Regulatory Powers (Standardisation Reform) Bill 2020


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:

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]