CHAPTER 1


CHAPTER 1

INTRODUCTION

Referral of inquiry

1.1        On 10 October 2012, the then Attorney-General, the Hon Nicola Roxon MP, introduced the Regulatory Powers (Standard Provisions) Bill 2012 (Bill) into the House of Representatives.[1]

1.2        On 28 November 2012, the Senate referred the provisions of the Bill to the Senate Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 18 March 2013.[2]

Background to inquiry

1.3        The committee was originally referred the Bill on 11 October 2012, for inquiry and report by 29 November 2012.[3] On the same day, the House of Representatives referred the Bill to the Parliamentary Joint Committee on Law Enforcement (PJC–LE) for inquiry and report.[4]

1.4        On 23 October 2012, the committee tabled a one-page report, in which it stated that it would not duplicate the work of the PJC–LE by calling for submissions or conducting its own inquiry in relation to the Bill.[5]

1.5        On 28 November 2012, the PJC–LE tabled a report which stated that the Bill 'raises issues...which merit close consideration'[6] and that 'these matters would be best considered by the Senate Legal and Constitutional Affairs Legislation Committee'.[7] The Senate adopted the recommendation of the PJC–LE to re-refer the Bill to the committee on the same day.[8]

Purpose of the Bill

1.6        In her second reading speech, the former Attorney-General explained the two main aims of the Bill:

[First], to reduce the length of the statute book, as provisions relating to the enforcement of a regulatory regime can easily add 30 pages to an [A]ct.

[Second], the bill will provide greater clarity to those agencies that use regulatory powers. It will make the law easier to understand for Australians and Australian businesses that are the subject of a regulatory regime.[9]

1.7        The former Attorney-General noted that the Bill is an initiative of the Clearer Laws project, which is 'designed to increase access to justice and improve the accessibility, equity, efficiency and effectiveness of the federal justice system by simplifying and streamlining the statue book'.[10]

Key provisions of the Bill

1.8        The Explanatory Memorandum (EM) explains the operation of the Bill:

[The Bill] provides for a framework of standard regulatory powers exercised by agencies across the Commonwealth. The Bill would only apply to regulatory schemes that trigger its provisions through amendment of existing legislation or the introduction of new legislation. The key features of the Bill include monitoring and investigation powers as well as enforcement provisions through use of civil penalty, infringement notices, enforceable undertakings and injunctions.[11]

1.9        The provisions of the Bill may be triggered by regulation 'only if another Act gives power for the legislative instrument to make [such] provision'.[12] In its submission, the Attorney-General's Department stated 'the 'triggering' process is designed to ensure that the Parliament will continue to scrutinise the granting of regulatory powers to agencies'.[13]

Monitoring and investigation powers

1.10      The EM states that the monitoring and investigation powers contained in the Bill (Parts 2 and 3, respectively) are based on standard powers already found in Commonwealth legislation.[14]

1.11      Part 2 of the Bill sets out a framework for monitoring whether provisions of an Act or legislative instrument have been, or are being, complied with; and for monitoring whether information given in compliance, or purported compliance, with the provisions of an Act or legislative instrument is correct.[15]

1.12      The general monitoring powers in the Bill (clause 20), include the power to:

  • search premises and any thing on those premises;
  • examine or observe any activity conducted on the premises; and
  • inspect, examine, take measurements of, or conduct tests on any thing on the premises.[16]

1.13      Part 3 of the Bill (Investigations) sets out a framework for gathering evidence that relates to contravention of offences and civil penalty provisions.[17]

1.14      The general investigation power in the Bill (clause 50) provides for the power to search premises if entry to the premises is with the occupier's consent, and the power to search the premises and seize evidential material if entry to the premises is under an investigation warrant.[18]

1.15      There are also additional monitoring and investigation powers in Parts 2 and 3 for operating electronic equipment and securing electronic equipment to obtain expert assistance (clauses 21 and 22 (monitoring) and clauses 51 and 52 (investigation)).

1.16      In relation to the power to operate electronic equipment for monitoring, the EM states:

This power is necessary to ensure an authorised person can obtain access to electronic records that may indicate whether the Act or regulation is being complied with or whether information provided under the Act or regulation is correct.[19]

1.17      In relation to clause 51 – the power to operate electronic equipment in the investigation powers – the EM states the provision is to 'ensure an authorised person is able to obtain access to electronic records that may contain evidential material'.[20]

1.18      The EM contains the following explanation for clauses 22 and 52, which deal with securing electronic equipment to obtain expert evidence:

As an authorised person may not be accompanied by an expert assistant when exercising monitoring powers, clause 22 [and clause 52] permits an authorised person to secure equipment for up to 24 hours...in order to engage assistance.[21]

Enforcement provisions

1.19      The Bill contains the following enforcement provisions:

  • civil penalty provisions (Part 4);
  • infringement notices (Part 5);
  • enforceable undertakings (Part 6); and
  • injunctions (Part 7).

Conduct of the inquiry

1.20      The committee advertised the inquiry in The Australian on 5 December 2012. Details of the inquiry, including links to the Bill and associated documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon. The committee also wrote to approximately 70 organisations and individuals, inviting submissions by 25 January 2013. Submissions continued to be accepted after that date.

1.21      The committee received six submissions, which are listed at Appendix 1. All submissions were published on the committee's website. The committee also received four submissions which had been made to the PJC–LE's inquiry on the Bill. The committee considered these submissions as additional information.

1.22      The committee held a public hearing on 26 February 2013 at Parliament House in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is available through the committee's website.

Acknowledgement

1.23      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.24      References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

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