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Regulatory Powers (Standard Provisions)
Bill 2014
Portfolio: Attorney-General
Introduced: House
of Representatives, 20 March 2014 Summary of committee concerns
1.1
The committee notes that this bill has been re-introduced as a result of
the lapsing of the Regulatory Powers (Standard Provisions) Bill 2012 (the 2012
Bill) at the end of the 43rd Parliament.
1.2
The committee notes and welcomes the two main changes between the 2012
bill and the current bill, including the removal of the ability of the
provisions of the bill to be triggered by regulation and the inclusion of
explicit protection for the privilege against self-incrimination and legal professional
privilege.
1.3
The committee re-iterates its previous conclusion in relation to the
2012 bill that a final assessment of the compatibility of the application of
the standard provisions in the bill to a specific regulatory scheme will need
to be made in the context of that particular bill. Overview
1.4
This bill seeks to establish a framework of standard regulatory powers
exercised by Commonwealth agencies. The bill does not itself grant agencies any
powers, but must be triggered by another Commonwealth Act which expressly
applies the relevant provisions and specifies other requisite information, such
as the persons who are authorised to exercise the applicable powers.
1.5
The new framework provides for monitoring and investigation powers that
are designed to be used by an agency to determine compliance with provisions of
the triggering legislation. The bill also provides for the use of civil
penalties, infringement notices and injunctions to enforce provisions and the
acceptance and enforcement of undertakings relating to compliance with
provisions.
1.6
The explanatory memorandum accompanying the bill notes that, once
enacted, new Acts that require monitoring, investigation or enforcement powers
will be drafted to trigger the relevant provisions of the bill. Further, over
time, existing regulatory schemes will be reviewed and, if appropriate, amended
to instead trigger the relevant provisions of the bill.[1] Compatibility with human rights
Previous consideration by the
committee
1.7
The committee considered the 2012 bill in its Sixth Report of 2012.[2]
The committee noted that the statement of compatibility accompanying the bill
did not appear to meet the committee's expectations as it did not provide
sufficient detail about the operation of the individual provisions and how these
may impact on human rights. The committee wrote to the then Attorney-General to
seek further clarification on how the specific entry, monitoring, search,
seizure and information gathering powers in the bill are likely to impact on
the right to privacy. The committee also considered that the creation of the
infringement notice scheme was unlikely to raise issues of inconsistency with
the right to a fair hearing and trial.
1.8
The committee considered the response of the then Attorney-General in
its Tenth Report of 2013.[3]
The committee thanked the Attorney-General for his response. The committee
noted that the nature of the legislation was that some or all of its provisions
must be triggered by another bill applying selected provisions to the operation
of that regulatory scheme. Accordingly, the committee shared the
Attorney-General's view that a final assessment of the compatibility of a
specific application of the standard provisions will need to be made in the
context of a particular bill.[4]
In particular, the committee noted that the bill contained a number of civil
penalty provisions and that an assessment of whether a particular civil penalty
should be classified as 'criminal' for the purposes of human rights law will
only be able to be made in the context of the particular regime to which it is
applied.
Statement of compatibility
1.9
The statement of compatibility accompanying the bill emphasises that the
human rights implications of the bill will differ in each circumstance where
the framework contained in this bill is triggered in relation to a particular
regulator scheme. It notes that further consideration will need to be given to
these implications each time a bill proposes to apply parts of this bill. However,
the statement identifies that the bill in and of itself engages the right to
privacy[5]
and the right to a fair trial.[6]
1.10
The committee notes that the statement of compatibility contains a
considerable amount of additional detail in relation to the operation of the
provisions of the bill and their impact on human rights as compared to the
statement of compatibility accompanying the 2012 bill.
1.11
The committee expresses its appreciation to the Attorney-General
for ensuring that the statement of compatibility complies with the committee's
expectation that, where the committee has raised concerns in relation to a
statement of compatibility or measures in a bill, any subsequent
re-introduction of the same or substantially the same measures is accompanied
by a statement of compatibility addressing the committee's previously
identified concerns.[7]
Committee view on compatibility
1.12
The committee notes that this bill largely replicates the 2012 bill,
with two main exceptions.
1.13
Firstly, the 2012 bill enabled the standard provisions in the bill to
apply to a particular regulatory scheme by way of regulation. The current bill
before the committee has been amended to remove this power. Accordingly, the
provisions of the bill must be triggered through primary legislation.[8]
The explanatory memorandum accompanying the bill states that:
This will mean that any future legislation that proposes to
trigger provisions in this Bill will be introduced and scrutinised by
Parliament. An assessment of human rights engagement and compatibility will
need to be undertaken in the context of each regulatory scheme and the
particular provisions of this Bill that have been triggered. The Explanatory
Memorandum to each Bill should clearly set out the relevant agency’s current
regulatory powers, a comparison with the powers in the Regulatory Powers Bill
that will be triggered, and in the case of any expansion of the agency’s
powers, a detailed explanation of the reasons for the expansion of powers.[9]
1.14
The committee welcomes this requirement and considers that it
will result in better and more informed parliamentary scrutiny of the human
rights implications of the application of the framework provisions of the bill
to particular legislative schemes.
1.15
Secondly, the current bill before the committee includes explicit
protection of the privilege against self-incrimination and legal professional
privilege. Accordingly, these protections will be afforded with respect to the
wide range of regulatory schemes to which the provisions of the bill may be
applied.
1.16
The committee welcomes these additions and considers that the
additional provisions further promote the right to a fair trial.[10]
1.17
The committee re-iterates its previous conclusion in relation to the
2012 bill that a final assessment of the compatibility of a specific
application of the standard provisions will need to be made in the context of a
particular triggering bill.
1.18
The committee notes it is unable to conclude that the measures in
this bill are compatible with human rights until such an assessment occurs in
relation to the specific scheme to which the provisions of the bill are
applied.
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