition of ‘personal information’).
[314]. Ibid.,
Part III (information privacy) and Schedule 1 (APPs).
[315]. Ibid.,
Part IIIA (credit reporting).
[316]. For
example, section 13G (civil penalty provision for serious and repeated
interferences with privacy) and sections 20C-20P, 20V, 20Y, 20Z, 20ZA, 21D–21G,
21R, 22C–22F, 24, and 24A (civil penalty provisions relating to the misuse of
credit reporting information).
[317]. For
example, the offence provisions in sections 20P and 21R (provision of false or misleading
information under the credit reporting regime) and sections 24 and 24A
(unauthorised obtaining of credit reporting or credit eligibility information,
or obtaining such information by false pretence).
[318]. Privacy Amendment
(Enhancing Privacy Protection) Act 2012.
[319]. AGD,
Senate Standing Committee on Legal and Constitutional Affairs Legislation,
Answers to Questions on Notice, op.
cit.
[320]. Items
1–5 and 9 make consequential amendments, including definitions and
cross-references to the RPA.
[321]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp.
314–16 (comparative tables).
[322]. RPA,
sections 93–97.
[323]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 319.
[324]. See,
for example, the exemptions to the credit reporting civil penalty provisions
in subsections 20C(2)–(4), 20D(5), 20E(2)–(3), 20G(2), 20H(2), 20H(5), 20K(2),
20L(2), 20V(4), 20Y(3), 20Y(5), 20Z(4), 20ZA(3), 21D(2), 21F(3), 21G(2)–(3),
21G(5), 22C(2)–(3), 22D(2), 22E(2)–(3), 22F(2)–(3). These provisions provide
for various permitted uses and disclosures, commonly including uses and
disclosures that are authorised or required by or under an Australian law or a
court or tribunal order. See also subsection 98A(4) (treatment of
partnerships), subsection 98B(4) (treatment of unincorporated
associations) and subsection 98C(4) (treatment of trustees). These provisions
state that a member of an unincorporated association's committee of management
and a trustee does not contravene a civil penalty provision if that person does
not know of the circumstances that constitute the contravention, or knows of
those circumstances but takes all reasonable steps to correct the contravention
as soon as possible after becoming aware of it.
[325]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 320.
[326]. Ibid.
[327]. For
example, the exemptions in subsections 98A(4), 98B(4) and 98C(4) in
relation to the liability of trustees, members of an unincorporated
association’s management committee and trustees (based on the fact that they
were unaware of the circumstances constituting a contravention, or took all
reasonable steps to correct it).
[328]. For
example, the permitted use and disclosure exemptions to the credit reporting
civil penalty provisions in subsections 20C(2)–(4), 20D(5), 20E(2)–(3),
20G(2), 20H(2), 20H(5), 20K(2), 20L(2), 20V(4), 20Y(3), 20Y(5), 20Z(4), 20ZA(3),
21D(2), 21F(3), 21G(2)–(3), 21G(5), 22C(2)–(3), 22D(2), 22E(2)–(3), 22F(2)–(3).
[329]. Tobacco Plain
Packaging Act 2011 (TPP Act), Chapter 2
(requirements for plain packaging and appearance of tobacco products) and
Chapter 3 (offences and civil penalty provisions).
[330]. TPP
Act, Chapter 4 (investigation). Note that an ‘authorised officer’ for the
purpose of exercising the investigation and enforcement powers is defined in
section 81 as a person appointed by the Secretary of the Department of Health
who is either appointed or engaged under the Public Service Act 1999, or
who is a member or special member of the Australian Federal Police, and if the
Secretary is satisfied the person has ‘suitable qualifications, training or
experience’.
[331]. TPP
Act, Chapter 5 (enforcement).
[332]. See
especially, Schedule 14, item 23 (new Part 2 of Chapter 4—investigation
powers in proposed new section 52) and item 29 (new Part 2 of Chapter
5—civil penalties and infringement notices in proposed new sections 85 and
86).( For completeness, items 30–33 provide for the prospective
application of the proposed amendments to contraventions or alleged
contraventions occurring on or after the commencement of the relevant
amendments (if enacted) and include savings provisions to preserve the
application of the existing provisions of the TPP Act to contraventions
or alleged contraventions occurring before the commencement of the amendments.)
[333]. AGD,
Senate Standing Committee on Legal and Constitutional Affairs Legislation,
Answers to Questions on Notice, op.
cit.
[334]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 325–328 (comparative tables).
[335]. Schedule
14, item 23 (proposed new subsection 52(9)—‘relevant court’ for the purpose
of matters relating to the exercise of investigative powers in Part 3 of the RPA)
and Schedule 14, item 29 (proposed new subsection 85(3)—‘relevant
court’ for the purpose of the civil penalty provisions in Part 4 of the RPA).
(See also RPA, sections 46 and 81 which provide that the individual
triggering Act may specify the ‘relevant court’ for the purpose of Parts 3 and
4 of the RPA, as applied to that Act.)
[336]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 338–339 (item 23) and p. 344 (item 29).
[337]. Ibid.,
p. 339 (item 23) and p. 345 (item 29).
[338]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016,
p. 339.
[339]. Ibid.
[340]. Ibid.
[341]. Ibid.
[342]. Ibid.,
pp. 340 (item 23) and 341 (item 25).
[343]. Ibid.
[344]. Ibid.
[345]. Proposed
paragraphs 52(15)(a)–(b) (item 23) and proposed paragraphs 80A(2)(a) and
(b) (item 25).
[346]. Proposed
paragraph 52(15)(c) (item 23) and proposed paragraph 80A(2)(c) (item
25). (Derivative use immunity would, for example, extend the immunity to
circumstances in which authorities use factual material contained in a document
compulsorily produced by a person to identify alternative sources of evidence
of those facts. In this scenario, the application of derivative use immunity
would mean that both the document compulsorily produced and the alternative
source of evidence would be inadmissible in criminal proceedings against that
person.)
[347]. Schedule
14, item 29—proposed new subsection 85(1) (application of Part 4 of the RPA
to the civil penalty provisions in the TPP Act).
[348]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 345.
[349]. Ibid.
[350]. Schedule
14, item 29—proposed new subsection 86(1) (application of Part 5 of the RPA
to strict liability offences in Chapter 3 of the TPP Act).
[351]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 347.
[352]. Ibid.
[353]. Brandis,
‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’,
op. cit., p. 1642.
[354]. For
example, the explanation of the use of force provision in the Explanatory
Memorandum to the originating Bill was limited to a single paragraph relevantly
stating ‘the use of force allowed by an authorised officer is only to be
exercised against things and not persons, for example in order to open a door
or force a lock. The force allowed is limited to that which is necessary and
reasonable in the circumstances’. Explanatory
Memorandum, Tobacco Plain Packaging Bill 2011, p. 24. (The Human Rights
Statement of Compatibility accompanying the present Bill only addresses the
retention of the use of force provisions to explain that they do not engage the
right to security of the person and the right to life under Articles 6 and 9 of
the ICCPR, on the basis they do not authorise the use of force against
persons. See: Explanatory Memorandum,
Regulatory Powers (Standardisation Reform) Bill 2016, p. 68.)
[355]. Ombudsman Act 1976,
Part II (functions and powers of the Ombudsman).
[356]. Australian Federal
Police Act 1979, Part V (professional standards and AFP conduct and
practices issues).
[357]. Subsection
61(1) of the RPA (and existing section 66 of the TPP Act)
makes express provision for the payment of compensation if investigative powers
are exercised to use electronic equipment to access relevant data, and damage
is caused to the equipment, data or associated programs, as a result of the
regulatory authority taking insufficient care to select the person to operate
the equipment, or that person exercising insufficient care in operating the equipment.
If these conditions are satisfied, subsection 61(2) provides that the
Commonwealth must pay the owner or user of the relevant equipment, data or
programs as the Commonwealth and the user agree. Subsection 61(3) provides
that if agreement cannot be reached, the owner or user may initiate proceedings.
Subsection 61(4) provides that the court, in determining the amount of
compensation, must have regard to whether the occupier of the premises (or his
or her employees or agents) if available at the time provided any appropriate
warning or guidance on the use of the electronic equipment.
[358]. Weapons of Mass
Destruction (Prevention of Proliferation) Act 1995 (WMD Act),
sections 9–11, 14.
[359]. Ibid.,
section 16.
[360]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 351.
[361]. RPA,
subsection 122(2).
[362]. Ibid.,
section 125.
[363]. See,
for example, Federal Court of Australia, Usual
undertakings as to damages, Practice note, GPN-UNDR, Federal Court of
Australia, Canberra, 25 October 2016.
[364]. F Hoffman-La
Roche & Co AG v Secretary for Trade & Industry (1974)
3 WLR 104 [1975]
AC 295; Commonwealth v John Fairfax & Sons Ltd
(1980) 147 CLR 39, [1980] HCA 44
at p. 59 (per Mason J); Australian Competition & Consumer Commission v
Giraffe World Australia Pty Ltd (1988) 84 FCR 512, [1998] FCA 819;
Optus Networks Pty Ltd v City of Boroondara (1996) VSC 76, [1997]
2 VR 318.
[365]. Senate
Legal and Constitutional Affairs Committee, Regulatory Powers (Standard
Provisions) Bill 2014 [Provisions], op. cit., p. 6.
[366]. To clarify, the current arrangements for pre-legislative scrutiny of
draft triggering Bills appear to be limited to those which apply the RPA
with certain variations that differ to the policy approach taken by the RPA,
or Bills which contain regulatory provisions covering the subject-matter of the
RPA but do not apply the standard provisions. (See: OPC, Drafting
direction no. 3.5A: regulatory powers, op. cit., pp. 4–5;
and OPC, Drafting direction no. 4.2: referral of drafts
to agencies, op. cit., pp. 11–13.) However,
existing pre-legislative scrutiny guidance materials do not contain any
information about what, if any, arrangements are in place to moderate and
promote consistency in legal policy decision-making about whether existing
regulatory legislation should, or should not, be standardised. For example, the
Department of the Prime Minister and Cabinet (PM&C), Legislation handbook, PM&C,
Canberra, 22 June 1999, updated May 2000 is silent about this matter, as
is the AGD, Guide to framing Commonwealth offences, infringement
notices and enforcement powers, op. cit.
[367]. AGD,
‘Legislative
design and scrutiny’, AGD website.
[368]. Ibid.
[369]. Brandis, ‘Second
reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit.,
p. 1641.
[370]. The
Government indicated that its bi-annual legislative ‘repeal days’ (involving
the introduction of omnibus repeal legislation, directed to reducing regulatory
red tape) would be replaced with ‘annual reports that will assess our
performance to date and set a course for reform over the next year’ and in
doing so ‘will build on our commitment to be transparent and accountable to the
parliament’. P Hendy, ‘Spent
rules have no place in an innovation nation’, The Australian, 4
February 2016, p. 12.
See further: Australian Government, Annual
red tape reduction report 2015, PM&C, Canberra, March 2016.
[371]. Some
examples include the Legislation
Act 2003 (section 59—the Attorney-General must appoint persons to a
body to conduct a review of the operation of the Act in 2021); Environment
Protection and Biodiversity Conservation Act 1999 (section 522A—the
Minister must cause a review of the Act to be undertaken every ten years); Public Interest
Disclosure Act 2013 (section 82A—the Minister must cause a review of
the Act to be undertaken after two years of its operation); and various
counter-terrorism and national security legislation (for example, Anti‑Terrorism
Act 2005, section 4, which referenced an agreement of the Council of
Australian Governments to convene a review of certain amendments to the
terrorism provisions of the Criminal Code Act
1995 and Crimes
Act 1914 after five years of operation, and required the
Attorney-General to table in Parliament the report of any such review).
[372]. As
identified in: AGD, Senate Standing Committee on Legal and Constitutional
Affairs Legislation, Answers to Questions on Notice, op. cit.
[373]. See especially: Schedule 3 (amendment of the BEED Act)
and existing subsections 11(6) and 11(7), 15(6) and 17A; Schedule 7
(amendment of the GEMS Act) item 39—proposed new subsection
129(4) and existing subsections 16(8), 17(8), 18(8) and 19(8); Schedule 13
(amendment of the Privacy Act) and existing subsections 20C(2)–(4),
20D(5), 20E(2)–(3), 20G(2), 20H(2), 20H(5), 20K(2), 20L(2), 20V(4), 20Y(3),
20Y(5), 20Z(4), 20ZA(3), 21D(2), 21F(3), 21G(2)–(3), 21G(5), 22C(2)–(3),
22D(2), 22E(2)–(3), 22F(2)–(3), 98A(4), 98B(4) and 98C(4).
[374]. See:
Schedule 15 (amendment of the WMD Act) item 2—proposed new
subsection 16(1) which applies the injunction provision in Part 7 of the RPA
including subsection 122(2); and Explanatory Memorandum, Regulatory Powers
(Standardisation Reform) Bill 2016, op. cit., p. 351.
[375]. See:
Schedule 7 (amendment of the GEMS Act), item
35—proposed new subsections 87(14) and 88(13);
Schedule 9 (amendment of the Illegal Logging Act), item 8—proposed
new subsection 22(11); Schedule 10 (amendment of the ICNA Act), item 6—proposed new subsections 85(11)
and 86(10); and Schedule 14 (amendment of the TPP Act) item
23, proposed new subsection 52(12).
[376]. See:
Schedule 14 (amendment of the TPP Act) items 23 and 25,
proposed new subsections 52(14) and 52(15) and proposed new section 80A; and Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
pp. 340 and 341.
[377]. See:
Schedule 7 (amendment of the GEMS Act), item
35—proposed new subsections 87(14) and 88(13);
Schedule 9 (amendment of the Illegal Logging Act), item 8—proposed
new subsection 22(11); Schedule 10 (amendment of the ICNA Act), item 6—proposed new subsections 85(11)
and 86(10); and Schedule 14 (amendment of the TPP Act) item
23, proposed new subsection 52(12).
[378]. See:
Schedule 2 (amendment of the ASADA
Act) item 2—proposed new Part 8B; Schedule 3 (amendment of the BEED
Act) item 8—repeal of section 64; and Schedule 5 (amendment of the Defence
Act) item 4—repeal of subsections 72TP(4) and 72TP(5).
[379]. Explanatory
Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit.,
p. 5.
[380]. Senate
Standing Committee on Legal and Constitutional Affairs Legislation, Regulatory
Powers (Standard Provisions) Bill 2012 [Provisions],op. cit.,
(recommendations 2 and 3).
[381]. See
further, Australian Government, Annual Red Tape Reduction Report 2015, op.
cit., (the first annual report); and Hendy, ‘Spent rules have no place in an
innovation nation’, op. cit., p. 12 (the Government’s announcement of its
intention to provide annual red-tape reduction reports with respect to spent
legislation).
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.