Introductory Info
Date introduced: 3 December 2020
House: House of Representatives
Portfolio: Attorney-General
Commencement: Various dates, as set out in the digest.
Purpose and
structure of the Bill
The purpose of the Regulatory Powers (Standardisation
Reform) Bill 2020 (the Bill) is to:
- amend
the Regulatory
Powers (Standard Provisions) Act 2014 (RPA) to extend the application
of that Act to ‘matters’ and make other minor amendments (Schedule 1)
and
- amend
the following six Commonwealth Acts to trigger the application of certain
regulatory powers under the RPA:
Background
Regulatory Powers Act
The RPA contains a standard suite of investigative,
compliance monitoring and enforcement powers which may be applied to other Commonwealth
laws. These standard provisions are intended to be ‘an accepted baseline of
powers required for an effective monitoring, investigation or enforcement
regulatory regime, providing adequate safeguards and protecting important
common law privileges’.[1]
For the RPA to apply, its powers must be ‘triggered’ by another Act,
with or without modification.[2]
The RPA was developed in response to concerns about
the growing divergence in regulatory powers and provisions across Commonwealth
legislation. The Attorney-General’s Department states that the Act:
… not only reduces the volume of provisions dealing with monitoring,
investigation and enforcement on the Commonwealth statute book, but also
ensures greater consistency between different regulatory regimes and reduces
the administrative burden on agencies in exercising different regulatory
powers.[3]
The bulk of the RPA commenced in October 2014.[4]
Since then, its implementation has taken a few different approaches:[5]
- existing
regulatory powers in Acts have been replaced or modified by the application of RPA
powers—this has occurred either in Bills amending an individual Act, or through
‘standardised reform’ Bills such as the current one, which trigger the RPA in
respect of multiple Acts[6]
and
- Bills
which create a new regulatory regime have been drafted from the outset to
trigger RPA powers.
Based on a search of the Federal Register of Legislation,
at the time of writing there were approximately 60 Commonwealth Acts which
trigger powers contained in the RPA.
Although the Attorney-General’s Department has stated that
it is developing a Guide to the RPA, such a Guide has not yet been
released.[7]
Key powers in the Regulatory Powers
Act[8]
Triggering legislation may apply some, or all, parts of
the RPA to a regulatory scheme. The key powers are summarised below.
Compliance monitoring powers
Part 2 of the RPA creates a framework for
monitoring:
- compliance
with provisions of an Act or legislative instrument and
- whether
information given in compliance (or purported compliance) with a legislative
provision is correct.[9]
It provides that an authorised person (defined by the
individual Act which triggers the operation of Part 2) may exercise various standard
monitoring powers for the above purposes—these include the power to:
- enter
and search premises, and observe activity carried out on the premises[10]
- 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)[11]
and
- require
persons on the premises to answer questions and produce documents.[12]
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).[13]
They also set out the obligations applying to persons
exercising monitoring powers (such as providing the occupier with details of a
warrant, and carrying identification),[14]
and the rights and responsibilities of persons occupying the premises being
searched.[15]
The standard provisions also state that the compliance monitoring powers do not
abrogate legal professional privilege and the privilege against
self-incrimination.[16]
Investigation powers
Part 3 of the RPA creates a framework for gathering
material that relates to the contravention of offence provisions and civil
penalty provisions.[17]
It 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[18]
- seize
evidential material[19]
and
- require
persons on the premises to answer questions and produce documents.[20]
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.[21]
They set out the conditions and limits of the
investigation powers able to be authorised as well as the obligations of
persons exercising powers and the rights and responsibilities of persons
occupying the premises being searched.[22]
Like the compliance monitoring powers, the investigation powers expressly do
not abrogate self-incrimination or legal professional privilege.[23]
Enforcement powers
Parts 4 to 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)[24]
- 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[25]
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.[26]
Committee
consideration
Legal and Constitutional Affairs
Committee
The Bill has been referred to the Senate Standing
Committee on Legal and Constitutional Affairs for inquiry and report by 19
February 2021. Details are available at the inquiry
homepage. Seven submissions had been published at the time of writing.
Senate Standing Committee for the
Scrutiny of Bills
The Scrutiny of Bills Committee reported on the Bill on 29
January 2021.[27]
It raised concerns about some features of the Bill, specifically:
- the
expansion of the RPA’s monitoring powers to apply in relation to ‘matters’
(Schedule 1)
- the
amendment of the Fisheries Management Act to create an offence of strict
liability (Schedule 4)
- amendments
to the Defence Force Discipline Act (Schedule 2), Education Services
for Overseas Students Act (Schedule 3) and Tobacco Plain Packaging Act
(Schedule 7) to authorise the use of force against things, with the Committee noting:
… no information has been provided as to the persons who will
be authorised to use force against things, including whether they will be
required to have appropriate training and experience.
Further the explanatory memorandum does not explain the
categories of 'other persons' who may assist an authorised officer and the bill
does not confine who may exercise the powers by reference to any particular
expertise or training.[28]
- the
provision for authorised officers to be assisted by ‘other persons’ in
exercising investigation powers and functions, under the Defence Force
Discipline Act (Schedule 2), Education Services for Overseas Students
Act (Schedule 3),Tertiary Education Quality and Standards Agency Act
2011 (Schedule 5), Tobacco Advertising Prohibition Act (Schedule 6)
and Tobacco Plain Packaging Act (Schedule 7). The Committee stated the
Explanatory Memorandum:
… does not explain the categories of 'other persons' who may
be granted such powers in relation to any of the proposed amendments, and the
bill does not confine who may exercise the powers by reference to any
particular expertise or training.[29]
The Committee requested further advice from the Minister
on these issues. The Minister’s response had been received by the Committee,
but not yet published, at the time of writing.[30]
Policy
position of non-government parties/independents
Non-government parties or independents had not commented
on the Bill at the time of writing.
Position of
major interest groups
Law Council of Australia
In its submission to the Senate Inquiry, the Law Council
of Australia stated that it did not object to passage of the Bill, but
recommended improvements to the proposed amendments in Schedule 1. These
recommendations are discussed under ‘Key issues and provisions’. The Law
Council also suggested the Senate Committee explore whether regulated entitles,
not merely the responsible regulatory agencies, were consulted on the changes
proposed by Schedules 2 to 7, noting the Explanatory Memorandum was silent on
the matter.[31]
More broadly, the Law Council stated that while the RPA’s
standardisation objectives have ‘the potential to improve the usability of
legislation and, in turn, improve compliance outcomes and enforcement
practices’, its effectiveness in achieving this is dependent on the way it is
implemented. The Law Council argued that this ‘requires effective mechanisms
for transparency and performance evaluation to be incorporated into the
implementation process’.[32]
It noted that objectives of streamlining and simplifying legislative provisions
and facilitating regulatory compliance:
… are unlikely to be met if legislation routinely triggers
the standard provisions of the RPA subject to extensive statute-specific
modifications, or while also retaining or conferring substantial additional
powers that have no equivalent in the RPA. Similarly, the objectives are
unlikely to be met if there is inconsistent treatment of similar, existing
regulatory regimes that pre-date the RPA…It is also important that
standardisation does not become a ‘back door’ means of expanding an agency’s
powers without compelling justification, which could occur if a regulator’s
powers under its pre-existing governing legislation are more limited than the
corresponding provisions of the RPA that are proposed to be triggered.[33]
The Law Council suggested that there has been a lack of
public transparency about the Government’s process in applying the RPA
to existing regulatory legislation, pointing to the absence of a publicly
available register of individual Acts which have triggered the RPA, or
information about how individual Acts are assessed as being suitable for
standardisation.[34]
Higher education bodies
The Australian Skills Quality Authority (ASQA),
responsible for regulating Vocational Education and Training providers,
expressed support for the Bill’s proposed changes to the Education Services
for Overseas Students Act (Schedule 3), stating that these will ‘support
greater consistency in the application of ASQA’s compliance framework, and in
ASQA’s engagement with regulated entities and stakeholders’.[35]
However, it suggested that the National Vocational
Education and Training Regulator Act 2011 (NVR Act) should be
similarly amended to avoid ‘non-standard monitoring, investigation and
enforcement provisions across the two Acts under which ASQA regulates’.[36]
The Council of International Students Australia (CISA)
made a submission to the Senate Inquiry on the amendments to the RPA
(Schedule 1), Education Services for Overseas Students Act (Schedule 3)
and Tertiary Education Quality and Standards Agency Act (Schedule 5). It
broadly supported the Government’s regulatory standardisation efforts, but
suggested that caution was needed in this, noting the diversity of regulatory
schemes amended by the current Bill.[37]
Comments by ASQA and CISA on specific provisions are
discussed under ‘Key issues and provisions’ below.
Tobacco companies
In a submission to the Senate Inquiry, Imperial Brands
Australasia stated that it neither supports nor opposes the Bill. However, it
expressed concern that the Bill’s amendments do not sufficiently subject
illicit tobacco products or packaging to the monitoring and investigation
provisions in the RPA, stating:
The amendments appear to assume that contraventions of the [Tobacco
Plain Packaging Act] only involve the legitimate tobacco industry and miss
the opportunity to improve detection capabilities of plain packaging violations
in the illicit trade.[38]
British American Tobacco Australia similarly stated that
there is an ‘urgent need for further action’ to address illicit tobacco in
Australia. While expressing support for the amendments to the Tobacco
Advertising Prohibition Act and Tobacco Plain Packaging Act (in
Schedules 6 and 7, respectively), it suggested that to ‘[maximise] the
potential for enforcement’, law enforcement agencies (including state or
territory police) should be designated as authorised officers for the purpose
of performing regulatory functions under these Acts.[39]
Financial
implications
The Explanatory Memorandum states that there is no
financial impact associated with the Bill’s amendments to the RPA. In
respect of amendments to other statutory schemes:
- amendments
to the Defence Force Discipline Act will have a minor financial impact
that will be managed within Defence’s annual budget, associated with training
on and use of the new regulatory powers
- amendments
to the Education Services for Overseas Students Act, Fisheries Management
Act and Tertiary Education Quality and Standards Agency Act will
have nil or insignificant financial impact and
- amendments
to the Tobacco Advertising Prohibition Act and Tobacco Plain
Packaging Act will have a low financial impact on the tobacco regulatory
framework, to be managed within existing Department of Health resources.[40]
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.[41]
The Government noted that it is necessary to consider the
human rights impact in the specific context of each legislative regime that
triggers the RPA.[42]
Assessing each of the six Acts which the current Bill brings within the
operation of the RPA, as well as the Bill’s amendments to the RPA itself,
the Government stated that it considers the Bill is compatible.[43]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights had no
comment on the Bill.[44]
Key issues
and provisions
Schedule 1—Regulatory Powers Act
amendments
Schedule 1 amends the RPA to enable
its powers to apply to ‘matters’, and to update drafting.
Commencement
The amendments in Schedule 1 commence the day after
Royal Assent.[45]
Extending monitoring powers
Current provisions
As noted above, Part 2 of the RPA currently provides
a framework for the monitoring of whether:
- provisions
of an Act or legislative instrument have been, or are being, complied with and
- information
given in compliance (or purported compliance) with a provision of an Act or legislative
instrument is correct.[46]
For Part 2 to operate, currently either a provision of an
Act or instrument, or information given in compliance (or purported compliance)
with a legislative provision, must be made ‘subject to monitoring’ under the
Part.[47]
Sections 8 and 9 specify that provisions and information, respectively, will be
subject to monitoring when an Act provides this to be the case.
Amendments
Item 4 repeals and substitutes section 7, which
sets out the purpose and operation of Part 2, to extend the monitoring powers
framework to include the monitoring of ‘other matters to which an Act or a
legislative instrument relates’.[48]
Proposed subsection 7(2) provides that in addition to the existing
triggers, the powers under Part 2 will also operate where a ‘matter’ to which
an Act or legislative instrument relates is made subject to monitoring.
Item 5 inserts proposed section 9A, which
specifies that a matter to which an Act or legislative instrument relates is subject
to monitoring if an Act provides as such. Items 1–3 and 6–28
make various amendments to the RPA to ensure that the monitoring powers
provisions apply to ‘matters’, in addition to provisions and information. Item
28 amends section 32, which provides for the issue of monitoring warrants, to
provide that a warrant may be issued where the issuing officer is satisfied it
is reasonably necessary for the purpose of determining ‘a matter subject to
monitoring’ under Part 2.
Significance of amendments
These amendments expand the circumstances in which the RPA’s
monitoring powers may be triggered, and subsequently used. For example, section
18 currently provides that, with consent or under a warrant, an authorised
person may enter premises and exercise monitoring powers for the purpose of
determining whether there has been compliance with an applicable legislative
provision or whether information subject to monitoring is correct. In
connection with this entry, available monitoring powers include the power to
operate electronic equipment and data storage devices on the premises,[49]
to secure a thing found on the premises,[50]
and to ask (or with a warrant, require) the occupier of the premises to answer
any questions, or produce any documents.[51]
Items 21–27 of Schedule 1 amend these provisions to extend the operation
of such powers to ‘matters’ subject to monitoring.
The amendments appear to be aimed at bolstering the
monitoring powers provided for in the Act, enabling their use in relation to
matters which may be incidentally or indirectly relevant to determining
regulatory compliance or the provision of correct information.
The Explanatory Memorandum states that the amendments seek
to clarify the operation of the RPA’s standard provisions and ensure
that the regulatory requirements and underlying penalty and offence provisions
of Acts which trigger the RPA can be effectively enforced.[52]
It states that ‘the power to monitor matters is necessary for the purposes of
an effective monitoring scheme’, and uses an example of the matter of ‘whether
or not a circumstance exists’.[53]
However, it does not provide further detail on other types of matters which may
be captured.
The Law Council raised concern with the proposed
amendments in items 1 to 28 of Schedule 1, noting their potential
to ‘result in significant coercive powers being available in a much wider range
of circumstances’.[54]
It submitted that there is ‘significant ambiguity in the concept of a ‘matter
subject to monitoring’’, and noted the absence of any statutory criteria in the
RPA to assist with identifying what may fall within its scope, or with distinguishing
between a ‘matter subject to monitoring’, a ‘provision subject to monitoring’
and ‘information subject to monitoring’.[55]
The Law Council argued that the absence of statutory parameters ‘creates a
significant risk of inconsistencies in application and interpretation in the context
of individual triggering legislation’, and may make it difficult for Parliament
and other stakeholders to scrutinise proposed legislation.[56]
The Scrutiny of Bills Committee also pointed to the
coercive powers included in the RPA’s monitoring powers, and their
potential to unduly impact the privacy of individuals. The Committee noted that
the Explanatory Memorandum provided limited explanation of how the ability to
exercise monitoring powers in relation to a ‘matter’ will increase the
effectiveness of the RPA’s monitoring scheme, and limited examples of
the types of ‘matters’ in relation to which the powers will be exercised. It
requested further advice from the Minister as to the justification for
expanding the application of the monitoring powers in this way.[57]
The Council of International Students Australia supported
the extension of RPA’s monitoring powers to ‘matters’, submitting that
it would enable better enforcement of the provisions subject to monitoring
powers, and querying whether the RPA’s investigation powers should be
similarly expanded.[58]
Other amendments
Schedule 1 also makes minor, non-substantive
drafting changes to the RPA. There are two main types of changes made:
- references
to an ‘offence’ are changed to references to an ‘offence provision’[59]
and
- provisions
relating to infringement notices are amended to ensure they apply to
contraventions of both civil penalty provisions and offence provisions, whether
or not they are contained in a single penalty provision.[60]
The changes are intended to ensure consistency of language
throughout the Act and reflect current drafting practices, including the fact that
civil and criminal penalties for the same conduct are not always contained in a
single provision.[61]
Schedule 2—Defence Force Discipline
Act
Schedule 2 amends the Defence Force
Discipline Act 1982 (DFDA) to trigger the RPA’s
investigation powers framework.
Commencement
Part 1 commences on a day fixed by Proclamation, or
six months after Royal Assent, whichever occurs earlier. Part 2
commences on the later of:
- immediately
after commencement of Part 1 and
- immediately
after commencement of the Federal Circuit and Family Court of Australia Act
2020 (FCFC Act), the Bill for which is currently before Parliament.[62]
However, Part 2 will not commence at all if the FCFC
Act does not commence.[63]
Current regulatory scheme
The DFDA was introduced to maintain and enforce
military discipline. It contains various disciplinary offences relating to
defence service. Offences by Australian Defence Force (ADF) members are
prosecuted under the DFDA when the offence substantially affects the
maintenance of and ability to enforce Service discipline in the ADF.[64]
Part VI of the DFDA currently provides for the
investigation of service offences.[65]
It deals with matters including the interviewing and questioning of suspects, treatment
of persons in custody, admissibility of confessional evidence, identification
of suspects, medical examinations, rights of persons charged with service
offences, and search and seizure powers. However, the Explanatory Memorandum
states:
… the exercise of many of these powers are confined to
‘service land’, which is defined in subsection 3(1) of the DFDA to mean land
(including a building or other structure) used or occupied by the ADF, an
allied force, or an institution of the ADF or an allied force. This narrow
definition limits the practical scope of the existing investigative powers.
Further, many of the investigative powers themselves have not changed to take
account of the evolving nature of military life and offending.[66]
The Explanatory Memorandum states that triggering Part 3
of the RPA will provide an alternative suite of investigation powers
that are ‘more appropriate for application on non-service land’, noting that
they will ensure that evidential material can be obtained wherever it is
located, including on civilian premises and public places.[67]
Amendments
The Bill does not amend or repeal the existing enforcement
provisions under Part VI of the DFDA. Instead, item 2 inserts Division
6A into this Part, providing for the use of investigation powers under the RPA
in addition to those existing in the DFDA. Proposed subsection 101ZAB(1)
states that Part 3 of the RPA (containing the investigation powers
framework) is triggered in respect of service offence provisions—that
is, any offence against the DFDA or Regulations made under that Act, or
an ancillary offence committed by a person at a time when they were a defence
member or defence civilian.[68]
Modifications
The application of Part 3 of the RPA is modified by
proposed section 101ZAC, which provides for an additional investigation
power—the power for an authorised person to be accompanied by, and make use of,
an animal to assist them in entering premises or exercising their powers under
the RPA.[69]
If the use of an animal is connected with the entry of premises under an
investigation warrant, the warrant must authorise this and specify the kind of
animal.[70]
There is no express authority to use animals under the
existing investigation powers in Part VI of the DFDA.
A further modification is provided for in proposed
subsection 101ZAB(12), which states that in executing an investigation
warrant, an authorised person and a person assisting them may use such force against
things as is reasonable and necessary in the circumstances.[71]
The DFDA currently permits the use of reasonable
force against people in certain circumstances, including when taking
fingerprints or photographs (or similar) of a person in custody,[72]
arranging for the medical examination of, or taking of a specimen from, a
person in custody,[73]
and in executing a search warrant (including the seizure of things).[74]
Significance of amendments
As noted above, the Explanatory Memorandum states that
triggering the RPA’s investigation powers framework will assist with
obtaining evidence on civilian land and in public places. However, as the
Explanatory Memorandum itself acknowledges, Schedule 2 of the Bill does
not confine the operation of Part 3 of the RPA to civilian land or
premises.[75]
The Explanatory Memorandum states that the Department of
Defence is developing a governance framework for the use of these investigation
powers and intends to centralise their use to ensure standardisation of
procedures, training and competence of select authorised persons. It further notes
that the Inspector-General of the Australian Defence Force has the power to
audit the use of Part 3 of the RPA as part of its broader power to audit
and review the military justice system.[76]
Schedule 3—Education Services for Overseas Students Act
Schedule 3 amends the Education Services
for Overseas Students Act 2000 (ESOS Act) to replace existing
monitoring, investigation and enforcement powers with (largely equivalent)
powers under the RPA.
Commencement
Part 1 commences on Proclamation, or six months
after Royal Assent, whichever occurs earlier. Part 2 commences on
the later of:
- immediately
after the commencement of Part 1 and
- immediately
after the commencement of Part 1 of Schedule 1 of the National Vocational
Education and Training Regulator Amendment (Governance and Other Matters) Act
2020.[77]
Part 3 commences on the later of:
- immediately
after the commencement of Part 1 and
- immediately
after the commencement of the FCFC Act (as discussed above, the Bill for
which is currently before Parliament).
The commencement of Part 3 is contingent on the commencement
of the FCFC Act.[78]
Current regulatory scheme
The ESOS Act deals with the provision of education
services to international students in Australia. It sets out registration requirements
for, and obligations of, international education providers, and provides for
the making of a National Code of Practice which sets standards for the
provision of courses and dealings with students and agents.[79]
Part 7 of the Act currently provides for the monitoring of
registered providers’ compliance with their statutory obligations, the National
Code of Practice and other applicable standards.[80]
It permits the ESOS agency for a registered provider[81]
to give a production notice or attendance notice, and permits the Tuition
Protection Service (TPS) Director to give a production notice, to individuals who
are reasonably believed to have access to relevant information or documents.[82]
It is an offence to refuse or fail to comply with a production or attendance
notice or to provide false or misleading information.[83]
Part 7 also currently provides for the issuing of:
- monitoring
warrants, permitting an authorised officer of an ESOS agency for a registered
provider to enter and search premises, operate equipment and examine anything on
the premises, and ask questions[84]
and
- search
warrants, permitting an authorised officer to enter premises to look for
evidential material, examine and take extracts from the evidential material, and
seize certain material on the premises.[85]
An authorised officer may use necessary and reasonable
force in exercising their monitoring and search powers.[86]
Part 6 of the Act currently provides for enforcement
action, including through enforceable undertakings and infringement notices.
Amendments
Schedule 3 repeals the provisions of the ESOS
Act which deal with enforceable undertakings,[87]
infringement notices,[88]
monitoring powers and search powers.[89]
These matters will instead be dealt with by the powers contained in the RPA.
Monitoring and investigation powers
Item 12 inserts proposed Division 3 into
Part 7 of the ESOS Act, which triggers the monitoring powers framework
in Part 2 of the RPA, in respect of the following provisions, and
information given in compliance (or purported compliance) with these provisions:
Additionally, a ‘matter’ will be subject to monitoring powers
under the RPA if it is determining whether a registered provider,
because of financial difficulty or any other reason, might not be able to
provide courses to its accepted students, or refund amounts to its accepted
students under Division 2 of Part 5 of the ESOS Act.[91]
Item 12 also inserts proposed Division 4
into Part 7 of the ESOS Act, which triggers the investigation powers
framework in Part 3 of the RPA. These powers apply to investigation of
offences against the ESOS Act and related offences under the Crimes
Act 1914 (Cth) and Criminal Code Act 1995 (Cth).[92]
The Explanatory Memorandum provides a detailed comparison
of the existing provisions of the ESOS Act and the standard provisions
of the RPA sought to be triggered by the Bill.[93]
The majority of the ESOS Act powers are retained under the amended
regulatory scheme, with the main difference being that while the ESOS Act
currently provides for emergency search and seizure powers without a warrant,
the RPA does not contain equivalent provisions—an investigation warrant
is required to exercise such powers.[94]
Use of force against things
Proposed subsections 130(14) and 131(12) modify the
application of the RPA to provide that in executing a monitoring warrant
or investigation warrant, respectively, an authorised person and a person
assisting the authorised person may use such force against things as is
necessary and reasonable in the circumstances. The RPA does not provide
for the use of force.
Although existing section 147 of the ESOS Act
(repealed by item 12) does provide for the use of force by an authorised
officer in entering premises under a warrant and exercising investigation and
search powers, it does not authorise the use of force by a person assisting.
In justifying the authorisation of the use of force
against things, the Explanatory Memorandum notes that this will enable
authorised officers to open locked doors, cabinets and drawers, and gain entry
to premises which are unattended or where the occupier refuses to attend.[95]
However, the Explanatory Memorandum does not provide an explanation for why a
person assisting the authorised person is also permitted to use force under the
amendments.
Infringement notices
Existing section 106 of the ESOS Act provides that
infringement notices may be issued in respect of certain offences, requiring
payment of a penalty as an alternative to prosecution. Part 4 of the Education Services for
Overseas Students Regulations 2019 (ESOS Regulations) sets out details for
the issuing of an infringement notice and payment of a penalty.
Item 6 of Schedule 3 repeals section 106. Proposed
Division 5 of Part 7, inserted by item 12, triggers
the application of the infringement notice provisions under Part 5 of the RPA.
The RPA provisions apply in respect of the same
offences currently subject to the infringement notice scheme under the ESOS
Act. Infringement notices may be issued by authorised officers of the ESOS
agency for the registered provider.[96]
The maximum penalty which may be imposed by an
infringement notice issued under the RPA provisions is higher than that
currently payable under the ESOS Act. Currently, the ESOS Act
provides that the applicable penalty payable under an infringement notice is four
penalty units ($888) for an individual, and 20 penalty units ($4,440) for a
corporation.[97]
Under subsection 104(2) of the RPA, an infringement
notice issued in respect of one alleged contravention may impose a penalty
which is the lesser of:
- one-fifth
of the maximum penalty that a court could impose for the contravention or
- 12
penalty units for an individual or 60 penalty units for a body corporate.
An offence under the ESOS Act currently carries an
applicable maximum penalty of 60 penalty units ($13,320) for an individual, and
300 penalty units ($66,600) for a body corporate.[98]
An infringement notice issued under the RPA may therefore impose a
maximum penalty of 12 penalty units ($2,664) on an individual and 60 penalty
units on a body corporate, being one-fifth of the maximum penalty that could be
imposed by the court.
Enforceable undertakings
Item 7 of Schedule 3 repeals the existing
provisions of the ESOS Act which provide for the acceptance and
enforcement of undertakings from registered providers. Item 12 inserts Proposed Division
6 of Part 7, which triggers the application of the enforceable undertakings
provisions in Part 6 of the RPA. This enables a provider to make a
written undertaking that they will:
- take
specified action, or refrain from taking specified action, in order to comply
with a provision of the ESOS Act, National Code, ELICOS Standards or
Foundation Program Standards or
- take
specified action directed towards ensuring that they do not contravene, or will
not contravene in the future, any such provisions.[99]
Proposed subsection 133(4) modifies the application
of the RPA to allow the making of additional undertakings—a registered
provider may undertake:
- that
they will take, or refrain from taking, specified action in order to comply
with a condition of their registration or
- that
they will take specified action directed towards ensuring that in the future
they do not, or are unlikely to, contravene a condition of their registration.
An authorised person for the purposes of Part 6 of the RPA
may apply to the Federal Court or Federal Circuit Court where they consider a
provider to have breached an undertaking.[100]
If the Court is satisfied the provider has breached the undertaking, it may
make any orders it considers appropriate, including orders directing the
provider: to comply; to pay an amount to the Commonwealth up to the amount of
any financial benefit gained which is reasonably attributable to the breach; and/or
to compensate any person who has suffered damage as a result of the breach.[101]
This is the same as under the existing ESOS Act provisions.[102]
Commentary
As noted above, ASQA supports the measures in Schedule
3, stating that they will enable it to exercise greater consistency and
flexibility in the way it regulates under the ESOS Act. It states that
certain changes—such as the provision for people to assist authorised officers
and amendments to the infringement notice powers—will more closely align the
regulatory powers under the ESOS Act with those under the NVR Act,
which is also enforced by ASQA.[103]
It has also identified areas of ‘misalignment’ between the two Acts, including
in the scope of monitoring powers and matters that must be listed on an
investigation or enforcement warrant, and argued that the NVR Act should
be amended to align with the RPA.[104]
In its submission to the Senate Inquiry, CISA raised
concern about the repeal of section 151 of the ESOS Act, which provides
for the use of monitoring and investigation powers without a warrant in
emergency situations. As noted above, there is no equivalent provision under
the RPA. While recognising the ‘dangers of warrantless investigations’, CISA
suggested that the repeal of section 151 may ‘hamper the enforcement of the ESOS
Act’ by limiting the ability of investigators to seize evidence in certain
circumstances.[105]
CISA also expressed concern about the reduction of
penalties for failure to answer questions or produce documents, noting that
while under the ESOS Act the offence currently carries a maximum penalty
of six months’ imprisonment, under the RPA the maximum penalty is 30 penalty
units.[106]
Although pointing to flaws within the current legislative scheme, CISA
nonetheless submitted that the Senate Committee should consider the possible
impact the reduction may have on the regulators’ abilities to monitor
compliance with the ESOS Act.[107]
Schedule 4—Fisheries Management Act
Schedule 4 amends the Fisheries
Management Act 1991 (Cth) to repeal existing provisions for the issuing
of infringement notices in respect of certain offences, and to instead trigger
the infringement notice provisions of the RPA. It also amends an
existing offence under the Act.
Commencement
Schedule 4 commences on the earlier of Proclamation
or six months after Royal Assent.[108]
Current regulatory scheme
The Fisheries Management Act, together with the Fisheries
Administration Act 1991, regulates the management of Commonwealth
fisheries. It provides for the preparation of fisheries management plans,
allocation and management of statutory fishing rights and other concessions,
determination of allowable catch, and the majority of Commonwealth fisheries
offences.[109]
The Australian Fisheries Management
Authority (AFMA) is responsible for enforcement of the Act.[110]
Part 6 of the Fisheries Management Act provides for
surveillance and enforcement powers and contains various fisheries offences. It
does not expressly provide for the issuing of infringement notices as an
alternative to prosecution. However, section 168 specifies that regulations
made under the Act may enable a person alleged to have contravened certain
specified offence provisions, to pay a penalty as an alternative to
prosecution.[111]
Division 7 of Part 11 of the Fisheries Management
Regulations 2019 accordingly provides for the issuing of infringement
notices as an alternative to prosecution. It may apply where an officer
reasonably believes a person has committed one of the following offences under
the Fisheries Management Act:
- refusing
or failing to give a return or information required in connection with a fish
receiver permit (section 93)
- various
offences specified under section 95, including engaging in commercial fishing
in the Australian Fisheries Zone (AFZ) without a permit, concession or licence,
contravening a condition of a fishing concession or permit, or knowingly providing
false or misleading information in a logbook or return and
- using
a foreign boat for commercial fishing in the AFZ without a foreign fishing
licence or Treaty licence (section 100).[112]
Amendments
Offence provisions
Subsection 93(1) of the Fisheries Management Act,
relating to the refusal or failure to give a return or information required in
connection with a fish receiver permit, currently has a maximum applicable
penalty of six months imprisonment. Subsection 93(2) provides for a defence
where a person has a reasonable excuse.
Item 2 of Schedule 4 amends subsection 93(1)
to change the applicable maximum penalty to 30 penalty units ($6,660). Item
3 repeals existing subsections 93(2) and (3), removing the availability of
the reasonable excuse defence, and inserts proposed subsection 93(2)
which makes the offence one of strict liability. This means that no fault
elements (such as intent or recklessness to fail to provide the relevant return/information)
need to be proven, but the defence of mistake of fact is available.[113]
The Scrutiny of Bills Committee requested the Minister’s
advice as to the justification for the amendment made by item 3, stating:
As the imposition of strict liability undermines fundamental
criminal law principles, the committee expects the explanatory memorandum to
provide a clear justification for any imposition of strict liability, including
outlining whether the approach is consistent with the Guide to Framing Commonwealth
Offences.[114]
Infringement notices
Item 5 of Schedule 4 repeals paragraph
168(2)(i) of the Fisheries Management Act, meaning that the Regulations
will no longer provide for the issuing of infringement notices. Item 4 inserts
proposed section 98A into the Act. This triggers the operation of the
infringement notice provisions in Part 5 of the RPA, in respect of offences
under section 95 (unless the person commits the offence with the use of a
foreign boat or in relation to a foreign fishing licence) and section 93.
A contravention of section 100, or of section 95 with the
use of a foreign boat or foreign fishing licence, will no longer be subject to
the infringement notice scheme. The Explanatory Memorandum states that this is
because such offences are indictable offences and more appropriately dealt with
through prosecution.[115]
The provisions in Part 5 of the RPA are otherwise
largely equivalent to the existing provisions under the Fisheries Management
Regulations.
Schedule 5—Tertiary Education
Quality and Standards Agency Act 2011
Schedule 5 amends the Tertiary Education
Quality and Standards Agency Act 2011 (Cth) (TEQSA Act) to
replace the existing investigative and enforcement powers with provisions
triggering equivalent powers in the RPA.
Commencement
Part 1 commences on Proclamation, or six months
after Royal Assent, whichever occurs earlier.
Items 23, 25, 29–36 and 38–43, in Part 2,
will commence immediately after the commencement of Part 1.[116]
Other items in Part 2 were contingent on the Education
Legislation Amendment (Up-front Payments Tuition Protection) Act 2020 commencing
after commencement of Part 1. Because that Act commenced on 1 January
2021, these items will no longer commence at all.[117]
Part 3 commences on the later of:
- immediately
after the commencement of Part 1 and
- immediately
after the commencement of the FCFC Act (as discussed above, the Bill for
which is currently before Parliament).[118]
Current regulatory scheme
The TEQSA Act regulates higher education using a
standards-based quality framework, with the current national standards
contained in the Higher Education Standards Framework.[119]
The Tertiary Education Quality and
Standards Agency (TEQSA), established under the Act, is responsible for registering
higher education providers, accrediting courses of study and conducting
compliance and quality assessments of providers.[120]
Part 6 of the TEQSA Act currently provides TEQSA
with investigative powers in connection with carrying out its functions. These include
powers to:
- require
persons to give information
- enter
premises by consent or under a warrant and
- exercise
monitoring and enforcement powers in relation to premises, including search,
seizure and retention powers.
Part 7 provides for enforcement mechanisms, including
through criminal offences and civil penalties, enforceable undertakings, and
injunctions. Although these provisions are similar to those within the RPA,
the TEQSA Act currently only triggers the RPA powers in relation
to tuition protection obligations under Part 5A.[121]
Amendments
Amendments to Part 6
Items 5, 7 and 8 repeal the majority of the
investigative powers under Part 6. Item 4 renames the heading of the
Part from ‘Investigative powers’ to ‘Information gathering and authorised
officers’.
Division 1 of Part 6 is retained, which provides for
TEQSA’s power to require information, documents or things from a regulated
entity, former regulated entity or connected person, in connection with TEQSA’s
investigation of compliance with the Act.[122]
Section 94, under Division 7 of Part 6, is also retained,
which gives TEQSA the power to appoint a member of its staff as an authorised
officer for the purposes of the Act. A person must not be appointed as
an authorised officer unless they hold the classification of (or equivalent to)
APS Executive Level 1 or higher, and TEQSA is satisfied the person has suitable
qualifications and experience to properly exercise the relevant powers.[123]
Amendments to Part 7
Items 11, 12, 14 and 16 repeal existing provisions
in Part 7.
Division 1 of Part 7 is retained—this empowers TEQSA to impose
administrative sanctions on providers. Such sanctions include cancelling or shortening
the period of accreditation of a course of study, or cancelling or shortening
the period of a provider’s registration. Subdivision A of existing Division 2
is also retained—this sets out various criminal offences and civil penalties.
Item 12 inserts proposed Divisions 3 to 7 of
Part 7. These trigger the monitoring powers,[124]
investigation powers,[125]
civil penalty provisions,[126]
infringement notice provisions,[127]
and enforceable undertakings provisions of the RPA.[128]
Items 13 and 14 insert proposed Division 8 into Part 7,
triggering the injunction provisions of the RPA.[129]
Significance of amendments
As the existing investigation and enforcement powers in
the TEQSA Act are largely similar to those in the RPA, the Bill’s
amendments do not significantly change the regulatory powers available to
TEQSA. The key difference is the introduction of the infringement
notices scheme under Part 5 of the RPA. This enables an authorised
officer (appointed by TEQSA under existing section 94) to give a person an
infringement notice for an alleged contravention of a civil penalty provision
of the TEQSA Act as an alternative to seeking enforcement of the
provision in court.
Another difference is that while existing section 74 authorises
an authorised officer, and a person assisting the officer, to use necessary and
reasonable force against things in executing a warrant, there is no equivalent
authorisation in the amended provisions. Additionally, while the TEQSA Act
currently provides that a person is not excused from answering a question or
producing a document on the grounds of self-incrimination, this provision is
repealed by the Bill and the RPA preserves the privilege against
self-incrimination.[130]
Commentary
CISA expressed concern about the repeal of section 74 of
the TEQSA Act. It noted that TEQSA would still be able to use force
against things if monitoring or investigating compliance with the ESOS Act.
It recommended the Committee should consider (or seek) the views of the
regulators regarding the potential impact of the amendment.[131]
Schedule 6—Tobacco Advertising
Prohibition Act
Schedule 6 amends the Tobacco Advertising
Prohibition Act 1992 (Cth) (TAP Act) to trigger monitoring,
investigation and enforcement powers under the RPA.
Commencement
Part 1 commences on the earlier of Proclamation or six
months after Royal Assent.
Part 2 commences on the later of:
- immediately
after the commencement of Part 1 and
- immediately
after the commencement of the FCFC Act (as discussed above, the Bill for
which is currently before Parliament).
However, its commencement is contingent on the
commencement of the FCFC Act.[132]
Current regulatory scheme
The TAP Act bans the broadcast and publication
(including the electronic publication) of tobacco advertisements, with some
limited exceptions. Contravention of these provisions is an offence punishable
by a maximum of:
- 120
penalty units in the case of a person ($26,640)[133]
or
- 600
penalty units in the case of a corporation ($133,200).[134]
However, the Act does not currently contain any regulatory
powers. In respect of enforcing the Act, the Department of Health states:
Most people willingly comply with the Act. The Government
takes breaches of the Act seriously. The Department of Health investigates
reported breaches.
If the Department considers that a potential breach has
occurred, it has the option of referring the matter to the Australian Federal
Police who may, in turn, refer the matter to the Commonwealth Director of
Public Prosecutions.[135]
The Cancer Council Victoria has stated:
As most violations and suspected violations of the Tobacco
Advertising Prohibition Act 1992 (TAP Act) have not resulted in prosecution
it is difficult to assess the extent to which the Act is being violated and
enforced. […] annual reports on contraventions of the TAP Act contain limited
information on prosecutions only. It is also uncommon for complaints to result
in a prosecution. This is because the Department of Health and Ageing
investigates every complaint and is usually able to have any potential breaches
to the TAP Act removed within a short time frame.[136]
Amendments
Item 2 of Schedule 6 inserts proposed
Part 3A into the TAP Act. This triggers the following Parts of the RPA:
- monitoring
powers under Part 2, in respect of an offence against the TAP Act or a
related offence under the Crimes Act 1914 or Criminal Code (proposed
section 25B)
- investigation
powers under Part 3, in respect of an offence against the TAP Act or a
related offence under the Crimes Act 1914 or Criminal Code (proposed
section 25C)
- provisions
relating to enforceable undertakings under Part 6, in respect of an offence
against the TAP Act (proposed section 25E) and
- provisions
relating to injunctions under Part 7, in respect of an offence against the TAP
Act (proposed section 25F).
The Department of Health is responsible for exercising
these powers and functions, with the Secretary and (in some cases) SES
employees of the Department authorised to apply for monitoring and
investigation warrants, accept and seek to enforce written undertakings, and apply
for injunctions.[137]
The Secretary may appoint authorised officers for the purposes of
carrying out many of the monitoring and investigation powers provided for under
the RPA, including entry, search and seizure powers. Such persons must
be federal public servants or members of the AFP, and the Secretary must be
satisfied they have suitable qualifications, training or experience.[138]
Proposed section 25D modifies the investigation
powers under Part 3 of the RPA to provide that evidential material seized
pursuant to an investigation warrant must be returned after no later than 90
days (rather than 60 days provided for in the RPA).[139]
The Secretary (as the relevant chief executive for the purposes of these powers)[140]
may apply to a magistrate for an order permitting retention of such evidential
material if proceedings in respect of which the thing may afford evidence have
not commenced before the end of 90 days after seizure (rather than 60 days as
specified in the RPA), unless an alternative period was previously
specified by a magistrate.[141]
Schedule 7—Tobacco Plain Packaging
Act 2011
Schedule 7 amends the Tobacco Plain
Packaging Act 2011 (Cth) (TPP Act) to trigger monitoring and
enforcement powers of the RPA, and make minor modifications to the RPA’s
investigation powers already triggered under the Act.
Commencement
Part 1 commences on the earlier of Proclamation six
months after Royal Assent.
Part 2 commences on the later of:
- immediately
after the commencement of Part 1 and
- immediately
after the commencement of the FCFC Act (as discussed above, the Bill for
which is currently before Parliament).
However, its commencement is contingent on the
commencement of the FCFC Act.[142]
Current regulatory scheme
The TPP Act sets out requirements for the retail
packaging and appearance of tobacco products. It creates criminal offences and
civil penalties for manufacturing, packaging, supplying, selling, or purchasing
non-compliant tobacco products or tobacco products in non-compliant packaging.
Chapter 4 of the TPP Act currently triggers the application
of the investigation powers under Part 3 of the RPA, with some
modifications, for the investigation of possible contraventions of the plain
packaging laws. The Secretary of the Department of Health may appoint persons
as ‘authorised officers’ for the purpose of carrying out these functions and
powers.[143]
Chapter 5 of the TPP Act triggers the powers under
the RPA in relation to enforcing civil penalties (Part 4 of the RPA)
and the issuing of infringement notices imposing a pecuniary penalty as an
alternative to prosecution (Part 5 of the RPA).
The Department provides the following explanation of its
enforcement policy:
Not every contravention of the TPP legislation must be
prosecuted, or attract an enforcement outcome. A range of compliance and
enforcement options are available, including:
- communication, information and education;
- notice of alleged non-compliance;
- written warning;
- infringement notice;
- civil penalty; and
- criminal prosecution.
[…] The Tobacco Plain Packaging Enforcement Committee
(Enforcement Committee) has been established, comprising representatives from
the Department and the National Measurement Institute (NMI).
The NMI, through its authorised officers, undertake
compliance and enforcement activities across Australia on the Department’s
behalf and report potential contraventions to the Enforcement Committee.
The Enforcement Committee considers NMI’s field visit
reports, and decide what actions, if any, should be taken in relation to
potential contraventions of the TPP legislation. The Enforcement Committee may
recommend compliance action through use of administrative mechanisms […] , or
recommend to the Department that consideration be given to the commencement of
civil or criminal proceedings […]. Where the Enforcement Committee considers
that more serious action should be taken, the Committee will recommend that
action to the appropriate decision maker.[144]
Amendments
Additional RPA powers
In addition to the existing RPA powers which have
been triggered in respect of the TPP Act, the amendments made by Schedule
7 trigger:
- monitoring
powers under Part 2 of the RPA, in relation to an offence or civil
penalty provision of the TPP Act or a related offence in the Crimes
Act 1914 or Criminal Code[145]
- provisions
relating to enforceable undertakings under Part 6 of the RPA, in
relation to an offence or civil penalty provision of the TPP Act[146]
and
- provisions
relating to injunctions under Part 7 of the RPA, in relation to an
offence or civil penalty provision of the TPP Act.[147]
The monitoring powers under Part 2 of the RPA are
modified in their application to the TPP Act, to:
- include
additional powers to take, test and analyse samples of any thing on premises
entered under Part 2[148]
- permit
an authorised person, and a person assisting the authorised person, to use such
force against things as is necessary and reasonable in the circumstances[149]
and
- provide
that subsection 17(1) of the RPA, which preserves the privilege against
self-incrimination, does not excuse a person from answering a question or
producing a document, as required by an authorised person who has entered
premises by consent or pursuant to a monitoring warrant. [150]
Changes to existing powers
While subsections 52(10) and (11) currently modify the
application of the RPA’s investigation powers to include an additional
power to take samples of evidential material from premises entered under Part 3
(either by consent or under an investigation warrant), items 6 and 7
extend this to permit the testing and analysis of such samples. This is in line
with the modified application of Part 2 of the RPA, as discussed above.
Item 8 repeals existing subsections 52(14) and (15),
which modify the privilege against self-incrimination, and substitutes proposed
subsections 52(14), (15) and (15A). The amendments do not substantially
change the effect of the provisions, but clarify that answers given or
documents produced as required by Part 3 of the RPA may be admissible
only in proceedings for an offence against the Criminal Code for
providing false or misleading information or documents, or obstructing a
Commonwealth public official.
Item 9 inserts proposed section 53, which
modifies the investigation powers under Part 3 of the RPA to provide
that evidential material seized pursuant to an investigation warrant must be
returned after no later than 90 days (rather than 60 days provided for in the RPA).[151]
The Secretary may apply to a magistrate for an order permitting retention of
such evidential material if proceedings in respect of which the thing may
afford evidence have not commenced before the end of 90 days after seizure
(rather than 60 days as specified in the RPA), unless an alternative
period was previously specified by a magistrate.[152]