CHAPTER 2
KEY ISSUES
2.1
While some submissions noted that the Bill may potentially be beneficial
in achieving consistency across regulatory regimes and simplifying the
administration of schemes,[1]
key concerns were also highlighted, including:
- a lack of parliamentary scrutiny where provisions of the Bill are
triggered by regulation; and
- the potential impact of the Bill on the existing powers of agencies.
Scrutiny of regulatory powers granted through regulations
2.2
The need for adequate scrutiny when an agency seeks to trigger the
provisions of the Bill was highlighted by submitters and witnesses.[2]
The Queensland Council for Civil Liberties stated:
[T]he Bill merely creates a framework for other Acts to
adopt. These rightly should be subject to parliamentary scrutiny at the time
they seek to adopt [the Bill].[3]
2.3
In its submission, the Law Council of Australia (Law Council) expressed
concern that the provisions of the Bill may be triggered by regulation:
[Triggering] the Bill's provisions by regulation may dilute
parliamentary scrutiny of precisely what powers are available to an agency in a
specific regulatory context, and limit the opportunity for meaningful
discussion about whether those powers are appropriate in the circumstances.[4]
2.4
At the public hearing, Ms Leonie Campbell of the Law Council indicated
that its concerns were not allayed by the need for the principal Act to contain
an express provision for the regulation-making power:
It is possible to see at the time that parliament is asked to
pass the triggering [A]ct [that there are] circumstances which are not even
envisaged at that point and then the triggering [A]ct leaves open the
regulation making power and then they are dealt with further down the track in
the regulations. That is of concern to us. When we are discussing the kinds of
powers that we are that involve the power to seize materials and search
people's premises and compel answers to questions, we do not think it is
appropriate to leave that up to regulations.[5]
Departmental response
2.5
At the public hearing, an officer of the Attorney-General's Department
(Department) acknowledged that there are different parliamentary processes for
the scrutiny of a principal Act granting regulation-making powers as compared
with regulations which would trigger the provisions of the Bill.[6]
The officer also acknowledged that there 'needs to be clear signalling in head
legislation that particular powers are being enlivened'.[7]
2.6
In relation to the triggering of the provisions of the Bill through
regulation, the officer stated that there would still be the opportunity for
parliamentary scrutiny when the principal Act is amended to include the power
to make the regulations:
[T]he first point of parliamentary scrutiny is the insertion
of that regulation making power, which will have to go before parliament and
potentially come before a committee like this one. I would expect inevitably
there to be a question to say, 'Why are you setting yourself up with a
regulation making power that gives you, or gives the minister, the capacity to
be able to enliven parts of this Regulatory Powers Act without further
reference to parliament? Justify that.' So I think there is a threshold to get
over at that first point as to whether any regulatory agency would be granted
power to make a regulation that would enliven the [Bill] without a proper
explanation as to why that sort of flexibility is needed.[8]
Impact on existing powers
2.7
A number of submissions commented on the impact that the provisions in
the Bill would have on the existing regulatory powers of agencies.[9]
Not compatible with existing powers
2.8
The committee received some evidence that the provisions of the Bill
were not appropriate for the functions of particular agencies.[10]
For example, the Australian Securities and Investments Commission (ASIC) noted
that it 'has a range of powers which it frequently relies upon to carry out its
regulatory and enforcement functions'.[11]
ASIC argued:
[T]he application of the provisions of the Bill to ASIC would
be materially detrimental to ASIC's capacity to carry out its regulatory and
enforcement functions. This is principally because the Bill does not include a
number of important powers presently contained in our legislation that ASIC
frequently relies upon in carrying out surveillance and investigatory
activities including the power to conduct examinations on oath and to serve
notices for the production of documents.[12]
2.9
In a submission to the Parliamentary Joint Committee on Law Enforcement,
the Fair Work Ombudsman (FWO) expressed similar concerns in relation to its
investigation powers:
While the Bill contains provisions broadly similar to the [Fair
Work Act 2009], there are some significant differences which may
impact the FWO's investigative capacity. In particular, the removal of a number
of current powers and penalties may significantly impede the FWO's ability to
regulate the national workplace relations system.[13]
2.10
The Department of Immigration and Citizenship (DIAC) indicated that only
two of the nine regulatory regimes which it administers would be compatible
with the standard provisions contained in the Bill:
Due to a range of factors, [DIAC] is of the view that the
policy intention of the other [seven schemes] could not be accurately captured
by the standard set of provisions contained in the Bill or alternatively, by
including provisions that vary the effect of the Bill.[14]
Departmental response
2.11
The Explanatory Memorandum (EM) clearly states that the Bill would only
apply to regulatory schemes that trigger its provisions through the amendment
of existing legislation or the introduction of new legislation.[15]
At the public hearing, a departmental officer confirmed that there is no
compulsion for agencies to take up the standard provisions.[16]
2.12
The EM also states:
In some cases the powers contained in this Bill will not be
appropriate and/or sufficient for some regulatory agencies requirements. For
example, law enforcement agencies that deal with national security will still
require their own specialised powers. Similarly, some regulatory agencies may
have specific requirements not met in this Bill and consequently may decide to
not trigger the Bill's provisions.[17]
2.13
The departmental officer responded to concerns in submissions that the
Bill may result in a diminution of an agency's existing powers:
Certainly there are agencies which have more expansive powers
than are included in this bill – and they have been able to justify that
through the parliamentary process because of the unique environment of their
particular regulatory scheme. Those agencies would be looking to retain those
powers. They would need to continue to justify them, as they have to now. But
we would not expect them, necessarily, to step back unless there were a proper
regulatory reason to do so.[18]
Augmentation of existing powers
2.14
In a joint submission, the Police Federation of Australia and the
Australian Federal Police Association expressed concern that the Bill 'grants
broad, police-like powers in circumstances which may not be appropriate and
[which] lack extensive oversight'.[19]
2.15
In a similar vein, the Law Council argued that agencies would resist any
perceived diminution of existing powers and embrace the possibility of new or
expanded powers.[20]
At the public hearing, Ms Campbell argued that the operation of the Bill could
result in agencies being granted additional and unnecessary powers:
[B]ecause [of] the way that [the Bill] operates [an agency
needs] to trigger a whole part to have effect. So, if you are an agency and you
have a need, for example, to search premises, that would fall under either the
monitoring part of the bill [or] the investigatory powers. But what would come
with that is a whole swathe of powers that you did not necessarily need, and
that is quite concerning. You would also wind up with the power to question
people and compel answers to those questions [or] to seize property,
potentially.[21]
2.16
Ms Campbell emphasised the risk that, if this augmentation of existing
powers were to happen, the Bill may have the opposite effect to its intention:
Rather than resulting in clearer, streamlined legislation,
existing legislation may be largely preserved but augmented with certain
provisions of the bill. Operational officers would then need to consult
multiple instruments for the source of their powers. This potential for
complexity and confusion to occur as a result of the bill has been highlighted
by some agency submissions, as well as in the Law Council's own examination of
some of the existing legislation which governs regulatory agencies. If agencies
do not have sufficient resources to review existing legislation properly in
light of the bill, it considers that this kind of outcome is more probable.[22]
Departmental response
2.17
The Department's submission specifically addressed the argument that
agencies may use the Bill to augment existing powers:
The provisions in the Bill cannot alone augment an agency's
powers without deliberate consideration about the context in which the powers
would be used – by the agency, its policy department, scrutinizing agencies and
Parliament. The Bill will only apply where another primary Act triggers its
provisions.[23]
2.18
At the public hearing, a departmental officer also responded to the
concern that the Bill would result in agencies being granted 'police-like'
powers:
[T]hese are not designed to be police-like powers. There are
analogies to police powers but they are regulatory powers. These are low level
regulatory arrangements, particularly around enforceable undertakings and civil
penalties and those sorts of things. The search and entry powers are more
serious but they are not police powers in that sense.[24]
2.19
The officer also stated that agencies would not be able to 'cherry pick'
provisions from the Bill, or make a 'bespoke arrangement' without justifying
those powers through the parliamentary process.[25]
2.20
The departmental officer responded to the concerns that the Bill may not
result in clearer, streamlined legislation:
Certainly people may need to open two statutes and read them
together in order to be able to trace through the powers of that agency...
[However, we] think that you would need to [refer to the
regulations] fairly rarely. I think the main case will be legislation.
But, if people need to trace through that, note that they do so to an extent
now – all of the current regulatory regimes require you to read the head [A]ct
and the regulations and other procedures together to get a complete
understanding of the way they work...
Balanced against that we would say that, to the extent the
[Bill] increases the consistency of particular sets of powers across the
statute books...that greater familiarity and that greater consistency enhances
people's ability to understand what the regulatory scheme is doing, what people's
obligations are and how to interact with the regulatory scheme.[26]
2.21
In terms of promoting consistency, the officer also advised:
It will be consistent in the sense that this facility is
available for new powers coming forward. It is consistent with the standard
drafting practice of the Office of Parliamentary Counsel now, so if an agency
comes forward and asks for provisions to do with civil penalties, they will get
what is in the bill right now.[27]
Committee view
2.22
The committee notes that the aim of the Bill is to simplify the law in
terms of the regulatory regimes administered by Commonwealth agencies. The committee
understands that the Bill, in and of itself, will not grant agencies any
powers, and further, that there may be efficiency in having a bill of general
application setting out standard regulatory powers for Commonwealth agencies.
2.23
However, the committee is extremely concerned at the wide range of
agencies and circumstances in which the Bill's powers appear to be able to be
applied.[28]
In the committee's view, there will clearly need to be comprehensive
parliamentary scrutiny whenever an agency seeks to adopt the powers in the Bill
to ensure that the powers are appropriate for the particular context in which
they are sought to be utilised.
Regulatory powers granted through
regulation
2.24
The committee has significant concerns that the Bill provides for
monitoring, investigation and enforcement powers to be triggered by regulation.
In particular, the committee agrees that coercive powers, such as those which would
enable an 'authorised person'[29]
to enter and search premises and seize property, should only be granted when
'necessary, reasonable and proportionate to a legitimate purpose, having regard
to the specific circumstances'.[30]
2.25
The Department's submission refers to the triggering process being
'designed to ensure that the parliament will continue to scrutinise the
granting of regulatory powers to agencies'.[31]
In the committee's view, this statement does not accurately reflect that the
type of scrutiny will depend on the mechanism by which the provisions of the
Bill are triggered – that is, by primary legislation or by regulation.
2.26
As a departmental officer conceded in evidence, there are 'different
processes'[32]
for the scrutiny of primary legislation and for delegated legislation. The
committee notes the work of the Senate Standing Committee on Regulations and
Ordinances in scrutinising delegated legislation, and the fact that regulations
may be disallowed; however, the committee is also mindful that the level of
parliamentary scrutiny of delegated legislation is generally not the same as in
relation to bills.
2.27
The committee was also told by a departmental officer that there will be
opportunity for scrutiny of any regulation-making power at the time it is introduced
into the principal Act, and such a bill would 'potentially' come before a
parliamentary committee for consideration and examination.[33]
However, there is no guarantee that such a bill will, in fact, be examined by a
committee. Therefore, there is always the risk that a regulation-making power
may be passed by the parliament without the parliament being fully aware of its
implications, or having the opportunity to consider in detail whether the grant
of the powers is appropriate. In the committee's view, this is simply not
adequate.
2.28
Further, the committee notes that the 'Draft Drafting Directions 2012,
No. 3.5A – Regulatory Powers' also provide for a 'Henry VIII' clause to be
inserted into triggering Acts which will allow for regulations to 'modify the Regulatory
Powers (Standard Provisions) Act 2012 as it applies in relation to a
regulation'.[34]
The committee reiterates the concerns it has expressed previously regarding the
undesirability of Henry VIII clauses in legislation.[35]
In the context of the Bill and its already expansive powers, the committee
considers it entirely inappropriate that Drafting Instructions explicitly allow
for any regulations made pursuant to a triggering of the Bill (as an Act) to modify,
and potentially further extend, powers to a particular agency – powers that
could go beyond the scope of the powers included in the Bill itself.
2.29
Given the nature of the powers provided for in the Bill, coupled with
the potential for agencies to also modify those specific powers in the absence
of detailed parliamentary scrutiny, the committee expresses its strong view
that the provisions of the Bill should not be triggered by regulation.
Accordingly, the committee is recommending that the Bill's regulation-making
powers in relation to triggering the Bill's provisions should be removed in their
entirety before the Bill proceeds.
Scrutiny of bills seeking to
trigger the Bill's provisions
2.30
In the case of any future primary legislation seeking to trigger provisions
of the Bill, the committee believes that close parliamentary scrutiny of such
legislation will be of paramount importance. The committee therefore would
expect that where a bill is introduced into the parliament which provides for
the triggering of provisions of the Bill, this will be explicitly stated in the
Explanatory Memorandum to that bill. The committee would also expect that the
relevant bill's Explanatory Memorandum would set out the agency's current
powers, how those compare to the standard regulatory powers which the agency
wishes to trigger, and a detailed justification for any expansion in that
agency's powers.
2.31
The committee notes evidence from the Department that the measures in
the Bill have been used as a model for regulatory regimes in legislation for
the past 18 months.[36]
According to the Department, there are three Bills currently before the
parliament – the Agricultural and Veterinary Chemicals Legislation Amendment
Bill 2012, the Australian Sports Anti-Doping Authority Amendment Bill 2013 and
the Biosecurity Bill 2012 – which include provisions based on the model in the
Bill. The Biosecurity Bill 2012 contains provisions dealing with all matters included
in the Bill.[37]
Existing Acts which incorporate aspects
of the Bill
2.32
In addition, evidence to the committee from the Department indicates
that a further 15 Acts have been passed by the parliament which include
provisions based on the model in the Bill.[38]
This is despite the fact that the Bill had not yet been introduced, considered
or passed by the parliament. According to the Department, some of these Acts,
such as the National Gambling Reform Act 2012 and the Greenhouse and
Energy Minimum Standards Act 2012, 'include provisions dealing with all of
the matters dealt with in the [Bill]...[T]he other Acts include provisions based
on parts of the model in the [Bill], such as the civil penalty provisions'.[39]
2.33
In the committee's view, the Australian Government should review the
three bills currently before the parliament, and the 15 Acts identified by the
Department as containing provisions modelled on the Bill, to identify all cases
where the legislation contains scope for regulations to provide regulatory
powers to an agency which are analogous to those in the Bill. The committee
recommends that any relevant legislation should be amended so that all
regulatory powers are contained in the principal Act and not by way of
regulation.
Impact on existing powers
2.34
According to the Department's evidence, it is a matter for each agency
to determine which, if any, of the provisions of the Bill they will trigger and
there is no compulsion for agencies to trigger any of the provisions in the
Bill.[40]
Further, the committee notes that, where an agency has already justified more
expansive powers to the parliament, and continues to justify those powers,
there will be no reason for that agency to adopt more restrictive powers
contained in the Bill.[41]
On this basis, it is the committee's view that the Bill will not impact on and,
particularly, will not result in the diminution of, existing powers that an
agency has, unless the agency chooses to adopt the standard powers in the Bill.
2.35
As a final point, the committee expresses its 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 to
government and to the parliament. In this context, the committee reiterates
that the need for parliamentary scrutiny will remain of utmost importance.
Recommendation 1
2.36
The committee recommends that the Regulatory Powers (Standard
Provisions) Bill 2012 be amended to remove the power to trigger the provisions
of the bill by regulation.
Recommendation 2
2.37
The committee recommends that the Explanatory Memorandum to the
Regulatory Powers (Standard Provisions) Bill 2012 be revised and reissued to stipulate
that each time a bill is introduced into the parliament that provides for the
triggering of the provisions in the Regulatory Powers (Standard Provisions)
Bill 2012, this must be explicitly articulated and explained in the Explanatory Memorandum
to the relevant bill.
Recommendation 3
2.38
The committee recommends that, in future, each time a bill is introduced
into the parliament which seeks to trigger the provisions of the Regulatory
Powers (Standard Provisions) Bill 2012, the Explanatory Memorandum to that bill
must clearly set out the relevant agency's current regulatory powers, a
comparison with the powers in the Regulatory Powers (Standard Provisions)
Bill 2012 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.
Recommendation 4
2.39
The committee recommends that the three bills currently before the
parliament and the 15 Acts passed by the parliament, identified by the
Attorney-General's Department in its answers to questions on notice to the
inquiry, be reviewed. Where the legislation contains scope for regulations to
provide regulatory powers to an agency which are analogous to those in the
Regulatory Powers (Standard Provisions) Bill 2012, the committee recommends
that the legislation be amended so that the provisions are contained in the
principal Act.
Recommendation 5
2.40
Subject to Recommendations 1 and 2, the committee recommends that the
Bill be passed.
Senator
Trish Crossin
Chair
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