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2013-2014-2015-2016 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA SENATE REGULATORY POWERS (STANDARDISATION REFORM) BILL 2016 EXPLANATORY MEMORANDUM (Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)REGULATORY POWERS (STANDARDISATION REFORM) BILL 2016 GENERAL OUTLINE 1. The Regulatory Powers (Standardisation Reform) Bill 2016 (the Bill) makes amendments to 15 Commonwealth Acts in order to implement the Regulatory Powers Act (Standard Provisions) Act 2014 (the 'Regulatory Powers Act'). The Regulatory Powers Act provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions. 2. The Regulatory Powers Act received Royal Assent on 21 July 2014 and commenced on 1 October 2014. The Regulatory Powers Act only has effect where Commonwealth Acts are drafted or amended to trigger its provisions. 3. The Bill amends the following Commonwealth Acts to repeal current provisions providing for regulatory regimes in those Acts, and instead trigger the standard provisions of the Regulatory Powers Act: the Australian Sports Anti-Doping Authority Act 2006 (the 'ASADA Act') the Building Energy Efficiency Disclosure Act 2010 (the 'BEED Act') the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the 'Administration Act') the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (the 'Payroll Levy Collection Act') the Defence Act 1903 the Defence Reserve Service (Protection) Act 2001 the Greenhouse and Energy Minimum Standards Act 2012 (the 'GEMS Act') the Horse Disease Response Levy Collection Act 2011 (the 'Horse Disease Act') the Illegal Logging Prohibition Act 2012 (the 'Illegal Logging Act') the Industrial Chemicals (Notification and Assessment) Act 1989 (the 'ICNA Act') the Paid Parental Leave Act 2010 (the 'PPL Act') the Personal Property Securities Act 2009 (the 'PPS Act') the Privacy Act 1988 the Tobacco Plain Packaging Act 2011 (the 'TPP Act'), and the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (the 'WMD Act'). 4. Implementing the Regulating Powers Act will support the government's regulatory reform agenda as it intends to simplify and streamline Commonwealth regulatory powers across the statute book. This will provide regulatory agencies with the opportunity to use more uniform powers, and increase legal certainty for businesses and individuals who are subject to those powers. 5. The Bill also makes minor amendments to the Regulatory Powers Act to clarify the operation of certain provisions and remove unreasonable administrative burdens on agencies exercising regulatory powers under the Regulatory Powers Act. The amendments concern the ability to secure evidence of a contravention when exercising monitoring powers, the age of photographs for identity cards, the time period for the making of a civil penalty order and the cap on the amount to be stated in an infringement notice. 2
6. The Bill seeks to align the 15 Commonwealth Acts with the standard provisions of the Regulatory Powers Act. Accordingly, there are minor changes to those Acts. In most instances, the changes are minor, technical changes that modernise drafting terminology. In some circumstances, the changes result in a minor expansion to existing regulatory powers of those Acts. Where necessary, the Bill modifies the operation of the standard provisions of the Regulatory Powers Act to retain existing powers in those Acts. FINANCIAL IMPACT 7. This Bill will have a nil or insignificant financial impact on government departments and agencies, as the amendments generally do not alter the effect of the law. 3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Regulatory Powers (Deregulation) Bill 2016 8. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill 9. This Bill makes amendments to 15 Commonwealth Acts in order to implement the Regulatory Powers Act. The Regulatory Powers Act received Royal Assent on 21 July 2014 and commenced on 1 October 2014. The Regulatory Powers Act only has effect where Commonwealth Acts are drafted or amended to trigger its provisions. 10. The purpose of this Bill is to amend various Commonwealth Acts to repeal current provisions providing for regulatory regimes in those Acts, and instead trigger the standard provisions of the Regulatory Powers Act. The purpose of this standardisation is to simplify and streamline Commonwealth regulatory powers across the statute book. 11. The Bill also makes minor amendments to the Regulatory Powers Act. 12. As noted by the Parliamentary Joint Committee on Human Rights in its consideration of the Regulatory Powers (Standard Provisions) Bill 2014, it is necessary to consider the human rights impact in the specific context of each legislative regime that triggers the Regulatory Powers Act. Accordingly, the human rights impact is considered separately for each of the Acts to be amended by this Bill. Overview of Schedule 1 - Regulatory Powers (Standard Provisions) Act 13. The Regulatory Powers Act provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions. Schedule 1 to this Bill amends the Regulatory Powers Act to clarify the operation of certain provisions and to also remove unreasonable administrative burdens on agencies exercising regulatory powers under the Regulatory Powers Act. Human rights implications Right to privacy 14. Schedule 1 to this Bill amends section 22 of the Regulatory Powers Act, which relates to securing evidence of a contravention in the context of exercising monitoring powers. Current paragraph 22(1)(a) of the Regulatory Powers Act provides that the monitoring powers provided by Part 2 of that Act include the power to secure a thing for a period not exceeding 24 hours if the thing is found during the exercise of monitoring powers on the premises. However, the effect of current paragraph 22(1)(b) of the Regulatory Powers Act is that an authorised person may only secure things that would demonstrate that a related provision has been, is being or will be contravened. Under section 10 of the Regulatory Powers Act, in the monitoring context, related provisions are provisions which triggering 4
Acts declare to be related to provisions subject to monitoring or information or subject to monitoring. 15. Section 22 of the Regulatory Powers Act does not currently apply to the core provision or provisions in relation to which monitoring powers are being exercised. That section is amended to correct this drafting error by making it clear that the power to secure things applies to both the core provisions in relation to which monitoring powers are being exercised, as well as any related provisions. This would ensure that the power can be exercised in all appropriate circumstances. This is necessary for the purposes of an effective monitoring scheme. 16. New paragraph 22(1)(b) of the Regulatory Powers Act provides that an authorised person may secure a thing where they believe on reasonable grounds that: a provision subject to monitoring, or a related provisions, has been contravened with respect to the thing, or the thing is evidence of a contravention of a provision subject to monitoring or a related provision, or the thing is intended to be used to contravene a provision subject to monitoring or a related provision, or the thing affords evidence that information subject to monitoring is not correct. 17. New section 22 of the Regulatory Powers Act engages the protection against arbitrary or unlawful interference with privacy. Article 17 of the International Covenant on Civil and Political Rights (the 'ICCPR') prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. 18. To the extent that the power to secure things under section 22 of the Regulatory Powers Act may limit the right to privacy, this limitation is provided by law. The power to secure things in the exercise of monitoring powers is necessary to enable collection of evidence of contraventions or intended contraventions. This is necessary for the effective monitoring of compliance with provisions and the correctness of information subject to monitoring under triggering Acts. The exercise of the power is constrained in various ways as set out below, ensuring that its use is not arbitrary. 19. The power cannot be exercised without consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. Where entry is based on the consent of the occupier, consent must be informed and voluntary and the occupier of premises can restrict entry to a particular period. Additional safeguards are provided through provisions requiring authorised persons and any persons assisting them to leave the premises if the occupier withdraws their consent. 5
20. The Regulatory Powers Act also provides constraints on the issuing of a monitoring warrant. For example, an issuing officer may issue a monitoring warrant only when satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised persons have access to the premises for the purpose of determining whether a provision subject to monitoring has been complied with, or information subject to monitoring is correct. An issuing officer must not issue a warrant unless they have been provided, either orally or by affidavit, with such further information as they require (if any) concerning the grounds on which the issue of the warrant is being sought. Such constraints on this power ensure adequate safeguards against arbitrary limitations on the right to privacy in the issuing of warrants. 21. In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse. 22. Further, the power to secure things can only be exercised for 24 hours in specific circumstances set out in section 22 of the Regulatory Powers Act. In addition to the restrictions above, the person must believe on reasonable grounds that it is necessary to secure the thing to prevent it from being concealed, lost or destroyed before a warrant to seize can be obtained, and that the circumstances are so serious and urgent that it is necessary to secure the thing without a warrant. 23. These restrictions on the exercise of the power ensure its use is reasonable, necessary and proportionate to the objectives of the triggering Acts, and also limit its susceptibility to arbitrary use or abuse. Any further human rights implications will need to be assessed in the particular context of triggering Acts. Civil penalties 24. Schedule 1 to this Bill amends section 104 of the Regulatory Powers Act, which provides for matters to be specified in infringement notices, and makes it clear how this section operates when the notice relates to more than one alleged contravention. These amendments complement subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time. 25. Subsection 104(2) of the Regulatory Powers Act, which relates to maximum penalty amounts, is repealed and replaced with new subsection 104(2) of that Act. New subsection 104(2) of the Regulatory Powers Act specifies the maximum penalty where the infringement notice relates to only one alleged contravention. New subsection 104(2) of the Regulatory Powers Act provides that, if the notice relates to only one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act is the lesser of: a. one-fifth of the maximum penalty that a court could impose on the person for that contravention, and b. 12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate. 6
26. This amendment does not alter the current calculation in the Regulatory Powers Act for the maximum penalty for a single contravention, but it makes it clear that the formula only relates to a single contravention. 27. New subsection 104(3) of the Regulatory Powers Act provides a formula for calculating the maximum penalty where more than one alleged contravention is listed in an infringement notice. It provides that the amount to be stated in the notice is the lesser of: a. one-fifth of the amount worked out by adding together the maximum penalty that a court could impose on the person for each alleged contravention, and b. either: i. if the person is an individual--the number of penalty units worked out by multiplying the number of alleged contraventions by 12, or ii. if the person is a body corporate--the number of penalty units worked out by multiplying the number of alleged contraventions by 60. 28. New subsection 104(4) of the Regulatory Powers Act provides that new subsections 104(2) and (3) of that Act do not apply if another Act expressly provides otherwise. Accordingly, these maximum penalty amounts are default amounts that may be displaced by triggering Acts. 29. These amendments to section 104 of the Regulatory Powers Act clarify the maximum penalty amounts and the cap on the maximum penalty for multiple contraventions within a single infringement notice. They do not increase the penalty amounts that can be imposed under the current Regulatory Powers Act. The specific penalties that will apply in a particular regulatory context will depend on the triggering Act. Accordingly, the human rights implications will need to be assessed when triggering Acts are amended to trigger the amended provisions of the Regulatory Powers Act. Conclusion 30. The amendments to the Regulatory Powers Act in Schedule 1 to this Bill are compatible with human rights because, to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate. Overview of Schedule 2 - Australian Sports Anti-Doping Authority Act 2006 31. The Australian Sports Anti-Doping Authority Act 2006 (the 'ASADA Act') establishes the Australian Sports Anti-Doping Authority ('ASADA'), and gives effect to Australia's international anti-doping obligations under the United Nations Educational, Scientific and Cultural Organisation (UNESCO) International Convention against Doping in Sport. Giving effect to these obligations is the legitimate objective of the ASADA Act. Under the Convention, States Parties are required to implement anti-doping arrangements that are consistent with the principles in the World Anti-Doping Code (the 'Code'). The Code is an international agreement that provides the framework for harmonised anti-doping policies, rules and regulations within sporting organisations and governments around the world. 32. ASADA is the Australian Government agency responsible for efforts to eliminate doping in Australian sport, thereby protecting the integrity of sport and the health of those 7
who participate. ASADA implements Code-compliant programmes and activities that encompass engagement (building better relations with stakeholders), deterrence (education and awareness), detection (testing and investigations) and enforcement (management of cases involving possible anti-doping rule violations). 33. Schedule 2 to this Bill amends the ASADA Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the ASADA Act are enforceable under that Part of the Regulatory Powers Act. 34. Under these amendments, the Chief Executive Officer of the ASADA is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the disclosure notice provisions in the ASADA Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined. 35. The ASADA Act is also amended to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable the CEO of the ASADA, or a person authorised by the CEO, to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a civil penalty provision of the ASADA Act has been contravened. 36. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court. Human rights implications Civil penalties and Article 14 37. The ASADA Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 2 to this Bill. However, the amendments in Schedule 2 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the ASADA Act. 38. Triggering the civil penalty provisions of the Regulatory Powers Act could engage criminal process rights if the imposition of civil penalties is classified as 'criminal' under international human rights law. Article 14 of the ICCPR requires that, in the determination of criminal charges, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Various other rights are provided for persons charged with criminal offences. 39. Determining whether penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. 40. The penalty provisions of the ASADA Act expressly classify the penalties as civil penalties. Those provisions create solely pecuniary penalties in the form of a debt payable to 8
the Commonwealth. The purpose of these penalties is to encourage compliance with notices issued under the ASADA Act requiring a person to attend an interview to answer questions, give information or produce documents ('disclosure notices'). The civil penalty provisions of the ASADA Act do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to those who do not fulfil their obligations under a disclosure notice issued under the ASADA Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. 41. The amendments in Schedule 2 do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the ASADA Act, which are 30 penalty units for individuals and 150 penalty units for bodies corporate under subsection 82(5) of the Regulatory Powers Act, as applied to the ASADA Act by Schedule 2. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. The application of this subsection preserves the effect of current subsection 73B(5) of the ASADA Act. The provisions do not carry the possibility of imprisonment. 42. The amendments in Schedule 2 will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment. As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia's human rights obligations. 43. These factors all suggest that the civil penalties imposed by the ASADA Act are civil rather than criminal in nature. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 2. 44. Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the ASADA Act. However, the time period for the making of an application for a civil penalty order will be increased from within 4 years to within 6 years of the alleged contravention, due to the operation of subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill). The change to the time period is a result of alignment with the standard provisions of the Regulatory Powers Act. As the criminal process rights in Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders, the right to be tried without undue delay provided by paragraph 14(3)(c) is not engaged. There are no additional human rights implications beyond those discussed above. Fair hearing rights 45. The amendments relating to civil penalty provisions in Schedule 2 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by 9
Article 14(1) of the ICCPR. The hearing must be by a competent, independent and impartial tribunal established by law. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited. 46. Under the amendments in Schedule 2, infringement notices can also be issued under the Regulatory Powers Act in relation to contraventions of civil penalty provisions of the ASADA Act. This infringement notice mechanism does not apply to offences against the ASADA Act. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged. There are no criminal consequences associated with infringement notice for civil penalty provisions. For example, they do not carry the possibility of imprisonment if the person does not pay the penalty or attend court. 47. Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty order may be brought against them in a court. Accordingly, the person must always be advised of the consequences of not paying the penalty, and of their right to have the matter dealt with by a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is engaged but not limited. Conclusion 48. Schedule 2 to this Bill is compatible with human rights because where it engages human rights, it does not limit those rights. Overview of Schedule 3 - Building and Energy Efficiency Disclosure Act 2010 49. The Building Energy Efficiency Disclosure Act 2010 (the 'BEED Act') established the Commercial Building Disclosure Scheme, which requires disclosure of certain energy efficiency information relating to commercial office buildings in the context of sales and lease transactions. Establishing this national scheme is the legitimate objective of the BEED Act. 50. Schedule 3 to this Bill amends the BEED Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the BEED Act are enforceable under that Part of the Regulatory Powers Act. 51. Under these amendments, the Secretary of the department that administers the BEED Act is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the BEED Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined. 52. The BEED Act is also amended to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable the Secretary to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a civil penalty provision of the BEED Act has been contravened. 10
53. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court. Human rights implications Civil penalties and Article 14 54. The BEED Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 3 to this Bill. However, the amendments in Schedule 3 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act instead of by the BEED Act. 55. Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as 'criminal' under international human rights law. As set out above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. 56. The penalty provisions of the BEED Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the energy efficiency rating and certificate regime of the BEED Act. The civil penalty provisions of the BEED Act do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the BEED Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the BEED Act are civil rather than criminal in nature. 57. The amendments in Schedule 3 also substitute a new subsection 18(7) of the BEED Act. Current paragraph 18(7)(b) of the BEED Act provides for where a person fails to do an act at a particular time. However, section 93 of the Regulatory Powers Act provides for where a person fails to comply with an obligation within a particular period or before a particular time (even if the period has expired or the time has passed). Consequently, section 93 of the Regulatory Powers Act is unable to deal with matters provided for in current paragraph 18(7)(b) of the BEED Act. The amendments make it clear that, where a person or body corporate fails to give access at a day and time required under the notice issued under section 18 of the BEED Act, that person or body corporate will continue to commit a separate contravention of subsection 18(6) of the BEED Act each day after the required day until that person or body corporate complies with the access request. 58. Under section 93 of the Regulatory Powers Act, if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. Section 93 of the Regulatory Powers Act further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is 11
made (or any later day). This provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. 59. The amendments in Schedule 3 do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the BEED Act, which are 1000 penalty units where the contravention is of a requirement under current sections 11 or 15 of the BEED Act, or 200 penalty units for an individual and 500 penalty units for a body corporate where the contravention is of a requirement under current section 18 of the BEED Act (see new subsection 51(6) and new section 52 of the BEED Act). The amendments in Schedule 3 also preserve the penalties for continuing contraventions of sections 11, 15 and 18 of the BEED Act. New section 52 of the BEED Act provides that the penalties must not exceed 100 penalty units per day for continuing contraventions of sections 11 and 15 of the BEED Act. The penalty units for continuing contraventions of section 18 of the BEED Act must not exceed 20 penalty units per day for individuals and 50 penalty units per day for bodies corporate. This preserves the effect of existing subsections 53(5A) to 53(5D) of the BEED Act. 60. Subsection 85(2) of the Regulatory Powers Act provides that for such continuing contraventions the penalty imposed must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each contravention. This preserves the effect of current subsection 53(6) of the BEED Act. The maximum penalties are designed to take into account the cost of complying with the relevant obligations under the BEED Act and to encourage compliance. It is open to a court to exercise its discretion to impose lower penalties. This discretion would be informed by reference to subsection 82(6) of the Regulatory Powers Act, which provides that a court must take into account all relevant matters in determining a pecuniary penalty, including the nature and extent of the contraventions, the loss or damage suffered, the circumstances in which the contraventions took place and whether a court has previously found the person to have engaged in similar conduct. This preserves the effect of section 53(4) of the BEED Act. That subsection also refers to taking into account the extent to which the person has cooperated with authorities. As subsection 82(6) of the Regulatory Powers Act requires a court to take into account all relevant matters, that additional factor could also be considered. 61. The civil penalty provisions of the BEED Act do not carry the consequences of offences under the BEED Act, which would involve a criminal record and imprisonment in some cases. 62. The amendments in Schedule 3 modify the operation of subsection 82(5) of the Regulatory Powers Act, which provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. As noted above, the amendments do not increase the maximum penalties that may be imposed. 63. These civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia's human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 3. 64. The amendments relating to civil penalty provisions in Schedule 3 engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) 12
of the ICCPR. The hearing must be by a competent, independent and impartial tribunal established by law. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited. 65. Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the BEED Act. However, alignment with Regulatory Powers Act will apply additional provisions, which are not currently in the BEED Act, that are merely procedural in nature and set out matters in relation to civil proceedings and criminal proceedings, state of mind, burden of proof and vicarious liability. These are sections 88, 89, 90, 91, 94, 96 and 97 of the Regulatory Powers Act. 66. Sections 88, 89, 94 and 97 of the Regulatory Powers Act relate to the limitations on civil proceedings after criminal proceedings, the stay of civil during criminal proceedings, the relevance of a person's state of mind, and vicarious liability of employees, agents or officers of a body corporate, respectively. These provisions do not do not impact upon criminal proceedings and do not engage the criminal process rights in Article 14 of the ICCPR. 67. Section 90 of the Regulatory Powers Act clarifies that criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against the person in relation to the contravention. This section recognises the importance of criminal proceedings and criminal penalties in dissuading and sanctioning contraventions of the triggering Act, and ensures that criminal remedies are not precluded by earlier civil action. 68. Section 90 of the Regulatory Powers Act engages the process rights in Article 14 of the ICCPR, but does not limit those rights. Article 14(7) of the ICCPR provides that 'no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country'. This prohibition on double jeopardy is a fundamental safeguard in the common law. It means that a person who has been convicted or acquitted of a criminal charge is not to be re-tried for the same or substantially the same offence. 69. As section 90 of the Regulatory Powers Act permits both civil and criminal proceedings, but not multiple criminal proceedings for the same conduct, Article 14(7) of the ICCPR is not infringed. Further, section 88 of the Regulatory Powers Act provides that a court cannot make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention. 13
70. Section 91 of the Regulatory Powers Act provides that evidence of information given, or evidence of the production of documents, by an individual is not admissible in criminal proceedings against the individual if: the individual previously gave the information or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made), and the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention. 71. Section 91 of the Regulatory Powers Act ensures that information or documents produced during civil proceedings are not relied upon to support subsequent criminal proceedings, unless those proceedings are criminal proceedings relating to falsifying evidence in civil proceedings. Accordingly, that section engages, but does not limit, the criminal process rights in Article 14 of the ICCPR. 72. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged. Infringement notices and Article 14 73. Under the amendments in Schedule 3 to this Bill, infringement notices can be issued under the Regulatory Powers Act in relation to contraventions of civil penalty provisions of the BEED Act. This infringement notice mechanism does not apply to offences against the BEED Act. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged. There are no criminal consequences associated with infringement notice for civil penalty provisions. For example, they do not carry the possibility of imprisonment if the person does not pay the penalty or attend court. 74. Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty order may be brought against them in a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is engaged but not limited. 75. Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the BEED Act. However, alignment with the Regulatory Powers Act will result in a narrowing of the scope of current subsection 58(3) of the BEED Act, which allows a single infringement notice to relate to contraventions of two or more civil penalty provisions. Section 103 of the Regulatory Powers Act provides that a single infringement notice must only relate to a single contravention of a single provision, unless a person has committed continuing contraventions of a single provision. In the latter circumstances, a single infringement notice may relate to multiple contraventions of a single provision. The difference between current subsection 58(3) of the BEED Act and section 103 of the 14
Regulatory Powers Act is a minor procedural difference, and does not engage any human rights. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment. 76. New subsection 53(6) of the BEED Act modifies the operation of subsection 103(3) of the Regulatory Powers Act, and provides that an infringement officer may give a person a single infringement notice relating to multiple contraventions of subsection 18(6) of the BEED Act, which are alleged to have occurred because the person failed to give access to a place at a particular day and time specified in a notice issued under subsection 18(4) of the BEED Act, and continued to fail to do so after that day and time. New subsection 53(6) of the BEED Act complements the amendments made to subsection 18(7) of that Act by Schedule 3. 77. The amendments in Schedule 3 also modify the operation of subsections 104(2) and 104(3) of the Regulatory Powers Act, which provide the maximum amount payable under an infringement notice. New subsection 53(7) of the BEED Act provides that for a single contravention, the maximum penalty is one-tenth of the maximum penalty that a court could impose, and for multiple contraventions, one-tenth of the amount worked out by adding together the maximum penalties a court could impose for each contravention. These amendments complement the inclusion of new section 52 of the BEED Act. 78. These modifications preserve the existing maximum penalty for infringement notices under subsection 59(2) of the BEED Act and do not engage human rights. 79. Schedule 3 also preserves the effect of current subsection 61(1) of the BEED Act, which imposes a 28-day time limit for representation to be made for the withdrawal of an infringement notice (see new subsection 53(7) of the BEED Act). This provision does not engage any human rights. Conclusion 80. Schedule 3 to this Bill is compatible with human rights because where it engages human rights, it does not limit those rights. Overview of Schedule 4 - Coal Mining Industry (Long Service Leave) Legislation 81. The Coal Mining Industry (Long Service Leave) Legislation consists of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the 'Administration Act') and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (the 'Payroll Levy Collection Act'). The Administration Act and the Payroll Levy Collection Act collectively provide for a portable long service leave scheme where coal mining industry employers are required to financially contribute to a fund, which contributes to the long service leave entitlements of eligible coal mining industry employees. This primarily occurs through collection of a levy from coal mining industry employers, which is then administered by the Coal Mining Industry (Long Service Leave) Corporation ('the Corporation'). Providing for this scheme is the legitimate objective of the Administration Act and the Payroll Levy Collection Acts. 82. Schedule 4 to this Bill amends the Administration Act and the Payroll Levy Collection Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, 15
which means that the civil penalty provisions of both the Administration Act and the Payroll Levy Collection Act are enforceable under that Part of the Regulatory Powers Act. 83. Under these amendments, the Corporation is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the Administration Act or the Payroll Levy Collection Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined. Human rights implications Civil penalties and Article 14 84. The Administration Act and the Payroll Levy Collection Act create civil penalties for contraventions of those Acts by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 4 to this Bill. However, the amendments in Schedule 4 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the Administration Act (note, the regulatory framework for the Payroll Levy Collection Act is currently provided by the Administration Act). 85. Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as 'criminal' under international human rights law. Determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. 86. The penalty provisions of the Administration Act (note, pecuniary penalties for contraventions of civil penalty provisions of the Payroll Levy Collection Act are currently provided by the Administration Act) expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the levy regime provided by the Administration Act and the Payroll Levy Collection Act. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the Administration Act and the Payroll Levy Collection Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the Administration Act and the Payroll Levy Collection Act are civil rather than criminal in nature. 87. The amendments in Schedule 4 do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the Administration Act, which are 60 penalty units for individuals and 300 penalty units for bodies corporate, or the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the Payroll Levy Collection Act, which are 40 penalty units for individuals and 200 penalty units for bodies corporate (see subsection 82(5) of the Regulatory Powers Act, as applied to the Administration Act and Payroll Levy Collection Act by Schedule 4). The civil penalty provisions do not carry the possibility of imprisonment. 16
88. The amendments in Schedule 4 will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment. 89. As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia's human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 4. 90. The amendments relating to civil penalty provisions in Schedule 4 engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited. 91. The amendments in Schedule 4 modify the operation of subsection 82(6) of the Regulatory Powers Act, and provide that, where the person who contravened the civil penalty provision is a body corporate, the relevant court must take into account further matters when determining the applicable pecuniary penalty. These amendments preserve the effect of current subsection 49A(7) of the Administration Act (which also applies to the Payroll Levy Collection Act), and do not engage any human rights. 92. The amendments in Schedule 4 also modify the operation of Part 4 of the Regulatory Powers Act in order to preserve existing arrangements under current sections 49CE and 49CF of the Administration Act (which also apply to the Payroll Levy Collection Act) in relation to contraventions by executive officers. These amendments do not engage any human rights. 93. Alignment with Regulatory Powers Act will also apply section 96 of that Act, which is not currently in the Administration Act and the Payroll Levy Collection Act. This section is merely procedural in nature and sets out matters in relation to the burden of proof. As section 96 only relates to proceedings for civil penalty orders, and not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged. Conclusion 94. Schedule 4 to this Bill is compatible with human rights because where it engages human right, it does not limit those rights. Overview of Schedule 5 - Defence Act 1903 95. The Defence Act 1903 provides for the naval and military defence and protection of the Commonwealth and the States and Territories. This is the legitimate objective of the Defence Act. Section 72TP of the Defence Act enables the Minister to make Woomera Prohibited Area Rules. Part VIB of the Defence Act establishes a regulatory framework to 17
allow non-defence users to access to the Woomera Prohibited Area ('WPA') on a conditional basis. The framework includes a permit system for accessing the WPA, and offence and penalty provisions for entering the WPA without permission or for failing to comply with a condition of a permit. The offence and penalty provisions are supported by an infringement notice scheme and demerit point system. The amendments in Schedule 5 relate only to offences under subsection 72TG(1) of the Defence Act. 96. Schedule 5 to this Bill amends the Defence Act to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable a person who is appointed by the Secretary of the department that administers the Defence Act, and who is either a member of the Defence Force (as defined by the Defence Act) or an Australian Public Service employee of the department that administers the Defence Act, to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a strict liability offence against subsection 72TG(1) of the Defence Act has been committed. 97. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court. Human rights implications Fair hearing rights 98. Under the amendments in Schedule 5 to this Bill, infringement notices can be issued under the Regulatory Powers Act in relation to strict liability offences against subsection 72TG(1) of the Defence Act. If the person chooses not to pay the penalty amount in the infringement notice, they may be prosecuted for the offence against subsection 72TG(1) of the Defence Act. The right to a fair and public hearing provided for by Article 14(1) of the ICCPR is engaged. 99. Section 104 of the Regulatory Powers Act (applied to the Defence Act by Schedule 5) provides that an infringement notice is required to state that the person may choose not to pay the penalty, and notify them that, if they do so, that person may be prosecuted in a court for the alleged offence. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited. 100. Article 14 of the ICCPR also provides for other criminal process rights, such as the right to be presumed innocent. It sets out the minimum guarantees in criminal proceedings, such as the right to be informed promptly of the charge, the right to freedom from self- incrimination and the right to be tried in person. These rights are not limited by the amendments in Schedule 5. The minimum guarantees and the right to be presumed innocent apply to proceedings relating to contraventions of subsection 72TG(1) of the Defence Act. 101. Schedule 5 also modifies the operation of Part 5 of the Regulatory Powers Act in order to preserve existing arrangements under the Defence Act. Those arrangements are: an infringement notice must specify that demerit points may be incurred if the amount payable under an infringement notice is paid, or the person is convicted or found guilty of the alleged contravention 18
when deciding whether to withdraw an infringement notice, the Secretary of the department that administers the Defence Act may take into account whether a court has previously imposed a penalty on the person for a contravention of section 72TC, 72TG or 72TJ of the Defence Act, and that, if the amount stated in the infringement notice is paid before the end of the 28-day period, demerit points may be incurred in accordance with Part 7 of the Woomera Prohibited Area Rule 2014. 102. These modifications do not engage any other human rights. Conclusion 103. Schedule 5 to this Bill is compatible with human rights because, where it engages the right to a fair and public hearing and the criminal process rights provided for by Article 14 of the ICCPR, it does not limit those rights. Overview of Schedule 6 - Defence Reserve Service (Protection) Act 2001 104. The Defence Reserve Service (Protection) Act 2001 protects members of the Reserves in their employment and education to facilitate their return to civilian life. The Act sets out the entitlements of those Reserve members who undertake certain Reserve service, and prohibits their employers and various organisations from restricting this Reserve service. The Defence Reserve Service (Protection) Act also provides penalties for those employers who hinder a Reserve member from undertaking Reserve service. Providing this scheme is the legitimate objective of the Defence Reserve Service (Protection) Act. 105. Schedule 6 to this Bill amends the Defence Reserve Service (Protection) Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable an interested person, or a prescribed person acting on behalf of an interested person, to apply to a relevant court for an injunction to restrain a person from engaging in conduct or requiring that person to do a thing. Further, an interested person, or a prescribed person acting on behalf of an interested person, may apply to a relevant court for an interim injunction. Human rights implications Injunctions and Article 14 106. Under the amendments in Schedule 6 to this Bill, an injunction can be granted under the Regulatory Powers Act in relation to contraventions of the offence and civil penalty provisions of the Defence Reserve Service (Protection) Act. As the injunctions framework applies to the offence provisions of the Defence Reserve Service (Protection) Act, the right to a fair and public hearing and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR are engaged. 107. Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Further, a court may only grant an injunction where a person has engaged, is engaging or is proposing to engage, in conduct that contravenes a provision of the Defence Reserve Service (Protection) Act, or where a person has refused or failed, or is refusing or failing, or proposing to refuse or fail, to do a thing and that refusal or failure was, is or would be a 19
contravention of a provision of the Defence Reserve Service (Protection) Act. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited. 108. The other criminal process rights and minimum guarantees in Article 14 of the ICCPR are not limited by the amendments in Schedule 6. Conclusion 109. Schedule 6 to this Bill is compatible with human rights because, where it engages the right to a fair and public hearing and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR, it does not limit those rights. Overview of Schedule 7 - Greenhouse and Energy Minimum Standards Act 2012 110. The Greenhouse and Energy Minimum Standards Act 2012 (the 'GEMS Act') and associated legislation establishes a national scheme to govern Australia's Equipment Energy Efficiency ('E3') Program, as well as allowing expansion of energy efficiency regulation to cover a wider range of products. This legislation creates a national framework to regulate energy efficiency and labelling standards. 111. Schedule 7 to this Bill amends the GEMS Act to trigger the provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act. This will enable a GEMS inspector (as defined in the GEMS Act) to enter any premises and exercise monitoring powers for the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or determining whether information subject to monitoring is correct. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of a monitoring warrant. 112. New subsection 87(1) of the GEMS Act provides that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is a provision of the GEMS Act, or an offence against the Crimes Act 1914 or the Criminal Code Act 1995 that relates to the GEMS Act. New subsection 87(2) of the GEMS Act states that information given in compliance or purported compliance with a provision of that Act is subject to monitoring under Part 2 of the Regulatory Powers Act. 113. A monitoring warrant may only be issued by a magistrate or a Judge of certain specified courts. The general monitoring powers of an authorised person set out in Part 2 of the Regulatory Powers Act include the power to: search premises and any thing on the premises examine or observe activities on the premises inspect documents on the premises ask persons on the premises questions and request the production of documents bring equipment and materials onto the premises inspect, examine, take measurements of or conduct tests on any thing on the premises take images of things or make copies of documents 20
operate electronic equipment, and secure evidence of contraventions for up to 24 hours. 114. Further, if entry is under a monitoring warrant, the authorised person may: require persons on the premises to answer questions or produce documents relating to the provisions or information that are subject to monitoring, and secure electronic equipment for the purposes of obtaining expert assistance. 115. Schedule 7 also amends the GEMS Act to trigger the provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act, which will enable a GEMS inspector to enter any premises and exercise investigation powers where the inspector suspects on reasonable grounds that there may be material on the premises related to the contravention of an offence provision or a civil penalty provision subject to investigation under Part 3 of the Regulatory Powers Act. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of an investigation warrant. 116. New subsection 88(1) of the GEMS Act states that each compliance obligation of the GEMS Act is subject to investigation under Part 3 of the Regulatory Powers Act. 117. An investigation warrant may only be issued by a magistrate or a Judge of certain specified courts. The general investigation powers of an authorised person set out in Part 3 of the Regulatory Powers Act include the power to: search the premises and any thing on the premises inspect, examine, take measurements of or conduct tests on evidential material ask persons on the premises questions and request the production of documents bring equipment and materials onto the premises take images of things, and operate electronic equipment. 118. Further, if entry is under an investigation warrant, the authorised person may: seize a disk, tape or other storage device on the premises if o it is not practicable to put the evidential material into documentary form or transfer it to a separate disk, tape or other storage device brought onto the premises for the exercise of investigation powers, or o possession of the equipment or disk, tape or other storage device by the occupier could constitute an offence seize evidential material that is not of the kind specified in the warrant if: o the authorised person finds the thing in the course of searching for material of the kind specified in the warrant, and o the authorised person believes on reasonable grounds that the thing is evidential material of another kind, or 21
a related provision has been contravened with respect to the thing, or the thing is evidence of a contravention of a related provision, or the thing is intended to be used to contravene a related provision, and o the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction, and require persons on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant. Right to privacy 119. Schedule 7 to this Bill engages the protection against arbitrary or unlawful interference with privacy. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. 120. The GEMS Act pursues the legitimate objective of giving effect to commitments under the United Nations Framework Convention on Climate Change to adopt national policies and measures to mitigate climate change, limit Australia's emissions of greenhouse gases, and promote the development and application of technologies and practices that control emissions of greenhouse gases. The Act pursues this objective by establishing a national framework for regulating the energy efficiency of products supplied or used within Australia. 121. The entry, monitoring, search, seizure and information gathering powers in the triggered provisions of the Regulatory Powers Act are provided by law. The monitoring and investigation powers are necessary to enable the monitoring of compliance with the GEMS Act and collection of evidential material relating to contraventions of that Act. They are constrained in various ways as set out below, ensuring that their use is not arbitrary. 122. The powers cannot be exercised without consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. Where entry is based on the consent of the occupier, consent must be informed and voluntary and the occupier of premises can restrict entry by authorised persons to a particular period. Additional safeguards are provided through provisions requiring authorised persons and any persons assisting them to leave the premises if the occupier withdraws their consent. 123. The Regulatory Powers Act also provides constraints on the issuing of a monitoring or investigation warrant. For example, in the case of an investigation warrant, an issuing officer may issue an investigation warrant only when satisfied, by oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within 72 hours, 22
evidential material on the premises. An issuing officer must not issue a warrant unless the issuing officer has been provided, either orally or by affidavit, with such further information as they require concerning the grounds on which the issue of the warrant is being sought. Such constraints on this power ensure adequate safeguards against arbitrary limitations on the right to privacy in the issuing of warrants. 124. In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse. 125. Further, the powers can only be exercised in specific circumstances set out in the triggered provisions. For example, under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised in limited circumstances set out at paragraph 118 above. These constraints on the exercise of the powers also limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances. 126. Accordingly, the monitoring and investigating powers are necessary, proportionate and reasonable in the pursuance of the legitimate objectives of the GEMS Act. 127. Schedule 7 also extends the operation of subsection 104(1) of the Regulatory Powers Act, by providing that an infringement notice given in relation to an alleged contravention of a civil penalty provision of the GEMS Act must also state that the giving of the notice and the payment of the amount payable under the notice may be publicised under section 162 of the GEMS Act (see new subsection 130(7) of the GEMS Act). Section 162 of the GEMS Act, as amended by Schedule 7, provides that, amongst other things, the GEMS Regulator may publicise the giving of an infringement notice, on the basis that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. The insertion of subsection 130(7) of the GEMS Act ensures that a recipient of an infringement notice is aware of the operation of section 162 of that Act. New subsection 130(7) of the GEMS Act preserves the effect of current paragraph 147(1)(i) of the GEMS Act, which is repealed by Schedule 7. 128. New subsection 130(7) of the GEMS Act engages the protection against arbitrary or unlawful interference with privacy. The limitation of the right to privacy is provided for by law. Giving the GEMS Regulator the power to publicise various matters about an individual assists in deterring persons from failing to comply with their obligations under the GEMS Act. Making information about decisions and enforcement actions publicly available is important for transparency in the work of the Regulator. Additionally, these matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. The exercise of the power under new subsection 130(7) of the GEMS Act is constrained, as it can only be exercised by the GEMS Regulator. Section 162 of the GEMS Act, as amended by Schedule 7, specifies in detail the matters that the Regulator may publicise. These constraints protect against arbitrary use of the power. Accordingly, new subsection 130(7) of the GEMS Act is necessary, reasonable and proportionate to pursuance of the legitimate objective of the GEMS Act. The provisions are compatible with the protection from arbitrary or unlawful interference with privacy. 23
Right to security of person and right to life 129. Schedule 7 to this Bill also modifies the operation of Parts 2 and 3 of the Regulatory Powers Act, and permits an authorised person to use force against things when exercising a monitoring or an investigation warrant. These amendments preserve current arrangements under the GEMS Act, which are repealed by Schedule 7. 130. In executing a monitoring or an investigation warrant, an authorised person is permitted to use such force against things as is necessary and reasonable in the circumstances. It is necessary to include this power, as an authorised person executing a monitoring warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain things or information that would provide evidence that provisions subject to monitoring have not been, or are not being, complied with, or that information subject to monitoring is incorrect. Similarly, an authorised person executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain evidential material that would demonstrate that a compliance obligation of the GEMS Act has been contravened. 131. As this power does not extend to the use of force against persons, it does not engage the right to security of person in Article 9 of the ICCPR or the right to life in Article 6 of the ICCPR. 132. The power can only be exercised under a monitoring or investigation warrant, which must be issued by a judicial officer. Further, the power may only be used as is necessary and reasonable in the circumstances. The power is compatible with human rights. Criminal process rights 133. Triggering the provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act causes offences in that Act to apply in relation to monitoring and investigating. The fair trial rights, minimum guarantees in the determination of a criminal charge and other criminal process rights contained in Article 14 of the ICCPR are engaged. Parts 2 (monitoring) and 3 (investigation) of the Regulatory Powers Act provide questioning powers to authorised persons. Under subsection 24(3) of the Regulatory Powers Act, where entry is authorised by a monitoring warrant, the authorised person may require any person on the premises to answer questions or produce documents relating to information or provisions subject to monitoring. If the person fails to do so, this is an offence under subsection 24(5) of the Regulatory Powers Act. The penalty is 30 penalty units. Similarly, under section 54(3) of the Regulatory Powers Act an authorised person who enters premises under an investigation warrant may require persons on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant. If the person fails to do so, this is an offence under subsection 54(5) of the Regulatory Powers Act. The penalty is 30 penalty units. 134. These offence provisions do not limit the person's access to a fair trial or limit the other criminal process rights in any way. Sections 17 and 47 of the Regulatory Powers Act make it clear that the privileges against self-incrimination and legal professional privilege have not been abrogated by the monitoring and investigation powers provisions, including the offence provisions. These protections guarantee the criminal process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR. The usual guarantees and criminal process rights 24
will apply to these offences and are not abrogated by any provisions in the Bill or triggered provisions of the Regulatory Powers Act. Accordingly, sections 24 and 54 of the Regulatory Powers Act, as applied to the GEMS Act by Schedule 7, are compatible with human rights. Civil penalties and Article 14 135. The GEMS Act is also amended to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the GEMS Act are enforceable under that Part of the Regulatory Powers Act. 136. Under these amendments, the GEMS Regulator (as defined in the GEMS Act) is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the GEMS Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined. 137. The GEMS Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 7 to this Bill. However, the amendments in Schedule 7 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the GEMS Act. 138. Triggering the civil penalty provisions of the Regulatory Powers Act could engage criminal process rights if the imposition of civil penalties is classified as 'criminal' under international human rights law. As set out above, Article 14 of the ICCPR provides that, in determination of criminal charges, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Various other rights are provided for persons charged with criminal offences. 139. Determining whether these penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. 140. The penalty provisions of the GEMS Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the requirements for registration, supply and use of GEMS products under the GEMS Act. The civil penalty provisions of the GEMS Act do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the GEMS Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the GEMS Act are civil rather than criminal in nature. 141. The amendments in Schedule 7 do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the GEMS Act. Under the GEMS Act, the maximum pecuniary penalties that may be imposed in civil penalty orders are 60 penalty units for some provisions and 120 penalty units for others. Where the penalties are higher, this reflects the more serious implications or results of the contravention. Under subsection 82(5) of the Regulatory Powers Act, as applied to the GEMS Act by Schedule 7, the maximum penalties which apply to individuals are the same 25
as those specified in the civil penalty provisions of the GEMS Act. For bodies corporate, the penalties will be no more than five times higher than the penalties specified in the civil penalty provisions, that is, 300 or 600 penalty units. This preserves the effect of current subsection 130(5) of the GEMS Act. The penalties do not carry the consequences of offences under the GEMS Act, which would involve a criminal record and can result in imprisonment for contravention of some provisions. 142. These penalties are not so severe that they could be considered criminal in nature. 143. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 7. 144. The amendments relating to civil penalty provisions in Schedule 7 engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited. 145. Schedule 7 also modifies the operation of section 96 of the Regulatory Powers Act, and reverses the burden of proof for certain civil penalty provisions. This amendment preserves current arrangements under the GEMS Act, which are repealed by Schedule 7. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 146. New subsection 129(4) of the GEMS Act modifies the operation of section 96 of the Regulatory Powers Act, and provides that that section does not apply in relation to proceedings for a civil penalty order for a contravention of a civil penalty provision under Part 3 of the GEMS Act. This modification is necessary, as the civil penalty provisions in Part 3 of the GEMS Act provide that the person wishing to rely on certain exceptions or exemptions has the burden of proof for those matters, while the person seeking the civil penalty order has the burden in relation to other matters. The matters for which the person seeking to rely on the exceptions or exemptions has the burden of proof are primarily matters that are solely within the knowledge of that person (for example, where the matter relates to second-hand products). Turning off section 96 of the Regulatory Powers Act preserves the effect of these burden provisions in the GEMS Act. As new subsection 129(4) of the GEMS Act only relates to proceedings for a civil penalty order, and the civil penalty provisions are not criminal in nature, the right to be presumed innocent is not engaged. 147. Alignment with the Regulatory Powers Act will also apply an additional civil penalty provision that does not currently have equivalent in the GEMS Act, as in force immediately before the commencement of Schedule 7. Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. This provision does not create any further human rights implications. 26
Infringement notices and Article 14 148. Schedule 7 to this Bill also amends the GEMS Act to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act. These provisions enable the GEMS inspector to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a civil penalty provision of the GEMS Act has been contravened. 149. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court. As the amendments only trigger the infringement notice regime for civil penalty provisions of the GEMS Act, the criminal process rights in Article 14 of the ICCPR are not engaged. There are no criminal consequences associated with infringement notices for civil penalty provisions. For example, they do not carry the possibility of imprisonment if the person does not pay the penalty or attend court. 150. Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty order may be brought against them in a court. Accordingly, the person must always be advised of the consequences of not paying the penalty, and of their right to have the matter dealt with by a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is not limited. 151. Accordingly, the infringement notice provisions applied by Schedule 7 are consistent with human rights. Enforceable undertakings and Article 14 152. The GEMS Act is also amended to trigger the enforceable undertakings provisions in Part 6 of the Regulatory Powers Act, which will enable the GEMS Regulator to accept and enforce undertakings relating to compliance with offence and civil penalty provisions of the GEMS Act. Further, if the GEMS Regulator is satisfied that the person has breached the undertaking, he or she may apply to a relevant court for an order relating to the undertaking. 153. Triggering the enforceable undertakings provisions of the Regulatory Powers Act in relation to offences under the GEMS Act engages the right to a fair and public hearing and other criminal process rights and minimum guarantees in Article 14 of the ICCPR. Article 14(1) of the ICCPR provides ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Under Part 6 of the Regulatory Powers Act, an order enforcing the undertaking can only be made by a court. Accordingly, the right to a fair and public hearing is not limited. 154. The amendments in Schedule 7 to this Bill also do not limit the minimum guarantees and other criminal process rights in Article 14 of the ICCPR. The minimum guarantees and process rights will apply to criminal proceedings. 155. Schedule 7 also extends the operation of subsection 114(1) of the Regulatory Powers Act, and provides that the GEMS Regulator may accept a written undertaking given by a person that the person will, in order to provide compensation for loss or damage suffered as 27
a result of a contravention by the person of an offence or civil penalty provision subject to enforceable undertakings, pay another person an amount worked out in accordance with the undertaking. The additional power in new subsection 131(4) of the GEMS Act allows third parties such as purchasers of energy services to be compensated for loss or damage resulting from a contravention. This power does not engage human rights. 156. Article 14(1) of the ICCPR also provides a right to a fair and public hearing in civil matters. As orders to enforce an undertaking can only be made by a relevant court under section 115 of the Regulatory Powers Act, the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is not limited. 157. Accordingly, both the amendments relating to enforceable undertakings in Schedule 7, and the enforceable undertaking provisions triggered by Schedule 7, are compatible with human rights. Injunctions and Article 14 158. Schedule 7 to this Bill also amends the GEMS Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the GEMS Regulator to apply to a relevant court for an injunction to restrain the person from engaging in conduct or requiring the person to do a thing. Further, the GEMS Regulator may apply to a relevant court for an interim injunction. The injunctions powers are triggered in relation to offences against Parts 3 or 5 of the GEMS Act, or civil penalty provisions of those parts. 159. Triggering the injunction provisions of the Regulatory Powers Act in relation to offences engages the rights to a fair and public hearing in both civil and criminal proceedings. Article 14(1) of the ICCPR ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited. The amendments in Schedule 7 relating to injunctions and the triggered injunctions provisions do not limit any of the other criminal process rights or minimum guarantees in Article 14 of the ICCPR. 160. New subsection 132(4) of the GEMS Act also extends the operation of Part 7 of the Regulatory Powers Act, and provides that a relevant court may grant an injunction under that Part by consent of all the parties. New subsection 132(4) of the GEMS Act preserves the effect of current subsection 157(3) of the GEMS Act. This provision does not engage any human rights. 161. Accordingly, the amendments relating to injunctions in Schedule 7 and the triggered injunctions provisions are compatible with human rights. Conclusion 162. Schedule 7 to this Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Overview of Schedule 8 - Horse Disease Response Levy Collection Act 2011 163. The Horse Disease Response Levy Collection Act 2011 (the 'Horse Disease Act') gives the Commonwealth the authority to collect and administer levies on manufactured 28
horse feed and worm treatments for horses. A companion Act, the Horse Disease Response Levy Act 2011 (the 'Levy Act'), imposes the levies. The purpose of the levy is to enable the horse industry to repay the Commonwealth for any monies expended on its behalf in a response to an emergency animal disease outbreak affecting horses. The Horse Disease Act provides for funds raised through the levies to initially flow to the Commonwealth's Consolidated Revenue Fund, to be subsequently appropriated to Animal Health Australia, which will manage the funds on behalf of the horse industry. The Horse Disease Act also includes provisions that impose penalties for unpaid levies, allow the Commonwealth to recover levies that are due, and provide refunds when necessary. 164. Schedule 8 to this Bill amends the Horse Disease Act to trigger the provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act, which will enable an authorised person (as defined in the Horse Disease Act) to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or the purpose of determining whether information subject to monitoring is correct. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of a monitoring warrant. New subsection 13(1) of the Horse Disease Act provides that the levy law is subject to monitoring under Part 2 of the Regulatory Powers Act. New subsection 13(2) of the Horse Disease Act states that information given in compliance or purported compliance with the levy law or Division 1 of Part 3 of the Horse Disease Act is subject to monitoring under Part 2 of the Regulatory Powers Act. 165. A monitoring warrant may only be issued by a magistrate or a Judge of certain specified courts. The general monitoring powers of an authorised person are set out in Part 2 of the Regulatory Powers Act, and are described above in relation the GEMS Act. Human rights implications Right to privacy 166. Schedule 8 to this Bill engages the right to privacy and reputation. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. 167. To the extent that the measures in the Bill limit the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to the achievement of a legitimate objective. The Horse Disease Act pursues the legitimate objective of ensuring that the horse industry reimburses the Commonwealth for emergency action taken in response to health issues in that industry. The Horse Disease Act pursues this objective by establishing a framework for the collection and administration of the levy. 29
168. The monitoring powers in the triggered provisions of the Regulatory Powers Act are provided by law. They are necessary to enable the monitoring of compliance with the levy regime and collection of evidential material relating to contraventions. The exercise of these powers is constrained in various ways as set out below, ensuring that their use is not arbitrary. 169. The regime under the Regulatory Powers Act protects against arbitrary interference with privacy, as the monitoring powers cannot be exercised without consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. Where entry is based on the consent of the occupier, consent must be informed and voluntary and the occupier of premises can restrict entry by authorised persons to a particular period. Additional safeguards are provided through provisions requiring authorised persons and any persons assisting them to leave the premises if the occupier withdraws their consent. 170. The Regulatory Powers Act also provides limits on the issuing of a monitoring warrant. An issuing officer may only issue a warrant if they are satisfied that it is reasonably necessary that a person have access to the premises for the purposes of determining whether a provision subject to monitoring has been or is being complied with, or whether information subject to monitoring is correct. An issuing officer must not issue a warrant unless the issuing officer has been provided, either orally or by affidavit, with such further information as they require concerning the grounds on which the issue of the warrant is being sought. Such constraints on this power ensure adequate safeguards against arbitrary limitations on the right to privacy in the issuing of warrants. 171. In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse. 172. Further, the powers can only be exercised in specific circumstances set out in the triggered provisions. For example, the power to secure a thing may only be exercised where: the thing is found during the exercise of monitoring powers on the premises, and the person believes on reasonable grounds that: o a related provision has been contravened with respect to the thing, or o the thing affords evidence of a contravention, or o the thing is intended to be used for the purposes of a contravention, and the authorised person believes on reasonable grounds that: o it is necessary to secure the thing to prevent it from being concealed, lost or destroyed before a warrant to seize a thing is obtained, and o it is necessary to secure the thing without a warrant because the circumstances are serious and urgent. 173. These constraints on the exercise of the powers limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances. 30
174. Schedule 8 also modifies the operation of Part 2 of the Regulatory Powers Act, and permits an authorised person to seize any thing at any premises entered for the purposes of exercising monitoring powers under section 18 of the Regulatory Powers Act, as that section applies in relation to the levy law or Division 1 of Part 3 of the Horse Disease Act (see new subsection 13(13) of the Horse Disease Act). This amendment preserves current arrangements in current paragraph 14(f) of the Horse Disease Act, which is repealed by Schedule 8, including the power to seize things where entry to premises is by consent. 175. New subsection 13(13) of the Horse Disease Act extends the standard monitoring powers in Part 2 of the Regulatory Powers Act, as seizure is restricted to investigation powers exercised under an investigation warrant (see sections 49, 50 and 52 of the Regulatory Powers Act). This new subsection engages the protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR. The power to seize is provided by law. It is necessary to ensure compliance with levy collection requirements. The power to take possession of records (or other things) relating to the administration or payment of levies enables authorised persons to remove documents where examination of material on-site is not possible, for example, due to the volume or complexity of the material. It is necessary to retain the power to seize in order to prevent evidence, such as documents, from being concealed, lost or destroyed. This evidence can be used to calculate the levies payable. This is necessary to ensure that emergency responses in the horse industry are fully funded. Accordingly, the power is necessary, proportionate and reasonable to the legitimate objective of the Horse Disease Act. 176. The power to seize is also consistent with the equivalent power in section 19 of the Primary Industry Levies and Charges Collection Act 1991 (the 'PILCC Act'), which governs the collection of Emergency Animal Disease Response levies for other livestock, including pigs, cattle and chickens. The inclusion of the power to seize in the Horse Disease Act ensures that all industries with an emergency response levy in place are treated equally. The department that administers the PILCC Act, the Horse Disease Act and the Levy Act is scheduled to undertake a review of the regulatory powers of these Acts in the next 12 months. 177. The exercise of the power to seize is constrained in various ways, which ensure that its use is reasonable and proportionate in the circumstances and that it is not exercised arbitrarily. Section 18 of the Regulatory Powers Act provides that the power may only be exercised where entry to the premises is under a warrant or with consent of the occupier. Further, the power may only be exercised for the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or the purpose of determining whether information subject to monitoring is correct. New section 14 of the Horse Disease Act also provides that the authorised person must give the occupier a copy of the seized thing on request if the thing is something that can be readily copied, such as a document or computer file. Under new section 15 of the Horse Disease Act, the occupier must be given a receipt. Section 16 of the Horse Disease Act requires the Secretary of the department that administers the Horse Disease Act to take reasonable steps to return a seized thing within 60 days, or earlier if the reason for its seizure no longer exists or it is not going to be used in evidence. Under new section 17 of the Horse Disease Act, a magistrate may extend this period in restricted circumstances. Finally, new section 18 of the Horse Disease Act states that a seized thing can only be disposed of in restricted circumstances and new section 19 of that Act provides that, if such a disposal results in acquisition of property, the Commonwealth is liable to pay reasonable compensation. These restrictions reflect the 31
standard restrictions on the power to seize, which are provided for in Part 3 of the Regulatory Powers Act. 178. New subsection 13(13) of the Horse Disease Act is necessary, reasonable and proportionate, and is also appropriately constrained by new sections 14, 15, 16, 17, 18 and 19 of that Act. Accordingly, the monitoring provisions are compatible with the protection from arbitrary or unlawful interference with privacy. 179. Alignment with the Regulatory Powers Act will also apply an additional provision pertaining to monitoring powers that does not currently have equivalent in the Horse Disease Act. Section 33 of the Regulatory Powers Act sets out the process for extending a period in which a thing is secured, and applies where an authorised person applies to an issuing officer under subsection 21(5) or 22(2) of that Act for an extension of the period during which a thing may be secured. This provision does not engage any human rights. Conclusion 180. Schedule 8 to this Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Overview of Schedule 9 - Illegal Logging Prohibition Act 2012 181. The Illegal Logging Prohibition Act 2012 (the 'Illegal Logging Act') aims to reduce the harmful environmental, social and economic impacts of illegal logging by restricting the importation and sale of illegally logged timber products in Australia. The Illegal Logging Act prohibits the importation of illegally logged timber and the processing of illegally logged raw logs. It also requires importers of regulated timber products and processors of raw logs to conduct due diligence in order to reduce the risk that illegally logged timber is imported or processed. The Illegal Logging Act allows inspectors to exercise monitoring, investigation and enforcement powers for the purposes of the Act. 182. Schedule 9 to this Bill amends the Illegal Logging Act to trigger the provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act, which will enable an inspector (as defined in the Illegal Logging Act) to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or the purpose of determining whether information subject to monitoring is correct. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of a monitoring warrant. New subsection 21(1) of the Illegal Logging Act provides that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is a provision of the Illegal Logging Act, or an offence against the Crimes Act 1914 or the Criminal Code Act 1995 that relates to the Illegal Logging Act. New subsection 21(2) of the Illegal Logging Act states that information given in compliance or purported compliance with a provision of that Act is subject to monitoring under Part 2 of the Regulatory Powers Act. 183. A monitoring warrant may only be issued by a magistrate or a Judge of certain specified courts. The general monitoring powers of an authorised person are set out in Part 2 of the Regulatory Powers Act, and are discussed above in relation to the GEMS Act. 32
184. Schedule 9 also amends the Illegal Logging Act to trigger the provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act, which will enable an inspector to enter any premises and exercise investigation powers where the inspector suspects on reasonable grounds that there may be material on the premises related to the contravention of an offence provision or a civil penalty provision subject to investigation under Part 3 of the Regulatory Powers Act. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of an investigation warrant. 185. New subsection 22(1) of the Illegal Logging Act states that a provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is: an offence against the Illegal Logging Act a civil penalty provision of the Illegal Logging Act, or an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act. 186. An investigation warrant may only be issued by a magistrate or a Judge of certain specified courts. The general investigation powers of an authorised person are set out in Part 3 of the Regulatory Powers Act, and are discussed above in relation to the GEMS Act. Human rights implications Right to privacy 187. Schedule 9 to this Bill engages the protection against arbitrary or unlawful interference with privacy. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. To the extent that the measures in the Bill limit the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to the achievement of a legitimate objective. The Illegal Logging Act pursues the legitimate objective of reducing the harmful environmental, social and economic impacts of illegal logging by restricting the importation and sale of illegally logged timber products in Australia. The Act pursues this objective by regulating the import and processing of timber products. 188. The monitoring and investigation powers in the triggered provisions of the Regulatory Powers Act are provided by law. They necessary to enable the monitoring of compliance with the levy regime and the collection of evidential material relating to contraventions. The exercise of these powers is constrained in various ways as set out below, ensuring that their use is not arbitrary. 189. The regime under the Regulatory Powers Act protects against arbitrary interference with privacy, as the monitoring and investigation powers cannot be exercised without 33
consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. Where entry is based on the consent of the occupier, consent must be informed and voluntary and the occupier of premises can restrict entry by authorised persons to a particular period. Additional safeguards are provided through provisions requiring authorised persons and any persons assisting them to leave the premises if the occupier withdraws their consent. 190. The Regulatory Powers Act also provides restrictions on the issuing of a monitoring or investigation warrant. For example, in the case of an investigation warrant, an issuing officer may issue an investigation warrant only when satisfied, by oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within 72 hours, evidential material on the premises. An issuing officer must not issue a warrant unless the issuing officer has been provided, either orally or by affidavit, with such further information as they require concerning the grounds on which the issue of the warrant is being sought. Such constraints on this power ensure adequate safeguards against arbitrary limitations on the right to privacy in the issuing of warrants. 191. In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse. 192. The monitoring and investigation powers may only be exercised in certain circumstances set out in the Regulatory Powers Act. For example, under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised where: the authorised person finds the thing in the course of searching for material of the kind specified in an investigation warrant, and the authorised person believes on reasonable grounds that o the thing is evidential material of another kind, or o a related provision has been contravened with respect to the thing, or o the thing is evidence of a contravention of a related provision, or o the thing is intended to be used to contravene a related provision, and the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction. 193. These constraints on the exercise of the powers limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances. Accordingly, the monitoring and investigation powers are necessary, proportionate and reasonable in the pursuance of the legitimate objectives of the Illegal Logging Act. 194. New subsections 21(11) and 22(10) of the Illegal Logging Act modify the operation of Parts 2 and 3 of the Regulatory Powers Act, and provide an authorised person with the power to take samples of any thing at any premises entered under section 18 or 48 of the Regulatory Powers Act for the purposes of exercising monitoring or investigation powers. It is necessary to retain the power to take samples in the Illegal Logging Act, as this power is 34
an essential element of an inspector's monitoring and investigation powers under the current regulatory powers framework of that Act. Obtaining a sample of a product is necessary in order for an inspector to verify particular characteristics of the timber included in a product, such as its genus, species and country or region of harvest. Information gathered through this process can be used to confirm whether the product is what the importer or processor claims it to be, and whether any supporting paperwork or certification is relevant to that product (that is, whether information given in compliance, or purported compliance, is correct). New subsections 21(11) and 22(10) of the Illegal Logging Act preserve the effect of current arrangements under that Act, which are repealed by Schedule 9 to this Bill. 195. The power to sample any thing on any premises entered under section 18 or 48 of the Regulatory Powers Act for the purposes of exercising monitoring or investigation powers may not be exercised without a monitoring or investigation warrant, or the occupier's consent to enter the premises. Accordingly, the exercise of the power is constrained, and these constraints ensure its use is reasonable, necessary and proportionate to the objectives of the Illegal Logging Act. Right to security of person and right to life 196. New subsection 22(11) of the Illegal Logging Act provides that, in executing an investigation warrant, an authorised person is permitted to use such force against things as is necessary and reasonable in the circumstances. This extends the standard investigation powers provided under the Regulatory Powers Act, but preserves the effect of current arrangements under the Illegal Logging Act, which are repealed by Schedule 9 to this Bill. It is necessary to preserve this power, as an authorised person executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain evidential material that would demonstrate that a provision of the Illegal Logging Act subject to investigation has been contravened. 197. The power can only be exercised under an investigation warrant, which must be issued by a judicial officer. Further, the power may only be used as is necessary and reasonable in the circumstances. 198. As this power does not extend to the use of force against persons, it does not engage the right to security of person in Article 9 of the ICCPR or the right to life in Article 6 of the ICCPR. 199. Accordingly, the exercise of the power is constrained, and these constraints ensure its use is reasonable, necessary and proportionate to the objectives of the Illegal Logging Act. Criminal process rights 200. Triggering the provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act causes offences in that Act to apply in relation to monitoring and investigating. The fair trial rights, minimum guarantees in the determination of a criminal charge and other criminal process rights contained in Article 14 of the ICCPR are engaged. Parts 2 (monitoring) and 3 (investigation) of the Regulatory Powers Act provide questioning powers to authorised persons. Under subsection 24(3) of the Regulatory Powers Act, where entry is authorised by a monitoring warrant, the authorised person may require any person on the premises to answer questions or produce documents relating to information or provisions subject to monitoring. If the person fails to do so, this is an offence under subsection 24(5) of 35
the Regulatory Powers Act. The penalty is 30 penalty units. Similarly, under section 54(3) of the Regulatory Powers Act an authorised person who enters premises under an investigation warrant may require persons on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant. If the person fails to do so, this is an offence under subsection 54(5) of the Regulatory Powers Act. The penalty is 30 penalty units. 201. These offence provisions do not limit the person's access to a fair trial or limit the other criminal process rights in any way. Sections 17 and 47 of the Regulatory Powers Act make it clear that the privileges against self-incrimination and legal professional privilege have not been abrogated by the monitoring and investigation powers provisions, including the offence provisions. These protections guarantee the criminal process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR. The usual guarantees and criminal process rights will apply to these offences and are not abrogated by any provisions in the Bill or triggered provisions of the Regulatory Powers Act. Accordingly, sections 24 and 54 of the Regulatory Powers Act, as applied to the Illegal Logging Act by Schedule 9 to this Bill, are compatible with human rights. 202. Schedule 9 to this Bill also amends the Illegal Logging Act to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable an inspector to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a provision identified in new subsection 24(1) of the Illegal Logging Act has been contravened. 203. New subsection 24(1) of the Illegal Logging Act states that the following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act: a strict liability offence against the Illegal Logging Act, a civil penalty provision of the Illegal Logging Act, or an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act. 204. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court. If the person does not pay the amount in the notice, they may be prosecuted if the notice relates to an offence provision, or proceedings for a civil penalty order may be brought against them if the notice relates to a civil penalty provision. This engages the right to a fair and public hearing and the other criminal process rights and minimum guarantees in Article 14 of the ICCPR. As the person may elect to have the matter heard by a court, rather than pay the penalty, the rights to a fair and public hearing, in both civil and criminal matters, are not limited. The provisions of Schedule 9 to this Bill do not limit the minimum guarantees in criminal proceedings or other process rights provided for by Article 14 of the ICCPR in any way. 205. Accordingly, the infringement notice provisions under Schedule 9 to this Bill are compatible with the right to a fair and public trial. 36
Civil penalties and Article 14 206. The Illegal Logging Act is also amended to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the Illegal Logging Act are enforceable under that Part of the Regulatory Powers Act. 207. Under these amendments, the Secretary of the department that administers the Illegal Logging Act is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the Illegal Logging Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined. 208. The Illegal Logging Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 9 to this Bill. However, the amendments in Schedule 9 to this Bill mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the Illegal Logging Act. 209. Triggering the civil penalty provisions of the Regulatory Powers Act could engage criminal process rights if the imposition of civil penalties is classified as 'criminal' under international human rights law. Article 14 of the ICCPR provides that, in determination of criminal charges, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Various other rights are provided for persons charged with criminal offences. 210. Determining whether these penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. 211. The penalty provisions of the Illegal Logging Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the regulatory regime under the Illegal Logging Act. The civil penalty provisions of the Illegal Logging Act do not impose criminal liability and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the Illegal Logging Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the Illegal Logging Act are civil rather than criminal in nature. 212. The amendments in Schedule 9 to this Bill do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the Illegal Logging Act. Under the Illegal Logging Prohibition Regulation 2012, the civil penalty for contravention of civil penalty provisions (as defined in the Illegal Logging Act) is 100 penalty units. Under subsection 82(5) of the Regulatory Powers Act, as applied to the Illegal Logging Act by Schedule 9 to this Bill, the maximum penalty for individuals remains 100 penalty units, and for bodies corporate the penalty is no more than 500 penalty units. This preserves the effect of subsection 60(5) of the current Illegal Logging Act. The civil penalty provisions do not carry the possibility of imprisonment. 37
213. These penalties are not so severe that they could be considered criminal in nature. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 9 to this Bill. 214. The amendments relating to civil penalty provisions in Schedule 9 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) to this Bill. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited. 215. Alignment with the Regulatory Powers Act will also apply additional civil penalty provisions that do not currently have equivalents in the Illegal Logging Act, as in force immediately before the commencement of Schedule 9 to this Bill. 216. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged. 217. Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. This provision does not have any human rights implications. Additional monitoring and investigation powers without human rights impact 218. Alignment with the Regulatory Powers Act will also apply additional provisions pertaining to monitoring and investigation powers that do not currently have equivalents in the Illegal Logging Act, as in force immediately before the commencement of Schedule 9 to this Bill. These provisions are sections 33 and 74, and subsection 67(3) of the Regulatory Powers Act. 219. Sections 33 and 74 of the Regulatory Powers Act set out processes for extending the period for which a thing is secured. They do not engage human rights. 220. Subsection 67(3) of the Regulatory Powers Act provides that a person notified under paragraph 67(2)(b) of that Act is entitled to be heard in relation to an application for an order permitting the further retention of a thing seized under Part 3 of that Act. As this does not relate to the determination of a criminal charge, this provision does not engage any human rights. Conclusion 221. Schedule 9 to this Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. 38
Overview of Schedule 10 - Industrial Chemicals (Notification and Assessment) Act 1989 222. The Industrial Chemicals (Notification and Assessment) Act 1989 (the 'ICNA Act') establishes the National Industrial Chemicals Notification and Assessment Scheme ('NICNAS') as a national system of notification and assessment of industrial chemicals for the protection of human health and the environment. 223. Schedule 10 to this Bill amends the ICNA Act to trigger the provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act, which will enable an inspector (as defined in the ICNA Act) to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or for the purpose of determining whether information subject to monitoring is correct. An inspector may not enter the premises unless the occupier has provided consent or the inspector is in possession of a monitoring warrant. 224. New subsection 85(1) of the ICNA Act provides that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is a provision of the ICNA Act or the regulations made under that Act, or an offence against the Crimes Act 1914 or the Criminal Code Act 1995 that relates to the ICNA Act or the regulations made under that Act. New subsection 85(2) of the ICNA Act states that information given in compliance or purported compliance with a provision of that Act or the regulations made under that Act is subject to monitoring under Part 2 of the Regulatory Powers Act. 225. The ability to monitor the correctness of information given in compliance, or purported compliance, with a provision of the ICNA Act or the regulations made under that Act complements the existing monitoring powers framework of the ICNA Act. There is currently no equivalent to this provision in the ICNA Act. 226. Schedule 10 to this Bill amends the ICNA Act to trigger the provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act, which will enable an inspector (as defined in the ICNA Act) to enter premises and exercise investigation powers where the inspector suspects on reasonable grounds that there may be material on the premises related to the contravention of a provision of the ICNA Act or the regulations made under that Act, or an offence against the Crimes Act or Criminal Code Act that relates to the ICNA Act or the regulations made under that Act. An inspector may not enter the premises unless the occupier has provided consent or the inspector is in possession of an investigation warrant. 227. The ICNA Act is also amended to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the Minister responsible for the department that administers the ICNA Act, or any other person, to apply to a relevant court for an injunction to restrain the person from engaging in conduct or requiring the person to do a thing. Further, the Minister responsible for the department that administers the ICNA Act, or any other person, may apply to a relevant court for an interim injunction. Human rights implications Right to privacy 228. Schedule 10 to this Bill engages the protection against arbitrary or unlawful interference with privacy. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a 39
person's honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. 229. The legitimate object of the ICNA Act is to provide a national system of notification and assessment of industrial chemicals to give effect to Australia's obligations under international agreements relating to the regulation of chemicals, and aid in the protection of the Australian people and the environment by finding out the risks to occupational health and safety, to public health and to the environment that could be associated with the importation, manufacture or use of the chemicals. Schedule 10 to this Bill supports this objective by triggering the standard provisions pertaining to monitoring and investigation in Parts 2 and 3 of the Regulatory Powers Act, which will replace the existing monitoring and investigation regime of the ICNA Act. Application of the standard provisions pertaining to monitoring and investigation in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the ICNA Act. 230. The entry, monitoring, search, seizure and information gathering powers in the triggered provisions of the Regulatory Powers Act are provided by law. The monitoring and investigation powers are necessary to enable the monitoring of compliance with the ICNA Act and collection of evidential material relating to contraventions of that Act. They are constrained in various ways as set out below, ensuring that their use is not arbitrary. 231. The application of monitoring powers to information given in compliance or purported compliance with a provision of an Act is important for the purposes of an effective monitoring scheme. It is necessary to extend current monitoring powers of the ICNA Act to information, as information is necessary for various provisions of that Act, and monitoring the correctness of that information upholds the objects of the ICNA Act. 232. The regime under the Regulatory Powers Act protects against arbitrary interference with privacy, as the monitoring and investigating powers cannot be exercised without consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. Where entry is based on the consent of the occupier, consent must be informed and voluntary and the occupier of premises can restrict entry by authorised persons to a particular period. Additional safeguards are provided through provisions requiring authorised persons and any persons assisting them to leave the premises if the occupier withdraws their consent. 233. The Regulatory Powers Act also provides restrictions on the issuing of a monitoring or investigation warrant. For example, in the case of an investigation warrant, an issuing officer may issue an investigation warrant only when satisfied, by oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within 72 hours, evidential material on the premises. An issuing officer must not issue a warrant unless the issuing officer has been provided, either orally or by affidavit, with such further information as they require concerning the grounds on which the issue of the warrant is being sought. Such constraints on this power ensure adequate safeguards against arbitrary limitations on the right to privacy in the issuing of warrants. 40
234. In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse. 235. Further, the powers can only be exercised in specific circumstances set out in the triggered provisions. For example, under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised where: the authorised person finds the thing in the course of searching for material of the kind specified in an investigation warrant, and the authorised person believes on reasonable grounds that o the thing is evidential material of another kind, or o a related provision has been contravened with respect to the thing, or o the thing is evidence of a contravention of a related provision, or o the thing is intended to be used to contravene a related provision, and the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction. 236. These constraints on the exercise of the powers limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances. 237. Schedule 10 to this Bill modifies the operation of Parts 2 and 3 of the Regulatory Powers Act to permit an authorised person to take and keep samples of any thing at any premises entered for the purposes of exercising monitoring powers, and enables an authorised person to use force against things when exercising a monitoring or investigation warrant. These amendments preserve current arrangements under the ICNA Act, which are repealed by Schedule 10 to this Bill. 238. New subsection 85(13) of the ICNA Act modifies the operation of Part 2 of the Regulatory Powers Act, and provides an authorised person with the power to take and keep samples of any thing at any premises entered under section 18 of the Regulatory Powers Act for the purposes of exercising monitoring powers. It is necessary to retain the power to take and keep samples in the ICNA Act, as substances introduced contrary to the provisions of the ICNA Act have the potential to cause harm to human and environmental health and safety. It is necessary to take samples to determine the chemical identity of substances found during a monitoring inspection, which an authorised person reasonably suspects were not lawfully introduced under the ICNA Act. The seizure of samples allows necessary tests to be conducted on items and substances in order to determine compliance with the ICNA Act. New subsection 85(13) of the ICNA Act preserves the effect of current paragraph 86(1)(c) of that Act, which is repealed by Schedule 10 to this Bill. 239. The power to sample any thing on any premises entered under section 18 of the Regulatory Powers Act for the purposes of exercising monitoring powers may not be exercised without a monitoring warrant, or the occupier's consent to enter the premises. Accordingly, the exercise of the power is restricted, and these restrictions ensure its use is reasonable, necessary and proportionate to the objectives of the ICNA Act. 41
240. New subsections 85(11) and 86(10) of the ICNA Act provide that, in executing a monitoring or investigation warrant, an authorised person is permitted to use such force against things as is necessary and reasonable in the circumstances. It is necessary to include this power, as an authorised person executing a monitoring or investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain things or information that would provide evidence that provisions subject to monitoring or investigation have been contravened (for example, chemical supplies that were introduced contrary to the ICNA Act). New subsections 85(11) and 86(10) of the ICNA Act preserves the effect of current arrangements under that Act, which are repealed by Schedule 10 to this Bill. 241. This new subsection engages the protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR. The exercise of the power is restricted under the amendments in Schedule 10 to this Bill. It can only be exercised under a monitoring or investigation warrant, which must be issued by a judicial officer. Further, the power may only be used as is necessary and reasonable in the circumstances. Accordingly, the exercise of the power is restricted and these restrictions ensure its use is reasonable, necessary and proportionate to the objectives of the ICNA Act. 242. Further, Schedule 10 to this Bill also repeals current section 89 of the ICNA Act, and substitutes a new section that provides that, if an inspector enters premises under Part 2 or 3 of the Regulatory Powers Act, as those Parts apply in relation to the ICNA Act, and the inspector asks the occupier of the premises, or requires any person on the premises, to answer any question or produce any document, the occupier or person may apply to the Director of NICNAS for certain information to be treated as exempt information under section 75 of the ICNA Act. This modifies the operation of the standard provisions of the Regulatory Powers Act. Before making an application, the occupier or person may inform the inspector of their intention to make such an application, and the information (the prospective information) to be specified in that application. Under new subsection 89(3) of the ICNA Act, if the occupier or person so informs the inspector, the prospective information is taken to be exempt information for the purposes of the ICNA Act until the occupier or person makes the application, or at the end of the period of 7 days beginning on the day the inspector was so informed (whichever occurs first). 243. Information treated as exempt information under section 75 of the ICNA Act can only be disclosed by the Director of NICNAS in limited circumstances. This mechanism allows information to be protected where its publication could substantially prejudice the commercial interests of the applicant, and that prejudice outweighs the public interest in the publication of the information. New section 89 of the ICNA Act provides an additional level of privacy protection beyond that afforded by the standard provisions of the Regulatory Powers Act. Accordingly, it is compatible with the protection against arbitrary or unlawful interference with privacy. Expansion of monitoring powers 244. Application of the standard monitoring and investigation powers in the Regulatory Powers Act results in a minor expansion of the current regulatory powers framework under the ICNA Act. In relation to monitoring powers, the relevant provisions are sections 19, 20 and 21 of the Regulatory Powers Act. 42
245. Current subsection 86(1) of the ICNA Act provides that an inspector may, to the extent that it is reasonably necessary for the purpose of ascertaining whether the ICNA Act or the regulations have been complied with, enter any premises with the consent of their occupier, being premises that the inspector has reasonable cause to believe are premises to which this section applies, and: search the premises, or take photographs, or make sketches, of the premises or any substance or thing at the premises, or take and keep samples of any substance at the premises, or inspect any record or document kept at the premises, or remove, or make copies of, any such record or document. 246. Section 19 of the Regulatory Powers Act provides a broader set of monitoring powers that an authorised person may exercise. The additional powers are power to: search anything on the premises examine or observe any activity conducted on the premises to inspect, examine, take measurements of or conduct tests on any thing on the premises, to make any still or moving image or any recording of the premises or anything on the premises to take onto the premises equipment and materials for the purposes of exercising monitoring powers, and the powers in sections 20, 21 and 22 of the Regulatory Powers Act. 247. Sections 20 and 21 of the Regulatory Powers Act relate to operating and securing electronic equipment and securing things. Section 20 of the Regulatory Powers Act provides an authorised person, for the purposes of Part 2 of the Regulatory Powers Act (monitoring), with the power to operate electronic equipment on the premises, and to use a disk, tape or other storage device that is on the premises and can be used with the electronic equipment or is associated with it. If relevant data is found in the exercise of these powers, subsection 20(4) of the Regulatory Powers Act provides the authorised person with the following powers: the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises, and the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that is brought to the premises for the exercise of the power, or is on the premises, and the use of which for that purpose has been agreed to in writing by the occupier of the premises, in order to remove the disk, tape or other storage device from the premises. 43
248. Section 21 of the Regulatory Powers Act allows an authorised person exercising a monitoring warrant to secure electronic equipment for up to 24 hours to provide sufficient time to engage expert assistance to operate the equipment. 249. Section 22 of the Regulatory Powers Act gives an authorised person the power to secure a thing, for a period not exceeding 24 hours, if he or she believes on reasonable grounds that: a provision subject to monitoring, or a related provision, has been contravened with respect to the thing, or the thing affords evidence of the contravention, or the thing is intended to be used for the purpose of contravening a provision subject to monitoring or a related provision, or the thing affords evidence that information subject to monitoring is not correct. 250. The current powers are only expanded in order to align with the standard provisions in the Regulatory Powers Act, which promotes consistency of regulatory powers across the Commonwealth. The standard provisions also include modern drafting standards. 251. These additional powers may engage the protection against arbitrary or unlawful interference with privacy. To the extent that they limit this right, the limitations are provided for by law. They are also necessary to pursue the legitimate objective of the ICNA Act. For example, section 20 of the Regulatory Powers Act is necessary to ensure that an authorised person can obtain access to electronic records that may indicate whether a provision of an Act or legislative instrument, subject to Part 2 of the Regulatory Powers Act, has been, or is being, complied with, or that information subject to monitoring under that Part is correct. Section 21 of the Regulatory Powers Act is necessary as an authorised person may not be accompanied by an expert assistant when exercising monitoring powers, but expert or specialised assistance may be required to operate electronic equipment to access relevant information. Section 22 of the Regulatory Powers Act is necessary to allow an authorised person to secure things that may provide evidence where there is a serious or urgent need to do so without a warrant. 252. The exercise of these powers is restricted to circumstances set out in the provisions. They may only be exercised where the authorised person has entered the premises with the consent of the occupier or under a warrant. They may only be exercised for the purposes of determining whether the provisions subject to monitoring are being complied with or whether information subject to monitoring is correct. Further, subsection 20(5) of the Regulatory Powers Act provides that an authorised person may only operate electronic equipment under section 20 of that Act if they believe on reasonable grounds that such operation can be carried out without damage to the equipment. Subsection 21(3) of the Regulatory Powers Act provides that an authorised person must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the authorised person's intention to secure the equipment, and the fact that the equipment may be secured for up to 24 hours. An authorised person may only secure equipment if the authorised person suspects on reasonable grounds that: there is relevant data on the premises, and the relevant data may be accessible by operating the equipment, and 44
expert assistance is required to operate the equipment, and the relevant data may be destroyed, altered or otherwise interfered with, if the authorised person does not take action under section 21 of the Regulatory Powers Act. 253. The power in section 22 of the Regulatory Powers Act may only be exercised where the authorised person believes on reasonable grounds that: it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained, and it is necessary to secure the thing without a warrant because the circumstances are serious and urgent. 254. These restrictions ensure that the use of these powers is necessary and is reasonable and proportionate to the legitimate objective of the ICNA Act. Expansion of investigation powers 255. Alignment with the standard investigation provisions of the Regulatory Powers Act also results in a minor expansion of the general investigation powers that an authorised person may exercise in relation to premises (compare current subsection 87(1) of the ICNA Act with section 49 of the Regulatory Powers Act). 256. Current subsection 87(1) of the ICNA Act provides that, where an inspector has reasonable grounds for suspecting that there may be on any premises a particular thing that may afford evidence as to the commission of an offence against that Act, the inspector may: search the premises for the thing, and if the inspector finds the thing on or in the premises--seize the thing. 257. Section 49 of the Regulatory Powers Act provides the following investigation powers that an authorised person may exercise in relation to premises under section 48 of that Act: if entry to the premises is with the occupier's consent--the power to search the premises and any thing on the premises for the evidential material the authorised person suspects on reasonable grounds may be on the premises if entry to the premises is under an investigation warrant: o the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant, and o the power to seize evidential material of that kind if the authorised person finds it on the premises the power to inspect, examine, take measurements of or conduct tests on evidential material found on the premises due to consent of the occupier or under an investigation warrant the power to make any still or moving image or any recording of the premises or evidential material found on the premises due to consent of the occupier or under an investigation warrant 45
the power to take onto the premises such equipment and materials as the authorised person requires for the purpose of exercising powers in relation to the premises, and the powers set out in subsection 50(1) and (2), subsection 51(2) and section 52 of the Regulatory Powers Act. 258. Sections 50 and 51 of the Regulatory Powers Act relate to operating, securing and seizing electronic equipment in the exercise of investigation powers. Section 50 of the Regulatory Powers Act provides an authorised person, for the purposes of investigation, with the power to operate electronic equipment on the premises, and the power to use a disk, tape or other storage device that is on the premises and can be used with the electronic equipment or is associated with it, if the authorised person suspects on reasonable grounds that the electronic equipment, disk, tape or other storage device is or contains evidential material. If evidential material is found in the exercise of these powers, subsection 50(2) of the Regulatory Powers Act provides the authorised person with the following powers: if entry to the premises is under an investigation warrant--the power to seize the equipment and the disk, tape or other storage device referred to in subsection 50(1) of the Regulatory Powers Act the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises, and the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that is brought to the premises for the exercise of the power, or is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises, in order to remove the disk, tape or other storage device from the premises. 259. Section 51 of the Regulatory Powers Act applies if an authorised person enters premises under an investigation warrant. This section allows an authorised person to secure electronic equipment under an investigation warrant for up to 24 hours to provide the authorised person with sufficient time to engage expert assistance to operate electronic equipment. 260. Section 52 of the Regulatory Powers Act provides power, where an authorised person has entered premises under an investigation warrant to search for evidential material, to seize evidence of a kind not specified in a warrant. 261. The current powers are only expanded in order to align with the standard provisions in the Regulatory Powers Act, which promotes consistency of regulatory powers across the Commonwealth. These additional powers may also engage the protection against arbitrary or unlawful interference with privacy. To the extent that they limit this right, the limitations are provided for by law. They are also necessary to pursue the legitimate objective of the ICNA Act. For example, section 50 of the Regulatory Powers Act is necessary to ensure that an authorised person can obtain access to electronic records that may contain evidential material. Section 51 of the Regulatory Powers Act is necessary, as an authorised person may not be accompanied by an expert assistant when exercising investigation powers, but expert or specialised assistance may be required to operate electronic equipment to access evidential material. Section 52 is necessary to allow an authorised person to seize evidence 46
not specified in the warrant where there are reasonable grounds to believe this evidence is likely to be concealed, lost or destroyed if it is not seized. 262. These additional provisions pertaining to investigation powers can only be exercised under an investigation warrant, or with the consent of the occupier of the premises. The exercise of these powers is restricted to circumstances set out in the provisions. Under section 49 of the Regulatory Powers Act, the investigation powers may only be exercised where the authorised person suspects on reasonable grounds that there may be evidential material on the premises. Subsection 50(1) of the Regulatory Powers Act provides that an authorised person may only operate electronic equipment under section 50 of that Act if they suspect on reasonable grounds that the electronic equipment, disk, tape or other storage device is or contains evidential material. The power to secure electronic equipment under section 51 of the Regulatory Powers Act may only be exercised under an investigation warrant, which must be issued by a judicial officer. Further, subsection 51(3) of the Regulatory Powers Act provides that an authorised person may only secure equipment if they suspect on reasonable grounds that: there is evidential material of the kind specified in the warrant on the premises, and the evidential material may be accessible by operating the equipment, and expert assistance is required to operate the equipment, and the evidential material may be destroyed, altered or otherwise interfered with, if the authorised person does not take action under section 51 of the Regulatory Powers Act. 263. Under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised where: the authorised person finds the thing in the course of searching for material of the kind specified in the warrant, and the authorised person believes on reasonable grounds that o the thing is evidential material of another kind, or o a related provision has been contravened with respect to the thing, or o the thing is evidence of a contravention of a related provision, or o the thing is intended to be used to contravene a related provision, and the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction. 264. Accordingly, the exercise of the additional investigation powers is constrained, and these constraints ensure that use of the powers is reasonable, necessary and proportionate to the legitimate objective of the ICNA Act. Right to security of person and right to life 265. As noted above, new subsections 85(11) and 86(10) of the ICNA Act preserve the effect of the powers under the current ICNA Act to use force against things in executing a monitoring or investigation warrant. As these powers do not extend to the use of force 47
against persons, they do not engage the right to security of person in Article 9 of the ICCPR or the right to life in Article 6 of the ICCPR. 266. The power is compatible with human rights. Criminal process rights 267. Triggering the provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act causes offences in that Act to apply in relation to monitoring and investigating under the ICNA Act. Parts 2 (monitoring) and 3 (investigation) of the Regulatory Powers Act provide questioning powers to authorised persons. Under subsection 24(3) of the Regulatory Powers Act, where entry is authorised by a monitoring warrant, the authorised person may require any person on the premises to answer questions or produce documents relating to information or provisions subject to monitoring. If the person fails to do so, this is an offence under subsection 24(5) of the Regulatory Powers Act. The penalty is 30 penalty units. Similarly, under section 54(3) of the Regulatory Powers Act an authorised person who enters premises under an investigation warrant may require persons on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant. If the person fails to do so, this is an offence under subsection 54(5) of the Regulatory Powers Act. The penalty is 30 penalty units. 268. Section 31 of the Regulatory Powers Act imposes an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 2 of the Regulatory Powers Act, for the purposes of executing a monitoring warrant. Subsection 31(2) of the Regulatory Powers Act provides that failure to comply with section 31 of that Act is an offence, and carries a penalty of 30 penalty units. 269. Section 63 of the Regulatory Powers Act imposes an obligation on the occupier of premises or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 3 of the Regulatory Powers Act, for the purposes of executing an investigation warrant. Subsection 63(2) of the Regulatory Powers Act provides that failure to comply with section 63 of that Act is an offence, and carries a penalty of 30 penalty units 270. Section 73 of the Regulatory Powers Act establishes an offence punishable by two years' imprisonment for a range of conduct by an authorised applicant in respect of an investigation warrant issued under section 71 of that Act. Section 71 of the Regulatory Powers Act sets out the procedure by which an investigation warrant may be obtained from an issuing officer by electronic means where the warrant is urgently required, or delay would frustrate the effective execution of the warrant. Subsection 71(6) of the Regulatory Powers Act places an obligation on the authorised application to complete a form of warrant in the same terms as the warrant completed and signed by the issuing officer under subsection 71(4) of that Act. 271. The application of these offences under the Regulatory Powers Act in the ICNA context under Schedule 10 to this Bill engages the fair trial rights, minimum guarantees in the determination of a criminal charge and other criminal process rights contained in Article 14 of the ICCPR. These offence provisions do not limit the person's access to a fair 48
trial or limit the other criminal process rights in any way. Sections 17 and 47 of the Regulatory Powers Act make it clear that the privileges against self-incrimination and legal professional privilege have not been abrogated by the monitoring and investigation powers provisions, including the offence provisions. These protections guarantee the criminal process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR. The usual guarantees and criminal process rights will apply to these offences and are not abrogated by any provisions in the Bill or triggered provisions of the Regulatory Powers Act. 272. Accordingly, sections 24, 31, 54, 63 and 73 of the Regulatory Powers Act, as applied to the ICNA Act by Schedule 10 to this Bill, are compatible with human rights. Injunctions and Article 14 273. Schedule 10 to this Bill also amends the ICNA Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the Minister or any other person to apply to a relevant court for an injunction to restrain a person from engaging in conduct or requiring that person to do a thing. Further, the Minister or other person may apply to a relevant court for an interim injunction. The injunctions provisions are triggered in relation to offences against the ICNA Act or the regulations made under that Act, or offences against the Crimes Act or the Criminal Code Act that relate to the ICNA Act or the regulations made under that Act. 274. Triggering the injunction provisions of the Regulatory Powers Act engages the right to a fair and public hearing and the other criminal process rights in Article 14 of the ICCPR. Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited. 275. New subsections 83(4) and (5) of the ICNA Act also modify the operation of Part 7 of the Regulatory Powers Act by setting out additional matters relevant to a court's power to grant injunctions. They provide that a relevant court may grant an injunction restraining a person from engaging in conduct, or requiring a person to do a thing, regardless of whether or not conduct of that kind constitutes a serious or immediate risk of adverse health effects or adverse environmental effects, or there is a serious or immediate risk of adverse health effects or adverse environmental effects if the person fails or refuses to do that thing. New subsection 83(4) of the ICNA Act ensures that a court may prevent conduct that would be contrary to the purposes of the Act, without needing to wait for the conduct to occur. New subsection 83(5) of the ICNA Act ensures that a court may require conduct to uphold the purposes of the Act, without needing to wait for the danger to manifest. New subsections 83(4) and (5) of the ICNA Act preserve the effect of current subsections 83(4) and (5) of that Act, which are repealed by Schedule 10 to this Bill. The amendments in Schedule 10 to this Bill relating to injunctions and the triggered injunctions provisions do not limit any of the criminal process rights in Article 14 of the ICCPR. Accordingly, the provisions are compatible with human rights. Additional triggered monitoring and investigation provisions 276. Alignment with the Regulatory Powers Act will also apply additional provisions pertaining to monitoring and investigation powers that do not currently have equivalents in the ICNA Act, as in force immediately before the commencement of Schedule 10 to this Bill. These provisions are sections 25, 26, 27, 28, 29, 30, 33, 34, 55, 56, 57, 58, 59, 60, 61, 49
62, 64, 65, 67, 68, 69, 71, 72, 74 and 75 of the Regulatory Powers Act. These provisions are merely procedural matters, and do not result in an expansion of the current regulatory framework of the ICNA Act. They do not engage any human rights, as discussed below. 277. Sections 25, 26, 27, 28 and 30 of the Regulatory Powers Act relate to entry onto premises, consent, and the right of the occupier to observe monitoring activities. An authorised person may enter premises and exercise monitoring powers under Part 2 of the Regulatory Powers Act with the consent of the occupier. Section 25 of the Regulatory Powers Act outlines matters in relation to valid consent, including that consent must be informed and voluntary, and may be withdrawn at any time by the occupier. Subsection 25(6) of the Regulatory Powers Act provides that an authorised person must present their identity card to the occupier prior to entry or as soon as is reasonably practicable after entry to the premises. 278. Section 26 of the Regulatory Powers Act provides that, before entering premises under a monitoring warrant, an authorised person must: announce that he or she is authorised to enter the premises, and show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises, and give any person at the premises an opportunity to allow entry to the premises. 279. Section 27 of the Regulatory Powers Act states that an authorised person executing a monitoring warrant must be in possession of the warrant or a copy of the warrant. Section 28 of the Regulatory Powers Act requires an authorised person to provide a copy of the monitoring warrant to the occupier of the premises, or another person who apparently represents the occupier, if either person is present at the premises. Under subsection 28(2) of the Regulatory Powers Act, the authorised person must also inform, in writing, the occupier or other person of their rights and responsibilities under sections 30 and 31 of that Act. 280. Section 30 of the Regulatory Powers Act provides the occupier of premises, or another person who apparently represents the occupier, with the right to observe the execution of a monitoring warrant on their premises, if the occupier or other person is present at the premises at the time of execution of the warrant. Subsection 30(2) of the Regulatory Powers Act states that the right ceases if the occupier or other person impedes execution of the warrant. 281. These provisions protect the interests of the occupier and promote informed consent. Sections 25, 26, 27, 28 and 30 of the Regulatory Powers Act do not engage any human rights. 282. Section 29 of the Regulatory Powers Act provides that a person is entitled to compensation for damage to electronic equipment or data during monitoring activities in some circumstances. This does not engage human rights. 283. Section 33 of the Regulatory Powers Act sets out the procedure for extension of the period during which a thing may be secured. This does not engage human rights. 284. Section 34 of the Regulatory Powers Act relates to the power conferred on an issuing officer by Part 2 of that Act. It provides that this power is conferred on that person in a 50
personal capacity, and not as a court or as a member of a court. This section recognises that issuing a warrant is an executive function and not an exercise of judicial power. This provision does not engage human rights. 285. Sections 55. 56, 57, 58 and 62 of the Regulatory Powers Act relate to entry onto premises, consent of the occupier, and the right of the occupier to observe investigation activities. An authorised person may enter premises and exercise investigation powers under Part 3 of the Regulatory Powers Act with the consent of the occupier. Section 55 of the Regulatory Powers Act outlines matters relating to valid consent, including that consent must be informed and voluntary, and may be withdrawn at any time by the occupier. Section 56 of the Regulatory Powers Act provides that, before entering premises under an investigation warrant, an authorised person must: announce that he or she is authorised to enter the premises, and show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises, and give any person at the premises an opportunity to allow entry to the premises. 286. Subsection 56(2) of the Regulatory Powers Act states that an authorised person is not required to comply with subsection 56(1) of the Regulatory Powers Act if the authorised person believes on reasonable grounds that immediate entry to the premises is required to ensure the safety of a person or to ensure that the effective execution of the warrant is not frustrated. 287. Section 57 of the Regulatory Powers Act states that an authorised person who is executing an investigation warrant must be in possession of the warrant or a copy of the warrant, and the form of warrant completed under subsection 71(6) of that Act or a copy of that completed form. 288. Section 58 of the Regulatory Powers Act requires an authorised person to provide a copy of the investigation warrant to the occupier of the premises. Under subsection 58(2) of the Regulatory Powers Act, the authorised person must also inform, in writing, the occupier or other person of their rights and responsibilities under sections 62 and 63 of that Act. 289. Section 62 of the Regulatory Powers Act provides the occupier of premises, or another person who apparently represents the occupier, with the right to observe the execution of an investigation warrant on their premises, if the occupier or other person is present at the premises at the time of execution of the warrant. 290. Sections 55, 56, 57, 58 and 62 of the Regulatory Powers Act protect the interests of the occupier and promote informed consent. They do not engage any human rights. 291. Sections 59 and 60 of the Regulatory Powers Act set out procedures that apply if an authorised person temporarily ceases execution of the warrant and leaves the premises. These provisions do not engage any human rights. 292. Section 61 of the Regulatory Powers Act provides that a person is entitled to compensation for damage to electronic equipment or data during investigation activities in some circumstances. This does not engage human rights. 51
293. Sections 64, 65, 66, 68 and 74 of the Regulatory Powers Act relate to the provision of copies of seized things or information to the occupier on request, receipts for seized things, requirements for the return of seized things, and applications to the issuing officer to extend the period in which seized things may be retained. These provisions do not engage any human rights. 294. Sections 71 and 72 of the Regulatory Powers Act sets out the procedure by which an investigation warrant may be obtained from an issuing officer electronically in urgent circumstances, and the authority of such a warrant. These provisions do not engage any human rights. 295. Section 75 of the Regulatory Powers Act provides that a power conferred on an issuing officer by Part 3 of that Act is conferred on that person in a personal capacity, and not as a court or as a member of a court. This section recognises that issuing a warrant is an executive function and not an exercise of judicial power. It does not engage any human rights. 296. Accordingly, these additional triggered provisions relating to monitoring and investigation are compatible with human rights. Conclusion 297. Schedule 10 to this Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Overview of Schedule 11 - Paid Parental Leave Act 2010 298. The Paid Parental Leave Act 2010 (the 'PPL Act') establishes the Paid Parental Leave Scheme, which is a Government-funded payment that complements the entitlement to unpaid leave under the National Employment Standards in the Fair Work Act 2009. The Paid Parental Leave Scheme currently consists of the Parental Leave Pay and the Dad and Partner Pay. Parental Leave Pay is an 18-week payment at the rate of the national minimum wage for eligible primary carers (mostly birth mothers) of newborn and recently adopted children. Dad and Partner Pay is a two-week payment at the rate of the national minimum wage for eligible dads or partners caring for newborn or recently adopted children. 299. Schedule 11 to this Bill amends the PPL Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the PPL are enforceable under that Part of the Regulatory Powers Act. 300. Under these amendments, the Secretary of the department that administers the PPL Act and the Fair Work Ombudsman are authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the PPL Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined. 301. The PPL Act is also amended to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable the Secretary of the department that administers the PPL Act and the Fair Work Ombudsman to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a civil penalty provision of the PPL Act has been contravened. 52
302. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court. Human rights implications Civil penalties and Article 14 303. The PPL Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 11 to this Bill. However, the amendments in Schedule 11 to this Bill mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the PPL Act. 304. Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as 'criminal' under international human rights law. 305. As set out at paragraph 39 above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. 306. The penalty provisions of the PPL Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the Paid Parental Leave Scheme under the PPL Act. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the PPL Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the PPL Act are civil rather than criminal in nature. 307. The amendments in Schedule 11 to this Bill do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the PPL Act (see current section 146 and current subsection 147(3) of the PPL Act), which are 60 penalty units for individuals and 300 penalty units for bodies corporate for a contravention of subsection 70(2), 72(1), 72(2), 72(3), 82(2), 105(3) or 157(4) or section 74, or 103 of the PPL Act, or 30 penalty units for individuals and 150 penalty units for bodies corporate for a contravention of subsection 81(1), 81(2) or 157(4) or section 80 of the PPL Act (see subsection 82(5) of the Regulatory Powers Act, as applied to the PPL Act by Schedule 11 to this Bill). The civil penalty provisions do not carry the possibility of imprisonment. 308. Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the PPL Act due to the application of section 93 of the Regulatory Powers Act. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or 53
the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This section is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. It does not engage any human rights. 309. As noted above, subsection 85(2) of the Regulatory Powers Act allows a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. Under subsection 85(2) of the Regulatory Powers Act, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. The maximum penalty for each contravention is provided by subsection 82(5) of the Regulatory Powers Act (for individuals, no more than the amount specified in the civil penalty provision, and for bodies corporate, no more than five times that amount). 310. As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia's human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 11 to this Bill. Fair hearing and criminal process rights 311. The amendments relating to civil penalty provisions in Schedule 11 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited. 312. The amendments in Schedule 11 to this Bill modify the operation of Part 4 of the Regulatory Powers Act, and provide that a person commits an offence if they fail to comply with a written request from the Secretary of the department that administers the PPL Act to give all reasonable assistance in connection with an application for a civil penalty order (see section 156 of the PPL Act, as amended by Schedule 11 to this Bill). These amendments preserve existing arrangements under the PPL Act. 313. The power in amended section 156 of the PPL Act to request information is restricted to situations where it appears that a person is unlikely to have contravened the civil penalty provision or committed an offence, but that person is likely to have information relevant to the civil penalty application. Accordingly, use of this provision is unlikely to infringe the privilege against self-incrimination in Article 14(2)(g) of the ICCPR. In addition, the requirement to provide assistance does not expressly abrogate legal professional privilege or other privileges or immunities relating to the disclosure of information. Further, the Secretary of the department that administers the PPL Act cannot request a person to assist if they are, or have been, a lawyer for a person suspected of contravening the civil penalty provision that is the subject of the application. The usual guarantees and criminal process rights will apply to this offence. Accordingly, the exercise of the power is restricted, and the criminal process rights in Article 14 of the ICCPR are not limited by this power. 54
314. Further, under amended section 156 of the PPL Act, the Secretary of the department that administers the PPL Act may apply to a relevant court for an order requiring a person to comply with a request for assistance. In these circumstances, as the order can only be made by a court, the right to a fair and public hearing provided for by Article 14(1) of the ICCPR is not limited. Infringement notices and Article 14 315. Under the amendments in Schedule 11 to this Bill, infringement notices can be issued under the Regulatory Powers Act in relation to contraventions of civil penalty provisions of the PPL Act. This infringement notice mechanism does not apply to offences against the PPL Act. As noted above, the civil penalty provisions do not impose criminal penalties. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged. There are no criminal consequences associated with infringement notice for civil penalty provisions. For example, they do not carry the possibility of imprisonment if the person does not pay the penalty or attend court. 316. Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty order may be brought against them in a court. Accordingly, the person must always be advised of the consequences of not paying the penalty, and of their right to have the matter dealt with by a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair hearing in civil matters provided by Article 14(1) of the ICCPR is not limited. 317. The amendments in Schedule 11 to this Bill modify the operation of subsection 103(2) of the Regulatory Powers Act, and provide that an infringement notice given in relation to a failure to comply with a compliance notice issued under current subsection 157(4) of the PPL Act must be given within 12 months of the day on which the 14-day period referred to in current subsection 157(3) of that Act ends (see new subsection 159(5) of the PPL Act). New subsection 159(5) of the PPL Act preserves the effect of current subsection 159(3) of the PPL Act, and does not engage any human rights. 318. As noted above, the application of section 93 of the Regulatory Powers Act to the PPL Act by Schedule 11 to this Bill will mean that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs. Accordingly, an infringement notice may relate to a number of contraventions. Schedule 11 to this Bill modifies the operation of subsections 104(2) and 104(3) of the Regulatory Powers Act, which provide the maximum amount payable under an infringement notice for single contraventions and multiple contraventions respectively. New paragraphs 159(6)(a) and (b) of the PPL Act provide that for single contraventions, the amount to be stated in an infringement notice for an alleged contravention of a provision mentioned in new subsection 159(1) or (3) of the PPL Act must be 15 or 30 penalty units for bodies corporate and 3, 15 or 6 penalty units for others, depending on the contravention. These paragraphs preserve the effect of current subsections 159(5) and (6) of the PPL Act. 319. Where the infringement notice relates to a number of contraventions, new paragraph 159(6)(c) of the PPL Act provides that the maximum penalty is the number of penalty units worked out by multiplying the number of alleged contraventions by the relevant penalty specified in paragraph 159(6)(a) or (b) of that Act. Neither the modification 55
of the operation of subsections 104(2) and (3) of the Regulatory Powers Act, nor this additional provision, raise any further human rights implications. 320. Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the PPL Act. However, alignment with Regulatory Powers Act will apply section 105 of that Act, which does not have an equivalent in the current PPL Act. Section 105 of the Regulatory Powers Act is merely procedural in nature and sets out matters in relation to the extension of time to pay an infringement notice. This provision does not engage any human rights. Additional triggered provisions without human rights implications 321. Further, alignment with Regulatory Powers Act will apply additional provisions, which are not currently in the PPL Act, that are merely procedural in nature. Sections 92, 94, 95 and 97 of the Regulatory Powers Act relate to ancillary contraventions of civil penalty provisions, the relevance of a person's state of mind, mistake of fact and vicarious liability of employees, agents or officers of a body corporate, respectively. These provisions do not engage the criminal process rights in Article 14 of the ICCPR, as they do not impact upon criminal proceedings. 322. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged. 323. Finally, the time period for the making of an application for a civil penalty order will be increased from within 4 years to within 6 years of the alleged contravention, due to the operation of subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill). The change to the time period is a result of alignment with the standard provisions of the Regulatory Powers Act. As Article 14 of the ICCPR is not engaged, the right to be tried without undue delay provided by paragraph 14(3)(c) of the ICCPR is not engaged. Right to privacy 324. Schedule 11 to this Bill amends section 127 of the PPL Act, which provides that a person may obtain protected information if the information is obtained for the purposes of the PPL Act. The amendments to section 127 of the PPL Act clarify that a person may also obtain protected information if that information is obtained for the purposes of carrying out powers, duties or functions under the Regulatory Powers Act, as that Act applies in relation to the provisions of the PPL Act. Obtaining information for the purposes of compliance and enforcement under the PPL Act will no longer be purely for the purposes of that Act, as the compliance and enforcement framework will be provided for by the Regulatory Powers Act. Accordingly, it is necessary to obtain protected information for the purposes of the Regulatory Powers Act, as that Act applies to the PPL Act. 325. Schedule 11 to this Bill also amends subsection 128(1) of the PPL Act to clarify that, in certain listed circumstances, the Secretary of the department that administers the PPL Act may disclose personal information acquired by an officer in the exercise of the officer's powers or performance of the officer's duties or functions under the Regulatory Powers Act, 56
as that Act applies to the provisions of the PPL Act. It is necessary to make this clarification, as Schedule 11 to this Bill amends the PPL Act to apply to standard provisions of the Regulatory Powers Act, and personal information may need to be disclosed by the Secretary for the purposes of the Regulatory Powers Act, as that Act applies to the PPL Act. 326. Amended sections 127 and 128 of the PPL Act engage the protection against arbitrary or unlawful interference with privacy. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. As set out above, the right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. 327. The PPL Act pursues the legitimate objective of providing Paid Parental Leave for parents who are primary carers of a child born or adopted on or after 1 January 2011. The Act pursues this objective by establishing a national, government-funded Paid Parental Leave scheme. To the extent that sections 127 and 128 of the PPL Act may limit the right to privacy, these limitations are provided by law. Protected information is used under the PPL Act for assessing customers' claims for payment. Subsection 127(1) of the PPL Act limits the purposes for which protected information may be obtained for the purposes of the PPL Act and the Regulatory Powers Act. This ensures that information is only collected for the purpose of assessing a claim for Paid Parental Leave in order to provide financial support to primary carers of a newborn or newly adopted child, or enforcement under the Regulatory Powers Act. 328. Under subsection 127(2) of the PPL Act, protected information may only be used or disclosed: for the purposes of o the PPL Act or the Regulatory Powers Act, as that Act applies to the PPL Act o the family assistance law o the social security law o the Student Assistance Act 1973 o for the purposes for which the information was disclosed to the person under section 128 of the PPL Act, or with the express or implied authorisation of the person to whom the information relates. 329. These restrictions on the use of protected information ensure that the power is only used for the purposes of assessing a person's claim for Paid Parental Leave, or for the purpose allowed under the other legislation listed. 330. There are also restrictions on the persons to whom personal information may be disclosed, and for what purpose, under section 128 of the PPL Act. For example, under section 128 of the PPL Act, if the disclosure is necessary for the public interest, the Secretary 57
of the department that administers the PPL Act can determine who to disclose information to and for what purpose. Section 128 of the PPL Act also provides that if the information is required by a law of the Commonwealth, information can be disclosed to the Agency Head of the relevant Agency, or to the Minister responsible for the department that administers the PPL Act for the purposes of assisting the Minister to consider a complaint or issue, or to an SES or APS employee of the department that administers the PPL Act for the purpose of briefing the Minister in considering a complaint or issue. These restrictions ensure that information is only disclosed for the purposes of assessing a claim or assessing an issue or complaint. Further, in disclosing information, the Secretary of the department that administers the PPL Act is required to act in accordance with guidelines issued by the Minister responsible for the department that administers the PPL Act. These restrictions ensure that any limitation of the right to privacy is lawful and not arbitrary and that the powers are not susceptible to abuse. Sections 127 and 128 of the PPL Act are necessary, reasonable and proportionate to the objectives of that Act. Conclusion 331. Schedule 11 to this Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are necessary, reasonable and proportionate. Overview of Schedule 12 - Personal Property Securities Act 2009 332. The Personal Property Securities Act 2009 (the 'PPS Act') replaced a complex and fragmented system, including over 70 Commonwealth, State and Territory Acts, with a single national regime for the creation, registration, priority and enforcement of security interests in personal property. The PPS Act also created the Personal Property Securities Register (the 'Register') which consolidated and replaced over 40 Commonwealth, State and Territory registers used to provide notification to third parties of interests in personal property. Apart from giving secured parties a simple means of publicising and protecting their interests, the Register also provides an authoritative public record of interests in personal property for the benefit of third parties (such as financiers, lenders, insolvency practitioners and buyers of personal property). The legitimate objectives of the PPS Act are to provide for this national scheme and register. 333. Schedule 12 to this Bill amends the PPS Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the PPS Act are enforceable under that Part of the Regulatory Powers Act. 334. Under these amendments, the Registrar of Personal Property Securities (as defined in the PPS Act) is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the PPS Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined 335. The PPS Act is also amended to trigger the enforceable undertakings provisions in Part 6 of the Regulatory Powers Act, which will enable the Registrar of Personal Property Securities (as defined in the PPS Act) to accept and enforce undertakings relating to compliance with civil penalty provisions of the PPS Act. Further, if the Registrar of Personal Property Securities is satisfied that the person has breached the undertaking, he or she may apply to a relevant court for an order relating to the undertaking. 58
Human rights implications Civil penalties and Article 14 336. The PPS Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 12 to this Bill. However, the amendments in Schedule 12 to this Bill mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the PPS Act. 337. Triggering the civil penalty provisions of the Regulatory Powers Act could engage criminal process rights if the imposition of civil penalties is classified as 'criminal' under international human rights law. As set out at paragraph 39 above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. 338. The penalty provisions of the PPS Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the personal property securities regime provided by the PPS Act. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the PPS Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the PPS Act are civil rather than criminal in nature. 339. The amendments in Schedule 12 to this Bill do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the PPS Act, which are 50 penalty units for individuals and 250 penalty units for bodies corporate (see subsection 82(5) of the Regulatory Powers Act, as applied to the PPS Act by Schedule 12 to this Bill). The civil penalty provisions do not carry the possibility of imprisonment. 340. The amendments in Schedule 12 to this Bill will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment. 341. As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia's human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 12 to this Bill. 342. The amendments relating to civil penalty provisions in Schedule 12 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil 59
penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited. Additional triggered civil penalty provisions without human rights implications 343. Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the PPS Act due to the triggering of section 93 of the Regulatory Powers Act. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This section is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. As noted above, subsection 85(2) of the Regulatory Powers Act, applied to the PPL Act by the amendments in this Bill, allows a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. Under subsection 85(2) of the Regulatory Powers Act, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. The maximum penalty for each contravention is provided by subsection 82(5) of the Regulatory Powers Act (for individuals, no more than the amount specified in the civil penalty provision, and for bodies corporate, no more than five times that amount). 344. The application of section 93 of the Regulatory Powers Act does not engage any human rights. 345. Further, alignment with Regulatory Powers Act will apply additional provisions, which are not currently in the PPS Act, that are merely procedural in nature. These are sections 85, 86, 87, 94, 95, 96 and 97 of the Regulatory Powers Act. 346. Sections 85, 86, 87, 94, 95 and 97 of the Regulatory Powers Act relate to multiple contraventions of civil penalty provisions, the ability to hear two or more civil penalty order proceedings together, the application of the rules and evidence and procedure for civil matters, the relevance of a person's state of mind, mistake of fact and vicarious liability of employees, agents or officers of a body corporate, respectively. These provisions do not engage the criminal process rights in Article 14 of the ICCPR, as they do not impact upon criminal proceedings. 347. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged. 60
Enforceable undertakings and Article 14 348. Under the amendments in Schedule 12 to this Bill, enforceable undertakings may be accepted and enforced under the Regulatory Powers Act in relation to contraventions of civil penalty provisions of the PPS Act. The enforceable undertakings mechanism does not apply to offences against the PPS Act. Accordingly, the criminal process rights provided for by Article 14(1) of the ICCPR are not engaged. 349. As orders to enforce an undertaking can only be made by a relevant court under section 115 of the Regulatory Powers Act, the right to a fair hearing in civil matters provided for by Article 14(1) is not limited. Conclusion 350. Schedule 12 to this Bill is compatible with human rights because it does not engage the criminal process rights in Article 14 of the ICCPR and does not limit the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR. Overview of Schedule 13 - Privacy Act 1988 351. The Privacy Act 1988 regulates the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information, and access to and correction of that information. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence. The Privacy Act gives effect to Article 17 of the ICCPR, giving individuals rights in relation to how organisations and agencies handle personal information, both online and offline. 352. Schedule 13 to this Bill amends the Privacy Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the Privacy Act are enforceable under that Part of the Regulatory Powers Act. 353. Under these amendments, the Commissioner (defined in the Privacy Act as the Information Commissioner within the meaning of the Australian Information Commissioner Act 2010) is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the Privacy Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined. 354. The Privacy Act is also amended to trigger the enforceable undertakings provisions in Part 6 of the Regulatory Powers Act, which will enable the Commissioner to accept and enforce undertakings relating to compliance with the provisions of the Privacy Act. Further, if the Commissioner is satisfied that the person has breached the undertaking, he or she may apply to a relevant court for an order relating to the undertaking. 355. Schedule 13 to this Bill also amends the Privacy Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the Commissioner to apply to a relevant court for an injunction to restrain the person from engaging in conduct or requiring the person to do a thing. Further, the Commissioner may apply to a relevant court for an interim injunction. 61
Human rights implications Civil penalties and Article 14 356. The Privacy Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 13 to this Bill. However, the amendments in Schedule 13 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the Privacy Act. 357. Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as 'criminal' under international human rights law. As set out above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. 358. The civil penalty provisions of the Privacy Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the Privacy Act, which supports the implementation of Australia's obligations under the ICCPR. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the Privacy Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the Privacy Act are civil rather than criminal in nature. 359. The amendments in Schedule 13 to this Bill do not alter the maximum pecuniary penalties specified for contraventions of the Privacy Act (see current subsection 80U(5) of the Privacy Act). The Privacy Act specifies penalties of 60, 200, 500, 1000 or 2000 penalty units in various civil penalty provisions. Subsection 82(5) of the Regulatory Powers Act, as applied to the Privacy Act, provides that where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision, and if the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. The application of this provision preserves the effect of current subsection 80W(5) of the Privacy Act. Accordingly, the maximum penalties for bodies corporate are 300, 1000, 2500 or 10 000 penalty units depending on the provision. This preserves the current maximum penalty amounts. 360. The Privacy Act confers enforcement and other regulatory powers on the Commissioner, which are based on an escalation model that has a range of regulatory responses including civil penalty provisions. The Guide to Privacy Regulatory Action provides guidance on the Commissioner's exercise of regulatory powers in the Privacy Act and indicates the preferred regulatory approach is to work with entities to facilitate legal and best practice compliance. The Guide states the Commissioner will not seek a civil penalty order for all contraventions of a civil penalty provision in the Privacy Act and is unlikely to seek a civil penalty order for minor or inadvertent contraventions. 361. The more serious penalties apply to serious breaches of privacy. For example, section 13G of the Privacy Act imposes a civil penalty of 2000 penalty units for serious interference with an individual's privacy or repeated interference of the privacy of one or 62
more individuals. The penalties set out in the civil penalty provisions are maximum penalties and it is open to a court to exercise its discretion to impose a lower penalty. This discretion would be informed by reference to subsection 82(6) of the Regulatory Powers Act, which provides that a court must take into account all relevant matters in determining a pecuniary penalty, including the nature and extent of the contraventions, the loss or damage suffered, the circumstances in which the contraventions took place and whether a court has previously found the person to have engaged in similar conduct. Subsection 82(6) of the Regulatory Powers Act preserves section 80W(6) of the Privacy Act. 362. The civil penalty provisions do not carry the possibility of imprisonment. 363. The amendments in Schedule 13 to this Bill will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment. 364. As such, the civil penalties under the Privacy Act are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia's human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 13 to this Bill. 365. The amendments relating to civil penalty provisions in Schedule 13 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited. 366. Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the Privacy Act due to the triggering of section 93 of the Regulatory Powers Act. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This section is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. As discussed above, section 85 of the Regulatory Powers Act provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with 63
civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment. The application of section 93 of the Regulatory Powers Act does not engage any human rights. Additional civil penalty provisions without human rights implications 367. Alignment with Regulatory Powers Act will apply additional provisions, which are not currently in the Privacy Act, that are merely procedural in nature. These are sections 94, 95, 96 and 97 of the Regulatory Powers Act. 368. Sections 94, 95 and 97 of the Regulatory Powers Act relate to the relevance of a person's state of mind, mistake of fact and vicarious liability of employees, agents or officers of a body corporate, respectively. These provisions do not engage the criminal process rights in Article 14 of the ICCPR, as they do not impact upon criminal proceedings. 369. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged. Enforceable undertakings and Article 14 370. Under the amendments in Schedule 13 to this Bill, enforceable undertakings may be accepted and enforced under the Regulatory Powers Act in relation to contraventions of provisions of the Privacy Act (including offence provisions). As the enforceable undertakings framework applies to the offence provisions, the right to a fair and public hearing and the other criminal process rights and minimum guarantees in Article 14 of the ICCPR are engaged. 371. Under Part 6 of the Regulatory Powers Act, an order enforcing an undertaking that relates to compliance with provisions of the Privacy Act can only be made by a court. Accordingly, the right to a fair and public trial is not limited. 372. The amendments in Schedule 13 to this Bill also do not limit the minimum guarantees and other criminal process rights in Article 14 of the ICCPR. Injunctions and Article 14 373. Under the amendments in Schedule 13 to this Bill, an injunction can be granted under the Regulatory Powers Act in relation to contraventions of the provisions of the Privacy Act. Accordingly, as the injunctions framework applies to the offence provisions of the Privacy Act, the right to a fair and public trial and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR are engaged. 374. Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Further, a court may only grant an injunction where a person has engaged, is engaging or is proposing to engage, in conduct that contravenes a provision of the Privacy Act, or where a person has refused or failed, or is refusing or failing, or proposing to refuse or fail, to do a thing and that refusal or failure was, is or would be a contravention of a provision of the Privacy Act. Thus, the right to a fair and public trial is not limited. 64
375. The other criminal process rights and minimum guarantees in Article 14 of the ICCPR are not limited by the amendments in Schedule 13 to this Bill. Right to privacy 376. Schedule 13 to this Bill also modifies the operation of Part 6 of the Regulatory Powers Act, and provides that the Commissioner may publish an undertaking given in relation to a provision of that Act on the Commissioner's website . New subsection 80V(4) of the Privacy Act preserves the effect of current subsection 33E(5) of that Act. 377. This provision engages the protection against arbitrary or unlawful interference with privacy. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. 378. The Privacy Act pursues the legitimate objective of giving effect to Australia's obligations under Article 17 of the ICCPR. It pursues this objective by regulating the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information, and access to and correction of that information. 379. To the extent that the power in new section 80V(4) of the Privacy Act may limit the right to privacy, this limitation is provided for by law. It is necessary that the Commissioner retain the power in new section 80V(4) of the Privacy Act in order to pursue the legitimate objective of the Privacy Act by promoting compliance with that Act. The power may only be exercised by the Commissioner, ensuring that its use is reasonable, necessary and proportionate to the objectives of the Privacy Act and limiting the risk of abuse of this power. The objectives of the Privacy Act are themselves consistent with the ICCPR. Accordingly, the provision is compatible with the protection from arbitrary or unlawful interference with privacy. Conclusion 380. Schedule 13 to this Bill is compatible with human rights because to the extent that it may limit human rights, the limitation of those rights is necessary, reasonable and proportionate . Overview of Schedule 14 - Tobacco Plain Packaging Act 2011 381. The Tobacco Plain Packaging Act 2011 (the 'TPP Act') sets out the requirements for the plain packaging of tobacco products. The legislation prohibits the use of logos, brand imagery and promotional text on tobacco products and packaging, and includes restrictions on colour, size, format and materials of packaging, as well as the appearance of brand and variant names. All tobacco products sold, offered for sale or otherwise supplied in Australia from 1 December 2012 are required to be in plain packaging, and be labelled with updated and expanded health warnings. 65
382. Schedule 14 to this Bill amends the TPP Act to trigger the provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act, which will enable an authorised officer (as defined in the TPP Act) to enter premises and exercise investigation powers where the authorised officer suspects on reasonable grounds that there may be material on the premises related to the contravention of an offence or civil penalty provision of the TPP Act, or an offence against the Crimes Act 1914 or Criminal Code Act 1995 that relates to the TPP Act. The general investigation powers of an authorised person are set out in Part 3 of the Regulatory Powers Act, and are discussed above in relation to the GEMS Act. 383. The TPP Act is also amended to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the TPP Act are enforceable under that Part of the Regulatory Powers Act. 384. Under these amendments, the Secretary of the department that administers the TPP Act is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the TPP Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined. 385. Schedule 14 to this Bill also amends the TPP Act to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable an authorised officer to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a strict liability offence against Chapter 3 of the TPP Act has been contravened. 386. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court. Human rights implications Right to privacy 387. Schedule 14 to this Bill engages the protection against arbitrary or unlawful interference with privacy. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. 388. The legitimate objectives of the TPP Act are to give effect to Australia's obligations as a party to the Convention on Tobacco Control, and to improve public health by discouraging people from taking up smoking or using tobacco products, encouraging people to give up smoking or to stop using tobacco products, discouraging people who have given up smoking or who have stopped using tobacco products from relapsing, and reducing people's exposure to smoke from tobacco products. Schedule 14 to this Bill supports this 66
objective by triggering the standard provisions pertaining to investigation in Part 3 of the Regulatory Powers Act, which will replace the existing investigation regime of the TPP Act. Application of the standard provisions pertaining to investigation in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the TPP Act. 389. Part 3 of the Regulatory Powers Act protects against arbitrary interference with privacy, as the entry, search and seizure powers cannot be exercised without the fully informed and voluntary consent of the occupier of the premises, or prior judicial authorisation in the form of a warrant. Where entry is based on the consent of the occupier, entry may be restricted to a particular period. Additional safeguards are provided through provisions requiring authorised persons, and any persons assisting, to leave the premises if the occupier withdraws their consent. 390. The Regulatory Powers Act also provides limits on the issuing of an investigation warrant. For example, an issuing officer may issue an investigation warrant only when satisfied, by oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, evidential material on the premises. An issuing officer must not issue a warrant unless the issuing officer has been provided, either orally or by affidavit, with such further information as they require concerning the grounds on which the issue of the warrant is being sought. Such constraints on this power ensure adequate safeguards against arbitrary limitations on the right to privacy in the issuing of warrants. 391. Further, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers, and mitigates arbitrariness and risk of abuse. 392. The investigation powers may only be exercised in certain circumstances set out in the Regulatory Powers Act. For example, under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised where: the authorised person finds the thing in the course of searching for material of the kind specified in an investigation warrant, and the authorised person believes on reasonable grounds that o the thing is evidential material of another kind, or o a related provision has been contravened with respect to the thing, or o the thing is evidence of a contravention of a related provision, or o the thing is intended to be used to contravene a related provision, and the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction. 393. These constraints on the exercise of the powers limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances. 394. New subsection 52(11) of the TPP Act modifies the operation of Part 3 of the Regulatory Powers Act, and provides an authorised officer (as defined in the TPP Act) with the power to take samples of any thing at any premises entered under section 48 of the 67
Regulatory Powers Act for the purposes of exercising investigation powers. New subsection 52(11) of the TPP Act preserves the effect of current paragraph 53(c) of that Act. 395. This provision engages the right to privacy in Article 17 of the ICCPR. To the extent that it may limit this right, the limitation is provided for by law. It is necessary to retain the power to take samples in the TPP Act in order to pursue the legitimate objectives of that Act. The power is an essential element of an authorised officer's investigation powers under the current regulatory powers framework of that Act. The power allows for the testing of samples of tobacco products during the course of an investigation, which provides for more targeted investigations of businesses that are potentially breaching the TPP Act. The tests are, by necessity, destructive and cannot be carried out otherwise than by taking samples. 396. The power to sample any thing on any premises is restricted in various ways. The power may not be exercised without an investigation warrant, or the occupier's consent to enter the premises. The authorised officer can only take samples of evidential material. Section 39 of the Regulatory Powers Act defines evidential material as material that an authorised person suspects on reasonable grounds is linked to the contravention of a provision. Accordingly, the exercise of the power is restricted, and these restrictions ensure its use is reasonable, necessary and proportionate to the legitimate objectives of the TPP Act. The provision is compatible with the protection against arbitrary or unlawful interference with privacy. Right to security of person and right to life 397. Schedule 14 to this Bill modifies the operation of Part 3 of the Regulatory Powers Act, and permits an authorised person to use force against things when exercising an investigation warrant. New subsection 52(12) of the TPP Act preserves the effect of current section 57 of the TPP Act. 398. New subsection 52(12) of the TPP Act provides that, in executing an investigation warrant, an authorised officer (as defined in the TPP Act), or person assisting an authorised officer, may use such force against things as is necessary and reasonable in the circumstances. It is necessary to include this power, as an authorised person executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain evidential material that would demonstrate that a provision of the TPP Act subject to investigation has been contravened. 399. The power can only be exercised under an investigation warrant, which must be issued by a judicial officer. Further, the power may only be used as is necessary and reasonable in the circumstances, and use of force against persons is not authorised. 400. As the power is limited to use of force against things, and not persons, the right to life provided for in Article 6 of the ICCPR and the right to liberty and security of person provided for in Article 9 of the ICCPR are not engaged. Investigation powers and Article 14 401. Schedule 14 to this Bill engages the criminal process rights contained in Article 14 of the ICCPR. Part 3 of the Regulatory Powers Act provides questioning powers to authorised persons in certain situations. Under subsection 54(3) of the Regulatory Powers Act, an authorised person who enters premises under an investigation warrant may require persons 68
on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant. If the person fails to do so, this is an offence under subsection 54(5) of the Regulatory Powers Act. The penalty is 30 penalty units. 402. Section 47 of the Regulatory Powers Act makes it clear that in general, the privilege against self-incrimination and legal professional privilege have not been abrogated by the provisions pertaining to investigation powers. These protections guarantee the criminal process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR by limiting the operation of the questioning powers. 403. However, Schedule 14 to this Bill abrogates the operation of section 47 of the Regulatory Powers Act through the inclusion of new subsections 52(14) and (15) and new section 80A of the TPP Act. New subsection 52(14) of the TPP Act provides that, despite section 47 of the Regulatory Powers Act, a person is not excused from giving information, producing a document or answering a question under subsection 54(3) of the Regulatory Powers Act, as Part 3 of that Act applies in relation to the TPP Act, on the ground that the information, the production of the document, or answer to the question, might tend to incriminate that person or expose that person to a penalty. New subsection 52(15) of the TPP Act provides that, in the case of an individual, none of the following is admissible in evidence against that individual in criminal proceedings: the information given, the document produced or the answer given giving the information, producing the document or answering the question, or any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question. 404. New section 80A of the TPP Act states that a person is not excused from giving information, producing a document or answering a question under subsection 80(2) of that Act on the ground that the information, the production of the document, or answer to the question, might tend to incriminate that person or expose that person to a penalty. New subsection 80A(2) of the TPP Act provides that, in the case of an individual, none of the following is admissible in evidence against that individual in criminal proceedings: the information given, the document produced or the answer given giving the information, producing the document or answering the question, or any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question. 405. New subsection 80A(2) of the TPP Act provides an authorised officer (as defined in the TPP Act) with the power to give a notice to a person requiring him or her to provide information, produce documents or answer questions where the authorised officer has reason to believe that person has information relevant to the administration or enforcement of the TPP Act. 406. New subsections 52(14) and (15) and new section 80A of the TPP Act preserve the effect of sections 58 and 83 of the TPP Act. These provisions engage the right to be free from self-incrimination set out in Article 14(3) of the ICCPR. It is necessary to retain the abrogation of the self-incrimination privilege in the TPP Act due to the difficulties in 69
obtaining relevant evidence. Authorised officers are often not in a position to observe a transaction that would form the basis of a contravention of the TPP Act, as such evidence may only be obtained from an individual who is a party to a transaction. The type of information that may be requested from a tobacco company would not be obtainable other than from representatives of that company, or people who engage in dealings with that company. The full application of the privilege against self-incrimination would compromise investigation and enforcement activities, and would result in retailers of tobacco products unfairly bearing the burden of compliance with the requirements of the TPP Act, as retailers are the most readily accessible point for investigation and enforcement. Retaining the abrogation of the self-incrimination privilege ensures that evidence is available, which enables identification of persons who engage in contraventions at an earlier point in the supply chain. 407. New subsections 52(15) and 80A(2) of the TPP Act restrict the abrogation of the privilege against self-incrimination, and protect an individual from incriminating himself or herself in a way that would allow evidence to be used against him or her in criminal proceedings. The usual criminal process rights and minimum guarantees apply in criminal proceedings under the TPP Act, including the right to a fair and public hearing and appeal rights to a higher court. Accordingly, the provisions are compatible with the criminal process rights in Article 14 of the ICCPR. Civil penalties and Article 14 408. The TPP Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 14 to this Bill. However, the amendments in Schedule 14 to this Bill mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act instead of by the TPP Act. 409. Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as under international human rights law. As set out at paragraph 39 above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. 410. The penalty provisions of the TPP Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the plain packaging regime of the TPP Act. The civil penalty provisions of the TPP Act do not impose criminal liability and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the TPP Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the TPP Act are civil rather than criminal in nature. 411. The amendments in Schedule 14 to this Bill do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the TPP Act (see current subsection 85(5) of the TPP Act), which are, depending on the applicable civil penalty provision, 30 penalty units, 60 penalty units or 2000 penalty units Under 70
subsection 82(5) of the Regulatory Powers Act, as applied to the TPP Act, the maximum penalties which apply to individuals are the same as those specified in the civil penalty provisions of the TPP Act. For bodies corporate, the penalties will be no more than five times higher than the penalties specified in the civil penalty provisions, that is, 150, 300 or 10 000 penalty units depending on the provision. This preserves the effect of current subsection 85(5) of the TPP Act and maintains the current maximum penalty amounts. The civil penalty provisions do not carry the possibility of imprisonment. 412. The penalty levels in the TPP Act were set to align with the Competition and Consumer Act 2010. It is necessary to maintain this alignment to ensure that the penalties for a breach of plain packaging requirements are the same as the penalties that could be applied under Schedule 2 of the Competition and Consumer Act for a breach of the requirements to display graphic health warnings. The higher penalties apply to the more serious cases of non-compliance, such as individuals or corporations who deal with a high volume of non-compliant tobacco products. The maximum penalties are intended to encourage compliance by manufacturers, importers and other large scale suppliers participating in the tobacco industry. The penalties set out in the civil penalty provisions are maximum penalties and it is open to a court to exercise its discretion to impose a lower penalty. This discretion would be informed by reference to subsection 82(6) of the Regulatory Powers Act, which provides that a court must take into account all relevant matters in determining a pecuniary penalty, including the nature and extent of the contraventions, the loss or damage suffered, the circumstances in which the contraventions took place and whether a court has previously found the person to have engaged in similar conduct. Subsection 82(6) of the Regulatory Powers Act preserves the effect of current section 85(6) of the TPP Act. 413. The amendments in Schedule 14 to this Bill will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment. 414. As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia's human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged. 415. The amendments relating to civil penalty provisions in Schedule 14 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited. 416. Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the TPP Act due to the acquisition of section 93 of the Regulatory Powers Act; however that provision is 71
necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. 417. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This section is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. As discussed above, section 85 of the Regulatory Powers Act provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, as noted above, they do not carry the possibility of imprisonment. The application of section 93 of the Regulatory Powers Act does not engage any human rights. 418. Further, alignment with Regulatory Powers Act will apply an additional provision, not currently in the TPP Act, which is merely procedural in nature. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged. Infringement notices and Article 14 419. Under the amendments in Schedule 14 to this Bill, infringement notices can be issued under the Regulatory Powers Act in relation to strict liability offences against Chapter 3 of the TPP Act. If the person does not pay the amount in the notice, they may be prosecuted for the offence. Accordingly, the right to a fair and public hearing in criminal matters provided for by Article 14(1) of the ICCPR is engaged. 420. Section 104 of the Regulatory Powers Act (applied to the TPP Act by Schedule 14 to this Bill) provides that an infringement notice is required to state that the person may choose not to pay the penalty, and notify them that, if they do so, they may be prosecuted in a court for the alleged offence. Accordingly, the person must always be advised of the consequences of not paying the penalty, and of their right to have the matter dealt with by a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited. 421. Article 14 of the ICCPR also provides for other criminal process rights, such as the right to be presumed innocent. It sets out the minimum guarantees in criminal proceedings. These rights are not limited by the amendments in Schedule 14 to this Bill. 72
422. Alignment with the Regulatory Powers Act will also result in a minor expansion of the scope of current section 100 of the TPP Act. Current subsection 100(3) of the TPP Act provides that a single infringement notice must only relate to a single contravention of a single provision. Subsection 103(3) of the Regulatory Powers Act provides that an infringement notice must only relate to a single contravention of a single provision, unless the circumstances in subsection 103(4) of the Regulatory Powers Act apply. Subsection 103(4) of the Regulatory Powers Act states that a single infringement notice may relate to multiple contraventions of a single provision if that provision requires the person to do a thing within a particular period or before a particular time, and the person fails or refuses to do that thing on more than one day after the period has expired or relevant time has passed. The difference between current section 100 of the TPP Act and section 103 of the Regulatory Powers Act is a minor procedural difference, and complements the application of section 93 of the Regulatory Powers Act (see the discussion of this section above). This provision does not engage any human rights. Conclusion 423. Schedule 14 to this Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are necessary, reasonable and proportionate. Overview of Schedule 15 - Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 424. The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (the 'WMD Act') prohibits the supply or export of goods that will or may be used, and the provision of services that will or may assist, in the development, production, acquisition or stockpiling of weapons capable of causing mass destruction, or missiles capable of delivering such weapons. The WMD Act regulates the supply of goods and the provision of services, in addition to the export of non-listed goods, where it is believed or suspected that they will or may be used in a weapons of mass destruction program. The WMD Act pursues the legitimate objectives of prohibiting and regulating these activities. 425. Schedule 15 to this Bill amends the WMD Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the Minister responsible for the department that administers the WMD Act to apply to a relevant court for an injunction to restrain the person from engaging in conduct or requiring the person to do a thing. Further, the Minister may apply to a relevant court for an interim injunction. Human rights implications Injunctions and Article 14 426. Under the amendments in Schedule 15 to this Bill, an injunction can be granted under the Regulatory Powers Act in relation to contraventions of the offence provisions of the WMD Act. The right to a fair and public hearing and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR are engaged. 427. Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Further, a court may only grant an injunction where a person has engaged, is engaging or is proposing to engage, in conduct that contravenes an offence provision of the WMD Act, or where a person has refused or failed, or is refusing or failing, or proposing to 73
refuse or fail, to do a thing and that refusal or failure was, is or would be a contravention of an offence provision of the WMD Act. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited. 428. The other criminal process rights and minimum guarantees in Article 14 of the ICCPR are not limited by the amendments and triggered provisions in Schedule 15 to this Bill. Conclusion 429. Schedule 15 to this Bill is compatible with human rights because, where it engages the right to a fair and public hearing and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR, it does not limit those rights. 74
ACRONYMS AND ABBEVIATIONS Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014 Criminal Code Criminal Code Act 1995 Crimes Act Crimes Act 1914 75
NOTES ON CLAUSES Preliminary Clause 1 - Short title 1. Clause 1 provides for this Bill to be cited as the Regulatory Powers (Standardisation Reform) Act 2016. Clause 2 - Commencement 2. Clause 2 provides for the commencement of each provision in this Bill, as set out in the table. 3. Subclause 2(1) provides that each provision of this Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. 4. Item 1 in the table provides that sections 1, 2 and 3, which concern the formal aspects of this Bill, as well as anything in this Bill not elsewhere covered by the table, will commence on the day on which this Bill receives the Royal Assent. 5. Item 2 in the table provides that Schedule 1 to this Bill commences on the day after this Bill receives the Royal Assent. 6. Item 3 in the table provides that Schedules 2 to 15 of this Bill commence on a day or days to be fixed by Proclamation. However, if any of the provisions do not commence within the period of 12 months beginning on the day this Bill receives the Royal Assent, they commence on the day after the end of that period. Deferring commencement for a 12 month period for Schedules 2 to 15 of this Bill will ensure administering agencies have sufficient time to implement any necessary changes to policies and procedures as a result of the amendments. 7. Item 4 in the table provides that Schedule 16 to this Bill commences immediately after the commencement of Schedule 2 to the Fairer Paid Parental Leave Bill 2015. However, the provisions do not commence at all if that Schedule does not commence before the commencement of Schedule 11 to this Bill. This is due to the fact that the amendments in Schedule 16 to this Bill are only required if Schedule 2 to the Fairer Paid Parental Leave Bill commences before Schedule 11 to this Bill. 8. Subclause 2(2) provides that any information in column 3 of the table is not part of this Bill. Information may be inserted in column 3 of the table, or information in it may be edited, in any published version of this Bill. Clause 3 - Schedules 9. Clause 3 provides that legislation specified in a Schedule to this Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Bill has effect according to its terms. 76
Schedule 1 - Regulatory Powers (Standard Provisions) Act 2014 GENERAL OUTLINE 10. The Regulatory Powers (Standard Provisions) Act 2014 (the 'Regulatory Powers Act') provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions. The Regulatory Powers Act commenced on 1 October 2014, but only has effect where Commonwealth Acts are drafted or amended to trigger the standard provisions in that Act. 11. This Schedule amends the Regulatory Powers Act to clarify the operation of certain provisions and remove unreasonable administrative burdens on agencies exercising regulatory powers under the Regulatory Powers Act. PART 1--AMENDMENTS Item 1 - Section 22 (heading) 12. Item 1 repeals the heading to section 22 of the Regulatory Powers Act and substitutes a new heading, 'Securing evidence of a contravention'. Section 22 of the Regulatory Powers Act is currently entitled 'Securing evidence of the contravention of a related provision'. This item is consequential to the amendments made by item 2 below. Item 2 - Paragraph 22(1)(b) 13. Item 2 repeals paragraph 22(1)(b) of the Regulatory Powers Act and substitutes new paragraph 22(1)(b) of that Act. 14. Current subsection 22(1) of the Regulatory Powers Act provides that the monitoring powers provided by Part 2 of that Act include the power to secure a thing for a period not exceeding 24 hours if: a. the thing is found during the exercise of monitoring powers on the premises, and b. an authorised person believes on reasonable grounds that: i. a related provision has been contravened with respect to the thing, or ii. the thing affords evidence of the contravention of a related provision, or iii. the thing is intended to be used for the purpose of contravening a related provision, and c. the authorised person believes on reasonable grounds that: i. it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained, and ii. it is necessary to secure the thing without a warrant because the circumstances are serious and urgent. 77
15. New paragraph 22(1)(b) of the Regulatory Powers Act provides that an authorised person may secure a thing where that authorised person believes on reasonable grounds that: a. a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act, or a related provision, has been contravened with respect to the thing, or b. the thing affords evidence of the contravention of a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act, or a related provision, or c. the thing is intended to be used for the purpose of contravening a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act, or a related provision, or d. the thing affords evidence that information subject to monitoring under Part 2 of the Regulatory Power Act is not correct. 16. New paragraph 22(1)(b) of the Regulatory Powers Act ensures that an authorised person may secure a thing that would demonstrate that a provision subject to monitoring has not been, or is not being, complied with, or that information subject to monitoring is incorrect. New paragraph 22(1)(b) of the Regulatory Powers Act also ensures that an authorised person may secure a thing that would demonstrate that a related provision has been, is being or will be used to contravene a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act. A provision is 'related' to a provision or information subject to monitoring under Part 2 of the Regulatory Powers Act if an Act provides that the provision or information is related to that provision or information. A provision or information is typically considered 'related' where that provision or information would impact the provision or information subject to monitoring under Part 2 of the Regulatory Powers Act. 17. It is necessary to amend section 22 of the Regulatory Powers Act to clarify that section 22 of that Act applies to contraventions of core provisions or information subject to monitoring under Part 2 of the Regulatory Powers Act, as well as related provisions or information. 18. Current paragraph 22(1)(a) of the Regulatory Powers Act provides that the monitoring powers provided by Part 2 of that Act include the power to secure a thing for a period not exceeding 24 hours if the thing is found during the exercise of monitoring powers on the premises. However, the effect of current paragraph 22(1)(b) of the Regulatory Powers Act is that an authorised person may only secure things that would demonstrate that a related provision has been, is being or will be used to contravene a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act. 19. The approach taken in the amendments to Commonwealth Acts in the Schedules to this Bill is to prescribe that provisions subject to monitoring under Part 2 of the Regulatory Powers Act include the offence and civil penalty provisions of a triggering Act, and an offence against the Crimes Act or the Criminal Code that relates to the triggering Act. Accordingly, there are no related provisions for the purposes of Part 2 of the Regulatory Powers Act, as that Part relates to the amendments to Commonwealth Acts in Schedules 2 to 15 of this Bill. 20. This item puts it beyond doubt that an authorised person may also secure a thing that would demonstrate that a provision subject to monitoring has not been, or is not being, 78
complied with, or that information subject to monitoring is incorrect, which is necessary for the purposes of an effective monitoring scheme. Item 3 - Subsection 22(1) 21. Item 3 omits 'The equipment may be secured by locking it up' from the end of subsection 22(1) of the Regulatory Powers Act and substitutes 'The thing may be secured by locking it up'. This item amends a typographical error in current subsection 22(1) of the Regulatory Powers Act, as that section relates to securing 'things' not 'equipment'. Item 4 - Paragraph 35(2)(b) 22. Item 4 omits '1 year' from paragraph 35(2)(b) of the Regulatory Powers Act and substitutes '5 years'. 23. Current paragraph 35(2)(b) of the Regulatory Powers Act provides that an identity card issued to an authorised person must contain a photograph that is no more than 1 year old of that authorised person. 24. This item removes an unreasonable administrative burden on agencies exercising regulatory powers under the Regulatory Powers Act, as those agencies must currently update identity cards on an annual basis. Although this item extends the lifespan of a photograph of an authorised person, an identity card with a photograph of the authorised person that is no more than five years old is still appropriate to ensure that the photograph is contemporary for the purposes of verifying the identity of the authorised person. Item 5 - Paragraph 76(2)(b) 25. Item 5 omits '1 year' from paragraph 76(2)(b) of the Regulatory Powers Act and substitutes '5 years'. 26. Current paragraph 76(2)(b) of the Regulatory Powers Act provides that an identity card issued to an authorised person must contain a photograph that is no more than 1 year old of that authorised person. 27. This item removes an unreasonable administrative burden on agencies exercising regulatory powers under the Regulatory Powers Act, as those agencies must currently update identity cards on an annual basis. Although this item extends the lifespan of a photograph of an authorised person, an identity card with a photograph of the authorised person that is no more than five years old is still appropriate to ensure that the photograph is contemporary for the purposes of verifying the identity of the authorised person. Item 6 - Subsection 82(2) 28. Item 6 omits '4 years' from subsection 82(2) of the Regulatory Powers Act and substitutes '6 years'. 29. Current subsection 82(2) of the Regulatory Powers Act provides that an authorised applicant must make an application for a civil penalty order to a relevant court within 4 years of the alleged contravention of the civil penalty provision. 79
30. This item provides for consistency across the Commonwealth, as existing regulatory regimes typically provide for a time period of within 6 years of the alleged contravention. Further, limitation periods of general application in the 'Limitation Acts' of each State and Territory are 6 years from the date of the action (with the exception of the Northern Territory). Item 7 - Paragraph 104(1)(e) 31. Item 6 repeals paragraph 104(1)(e) of the Regulatory Powers Act and substitutes new paragraph 104(1)(e) of that Act. 32. Current paragraph 104(1)(e) of the Regulatory Powers Act provides that an infringement notice must give brief details of the alleged contravention, including the provision that was allegedly contravened, the maximum penalty that a court could impose for contravention of the provision, and the time (if known) and day of, and place of, the alleged contravention. 33. New paragraph 104(1)(e) of the Regulatory Powers Act provides that an infringement notice must give brief details of the alleged contravention, or each alleged contravention, to which the notice relates, including the provision that was allegedly contravened, the maximum penalty that a court could impose for each contravention, and the time (if known) and day of, and place of, each alleged contravention. 34. This item clarifies that an infringement notice may relate to multiple contraventions, and ensures that the information provided in an infringement notice appropriately deals with each contravention. This amendment complements subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision, where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time. Item 8 - Subsection 104(2) 35. Item 8 repeals subsection 104(2) of the Regulatory Powers Act and substitutes new subsections 104(2), (3) and (4) of that Act. 36. Current subsection 104(2) of the Regulatory Powers Act provides that, unless another Act expressly provides otherwise, the amount to be stated in the infringement notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the alleged contravention of the provision by the person must be the lesser of: a. one-fifth of the maximum penalty that a court could impose on the person for that contravention, and b. 12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate. 80
37. New subsection 104(2) of the Regulatory Powers Act provides that, if the notice relates to only one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act is the lesser of: a. one-fifth of the maximum penalty that a court could impose on the person for that contravention, and b. 12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate. 38. New subsection 104(3) of the Regulatory Powers Act provides that, if the notice relates to more than one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act is the lesser of: a. one-fifth of the amount worked out by adding together the maximum penalty that a court could impose on the person for each alleged contravention, and b. either: i. if the person is an individual--the number of penalty units worked out by multiplying the number of alleged contraventions by 12, or ii. if the person is a body corporate--the number of penalty units worked out by multiplying the number of alleged contraventions by 60. 39. Item 8 also inserts a note to new subsection 104(3) of the Regulatory Powers Act, which provides that, under section 103 of that Act, a single infringement notice may only deal with multiple contraventions if they are contraventions of a single provision continuing over a period. This note puts it beyond doubt that an infringement notice must only relate to a single contravention of a single provision unless multiple contraventions of a single civil penalty provision occur, and those contraventions relate to a continuing failure to comply with an obligation within or by a particular time. 40. New subsection 104(4) of the Regulatory Powers Act provides that new subsections 104(2) and (3) of that Act do not apply if another Act expressly provides otherwise. 41. This item clarifies that the cap on the amount to be stated in an infringement notice applies to an individual contravention, not an infringement notice as a whole. This amendment complements subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision, where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time. PART 2--APPLICATION OF AMENDMENTS Item 9 - Amendments relating to monitoring powers 42. Item 9 provides for the application of the amendments made by items 2 and 3 of this Schedule, and makes it clear that those amendments apply where premises are entered under Part 2 of the Regulatory Powers Act on or after the commencement of items 2 or 3 of this Schedule. 81
Item 10 - Amendments relating to identity cards 43. Item 10 provides for the application of the amendments made by items 4 and 5 of this Schedule, and makes it clear that the amendments apply in relation to: a. identity cards issued during the period of 12 months immediately before the commencement of items 4 and 5 of this Schedule, and b. identity cards issued on or after the commencement of items 4 and 5 of this Schedule. 44. This item preserves the validity of cards issued before the commencement of Schedule 1 of this Bill which contain a photograph of the authorised person that is no more than 1 year old (that is, identity cards which are valid at the time of that commencement will remain valid for a further 4 years). 45. Item 10 does not preserve identity cards that were issued before the commencement of Schedule 1 of this Bill which contain a photograph of the authorised person that is more than 1 year old, as those cards would not be valid as at the date of that commencement. 46. This item provides clarity for authorised persons exercising monitoring and/or investigation powers under Parts 2 and 3 of the Regulatory Powers Act, and ensures continuity in the use of those monitoring and investigation powers. 47. As this Schedule does not expand monitoring or investigation powers, the retrospective application provided for by this item does not impact rights or impose liabilities on a person subject to monitoring or investigation powers under Parts 2 or 3 of the Regulatory Powers Act. Item 11 - Amendment relating to civil penalty orders 48. Item 11 provides for the application of the amendments made by item 6 of this Schedule, and makes it clear that the amendments apply in relation to an application for a civil penalty order made on or after the commencement of item 6 of this Schedule. Item 12 - Amendments relating to infringement notices 49. Item 12 provides for the application of the amendments made by items 7 and 8 of this Schedule, and makes it clear that the amendments apply in relation to infringement notices issued on or after the commencement of items 7 and 8 of this Schedule. 82
Schedule 2 - Australian Sports Anti-Doping Authority Act 2006 GENERAL OUTLINE 50. The Australian Sports Anti-Doping Authority Act 2006 (the 'ASADA Act') establishes the Australian Sports Anti-Doping Authority ('ASADA'), and gives effect to Australia's international anti-doping obligations under the United Nations Educational, Scientific and Cultural Organisation (UNESCO) International Convention against Doping in Sport. Under the Convention, signatories are required to implement arrangements that are consistent with the principles in the World Anti-Doping Code (the 'Code'). The Code is an international agreement that provides the framework for harmonised anti-doping policies, rules and regulations within sporting organisations and public authorities around the world. 51. ASADA is the Australian Government agency responsible for efforts to eliminate doping in Australian sport, thereby protecting the integrity of sport and the health of those who participate. ASADA implements Code-compliant programmes and activities that encompass engagement (building better relations with stakeholders), deterrence (education and awareness), detection (testing and investigations) and enforcement (management of cases involving possible anti-doping rule violations). 52. Current Part 8A of the ASADA Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions of the ASADA Act. Current section 80 of the ASADA Act states that the regulations may provide for an infringement notices scheme in relation to alleged contraventions of civil penalty provisions in the ASADA Act. Part 5 of the Australian Sports Anti-Doping Authority Regulations 2006 (the 'ASADA Regulations'), deals with the use of infringement notices where an authorised person reasonably believes that a civil penalty provision has been contravened. 53. This Schedule amends the ASADA Act to apply the standard civil penalty and infringement notices provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the ASADA Act; however, the time period for the making of an application for a civil penalty order will be increased from within 4 years to within 6 years of the alleged contravention (see subsection 82(2) of the Regulatory Powers Act as amended by Schedule 1 to this Bill). 54. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories. 55. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices that may be issued in relation to a breach of an offence or civil penalty provision. 83
Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5 of that Act to operate, a provision of an Act or legislative instrument must be made subject to an infringement notice under that Part by a triggering Act. When a triggering Act applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an infringement officer or officers for the purposes of exercising powers under that Part (see section 101 of the Regulatory Powers Act). A triggering Act must also identify the relevant chief executive for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil penalty provisions of a triggering Act are subject to an infringement notice and apply in external Territories or offshore areas, the triggering Act should identify whether Part 5 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Australian Sports Anti-Doping Authority Act 2006 56. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 7) for the provisions of the ASADA Act that are repealed by items 7 and 8. Current provision in the ASADA Act Provision Provision as Applicable provision amended by (Regulatory Powers this Schedule Act) Civil penalty provisions Part 8A Part 4-Civil penalty provisions Relevant courts 4 Retained N/A (see new subsection 72(3) of the ASADA Act) Civil penalty orders 73B Retained 82 Application for civil penalty order to be 73B(2) Aligned See subsection 82(2) made within 4 years of the Regulatory Powers Act as amended by this Bill Civil enforcement of penalty 73C Retained 83 Conduct contravening more than one civil 73D Retained 84 penalty provision Multiple contraventions 73E Retained 85 Proceedings may be heard together 73F Retained 86 Civil evidence and procedure rules for civil 73G Retained 87 penalty orders Civil proceedings after criminal proceedings 73H Retained 88 Criminal proceedings during civil 73J Retained 89 proceedings Criminal proceedings after civil proceedings 73K Retained 90 Evidence given in civil proceedings not 73L Retained 91 admissible in criminal proceedings Ancillary contravention of civil penalty 73M Retained 92 provisions Continuing contraventions of civil penalty 73N Retained 93 provisions State of mind 73P Retained 94 84
Mistake of fact 73Q Retained 95 Exceptions etc. to civil penalty 73R Retained 96 provisions - burden of proof Civil penalty provisions contravened by 73S Retained 97 employees, agents or officers Infringement notices scheme by 80 Part 5-Infringement Regulation notices Regulations may provide for an infringement 80 Repealed and Part 5 notices scheme for civil penalty provisions substituted by new Part 8B Australian Sports Anti-Doping Authority Regulations 2006 57. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 7) for the provisions of the ASADA Regulations, which are made redundant by virtue of the repeal of section 80 of the ASADA Act by item 8. Part 5 of the ASADA Regulations will be repealed by regulation following commencement of this Schedule. Current provision in the ASADA Provision Provision as Applicable provision Regulations amended by (Regulatory Powers this Schedule Act) Infringement notices Part 5 Part 5-Infringement notices Authorised person 17 Retained N/A (see new subsections 73B(2) and (4) of the ASADA Act) When an infringement notice may be given 18 Retained 103 Matters to be included in an infringement 19 Aligned See section 104 of the notice Regulatory Powers Act as amended by this Bill Extension of time to pay amount 20 Retained 105 Withdrawal of an infringement notice 21 Retained 106 Effect of payment of amount 22 Retained 107 Effect of Part 23 Retained 108 PART 1--AMENDMENTS Item 1 - Section 4 (definition of civil penalty order) 58. Item 1 repeals the definition of civil penalty order in section 4 of the ASADA Act. That definition is no longer necessary, as this Schedule amends the ASADA Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act. 59. It is not necessary to substitute a new definition of civil penalty order in section 4 of the ASADA Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act. 85
Item 2 - Section 4 (definition of civil penalty provision) 60. Item 2 repeals the definition of civil penalty provision in section 4 of the ASADA Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. Item 3 - Section 4 61. Item 3 repeals the definitions of conduct and evidential burden in section 4 of the ASADA Act. Those definitions are no longer necessary, as this Schedule amends the ASADA Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and conduct and evidential burden are defined in section 4 of that Act. 62. It is not necessary to substitute a new definition of conduct in section 4 of the ASADA Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act. 63. It is not necessary to substitute a new definition of evidential burden in section 4 of the ASADA Act as, for the purposes of the civil penalty provisions in that Act, section 96 of the Regulatory Powers Act will apply. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 64. Where the phrase evidential burden is used in other provisions of the ASADA Act, section 13.3 of the Criminal Code defines evidential burden as the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. Item 4 - Section 4 65. Item 4 amends section 4 of the ASADA Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 5 - Section 4 (definition of relevant court) 66. Item 5 repeals the definition of relevant court in section 4 of the ASADA Act. Courts identified as relevant courts for the purposes of the Regulatory Powers Act in relation to the civil penalty provisions of the ASADA Act are inserted by item 7 below. The definition of relevant court is only relevant for the purposes of the use of civil penalty orders to enforce civil penalty provisions, and is not applied in any other provision of the ASADA Act. Accordingly, it is not necessary to substitute a new definition of relevant court in section 4 of the ASADA Act. Item 6 - Subsection 13C(2) (note) 67. Item 6 repeals the note to subsection 13C(2) of the ASADA Act and substitutes a new note to replace the reference to current section 73R of the ASADA Act with a reference to section 96 of the Regulatory Powers Act. 86
68. Current section 73R of the ASADA Act states that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, that person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. Current section 73R of the ASADA Act is repealed by item 7 below. 69. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 70. The new note directs the reader to the applicable section of the Regulatory Powers Act that deals with evidential burden in the context of civil penalty provisions. Item 7 - Part 8A 71. Item 7 repeals current 'Part 8A--Civil penalty orders' of the ASADA Act, and substitutes new 'Part 8A--Civil penalty provisions' and new 'Part 8B--Infringement notices'. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce civil penalty provisions in the ASADA Act, and Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to alleged contraventions of civil penalty provisions in the ASADA Act. Civil penalty provisions 72. Current Part 8A of the ASADA Act provides for provisions in relation to civil penalty orders, and includes sections 73AA, 73A, 73B, 73C, 73D, 73E, 73F, 73G, 73H, 73J, 73K, 73L, 73M, 73N, 73P, 73Q, 73R and 73S of that Act. Those sections are no longer necessary, as this Schedule amends the ASADA Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 56 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the ASADA Act that are repealed by this item. 73. New Part 8A of the ASADA Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 72(1) of the ASADA Act). New section 71 of the ASADA Act provides for a simplified outline of new Part 8A of that Act, and new section 72 of that Act outlines matters in relation to the authorised applicant, relevant courts and the extension of matters to external Territories. 74. New subsection 72(1) of the ASADA Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the ASADA Act. Item 7 also inserts a note at the end of new subsection 72(1) of the ASADA Act, which directs the reader to Part 4 of the Regulatory Powers Act. 75. New subsection 72(2) of the ASADA Act identifies the CEO of ASADA (as defined in the ASADA Act) as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the CEO, on behalf of the Commonwealth, to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New 87
subsection 72(2) of the ASADA Act preserves the effect of current subsection 73B(1) of that Act, which is repealed by this item. 76. New subsection 72(3) of the ASADA Act identifies the following courts as a relevant court in relation to the civil penalty provisions of that Act: a. the Federal Court of Australia b. the Federal Circuit Court of Australia, and c. a court of a State or Territory that has jurisdiction in relation to matters arising under the ASADA Act. 77. These courts are currently identified in the definition of relevant court in section 4 of the ASADA Act. That definition is repealed by item 5 above. Accordingly, new subsection 72(3) of the ASADA Act preserves the effect of that definition. 78. New subsection 72(4) of the ASADA Act extends the application of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act, to every external Territory. New subsection 72(4) of the ASADA Act reflects existing arrangements under that Act (see sections 7 and 8 of the ASADA Act). Section 7 of the ASADA Act provides that the ASADA Act extends to every external Territory. Section 8 of the ASADA Act extends that Act to acts, omissions, matters and things outside Australia; unless a contrary intention appears in a provision of that Act. New subsection 72(4) of the ASADA Act preserves the effect of section 8 of the ASADA Act, as it does not provide an express contrary intention to extra-territorial application. 79. Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the ASADA Act; however, the comparison table provided at paragraph 56 above identifies that current subsection 73B(2) of the ASADA Act is aligned to subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill). 80. Current subsection 73B(2) of the ASADA Act provides that the CEO of ASADA must make an application for a civil penalty order within 4 years of the alleged contravention. Application of subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill) will increase this time period from within 4 years to within 6 years of the alleged contravention (see the discussion of amended subsection 82(2) of the Regulatory Powers Act in Schedule 1 to this Bill). Infringement notices 81. Current section 80 of the ASADA Act provides that the regulations may provide for an infringement notices scheme in relation to alleged contraventions of civil penalty provisions in the ASADA Act. That section is repealed by item 8 below. 82. Part 5 of the ASADA Regulations provides for provisions in relation to infringement notices, and includes regulations 16, 17, 18, 19, 20, 21, 22 and 23 of those Regulations. Those provisions are no longer necessary, as this Schedule amends the ASADA Act to apply the standard infringement notices provisions of the Regulatory Powers Act, and remove the power to provide for an infringement notices scheme by regulation. The comparison table provided at paragraph 57 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the ASADA Regulations that are made redundant by item 8. 88
Part 5 of the ASADA Regulations will be repealed by regulation following commencement of this Schedule. 83. New Part 8B of the ASADA Act directs the reader to Part 5 of the Regulatory Powers Act, which provides for provisions in relation to infringement notices (see the note to new subsection 73B(1) of the ASADA Act). New section 73A of the ASADA Act provides for a simplified outline of new Part 8B of that Act. New section 73B of the ASADA Act outlines matters in relation to the infringement officer, the relevant chief executive and the extension of matters to external Territories. 84. New subsection 73B(1) of the ASADA Act states that a civil penalty provision of that Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act, which ensures that Part 5 of the Regulatory Powers Act operates for the purposes of the civil penalty provisions of the ASADA Act. Item 7 also inserts a note at the end of new subsection 73B(1) of the ASADA Act, which directs the reader to Part 5 of the Regulatory Powers Act. 85. New subsection 73B(2) of the ASADA Act identifies the CEO of ASADA (as defined in the ASADA Act), and a person authorised by the CEO for the purposes of new paragraph 73B(2)(b) of that Act, as an infringement officer for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act. New subsection 73B(2) of the ASADA Act preserves the effect of regulation 17 of the ASADA Regulations, which is made redundant by item 8 below. 86. New subsection 73B(2) of the ASADA Act will enable an infringement officer to issue an infringement notice to a person if they reasonably believe that person has contravened a civil penalty provision of the ASADA Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), proceedings seeking a civil penalty order under Part 4 of the Regulatory Powers Act may be brought against the person. 87. New subsection 73B(3) of the ASADA Act identifies the CEO of ASADA as the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act. New subsection 73B(3) of the ASADA Act preserves the effect of existing arrangements under the ASADA Regulations (see regulations 17, 20 and 21 of the ASADA Regulations, which are made redundant by item 8 below). 88. New subsection 73B(4) of the ASADA Act provides that the CEO of ASADA may, in writing, delegate his or her powers and functions as the relevant chief executive under Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act, to a member of the ASADA staff or an individual whose services are made available to the CEO under section 24M of the ASADA Act. New subsection 73B(4) of the ASADA Act reflects existing arrangements under that Act in relation to delegations (see section 24N of the ASADA Act), and preserves the effect of regulation 17 of the ASADA Regulations, which is made redundant by item 8 below. 89. New subsection 73B(5) of the ASADA Act provides that a delegate must comply with any written directions of the CEO of ASADA, which reflects existing arrangements under that Act (see subsection 24N(4) of the ASADA Act). 89
90. New subsection 73B(6) of the ASADA Act extends the application of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act, to every external Territory. New subsection 73B(6) of the ASADA Act reflects existing arrangements under that Act (see sections 7 and 8 of the ASADA Act). Section 7 of the ASADA Act provides that the ASADA Act extends to every external Territory. Section 8 of the ASADA Act extends that Act to acts, omissions, matters and things outside Australia; unless a contrary intention appears in a provision of that Act. New subsection 73B(6) of the ASADA Act preserves the effect of section 8 of the ASADA Act, as it does not provide an express contrary intention to extra-territorial application. 91. Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the ASADA Act; however, the comparison table provided at paragraph 57 above identifies that current regulation 19 of the ASADA Regulations is aligned to section 104 of the Regulatory Powers Act (as amended by Schedule 1 to this Bill). 92. Section 104 of the Regulatory Powers Act is amended by Schedule 1 to this Bill to clarify that the cap on the amount to be stated in an infringement notice applies to an individual contravention, not an infringement notice as a whole. This amendment complements subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision, where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time. Item 8 - Section 80 93. Item 8 repeals section 80 of the ASADA Act, which provides that the regulations may provide for an infringement notices scheme in relation to alleged contraventions of civil penalty provisions in the ASADA Act. The repeal of section 80 reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, rather than by regulation or legislative instrument. 94. Item 7 above inserts new Part 8B of the ASADA Act, which applies the infringement notices provisions in Part 5 of the Regulatory Powers Act to alleged contraventions of civil penalty provisions in the ASADA Act. Part 5 of the ASADA Regulations will be repealed by regulation following commencement of this Schedule. PART 2--APPLICATION AND SAVING PROVISIONS Item 9 - Application and saving provision--civil penalties 95. Item 9 provides for the application of the amendments in this Schedule in relation to civil penalties, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 96. This item also provides that Part 8A of the ASADA Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule. 90
Item 10 - Application and saving provision--infringement notices 97. Item 10 provides for the application of the amendments in this Schedule in relation to infringement notices, and makes it clear that the amendments apply in relation to alleged contraventions of civil penalty provisions referred to in new subsection 73B(1) of the ASADA Act occurring on or after the commencement of this Schedule. 98. This item also provides that regulations made under section 80 of the ASADA Act, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to alleged contraventions of civil penalty provisions of the ASADA Act occurring before the commencement of this Schedule. 91
Schedule 3 - Building Energy Efficiency Disclosure Act 2010 GENERAL OUTLINE 99. The Building Energy Efficiency Disclosure Act 2010 (the 'BEED Act') establishes the Commercial Building Disclosure Scheme, which requires disclosure of certain energy efficiency information relating to commercial office buildings in the context of sales and lease transactions. 100. Current Division 2 of Part 5 of the BEED Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions. Current Division 3 of Part 5 of the BEED Act deals with the use of infringement notices where an authorised person reasonably believes that a civil penalty provision has been contravened. 101. This Schedule amends the BEED Act to apply the standard civil penalty and infringement notices provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the BEED Act, and the new provisions gained by alignment with the Regulatory Powers Act, which are not currently in the BEED Act, are merely procedural matters in relation to civil penalty and infringement notices provisions. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the BEED Act. 102. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories. 103. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices that may be issued in relation to a breach of an offence or civil penalty provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5 of that Act to operate, a provision of an Act or legislative instrument must be made subject to an infringement notice under that Part by a triggering Act. When a triggering Act applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an infringement officer or officers for the purposes of exercising powers under that Part (see section 101 of the Regulatory Powers Act). A triggering Act must also identify the relevant chief executive for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil penalty provisions of a triggering Act are subject to an infringement notice and apply in external Territories or offshore areas, the triggering Act should identify whether Part 5 of the Regulatory Powers Act extends to any external Territories. 92
COMPARISON OF PROVISIONS Building Energy Efficiency Disclosure Act 2010 104. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 8) for the provisions of the BEED Act that are repealed by item 8. Current provision in the BEED Act Provision Provision as Applicable provision amended by (Regulatory Powers this Schedule Act) Civil penalty provisions Division 2, Part 4-Civil penalty Part 5 provisions Relevant courts 3 Retained N/A (see new subsection 51(5) of the BEED Act) Continuing contraventions 18(7) Retained 93 Ancillary contravention of civil penalty 52 Retained 92 provisions Civil penalty order 53 Aligned 82 Maximum pecuniary penalty 53(5); Retained N/A (see new 53(5A); through subsection 51(6) and 53(5B); modification to new section 52 of the 53(5C); the operation of BEED Act) 53(5D) the Regulatory Powers Act Multiple contraventions 53(6) Retained 85 Conduct contravening more than one civil 53(7) Retained 84 penalty provision Civil enforcement of penalty 53(8) Retained 83 Two or more proceedings may be heard 54 Retained 86 together Contravening a civil penalty provision is not 55 Repealed N/A an offence Civil evidence and procedure rules for civil 56 Retained 87 penalty order Mistake of fact 57 Retained 95 N/A (Civil proceedings after criminal N/A Gained 88 proceedings) N/A (Criminal proceedings during civil N/A Gained 89 proceedings) N/A (Criminal proceedings after civil N/A Gained 90 proceedings) N/A (Evidence given in civil proceedings N/A Gained 91 not admissible in criminal proceedings) N/A (State of mind) N/A Gained 94 N/A (Exceptions etc. to civil penalty N/A Gained 96 provisions - burden of proof) N/A (Civil penalty provisions contravened N/A Gained 97 by employees, agents or officers) 93
Infringement notices Division 3, Part 5-Infringement Part 5 notices When an infringement notice can be given 58 Aligned 103 (also see new subsection 53(6) of the BEED Act) Matters to be included in an infringement 59 Aligned See section 104 of the notice Regulatory Powers Act as amended by this Bill An infringement notice must state that if the 59(1)(n)(i) Repealed N/A notice is withdrawn, any amount paid under (however, see the the notice must be refunded operation of section 106 of the Regulatory Powers Act) An infringement notice must set out such 59(1)(p) Repealed N/A other matters (if any) as are specified by the regulations Maximum pecuniary penalty 59(2) Retained N/A (see new through subsection 53(7) of modification to the BEED Act) the operation of the Regulatory Powers Act Extension of time to pay penalty 60 Retained 105 Withdrawal of an infringement notice 61 Retained 106 Time limits on representations seeking 61(1) Retained N/A (see new withdrawal of notice through subsection 53(8) of modification to the BEED Act) the operation of the Regulatory Powers Act Evidence given to the Secretary in the 61(2) Repealed N/A course of making representations seeking withdrawal of notice Effect of payment of penalty 62 Retained 107 Effect of this Division 63 Retained 108 The regulations may make further provision 64 Repealed N/A in relation to infringement notices N/A (2 or more infringement notices may be N/A Gained 108(c) given to a person for alleged contravention of a provision subject to an infringement notice) Building Energy Efficiency Disclosure Regulations 2010 105. The below table identifies the corresponding provisions of the Regulatory Powers Act (if applicable) for the provisions of the Building Energy Efficiency Disclosure Regulations 2010 (the 'BEED Regulations'), which are made redundant by virtue of the repeal of 94
section 64 of the BEED Act by item 8. Part 7 of the BEED Regulations will be repealed by regulation following commencement of this Schedule. Current provision in the BEED Provision Provision as Applicable provision Regulations amended by (Regulatory Powers this Schedule Act) Infringement notices Part 7 Part 5-Infringement notices Infringement notices--contents of notice 12 Redundant N/A Other provisions for infringement notices 13 Redundant N/A Method of service for infringement notices 14 Redundant N/A Infringement notices--evidentiary 15 Redundant N/A certificates Payment of infringement notice penalty-- 16 Redundant N/A cheques Payment by instalment 17 Redundant N/A PART 1--AMENDMENTS Item 1 - Section 3 (definition of civil penalty order) 106. Item 1 repeals the definition of civil penalty order in section 3 of the BEED Act. That definition is no longer necessary, as this Schedule amends the BEED Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act. 107. It is not necessary to substitute a new definition of civil penalty order in section 3 of the BEED Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act. Where the phrase 'civil penalty order' is used in a provision external to current Divisions 2 and 3 of Part 5 of the BEED Act, that phrase is amended to 'civil penalty order under the Regulatory Powers Act' (see items 5 and 10 below). Item 2 - Section 3 (definition of civil penalty provision) 108. Item 2 repeals the definition of civil penalty provision in section 3 of the BEED Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. Item 3 - Section 3 109. Item 3 amends section 3 of the BEED Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 4 - Subsection 8(2) 110. Item 4 omits 'to a pecuniary penalty or' from subsection 8(2) of the BEED Act, which provides that the BEED Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence. This item is consequential to the amendments made by item 8 below, which repeals current Divisions 2 and 3 of Part 5 of the BEED Act and applies the 95
standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act. 111. The effect of the text omitted from current subsection 8(2) of the BEED Act is preserved by item 8 below, which inserts new subsections 51(8) and (9) of the BEED Act. Those new subsections provide that Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, does not make the Crown liable to a pecuniary penalty, however, that protection does not apply to an authority of the Crown. Item 5 - Subsections 11(5) and 15(5) 112. Item 5 inserts 'under the Regulatory Powers Act' after 'civil penalty order' in subsections 11(5) and 15(5) of the BEED Act, which clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 8 below. 113. Current subsection 11(5) of the BEED Act provides that a constitutional corporation that contravenes a requirement of section 11 of that Act in relation to a continuing offer, or a continuing invitation, commits a separate contravention in respect of each day during which the person fails to comply with that requirement, including the day of the making of a relevant civil penalty order, and any subsequent day. 114. Current subsection 15(5) of the BEED Act provides that a constitutional corporation that contravenes a requirement of section 15 of that Act in relation to a continuing advertisement commits a separate contravention in respect of each day during which the person fails to comply with that requirement, including the day of the making of a relevant civil penalty order, and any subsequent day. 115. Item 5 is consequential to the amendments made by item 8 below, which repeals current Divisions 2 and 3 of Part 5 of the BEED Act and applies the standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act. Item 6 - Subsection 18(7) 116. Item 6 repeals subsection 18(7) of the BEED Act and substitutes a new subsection and note to make it clear that section 93 of the Regulatory Powers Act applies to a contravention of subsection 18(6) of the BEED Act. 117. Current subsection 18(7) of the BEED Act provides that a person who contravenes subsection 18(6) of that Act commits a separate contravention of that subsection in respect of: a. where the person fails to give information within the period specified in the notice--each day after the end of that period which the failure continues, including a day of the making of a relevant civil penalty order and any subsequent day, and b. where the person fails to give access at a day and time on which access is required under the notice--each day after the day specified, including a day of the making of a relevant civil penalty order and any subsequent day. 118. Subsection 18(6) of the BEED Act outlines the civil penalty applicable for non-compliance with a notice issued under section 18 of that Act, which is prescribed as 200 penalty units for an individual and 500 penalty units for a body corporate. 96
119. Section 18 of the BEED Act allows the Secretary of the department that administers the BEED Act to issue a written notice to an owner, lessee or sublessee of a building or area of a building to give an accredited assessor access to that building or area at a particular day and time. 120. Item 6 repeals current subsection 18(7) of the BEED Act and substitutes a new subsection 18(7) of that Act, which provides for the matters outlined in current paragraph 18(7)(b) of the BEED Act only. It is no longer necessary to include current paragraph 18(7)(a) of the BEED Act, as the effect of that paragraph is preserved by the application of section 93 of the Regulatory Powers Act (see item 8 below, which repeals current Divisions 2 and 3 of Part 5 of the BEED Act and applies the standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act). 121. Current paragraph 18(7)(b) of the BEED Act provides for where a person fails to do an act at a particular time. However, section 93 of the Regulatory Powers Act provides for where a person fails to comply with an obligation within a particular period or before a particular time (even if the period has expired or the time has passed). Consequently, section 93 of the Regulatory Powers Act is unable to deal with matters provided for in current paragraph 18(7)(b) of the BEED Act. 122. The amendments made by this item make it clear that, where a person or body corporate fails to give access at a day and time required under the notice issued under section 18 of the BEED Act, that person or body corporate will continue to commit a separate contravention of subsection 18(6) of the BEED Act each day after the required day until that person or body corporate complies with the access request. 123. Item 6 also inserts a note to new subsection 18(7) of the BEED Act, which directs the reader to section 93 of the Regulatory Powers Act. 124. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. Item 7 - Subsection 49(1) 125. Item 7 inserts 'of this Act' after 'civil penalty provision' in subsection 49(1) of the BEED Act. 126. Current subsection 49(1) of the BEED Act provides the Secretary of the department that administers the BEED Act with the ability to issue a written notice to a person requiring that person to provide information, or produce documents, where the Secretary reasonably believes that person has knowledge of information, or custody or control of documents, relating to whether there has been compliance with a civil penalty provision of the BEED Act. 97
127. This item makes it clear that a written notice issued by the Secretary under section 49 of the BEED Act only applies to compliance with a civil penalty provision provided for in that Act. Item 8 - Divisions 2 and 3 of Part 5 128. Item 8 repeals current Divisions 2 and 3 of Part 5 of the BEED Act, and substitutes new 'Division 2--Civil penalties' and new 'Division 3--Infringement notices' of Part 5 of that Act. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce civil penalty provisions in the BEED Act, and Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to alleged contraventions of civil penalty provisions in the BEED Act. Civil penalty provisions 129. Current Division 2 of Part 5 of the BEED Act provides for provisions in relation to civil penalty orders, and includes sections 51, 52, 53, 54, 55, 56 and 57 of that Act. Those sections are no longer necessary, as this Schedule amends the BEED Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 104 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the BEED Act that are repealed by this item. 130. New Division 2 of Part 5 of the BEED Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 51(1) of the BEED Act). New section 51 of the BEED Act outlines matters in relation to the authorised applicant, relevant courts, maximum pecuniary penalties, the extension of matters to external Territories and liability of the Crown. 131. New subsection 51(1) of the BEED Act states that each civil penalty of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the BEED Act. Item 8 also inserts a note at the end of new subsection 51(1) of the BEED Act, which directs the reader to Part 4 of the Regulatory Powers Act. 132. New subsection 51(2) of the BEED Act identifies the Secretary of the department that administers the BEED Act as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the Secretary to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision of the BEED Act, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New subsection 51(2) of the BEED Act preserves the effect of current subsection 53(1) of that Act, which is repealed by this item. 133. New subsection 51(3) of the BEED Act provides the Secretary with the ability to delegate, in writing, his or her powers and functions in relation to the civil penalty provisions of the BEED Act, to an SES employee or acting SES employee of the department that administers the BEED Act. New subsection 51(3) of the BEED Act reflects existing arrangements under that Act (see subsection 71(1) of the BEED Act). 134. New subsection 51(4) provides that a delegate must comply with any directions of the Secretary, which reflects existing arrangements under that Act (see subsection 71(3) of the BEED Act). 98
135. New subsection 51(5) of the BEED Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 4 of the Regulatory Powers Act. New subsection 51(5) of the BEED Act reflects existing arrangements under that Act (see the definition of Court in section 3 of the BEED Act). 136. New subsection 51(6) of the BEED Act modifies the operation of subsection 82(5) of the Regulatory Powers Act, and provides that the pecuniary penalty payable under a civil penalty order must not be more than the amount stated in new section 52 of the BEED Act. New section 52 of the BEED Act provides for the maximum pecuniary penalty payable by a person for a civil penalty order made under Part 4 of the Regulatory Powers Act, as that Part applies to a contravention of section 11, 15 or 18 of the BEED Act. New subsection 51(6) and new section 52 of the BEED Act preserve the effect of current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act, which are repealed by this item. 137. Current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act were tailored to large commercial operations, and are appropriate in quantum to ensure compliance. It is necessary to preserve the effect of current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act through the inclusion of new subsection 51(6) of that Act, as the applicable penalty units appropriately reflect compliance costs. The average cost of providing a Building Energy Efficiency Certificate is between $6,000 and $10,000, depending on the complexity of the building. Accordingly, new section 52 of the BEED Act acts as a suitable deterrent against non-compliance. 138. New subsection 51(7) of the BEED Act extends the application of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, to every external Territory. New subsection 51(7) of the BEED Act reflects existing arrangements under that Act (see section 9 of the BEED Act). 139. New subsection 51(8) of the BEED Act provides that Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, does not make the Crown liable to a pecuniary penalty. New subsection 51(9) of the BEED Act provides that the protection does not apply to an authority of the Crown. New subsections 51(8) and (9) of the BEED Act preserve the effect of current subsection 8(2) of the BEED Act, which is amended by item 4 above. 140. Item 8 also inserts new section 52 of the BEED Act, which complements new subsection 51(6) of that Act, and provides for the maximum pecuniary penalty payable by a person for a civil penalty order made under Part 4 of the Regulatory Powers Act, as that Part applies to a contravention of section 11, 15 or 18 of the BEED Act. New section 52 of the BEED Act modifies the operation of subsection 82(5) of the Regulatory Powers Act, which provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 141. New subsection 52(1) of the BEED Act states that, subject to that section, the pecuniary penalty payable by a person for a civil penalty order made under Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, must not exceed the pecuniary penalty specified for the civil penalty provision in the BEED Act. New subsection 52(1) of the BEED Act preserves the effect of current subsection 53(5) of that Act, which is repealed by this item. 99
142. New subsection 52(2) of the BEED Act provides that if the contravention is of a requirement under section 11 of that Act in relation to a continuing offer or a continuing invitation, and the contravention is in respect of one or more days that fall after the first day on which the offer or invitation is made, then the pecuniary penalty must not exceed 100 penalty units for each day that falls after the first day. New subsection 52(2) of the BEED Act preserves the effect of current subsection 53(5A) of that Act, which is repealed by this item. 143. New subsection 52(3) of the BEED Act provides that if the contravention is of a requirement under section 15 of that Act in relation to a continuing advertisement, and the contravention is in respect of one or more days that fall after the first day on which advertising began, then the pecuniary penalty must not exceed 100 penalty units for each day that falls after the first day. New subsection 52(3) of the BEED Act preserves the effect of current subsection 53(5B) of that Act, which is repealed by this item. 144. New subsection 52(4) of the BEED Act provides that if the contravention is of a requirement under section 18 of that Act in relation to giving information within a period specified in a notice, and the contravention is in respect of one or more days that fall after the end of that period, then the pecuniary penalty must not exceed 20 penalty units for an individual and 50 penalty units for a body corporate for each day that falls after the end of that period. New subsection 52(4) of the BEED Act preserves the effect of current subsection 53(5C) of that Act, which is repealed by this item. 145. New subsection 52(5) of the BEED Act provides that if the contravention is of a requirement under section 18 of that Act in relation to giving access to a place at a day and time specified in a notice, and the contravention is in respect of one or more days that fall after the day specified, then the pecuniary penalty must not exceed 20 penalty units for an individual and 50 penalty units for a body corporate for each day that falls after the day specified. New subsection 52(5) of the BEED Act preserves the effect of current subsection 53(5D) of that Act, which is repealed by this item. 146. Current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act were tailored to large commercial operations, and are appropriate in quantum to ensure compliance. It is necessary to preserve the effect of current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act through the inclusion of new section 52 of that Act, as the applicable penalty units appropriately reflect compliance costs. The average cost of providing a Building Energy Efficiency Certificate is between $6,000 and $10,000, depending on the complexity of the building. Accordingly, new section 52 of the BEED Act acts as a suitable deterrent against non-compliance. 147. Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the BEED Act. The comparison table provided at paragraph 104 above identifies provisions gained through alignment with the Regulatory Powers Act, which are not currently in the BEED Act, that are merely procedural in nature and set out matters in relation to civil proceedings and criminal proceedings, state of mind, burden of proof and vicarious liability (see sections 88, 89, 90, 91, 94, 96 and 97 of the Regulatory Powers Act, which are discussed below). 148. Section 88 of the Regulatory Powers Act provides that a court cannot make a civil penalty order against a person for a contravention of a civil penalty provision if the person 100
has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention. 149. Section 89 of the Regulatory Powers Act stays proceedings for a civil penalty order against a person for a contravention of a civil penalty provision if criminal proceedings are commenced, or have already been commenced, against the person for an offence, and the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention. Subsection 89(2) of the Regulatory Powers Act clarifies that civil proceedings may be resumed if the person is not convicted of the offence. However, if the person is convicted of the offence, then the civil proceedings are dismissed and costs must not be awarded in relation to the civil proceedings. 150. Section 90 of the Regulatory Powers Act clarifies that criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against the person in relation to the contravention. This section recognises the importance of criminal proceedings and criminal penalties in dissuading and sanctioning contraventions of the triggering Act, and ensures that criminal remedies are not precluded by earlier civil action. 151. Section 91 of the Regulatory Powers Act provides that evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if: a. the individual previously gave the information or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made), and b. the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention. 152. However, subsection 91(2) of the Regulatory Powers Act states that subsection 91(1) of that Act does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order. This section ensures that information or documents produced during civil proceedings are not relied upon to support subsequent criminal proceedings, unless those proceedings are criminal proceedings relating to falsifying evidence in civil proceedings. 153. Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act (note, section 95 of the Regulatory Powers Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 154. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 101
155. Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. 156. The comparison table provided at paragraph 104 above also identifies that current section 53 of the BEED Act is aligned to section 82 of the Regulatory Powers Act, and that current section 55 of the BEED Act is repealed without substitution. 157. Alignment with the Regulatory Powers Act will result in minor modifications to the scope of current section 53 of the BEED Act, which concerns matters the court must have regard to in determining the pecuniary penalty. Current paragraph 53(4)(d) of the BEED Act provides that in determining a pecuniary penalty, the court must take into account whether the person has previously been found by a court, in proceedings under that Act, to have engaged in any similar conduct. Paragraph 82(6)(d) of the Regulatory Powers Act also applies this requirement, but provides that in determining a pecuniary penalty, the court must take into account whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct. Paragraph 82(6)(d) of the Regulatory Powers Act is not restricted to prior similar conduct related to the triggering Act, and makes it clear that a court includes a court in a foreign country. 158. Current paragraph 53(4)(e) of the BEED Act provides that in determining a pecuniary penalty, the court must take into account the extent to which the person has cooperated with the authorities. This consideration is not expressly required under subsection 82(6) of the Regulatory Powers Act; however, the list of factors in subsection 82(6) of the Regulatory Powers Act is not exhaustive, and a court may nonetheless consider the extent to which the person has cooperated with the authorities when determining the appropriate pecuniary penalty. 159. Alignment with the Regulatory Powers Act will also repeal current section 55 of the BEED Act, which provides that a contravention of a civil penalty provision is not an offence. This section is no longer necessary, as that provision does not add anything beyond the established common law principle, and its inclusion is no longer in line with current drafting standards. Infringement notices 160. Current Division 3 of Part 5 of the BEED Act provides for provisions in relation to infringement notices, and includes sections 58, 59, 60, 61, 62, 63 and 64 of that Act. Those sections are no longer necessary, as this Schedule amends the BEED Act to apply the standard infringement notices provisions of the Regulatory Powers Act. The comparison table provided at paragraph 104 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the BEED Act that are repealed by this item. 161. New Division 3 of Part 5 of the BEED Act directs the reader to Part 5 of the Regulatory Powers Act, which provides for provisions in relation to infringement notices (see the note to new subsection 53(1) of the BEED Act). New section 53 of the BEED Act outlines matters in relation to the infringement officer, the relevant chief executive, delegations, maximum penalties, time limits for withdrawals and the extension of matters to external Territories. 102
162. New subsection 53(1) of the BEED Act states that a civil penalty provision of that Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act, which ensures that Part 5 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the BEED Act. Item 8 also inserts a note at the end of new subsection 53(1) of the BEED Act, which directs the reader to Part 5 of the Regulatory Powers Act. 163. New subsection 53(2) of the BEED Act identifies the Secretary of the department that administers the BEED Act as an infringement officer for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act. This new subsection will enable the Secretary to issue an infringement notice to a person that he or she reasonably believes has contravened a civil penalty provision of the BEED Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), proceedings seeking a civil penalty order under Part 4 of the Regulatory Powers Act may be brought against the person. New subsection 53(2) of the BEED Act preserves the effect of current subsection 58(1) of the BEED Act, which is repealed by this item. 164. New subsection 53(3) of the BEED Act identifies the Secretary as the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act. New subsection 53(3) of the BEED Act reflects existing arrangements in current Division 3 of Part 5 of the BEED Act, which is repealed by this item. 165. New subsection 53(4) of the BEED Act provides the Secretary with the ability to delegate, in writing, his or her powers and functions as the infringement officer or as the relevant chief executive, in relation to the civil penalty provisions of the BEED Act. New subsection 53(4) of the BEED Act reflects existing arrangements under that Act (see subsection 71(1) of the BEED Act). 166. New subsection 53(5) of the BEED Act provides that a delegate must comply with any directions of the Secretary, which reflects existing arrangements under that Act (see subsection 71(3) of the BEED Act). 167. New subsection 53(6) of the BEED Act modifies the operation of subsection 103(3) of the Regulatory Powers Act, and provides that an infringement officer may give a person a single infringement notice relating to multiple contraventions of subsection 18(6) of the BEED Act, which are alleged to have occurred because the person failed to give access to a place at a particular day and time specified in a notice issued under subsection 18(4) of the BEED Act, and continued to fail to do so after that day and time. New subsection 53(6) of the BEED Act complements the amendments made to subsection 18(7) of that Act by item 6 above. 168. Subsection 18(6) of the BEED Act outlines the civil penalty applicable for non-compliance with a notice issued under section 18 of that Act, which is prescribed as 200 penalty units for an individual and 500 penalty units for a body corporate. 169. Subsection 18(4) of the BEED Act provides that, at the written request of the accredited assessor, the Secretary may, by written notice, require an owner, lessee or sublessee of the building or an area of a building to give the assessor access to a place in or 103
associated with the building or area if access to the place is necessary for the purposes of the assessment. 170. Section 18 of the BEED Act provides for where a person fails to do an act at a particular time. However, subsections 103(3) and (4) of the Regulatory Powers Act apply where a person fails to comply with an obligation within a particular period or before a particular time. Consequently, subsections 103(3) and (4) of the Regulatory Powers Act are unable to deal with matters provided for in current subsection 18(6) of the BEED Act. 171. Subsection 103(3) of the Regulatory Powers Act states that a single infringement notice must only relate to a single contravention of a single provision, unless the circumstances in subsection 103(4) of the Regulatory Powers Act apply. Subsection 103(4) of the Regulatory Powers Act states that a single infringement notice may relate to multiple contraventions of a single provision if that provision requires the person to do a thing within a particular period or before a particular time, and the person fails or refuses to do that thing on more than one day after the period has expired or relevant time has passed. 172. New subsection 53(6) of the BEED Act makes it clear that, where a person or body corporate fails to give access at a day and time required under the notice issued under section 18 of the BEED Act, that person or body corporate will continue to commit a separate contravention of subsection 18(6) of the BEED Act each day after the required day until that person or body corporate complies with the access request, and a single infringement notice may be issued in relation to multiple contraventions of that provision. 173. New subsection 53(7) of the BEED Act modifies the operation of subsection 104(2) of the Regulatory Powers Act, and provides that the amount to be stated in an infringement notice, for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act, must not exceed an amount equal to one-tenth of the maximum penalty that a court could impose on the person for that contravention. New subsection 53(7) of the BEED Act preserves the effect of current subsection 59(2) of that Act, which is repealed by this item. 174. New subsection 53(7) of the BEED Act complements new subsection 51(6) and new section 52 of that Act, which preserve the effect of current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act. Current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act were tailored to large commercial operations, and are appropriate in quantum to ensure compliance. It is necessary to preserve the effect of current subsection 59(2) of the BEED Act through the inclusion of new subsection 53(7) of that Act, as the applicable penalty units appropriately reflect compliance costs and act as a suitable deterrent against non-compliance. 175. New subsection 53(8) of the BEED Act modifies the operation of section 106 of the Regulatory Powers Act, and provides a time limit for representations to be made when seeking withdrawal of an infringement notice. New paragraph 53(8)(a) of the BEED Act states that a recipient of an infringement notice who is seeking withdrawal of that notice must make written representations to the Secretary within 28 days of receipt of the notice. New paragraph 53(8)(b) of the BEED Act provides that the Secretary is not required to take into account any representations seeking withdrawal that are made after the expiration of the 28-day period. New subsection 53(8) of the BEED Act preserves the effect of current subsections 61(1) and (2) of that Act, which are repealed by this item. 104
176. It is necessary to preserve the effect of current subsections 61(1) and (2) of the BEED Act through the inclusion of new subsection 53(8) of that Act, as the 28-day time limit aims to provide certainty and efficiency in relation to withdrawal of infringement notice requests. Following consideration of the timing of prior withdrawal requests, the department that administers the BEED Act determined that a timely resolution of withdrawal matters was required. Accordingly, the Building Energy Efficiency Disclosure Amendment Act 2015 amended current subsection 61(1) of the BEED Act to provide for the 28-day time limit. New subsection 53(8) of the BEED Act preserves that amendment. 177. New subsection 53(9) of the BEED Act extends the application of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, to every external Territory. New subsection 53(9) of the BEED Act reflects existing arrangements under that Act (see section 9 of the BEED Act). 178. Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the BEED Act. The comparison table provided at paragraph 104 above identifies the provision gained through alignment with the Regulatory Powers Act, which is not currently in the BEED Act, that is merely procedural in nature and sets out matters in relation to the provision of two or more infringement notices (see paragraph 108(c) of the Regulatory Powers Act, which is discussed below). 179. Paragraph 108(c) of the Regulatory Powers Act states that the application of Part 5 of that Act does not prevent the giving of two or more infringement notices to a person for an alleged contravention of a provision subject to an infringement notice under that Part. 180. The comparison table provided at paragraph 104 above also identifies that current section 58 of the BEED Act is aligned to section 103 of the Regulatory Powers Act, and that current section 59 of the BEED Act is aligned to section 104 of the Regulatory Powers Act (as amended by Schedule 1 to this Bill). 181. Alignment with the Regulatory Powers Act will result in minor modifications to the scope of current section 58 of the BEED Act, as current paragraph 58(3)(b) of that Act has no equivalent in the Regulatory Powers Act, and subsections 103(4) and (5) of the Regulatory Powers Act do not currently exist in the BEED Act. 182. Current paragraph 58(3)(b) of the BEED Act provides that a single infringement notice may be given to a person in respect of alleged contraventions of two or more civil penalty provisions. There is no equivalent to this provision in the Regulatory Powers Act. 183. Subsection 103(3) of the Regulatory Powers Act states that a single infringement notice must only relate to a single contravention of a single provision, unless the circumstances in subsection 103(4) of the Regulatory Powers Act apply. Subsection 103(4) of the Regulatory Powers Act states that a single infringement notice may relate to multiple contraventions of a single provision if that provision requires the person to do a thing within a particular period or before a particular time, and the person fails or refuses to do that thing on more than one day after the period has expired or relevant time has passed. Subsection 103(5) of the Regulatory Powers Act states that, if a single provision can constitute both a civil penalty provision and an offence provision, the infringement notice must relate to the provision as an offence provision. 105
184. Current section 59 of the BEED Act provides for matters to be included in an infringement notice, including the amount to be stated in the notice for the alleged contravention of a civil penalty provision. 185. Section 104 of the Regulatory Powers Act is amended by Schedule 1 to this Bill to clarify that the cap on the amount to be stated in an infringement notice applies to an individual contravention, not an infringement notice as a whole. This amendment complements subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision, where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time. 186. The comparison table provided at paragraph 104 above identifies that current subparagraph 59(1)(n)(i), current paragraph 59(1)(p), current subsection 61(2) and current section 64 of the BEED Act are repealed without substitution. 187. Current subparagraph 59(1)(n)(i) of the BEED Act provides that an infringement notice must state that if the notice is withdrawn, any amount paid under the notice must be refunded. That paragraph is not necessary to retain, as subsection 106(5) of the Regulatory Powers Act provides that, if the infringement notice is withdrawn, the Commonwealth must refund any amount paid under the notice. The absence of the requirement in current subparagraph 59(1)(n)(i) of the BEED Act does not impact the operation of subsection 106(5) of the Regulatory Powers Act. 188. Current paragraph 59(1)(p) of the BEED Act provides that an infringement notice must set out such other matters (if any) that are specified by the regulations. This item repeals current section 64 of the BEED Act, which provides that the regulations may prescribe further matters in relation to infringement notices issued under that Act. Current paragraph 59(1)(p) of the BEED Act complements section 64 of that Act. The repeal of paragraph 59(1)(p) of the BEED Act reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, rather than by regulation or legislative instrument. Accordingly, it is no longer necessary to retain paragraph 59(1)(p) of the BEED Act (see also the discussion of current section 64 of the BEED Act at paragraph 190 below). 189. Current subsection 61(2) of the BEED Act provides that evidence or information that the person, or a representative of the person, gives to the Secretary in the course of making representations for withdrawal of an infringement notice under current section 61 of that Act is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information being false or misleading). There is no equivalent to this provision in the Regulatory Powers Act, as the ability of a person to make representations for the withdrawal of an infringement notice is not designed to be an information or evidence gathering exercise for the regulator. Current subsection 61(2) of the BEED Act is repealed without substitution, as retention of this provision is no longer required for the purposes of that Act. 190. Current section 64 of the BEED Act provides that the regulations may prescribe further matters in relation to infringement notices issued under the BEED Act. That section is repealed by this item. The repeal of section 64 of the BEED Act reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, 106
rather than by regulation or legislative instrument (see also the discussion of current paragraph 59(1)(p) of the BEED Act at paragraph 188 above). 191. Part 7 of the BEED Regulations provides for provisions in relation to infringement notices, and includes regulations 12, 13, 14, 15, 16 and 17 of those Regulations. Those provisions will be made redundant by virtue of the repeal of section 64 by this item. The comparison table provided at paragraph 105 above identifies that there are no corresponding provisions under the Regulatory Powers Act for the provisions of the BEED Regulations that are made redundant by this item. Part 7 of the BEED Regulations will be repealed by regulation following commencement of this Schedule. Regulations 12, 13, 14, 15, 16 and 17 of the BEED Regulations are not retained through insertion of new identical provisions in the BEED Act, as it is no longer necessary to legislate for these matters. 192. Regulation 12 of the BEED Regulations provides that, in relation to an infringement notice issued for a contravention of a civil penalty provision in section 11 or 15 of the BEED Act, the infringement notice must state that if the contravention continues beyond a date, or dates, specified in the notice, a fresh liability will arise even if the notice is paid. It is not necessary to replicate this provision in the BEED Act, as this Schedule amends the BEED Act to apply the standard provisions of the Regulatory Powers Act, and section 93 of that Act provides that a failure to comply with an obligation within a particular period or before a particular time does not excuse a person from meeting that obligation (even if the period has expired or the time has passed). Subsections 103(3) and (4) of the Regulatory Powers Act complement section 93 of that Act, and enable a single infringement notice to relate to multiple contraventions of a single provision if that provision requires the person to do a thing within a particular period or before a particular time, and the person fails or refuses to do that thing on more than one day after the period has expired or relevant time has passed. 193. Regulation 13 of the BEED Regulations states that for the purposes of section 64 of the BEED Act, Division 3 of Part 7 of the BEED Regulations makes further provision in relation to infringement notices. It is not necessary to replicate this provision in the BEED Act, as current section 64 of the BEED Act is repealed by this item. 194. Regulation 14 of the BEED Regulations outlines the method of service for infringement notices. It is not necessary to replicate this provision in the BEED Act, as Part 6 of the Acts Interpretation Act 1901 (the 'AIA') deals with service of documents, and the BEED Act does not expressly exclude the application of the AIA to that Act. 195. Regulation 15 of the BEED Regulations provides that the Secretary of the department that administers the BEED Act may sign an evidentiary certificate that provides for matters in relation to an infringement notice served on a person. It is not necessary to replicate this provision in the BEED Act, as it is no longer in line with current drafting standards. 196. Regulation 16 of the BEED Regulations states that if a person pays an infringement notice by cheque, payment is not taken to have been made until the cheque has been honoured on presentation. It is not necessary to replicate this provision in the BEED Act, as the provision does not add anything beyond the established common law principle, and its inclusion is no longer in line with current drafting standards. 197. Regulation 17 of the BEED Regulations provides that the Secretary may agree, in writing, to accept payment of an infringement notice by instalments. It is not necessary to replicate this provision in the BEED Act, as regulation 17 of the BEED Regulations is, in 107
effect, an extension of time to pay an infringement notice and, as this Schedule amends the BEED Act to apply the standard provisions of the Regulatory Powers Act, section 105 of the Regulatory Powers Act will enable the Secretary to make such an agreement when approving an application for an extension of the time to pay an infringement notice. Item 9 - Paragraph 65(3)(a) 198. Item 9 omits 'Division 3' from paragraph 65(3)(a) of the BEED Act, and substitutes 'Part 5 of the Regulatory Powers Act in relation to a civil penalty provision of this Act', which clarifies that an infringement notice is issued under the Regulatory Powers Act, due to the amendments made by item 8 above. 199. Current paragraph 65(3)(a) of the BEED Act states that each of the following is an instance of non-disclosure by a person: a. the person is given an infringement notice under current Division 3 of Part 5 of the BEED Act, or b. a court makes a civil penalty order against the person for a contravention of sections 11 or 15 or subsection 12(6) of the BEED Act. 200. Subsection 65(1) of the BEED Act requires the Secretary of the department that administers the BEED Act to maintain, or cause to be maintained, an Energy Efficiency Non-disclosure Register. 201. Item 9 is consequential to the amendments made by item 8 above, which repeals current Divisions 2 and 3 of Part 5 of the BEED Act and applies the standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act. Item 10 - Paragraph 65(3)(b) 202. Item 10 inserts 'under the Regulatory Powers Act' after 'order' in paragraph 65(3)(b) of the BEED Act, which clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 8 above. 203. Current paragraph 65(3)(a) of the BEED Act states that each of the following is an instance of non-disclosure by a person: a. the person is given an infringement notice under current Division 3 of Part 5 of the BEED Act, or b. a court makes a civil penalty order against the person for a contravention of sections 11 or 15 or subsection 12(6) of the BEED Act. 204. Subsection 65(1) of the BEED Act requires the Secretary of the department that administers the BEED Act to maintain, or cause to be maintained, an Energy Efficiency Non-disclosure Register. 205. Item 10 is consequential to the amendments made by item 8 above, which repeals Divisions 2 and 3 of Part 5 of the BEED Act and applies the standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act. 108
Item 11 - Subparagraph 70(1)(a)(iii) 206. Item 11 omits '; and' from subparagraph 70(1)(a)(iii) of the BEED Act, and substitutes '; or' to provide for the inclusion of new subparagraph 70(1)(a)(iv) of that Act, which is inserted by item 12 below. 207. Section 70 of the BEED Act provides for the protection of information obtained or generated by issuing authorities, auditors and authorised persons in the course of exercising powers or performing functions under the BEED Act. Subsection 70(1) of the BEED Act provides for an offence punishable by imprisonment for 2 years where a person copies, makes a record of, uses or discloses information obtained or generated in the course of exercising powers or performing functions under the BEED Act. Subsection 70(2) of the BEED Act provides for specific exemptions from subsection 70(1) of that Act. 208. Item 11 is consequential to the amendments made by item 12 below and item 8 above. Item 12 - At the end of paragraph 70(1)(a) 209. Item 12 inserts new subparagraph 70(1)(a)(iv) of the BEED Act at the end of paragraph 70(1)(a) of that Act. This new subparagraph provides that a person commits an offence if they copy, use or disclose information obtained or generated in the course of exercising powers or performing functions under the Regulatory Powers Act for the purposes of the BEED Act. 210. Section 70 of the BEED Act provides for the protection of information obtained or generated by issuing authorities, auditors and authorised persons in the course of exercising powers or performing functions under the BEED Act. Subsection 70(1) of the BEED Act provides for an offence punishable by imprisonment for 2 years where a person copies, makes a record of, uses or discloses information obtained or generated in the course of exercising powers or performing functions under the BEED Act. Subsection 70(2) of the BEED Act provides for specific exemptions from subsection 70(1) of that Act. 211. Item 12 is consequential to the amendments made by item 8 above, and protects the integrity of information and the privacy or confidentiality of participants from unnecessary or illegitimate disclosure. PART 2--APPLICATION AND SAVING PROVISIONS Item 13 - Application and saving provision--civil penalties 212. Item 13 provides for the application of the amendments in this Schedule, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 213. This item also provides that Division 2 of Part 5 of the BEED Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule. 109
Item 14 - Application and saving provision--infringement notices 214. Item 14 provides for the application of the amendments in this Schedule, and makes it clear that the amendments apply in relation to alleged contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 215. This item also provides that Division 3 of Part 5 of the BEED Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to alleged contraventions of civil penalty provisions occurring before the commencement of this Schedule. Item 15 - Saving provision--Energy Efficiency Non-disclosure Register 216. Item 15 provides that an infringement notice given to a person under current Division 3 of Part 5 of the BEED Act, as that Division applies to alleged contraventions of civil penalty provisions occurring before the commencement of this Schedule, is taken to be an instance of non-disclosure under section 65 of the BEED Act, as amended by this Schedule. 217. This item also provides that a civil penalty order made by a court under subsection 53(2) of the BEED Act before, on or after the commencement of this Schedule for a contravention of sections 11 or 15 or subsection 12(6) of the that Act, is taken to be an instance of non-disclosure under section 65 of the BEED Act, as amended by this Schedule. 218. Item 15 provides clarity for the Secretary of the department that administers the BEED Act, and ensures continuity in the maintenance of the Energy Efficiency Non-disclosure Register by the Secretary under section 65 of the BEED Act. 110
Schedule 4 - Coal Mining Industry (Long Service Leave) Legislation GENERAL OUTLINE 219. The Coal Mining Industry (Long Service Leave) Legislation consists of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the 'Administration Act') and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (the 'Payroll Levy Collection Act'). The Administration Act and the Payroll Levy Collection Act collectively provide for a portable long service leave scheme where coal mining industry employers are required to financially contribute to a fund, which contributes to the long service leave entitlements of eligible coal mining industry employees. This primarily occurs through collection of a levy from coal mining industry employers, which is then administered by the Coal Mining Industry (Long Service Leave) Corporation (the 'Corporation'). 220. Current Part 7A of the Administration Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions of the Administration Act and the Payroll Levy Collection Act. Subsections 5(1), 10(1) and 10A(3) of the Payroll Levy Collection Act are expressly identified as civil penalty provisions. The current notes to subsections 5(4), 10(3) and 10A(5) of the Payroll Levy Collection Act direct the reader to current Part 7A of the Administration Act. 221. This Schedule amends the Administration Act and the Payroll Levy Collection Act to apply the standard civil penalty provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the Administration Act or the Payroll Levy Collection Act, and the provision gained by alignment with the Regulatory Powers Act, which is not currently in the Administration Act or the Payroll Levy Collection Act, is merely a procedural matters in relation to burden of proof. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the Administration Act and the Payroll Levy Collection Act. 222. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Coal Mining Industry (Long Service Leave) Administration Act 1992 223. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 27) for the provisions of the Administration Act that are repealed by item 27. 111
Current provision in the Administration Provision Provision as Applicable Act amended by this provision Schedule (Regulatory Powers Act) Civil penalty provisions Part 7A Part 4-Civil penalty provisions Relevant courts 49A(1) Retained N/A (see new subsection 49A(4) of the Administration Act) Civil penalty orders 49A Retained 82 Additional matters to be taken into account 49A(7) Retained through N/A (see new in determining a pecuniary penalty modification to subsection 49A(5) the operation of of the the Regulatory Administration Act) Powers Act Civil enforcement of penalty 49AA Retained 83 Conduct contravening more than one civil 49AB Retained 84 penalty provision Multiple contraventions 49AC Retained 85 Proceedings may be heard together 49AD Retained 86 Civil evidence and procedure rules to apply 49AE Retained 87 Contravening a civil penalty provision is not 49AF Repealed N/A an offence Civil proceedings after criminal proceedings 49B Retained 88 Criminal proceedings during civil 49BA Retained 89 proceedings Criminal proceedings after civil proceedings 49BB Retained 90 Evidence given in civil proceedings not 49BC Retained 91 admissible in criminal proceedings Ancillary contravention of civil penalty 49C Retained 92 provisions Continuing contraventions of civil penalty 49CA Retained 93 provisions Mistake of fact 49CB Retained 95 State of mind 49CC Retained 94 Civil penalty provisions contravened by 49CD Retained 97 employees, agents or officers Civil penalty provisions contravened by 49CE Retained through N/A (see executive officers modification to section 49CE of the the operation of Administration Act the Regulatory as amended by this Powers Act Schedule) Establishing whether an executive officer 49CF Retained through N/A (see took reasonable steps to prevent the modification to section 49CF of the contravention of a civil penalty provision the operation of Administration Act the Regulatory as amended by this Powers Act Schedule) N/A (Exceptions etc. to civil penalty N/A Gained 96 provisions - burden of proof) 112
Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 224. The below table identifies the provisions of the Regulatory Powers Act applicable to the Payroll Levy Collection Act due to the insertion of new section 13A of that Act by item 44. Subsections 5(1), 10(1) and 10A(3) of the Payroll Levy Collection Act are expressly identified as civil penalty provisions. The current notes to subsections 5(4), 10(3) and 10A(5) of the Payroll Levy Collection Act direct the reader to current Part 7A of the Administration Act, which establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions of that Act or the Payroll Levy Collection Act. Item 44 amends the Payroll Levy Collection Act to apply the standard civil penalty provisions of the Regulatory Powers Act to enforce the civil penalty provisions of the Payroll Levy Collection Act. Current provision in the Payroll Levy Provision Provision as Applicable Collection Act amended by this provision Schedule (Regulatory Powers Act) Civil penalty provisions N/A Part 4-Civil penalty provisions Relevant courts 49A(1) Retained N/A (see new subsection 13A(4) of the Payroll Levy Collection Act) Civil penalty provisions Note to Retained 82, 83, 84, 85, 86, 5(4); 87, 88, 89, 90, 91, Note to 92, 93, 94, 95, 97 10(3); Note to 10A(5) N/A (Exceptions etc. to civil penalty N/A Gained 96 provisions - burden of proof) N/A (Additional matters to be taken into N/A Gained N/A (see new account in determining a pecuniary penalty) subsection 13A(5) of the Payroll Levy Collection Act) N/A (Civil penalty provisions contravened by N/A Gained N/A (see new executive officers) section 13B of the Payroll Levy Collection Act) N/A (Establishing whether an executive N/A Gained N/A (see new officer took reasonable steps to prevent the section 13C of the contravention of a civil penalty provision) Payroll Levy Collection Act) 113
PART 1--AMENDMENTS Coal Mining Industry (Long Service Leave) Administration Act 1992 Item 1 - Subsection 4(1) (definition of civil penalty order) 225. Item 1 repeals the definition of civil penalty order in subsection 4(1) of the Administration Act. That definition is no longer necessary, as this Schedule amends the Administration Act to apply the standard provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act. 226. It is not necessary to substitute a new definition of civil penalty order in subsection 4(1) of the Administration Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act. Item 2 - Subsection 4(1) (definition of civil penalty provision) 227. Item 2 repeals the definition of civil penalty provision in subsection 4(1) of the Administration Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. Item 3 - Subsection 4(1) 228. Item 3 amends subsection 4(1) of the Administration Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 4 - At the end of subsections 39AB(3) and (4) 229. Item 4 inserts 'Civil penalty: 60 penalty units' at the end of subsections 39AB(3) and (4) of the Administration Act. 230. Subsection 39AB(3) of the Administration Act provides that, as soon as possible, but no later than 14 days after the application is made, the employer must give the employee a written response stating whether or not the employer grants the long service leave, and, if the employer refuses to grant the long service leave, give details of the reasons for the refusal. Subsection 39AB(4) of the Administration Act states that the employer may only rely on reasonable business grounds when refusing to grant long service leave. 231. Current subsection 39AB(6) of the Administration Act provides that subsections 39AB(3) and (4) of that Act are civil penalty provisions. Note 1 to current subsection 39AB(6) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 7 below repeals current subsection 39AB(6) of the Administration Act, including the two notes. 232. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below. 114
233. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act. 234. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 235. Item 4 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. Item 5 - Subsection 39AB(5) (note) 236. Item 5 omits 'Note' from the note to subsection 39AB(5) of the Administration Act, and substitutes 'Note 1'. The current note to subsection 39AB(5) of the Administration Act states that the number of hours of long service leave that an employee is entitled to in respect of certain qualifying service may be affected by section 39CE of that Act. 237. Section 39CE of the Administration Act provides for the effect of payment in respect of qualifying service, and applies in relation to a period of qualifying service completed by an employee if, on ceasing to be an eligible employee, the employee is paid an amount under section 39CA or 39CB in respect of the period of qualifying service. 238. Item 5 is consequential to the insertion of 'Note 2' by item 6 below. Item 6 - At the end of subsection 39AB(5) 239. Item 6 inserts a new note at the end of subsection 39AB(5) of the Administration Act. 240. Subsection 39AB(5) of the Administration Act provides that, for the purposes of section 39AB of that Act, the long service leave credit (LSL credit) of an eligible employee on a day (the calculation day) is the number of hours worked out as follows: a. first, add together the number of hours of long service leave that the employee is entitled to under section 39AA of the Administration Act for each week of qualifying service completed by the employee before the calculation day, b. then, subtract the number of hours of long service leave (if any) previously granted to the employee under section 39AB of the Administration Act. 241. The current note to subsection 39AB(5) of the Administration Act states that the number of hours of long service leave that an employee is entitled to in respect of certain qualifying service may be affected by section 39CE of that Act. That note is renumbered to 'Note 1' by item 5 above. 242. New Note 2 directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 115
243. Item 6 preserves the effect of Note 2 to current subsection 39AB(6) of the Administration Act, which is repealed by item 7 below. Item 7 - Subsection 39AB(6) 244. Item 7 repeals subsection 39AB(6) of the Administration Act, including the two notes. 245. Current subsection 39AB(6) of the Administration Act states that subsections 39AB(3) and (4) of that Act are civil penalty provisions. 246. Subsection 39AB(3) of the Administration Act provides that, as soon as possible, but no later than 14 days after the application is made, the employer must give the employee a written response stating whether or not the employer grants the long service leave, and, if the employer refuses to grant the long service leave, give details of the reasons for the refusal. Subsection 39AB(4) of the Administration Act states that the employer may only rely on reasonable business grounds when refusing to grant long service leave. 247. Note 1 to current subsection 39AB(6) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 248. Note 2 to current subsection 39AB(6) of the Administration Act directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 249. Item 7 is consequential to the amendments made by items 4, 5 and 6 above and item 27 below. Item 8 - At the end of subsection 39AC(1) 250. Item 8 inserts 'Civil penalty: 60 penalty units' at the end of subsection 39AC(1) of the Administration Act. 251. Subsection 39AC(1) of the Administration Act states that, if an eligible employee takes a period of long service leave, the employer must pay the employee for the long service leave no less than an amount that is equal to the base rate of pay (including incentive-based payments and bonuses) that would have been payable to the employee during the period had the employee not taken the leave. 252. Current subsection 39AC(2) of the Administration Act provides that subsection 39AC(1) of that Act is a civil penalty provision. Note 1 to current subsection 39AC(2) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 9 below repeals current subsection 39AC(2) of the Administration Act, including the two notes. 253. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below. 116
254. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act. 255. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 256. Item 8 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. Item 9 - Subsection 39AC(2) 257. Item 9 repeals subsection 39AC(2) of the Administration Act, including the two notes. 258. Current subsection 39AC(2) of the Administration Act states that subsection 39AC(1) of that Act is a civil penalty provision. 259. Subsection 39AC(1) of the Administration Act states that, if an eligible employee takes a period of long service leave, the employer must pay the employee for the long service leave no less than an amount that is equal to the base rate of pay (including incentive-based payments and bonuses) that would have been payable to the employee during the period had the employee not taken the leave. 260. Note 1 to current subsection 39AC(2) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 261. Note 2 to current subsection 39AC(2) of the Administration Act directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 262. Item 9 is consequential to the amendments made by item 8 above and items 10 and 27 below. Item 10 - At the end of section 39AC 263. Item 10 inserts a new note at the end of section 39AC of the Administration Act. 264. Section 39AC of the Administration Act provides that, if an eligible employee takes a period of long service leave, the employer must pay the employee for the long service leave no less than the amount that is equal to the base rate of pay (including incentive-based payments and bonuses) that would have been payable to the employee during the period had the employee not taken leave. 265. The new note directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 117
266. Item 10 preserves the effect of Note 2 to current subsection 39AC(2) of the Administration Act, which is repealed by item 9 above. Item 11 - Subsection 39AD(1) 267. Item 11 omits the subsection number '(1)' from subsection 39AD(1) of the Administration Act, which is no longer necessary due to the repeal of subsection 39AD(2) of that Act by item 13 below. 268. Current subsection 39AD(1) of the Administration Act states that, if an eligible employee takes a period of long service leave, the employer must pay the employee for the long service leave: a. at the same time as the employer would have paid the employee during the period if the employee had not taken the leave, or b. if the employee requests to be paid in advance for the whole period and an industrial instrument that covers the employee expressly allows the employee to be paid in advance for long service leave--in accordance with the employee's request. 269. Item 11 is consequential to the amendments made by item 13 below. Item 12 - At the end of subsection 39AD(1) 270. Item 12 inserts 'Civil penalty: 60 penalty units' at the end of subsection 39AD(1) of the Administration Act. 271. Current subsection 39AD(1) of the Administration Act states that, if an eligible employee takes a period of long service leave, the employer must pay the employee for the long service leave: a. at the same time as the employer would have paid the employee during the period if the employee had not taken the leave, or b. if the employee requests to be paid in advance for the whole period and an industrial instrument that covers the employee expressly allows the employee to be paid in advance for long service leave--in accordance with the employee's request. 272. Current subsection 39AD(2) of the Administration Act provides that subsection 39AD(1) of that Act is a civil penalty provision. Note 1 to current subsection 39AD(2) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 13 below repeals current subsection 39AD(2) of the Administration Act, including the two notes. 273. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below. 118
274. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act. 275. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 276. Item 12 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. 277. Item 12 also inserts a new note at the end of subsection 39AD(1) of the Administration Act. The new note directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. This item preserves the effect of Note 2 to current subsection 39AD(2) of the Administration Act, which is repealed by item 13 below. Item 13 - Subsection 39AD(2) 278. Item 13 repeals subsection 39AD(2) of the Administration Act, including the two notes. 279. Current subsection 39AD(2) of the Administration Act states that subsection 39AD(1) of that Act is a civil penalty provision. 280. Current subsection 39AD(1) of the Administration Act states that, if an eligible employee takes a period of long service leave, the employer must pay the employee for the long service leave: a. at the same time as the employer would have paid the employee during the period if the employee had not taken the leave, or b. if the employee requests to be paid in advance for the whole period and an industrial instrument that covers the employee expressly allows the employee to be paid in advance for long service leave--in accordance with the employee's request. 281. Note 1 to current subsection 39AD(2) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 282. Note 2 to current subsection 39AD(2) of the Administration Act directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 283. Item 13 is consequential to the amendments made by items 11 and 12 above and item 27 below. 119
Item 14 - Subsection 39BE(1) 284. Item 14 omits the subsection number '(1)' from subsection 39BE(1) of the Administration Act, which is no longer necessary due to the repeal of subsection 39BE(2) of that Act by item 16 below. 285. Current subsection 39BE(1) of the Administration Act states that, if a waiver agreement is in effect between an employee and an employer, the employer must pay the additional remuneration or make the additional contributions or both pay the additional remuneration and make the additional contributions (as the case may be) in accordance with the terms of the agreement. 286. Item 14 is consequential to the amendments made by item 16 below. Item 15 - At the end of subsection 39BE(1) 287. Item 15 inserts 'Civil penalty: 60 penalty units' at the end of subsection 39BE(1) of the Administration Act. 288. Current subsection 39BE(1) of the Administration Act states that, if a waiver agreement is in effect between an employee and an employer, the employer must pay the additional remuneration or make the additional contributions or both pay the additional remuneration and make the additional contributions (as the case may be) in accordance with the terms of the agreement. 289. Current subsection 39BE(2) of the Administration Act provides that subsection 39BE(1) of that Act is a civil penalty provision. Note 1 to current subsection 39BE(2) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 16 below repeals current subsection 39BE(2) of the Administration Act, including the two notes. 290. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below. 291. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act. 292. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 293. Item 15 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. 120
294. Item 15 also inserts a new note at the end of current subsection 39BE(1) of the Administration Act. The new note directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. This item preserves the effect of Note 2 to current subsection 39BE(2) of the Administration Act, which is repealed by item 16 below. Item 16 - Subsection 39BE(2) 295. Item 16 repeals subsection 39BE(2) of the Administration Act, including the two notes. 296. Current subsection 39BE(2) of the Administration Act states that subsection 39BE(1) of that Act is a civil penalty provision. 297. Current subsection 39BE(1) of the Administration Act states that, if a waiver agreement is in effect between an employee and an employer, the employer must pay the additional remuneration or make the additional contributions or both pay the additional remuneration and make the additional contributions (as the case may be) in accordance with the terms of the agreement. 298. Note 1 to current subsection 39BE(2) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 299. Note 2 to current subsection 39BE(2) of the Administration Act directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 300. Item 16 is consequential to the amendments made by items 14 and 15 above and item 27 below. Item 17 - At the end of subsection 39C(1) 301. Item 17 inserts 'Civil penalty: 60 penalty units' at the end of subsection 39C(1) of the Administration Act. 302. Subsection 39C(1) of the Administration Act applies if an employee ceases to be an eligible employee (other than by death) and, at the time of ceasing, the employee has a period of untaken long service leave under Part 5A of that Act, and, at any time after so ceasing, the employee requests, in writing, that the employer make a payment under section 39C of that Act. In those circumstances, the employer must, within 30 days after the request is made, pay the employee no less than the amount that would have been payable under Part 5A of the Administration Act had the employee taken that period of long service leave immediately before ceasing to be an eligible employee, less any amount previously paid to the employee under section 39C of that Act. 303. Subsection 39C(2) of the Administration Act applies if an employee dies without making a request under subsection 39C(1) of that Act, in respect of a period of untaken long service leave, and, at any time after the employee's death, the employee's legal personal representative requests, in writing, that the employer make a payment under section 39C of that Act. In those circumstances, the employer must, within 30 days after the request is made, pay the employee's legal representative no less than the amount that would have been 121
payable to the employee under subsection 39C(1) of the Administration Act, if the employee had made a request under that subsection in respect of the untaken long service leave. 304. Current subsection 39C(3) of the Administration Act provides that subsections 39C(1) and (2) of that Act are civil penalty provisions. Note 1 to current subsection 39C(3) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 19 below repeals current subsection 39C(3) of the Administration Act, including the two notes. 305. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below. 306. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act. 307. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 308. Item 17 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. Item 18 - At the end of subsection 39C(2) 309. Item 18 inserts 'Civil penalty: 60 penalty units' at the end of subsection 39C(2) of the Administration Act. 310. Subsection 39C(2) of the Administration Act applies if an employee dies without making a request under subsection 39C(1) of that Act, in respect of a period of untaken long service leave, and, at any time after the employee's death, the employee's legal personal representative requests, in writing, that the employer make a payment under section 39C of that Act. In those circumstances, the employer must, within 30 days after the request is made, pay the employee's legal representative no less than the amount that would have been payable to the employee under subsection 39C(1) of the Administration Act, if the employee had made a request under that subsection in respect of the untaken long service leave. 311. Subsection 39C(1) of the Administration Act applies if an employee ceases to be an eligible employee (other than by death) and, at the time of ceasing, the employee has a period of untaken long service leave under Part 5A of that Act, and, at any time after so ceasing, the employee requests, in writing, that the employer make a payment under section 39C of that Act. In those circumstances, the employer must, within 30 days after the request is made, pay the employee no less than the amount that would have been payable under Part 5A of the Administration Act had the employee taken that period of long service leave immediately 122
before ceasing to be an eligible employee, less any amount previously paid to the employee under section 39C of that Act. 312. Current subsection 39C(3) of the Administration Act provides that subsections 39C(1) and (2) of that Act are civil penalty provisions. Note 1 to current subsection 39C(3) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 19 below repeals current subsection 39C(3) of the Administration Act, including the two notes. 313. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below. 314. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act. 315. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 316. Item 18 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. 317. Item 18 also inserts a new note at the end of subsection 39C(2) of the Administration Act. The new note directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. This item preserves the effect of Note 2 to current subsection 39C(3) of the Administration Act, which is repealed by item 19 below. Item 19 - Subsection 39C(3) 318. Item 19 repeals subsection 39C(3) of the Administration Act, including the two notes. 319. Current subsection 39C(3) of the Administration Act states that subsections 39C(1) and (2) of that Act are civil penalty provisions. 320. Subsection 39C(1) of the Administration Act applies if an employee ceases to be an eligible employee (other than by death) and, at the time of ceasing, the employee has a period of untaken long service leave under Part 5A of that Act, and, at any time after so ceasing, the employee requests, in writing, that the employer make a payment under section 39C of that Act. In those circumstances, the employer must, within 30 days after the request is made, pay the employee no less than the amount that would have been payable under Part 5A of the Administration Act had the employee taken that period of long service leave immediately before ceasing to be an eligible employee, less any amount previously paid to the employee under section 39C of that Act. 123
321. Subsection 39C(2) of the Administration Act applies if an employee dies without making a request under subsection 39C(1) of that Act, in respect of a period of untaken long service leave, and, at any time after the employee's death, the employee's legal personal representative requests, in writing, that the employer make a payment under section 39C of that Act. In those circumstances, the employer must, within 30 days after the request is made, pay the employee's legal representative no less than the amount that would have been payable to the employee under subsection 39C(1) of the Administration Act, if the employee had made a request under that subsection in respect of the untaken long service leave. 322. Note 1 to current subsection 39C(3) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 323. Note 2 to current subsection 39C(3) of the Administration Act directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 324. Item 19 is consequential to the amendments made by items 17 and 18 above and item 27 below. Item 20 - At the end of subsection 39CA(2) 325. Item 20 inserts 'Civil penalty: 60 penalty units' at the end of subsection 39CA(2) of the Administration Act. 326. Subsection 39CA(2) of the Administration Act states that an employer must, within 30 days after a request is made under subsection 39CA(1) of that Act, pay the employee no less than the amount that would have been payable to the employee under Part 5A of that Act had the employee been entitled to long service leave for the period, or periods, of qualifying service, and taken that long service leave immediately before ceasing to be an eligible employee (less any amount previously paid to the employee under section 39CA of the Administration Act). 327. Subsection 39CA(1) of the Administration Act states that section 39CA of that Act applies if an employee ceases to be an eligible employee due to ill health or retiring from the black coal mining industry on or after reaching the age of 60 years, and, at the time of so ceasing, the employee has completed a period, or periods, of qualifying service in respect of which the employee is not entitled to long service leave under Part 5A of the Administration Act, and, at any time after so ceasing, the employee requests, in writing, that the employer make a payment under section 39CA of that Act. 328. Current subsection 39CA(3) of the Administration Act provides that subsection 39CA(2) of that Act is a civil penalty provision. Note 1 to current subsection 39CA(3) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 21 below repeals current subsection 39CA(3) of the Administration Act, including the two notes. 329. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more 124
than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below. 330. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act. 331. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 332. Item 20 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. 333. Item 20 also inserts a new note at the end of subsection 39CA(2) of the Administration Act. The new note directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. This item preserves the effect of Note 2 to current subsection 39CA(3) of the Administration Act, which is repealed by item 21 below. Item 21 - Subsection 39CA(3) 334. Item 21 repeals subsection 39CA(3) of the Administration Act, including the two notes. 335. Current subsection 39CA(3) of the Administration Act states that subsection 39CA(2) of that Act is a civil penalty provision. 336. Subsection 39CA(2) of the Administration Act states that an employer must, within 30 days after a request is made under subsection 39CA(1) of that Act, pay the employee no less than the amount that would have been payable to the employee under Part 5A of that Act had the employee been entitled to long service leave for the period, or periods, of qualifying service, and taken that long service leave immediately before ceasing to be an eligible employee (less any amount previously paid to the employee under section 39CA of the Administration Act). 337. Subsection 39CA(1) of the Administration Act states that section 39CA of that Act applies if an employee ceases to be an eligible employee due to ill health or retiring from the black coal mining industry on or after reaching the age of 60 years, and, at the time of so ceasing, the employee has completed a period, or periods, of qualifying service in respect of which the employee is not entitled to long service leave under Part 5A of the Administration Act, and, at any time after so ceasing, the employee requests, in writing, that the employer make a payment under section 39CA of that Act. 338. Note 1 to current subsection 39CA(3) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 125
339. Note 2 to current subsection 39CA(3) of the Administration Act directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 340. Item 21 is consequential to the amendments made by item 20 above and item 27 below. Item 22 - At the end of subsection 39CB(2) 341. Item 22 inserts 'Civil penalty: 60 penalty units' at the end of subsection 39CB(2) of the Administration Act. 342. Subsection 39CB(2) of the Administration Act states that an employer must, within 30 days after a request is made under subsection 39CB(1) of that Act, pay the employee no less than the amount that would have been payable to the employee under Part 5A of that Act had the employee been entitled to long service leave for the period, or periods, of qualifying service, and taken that long service leave immediately before ceasing to be an eligible employee (less any amount previously paid to the employee under section 39CA of the Administration Act). 343. Subsection 39CB(1) of the Administration Act states that section 39CB of that Act applies if an employee ceases to be an eligible employee because he or she is made redundant, and, at the time of so ceasing, the employee has completed a period, or periods, of qualifying service (being a period that is, or periods that add up to, at least 6 years) in respect of which the employee is not entitled to long service leave under Part 5A of the Administration Act, and, at any time after so ceasing, the employee requests, in writing, that the employer make a payment under section 39CB of that Act. 344. Current subsection 39CB(3) of the Administration Act provides that subsection 39CB(2) of that Act is a civil penalty provision. Note 1 to current subsection 39CB(3) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 23 below repeals current subsection 39CB(3) of the Administration Act, including the two notes. 345. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below. 346. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act. 347. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 348. Item 22 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil 126
penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. 349. Item 22 also inserts a new note at the end of subsection 39CB(2) of the Administration Act. The new note directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. This item preserves the effect of Note 2 to current subsection 39CB(3) of the Administration Act, which is repealed by item 23 below. Item 23 - Subsection 39CB(3) 350. Item 23 repeals subsection 39CB(3) of the Administration Act, including the two notes. 351. Current subsection 39CB(3) of the Administration Act states that subsection 39CB(2) of that Act is a civil penalty provision. 352. Subsection 39CB(2) of the Administration Act states that an employer must, within 30 days after a request is made under subsection 39CB(1) of that Act, pay the employee no less than the amount that would have been payable to the employee under Part 5A of that Act had the employee been entitled to long service leave for the period, or periods, of qualifying service, and taken that long service leave immediately before ceasing to be an eligible employee (less any amount previously paid to the employee under section 39CA of the Administration Act). 353. Subsection 39CB(1) of the Administration Act states that section 39CB of that Act applies if an employee ceases to be an eligible employee because he or she is made redundant, and, at the time of so ceasing, the employee has completed a period, or periods, of qualifying service (being a period that is, or periods that add up to, at least 6 years) in respect of which the employee is not entitled to long service leave under Part 5A of the Administration Act, and, at any time after so ceasing, the employee requests, in writing, that the employer make a payment under section 39CB of that Act. 354. Note 1 to current subsection 39CB(3) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 355. Note 2 to current subsection 39CB(3) of the Administration Act directs the reader to current Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 356. Item 23 is consequential to the amendments made by item 22 above and item 27 below. Item 24 - At the end of subsection 39CC(2) 357. Item 24 inserts 'Civil penalty: 60 penalty units' at the end of subsection 39CC(2) of the Administration Act. 127
358. Subsection 39CC(2) of the Administration Act states that an employer must, within 30 days after a request is made under subsection 39CC(1) of that Act, pay the employee's legal personal representative no less than: a. if the eligible employee has died and, at the time of the employee's death, the employee has a period of untaken long service leave under Part 5A of the Administration Act--the amount that would have been payable to the employee under Part 5A of that Act had the employee taken all the untaken long service leave immediately before the employee died, and b. if the eligible employee has died and, at the time of the employee's death, the employee has completed a period, or periods, of qualifying service in respect of which the employee is not entitled to long service leave under Part 5A of the Administration Act--the amount that would have been payable to the employee under Part 5A of that Act had the employee been entitled to long service leave for the period, or periods, of qualifying service, and had the employee taken all the untaken long service leave immediately before the employee died. 359. Subsection 39CC(1) of the Administration Act states that section 39CC of that Act applies if an eligible employee dies and at the time of the employee's death, either the employee has a period of untaken long service leave under Part 5A of that Act, or the employee has completed a period, or periods, of qualifying service in respect of which the employee is not entitled to long service leave under Part 5A of that Act, and, at any time after the employee's death, the employee's legal personal representative requests, in writing, that the employer make a payment under section 39CC of that Act. 360. Current subsection 39CC(3) of the Administration Act provides that subsection 39CC(2) of that Act is a civil penalty provision. Note 1 to current subsection 39CC(3) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 25 below repeals current subsection 39CC(3) of the Administration Act, including the two notes. 361. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below. 362. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act. 363. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 364. Item 24 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. 128
365. Item 24 also inserts a new note at the end of subsection 39CC(2) of the Administration Act. The new note directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. This item preserves the effect of Note 2 to current subsection 39CC(3) of the Administration Act, which is repealed by item 25 below. Item 25 - Subsection 39CC(3) 366. Item 25 repeals subsection 39CC(3) of the Administration Act, including the two notes. 367. Current subsection 39CC(3) of the Administration Act states that subsection 39CC(2) of that Act is a civil penalty provision. 368. Subsection 39CC(2) of the Administration Act states that an employer must, within 30 days after a request is made under subsection 39CC(1) of that Act, pay the employee's legal personal representative no less than: a. if the eligible employee has died and, at the time of the employee's death, the employee has a period of untaken long service leave under Part 5A of the Administration Act--the amount that would have been payable to the employee under Part 5A of that Act had the employee taken all the untaken long service leave immediately before the employee died, and b. if the eligible employee has died and, at the time of the employee's death, the employee has completed a period, or periods, of qualifying service in respect of which the employee is not entitled to long service leave under Part 5A of the Administration Act--the amount that would have been payable to the employee under Part 5A of that Act had the employee been entitled to long service leave for the period, or periods, of qualifying service, and had the employee taken all the untaken long service leave immediately before the employee died. 369. Subsection 39CC(1) of the Administration Act states that section 39CC of that Act applies if an eligible employee dies and at the time of the employee's death, either the employee has a period of untaken long service leave under Part 5A of that Act, or the employee has completed a period, or periods, of qualifying service in respect of which the employee is not entitled to long service leave under Part 5A of that Act, and, at any time after the employee's death, the employee's legal personal representative requests, in writing, that the employer make a payment under section 39CC of that Act. 370. Note 1 to current subsection 39CC(3) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 371. Note 2 to current subsection 39CC(3) of the Administration Act directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions. 372. Item 25 is consequential to the amendments made by item 24 above and item 27 below. 129
Item 26 - Part 7A (heading) 373. Item 26 repeals the heading to Part 7A of the Administration Act, and substitutes a new heading, 'Part 7A--Civil penalties'. Part 7A of the Administration Act is currently entitled 'Part 7A--Civil penalty orders'. 374. The repeal of the heading to Part 7A of the Administration Act is consequential to amendments made by item 27 below, which repeals Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. As such, the heading to Part 7A of the Administration Act is updated to use the same terminology as the Regulatory Powers Act. Item 27 - Divisions 1 and 2 of Part 7A 375. Item 27 repeals Divisions 1 and 2 of Part 7A of the Administration Act, and inserts new section 49A of that Act. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce the civil penalty provisions of the Administration Act. Civil penalty provisions 376. Current Divisions 1 and 2 of Part 7A of the Administration Act provide for provisions in relation to civil penalty orders, and include sections 49A, 49AA, 49AB, 49AC, 49AD, 49AE, 49AF, 49B, 49BA, 49BB and 49BC of that Act. Those sections are no longer necessary, as this Schedule amends the Administration Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 223 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Administration Act that are repealed by this item. 377. New section 49A of the Administration Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 49A(1) of the Administration Act). New section 49A outlines matters in relation to the authorised applicant, relevant courts, delegations and additional matters to be taken into account in determining a pecuniary penalty. 378. New subsection 49A(1) of the Administration Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the Administration Act. Item 27 also inserts a note at the end of new subsection 49A(1) of the Administration Act, which directs the reader to Part 4 of the Regulatory Powers Act. 379. New subsection 49A(2) of the Administration Act identifies the Corporation (as defined in the Administration Act) as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the Corporation, on behalf of the Commonwealth, to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New subsection 49A(2) of the Administration Act preserves the effect of current subsection 49A(1) of that Act, which is repealed by this item. 130
380. New subsection 49A(3) of the Administration Act provides the Corporation with the ability to delegate, in writing under its seal, its powers and functions in relation to the civil penalty provisions of the Administration Act, to: a. a Director (as defined in the Administration Act), or b. a person employed by the Corporation, or c. a person engaged by the Corporation under a contract, or d. a person employed by a person engaged by the Corporation under a contract. 381. New subsection 49A(3) of the Administration Act reflects existing arrangements under that Act (see section 50 of the Administration Act). 382. New subsection 49A(4) of the Administration Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court in relation to the civil penalty provisions of the Administration Act. This new subsection preserves the effect of current subsection 49A(1) of the Administration Act, which states that the Corporation may apply to those courts for a civil penalty order, and is repealed by this item. 383. New subsection 49A(5) of the Administration Act modifies the operation of subsection 82(6) of the Regulatory Powers Act, and provides that, where the person who contravened the civil penalty provision is a body corporate, the relevant court must take into account further matters when determining the applicable pecuniary penalty. The matters that the court must take into account are: a. the level of the employees, officers or agents of the body corporate involved in the contravention b. whether the body corporate exercised due diligence to avoid the contravention, and c. whether the body corporate had a corporate culture conducive to compliance. 384. New subsection 49A(5) of the Administration Act preserves the effect of current subsection 49A(7) of that Act, which is repealed by this item. 385. Current subsection 49A(7) of the Administration Act lists specific factors that a court must take into account if the person who contravened the civil penalty provision is a body corporate (as opposed to a natural person), to determine the appropriate applicable penalty. It is necessary to preserve the effect of current subsection 49A(7) of the Administration Act through the inclusion of new subsection 49A(5) of that Act, as the additional factors provide specific guidance on what is expected of a body corporate to ensure that civil penalty provisions are not breached, and allows for the penalty to reflect the actions and culture of compliance of the body corporate that has contravened the provision. 386. Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Administration Act. The comparison table provided at paragraph 223 above identifies the provision gained through alignment with the Regulatory Powers Act, which is not currently in the Administration Act, that is merely procedural in nature and sets out matters in relation to burden of proof (see section 96 of the Regulatory Powers Act, which is discussed below). 131
387. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 388. The comparison table provided at paragraph 223 above also identifies that current section 49AF of the Administration Act is repealed without substitution. 389. Current section 49AF of the Administration Act provides that a contravention of a civil penalty provision is not an offence. This section is no longer necessary, as the provision does not add anything beyond the established common law principle, and its inclusion is no longer in line with current drafting standards. Item 28 - Division 3 of Part 7A (heading) 390. Item 28 repeals the heading to Division 3 of Part 7A of the Administration Act, which is currently entitled 'Division 3--Miscellaneous'. 391. Current Division 3 of Part 7A of the Administration Act provides for sections 49C, 49CA, 49CB, 49CC, 49CD, 49CE and 49CF of that Act. Current sections 49C, 49CA, 49CB, 49CC and 49CD of the Administration Act are repealed by item 29 below. Accordingly, Part 7A of the Administration Act, as amended by this Schedule, will only provide for new section 49A of that Act and current sections 49CE and 49CF of that Act, as amended by items 30, 31, 32, 33 and 34 below. Consequently, Divisions for amended Part 7A of the Administration Act are no longer necessary. 392. The repeal of the heading to current Division 3 of Part 7A of the Administration Act is consequential to amendments made by item 27 above and item 29 below. Item 29 - Sections 49C to 49D 393. Item 29 repeals sections 49C, 49CA, 49CB, 49CC and 49CD of the Administration Act. Those sections are no longer necessary, as this Schedule amends the Administration Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 223 above identifies the corresponding provisions of the Regulatory Powers Act for the sections of the Administration Act that are repealed by this item. 394. Current section 49C of the Administration Act supports the enforcement regime of that Act by ensuring that conduct ancillary to the contravention of a civil penalty provision is considered to be a contravention of the provision itself. The application of the standard civil penalty provisions in Part 4 of the Regulatory Powers Act will preserve the effect of current section 49C of the Administration Act, through the operation of section 92 of the Regulatory Powers Act. 395. Section 92 of the Regulatory Powers Act provides for matters in relation to ancillary contraventions of civil penalty provisions in language identical to current section 49C of the Administration Act. 396. Current section 49CA of the Administration Act provides that the obligation to do an act or thing within a particular period or before a particular time continues until the act or thing is done, even if the period has expired or the time has passed. Subsection 49CA(2) of 132
the Administration Act clarifies that a person commits a separate contravention of a civil penalty provision each day that the obligation is not met. This provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. The application of the standard civil penalty provisions in Part 4 of the Regulatory Powers Act will preserve the effect of current section 49CA of the Administration Act, through the operation of section 93 of the Regulatory Powers Act. 397. Section 93 of the Regulatory Powers Act provides for matters in relation to continuing obligations in language identical to current section 49CA of the Administration Act. 398. Current section 49CB of the Administration Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact. The application of the standard civil penalty provisions in Part 4 of the Regulatory Powers Act will preserve the effect of current section 49CB of the Administration Act, through the operation of section 95 of the Regulatory Powers Act. 399. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 49CB of the Administration Act. 400. Current section 49CC of the Administration Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 49CC(2) of the Administration Act provides that current subsection 49CC(1) of that Act does not affect the operation of current section 49CB of that Act (note, current section 49CB of that Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). The application of the standard civil penalty provisions in Part 4 of the Regulatory Powers Act will preserve the effect of current section 49CC of the Administration Act, through the operation of section 94 of the Regulatory Powers Act. 401. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 49CC of the Administration Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 of that Act does not apply to ancillary contraventions of civil penalty provisions, or where the relevant provision expressly provides otherwise. 402. Current section 49CD of the Administration Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. The application of the standard civil penalty provisions in Part 4 of the Regulatory Powers Act will preserve the effect of current section 49CD of the Administration Act, through the operation of section 97 of the Regulatory Powers Act. 403. Section 97 of the Regulatory Powers Act provides for matters in relation to vicarious liability in language identical to current section 49CD of the Administration Act. 404. Item 29 is consequential to the amendments made by item 27 above, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. 133
Item 30 - Subsection 49CE(1) 405. Item 30 omits the subsection number '(1)' from subsection 49CE(1) of the Administration Act, which is no longer necessary due to the repeal of subsection 49CE(2) of that Act by item 32 below. 406. Current subsection 49CE(1) of the Administration Act provides that an executive officer of a body corporate contravenes that provision if he or she knew the contravention would occur and was in a position to influence the conduct of the body corporate, but failed to take all reasonable steps to prevent the body corporate contravening the civil penalty provision. Current subsection 49CE(2) of the Administration Act provides that current subsection 49CE(1) of that Act is a civil penalty provision. There is no equivalent to this provision in the Regulatory Powers Act. 407. Item 30 is consequential to the amendments made by item 32 below. Item 31 - At the end of subsection 49CE(1) 408. Item 31 inserts 'Civil penalty: 60 penalty units' at the end of subsection 49CE(1) of the Administration Act. 409. Current subsection 49CE(1) of the Administration Act provides that an executive officer of a body corporate contravenes that provision if he or she knew the contravention would occur and was in a position to influence the conduct of the body corporate, but failed to take all reasonable steps to prevent the body corporate contravening the civil penalty provision. There is no equivalent to this provision in the Regulatory Powers Act. 410. It is necessary to retain section 49CE of the Administration Act due to the important role that executive officers have in directing and controlling the actions of an employer body corporate that controls funds for the benefit of eligible employees. Retention of this provision gives effect to the purpose of the Administration Act and the Payroll Levy Collection Act, and provides greater certainty to coal mining industry employees, bodies corporate and executive officers for the purposes of the Administration Act and the Payroll Levy Collection Act. 411. Current subsection 49CE(2) of the Administration Act provides that subsection 49CE(1) of that Act is a civil penalty provision. Item 32 below repeals current subsection 49CE(2) of the Administration Act. 412. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 above. 413. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 above), preserve the effect of current subsection 49A(5) of the Administration Act. 414. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the 134
civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 415. Item 31 is consequential to the amendments made by item 27 above, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. Item 32 - Subsection 49CE(2) 416. Item 32 repeals subsection 49CE(2) of the Administration Act, which states that subsection 49CE(1) of that Act is a civil penalty provision. 417. Current subsection 49CE(1) of the Administration Act provides that an executive officer of a body corporate contravenes that provision if he or she knew the contravention would occur and was in a position to influence the conduct of the body corporate, but failed to take all reasonable steps to prevent the body corporate contravening the civil penalty provision. There is no equivalent to this provision in the Regulatory Powers Act. 418. Item 32 is consequential to the amendments made by items 27, 30 and 31 above. Item 33 - Paragraph 49CF(1)(a) 419. Item 33 omits the phrase 'and the Payroll Levy Collection Act' from paragraph 49CF(1)(a) of the Administration Act. 420. Section 49CF of the Administration Act provides guidelines for a court to have regard to when determining whether, for the purposes of section 49CE of the Administration Act, an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention of a civil penalty provision. 421. Current paragraph 49CF(1)(a) of the Administration Act provides that, for the purposes of section 49CE of the Administration Act, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention of a civil penalty provision, a court is to have regard to what action (if any) the officer took towards ensuring that the body's employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with the Administration Act and the Payroll Levy Collection Act, in so far as those requirements affect the employees, agents or contractors concerned. 422. There is no equivalent to section 49CF of the Administration Act in the Regulatory Powers Act. 423. It is necessary to retain section 49CF of the Administration Act due to the important role that executive officers have in directing and controlling the actions of an employer body corporate that controls funds for the benefit of eligible employees. Retention of this provision gives effect to the purpose of the Administration Act, complements section 49CE of the Administration Act and provides greater certainty to coal mining industry employees, bodies corporate and executive officers for the purposes of the Administration Act. 135
424. The phrase 'and the Payroll Levy Collection Act' is no longer necessary for the purposes of paragraph 49CF(1)(a) of the Administration Act, as item 44 of this Schedule amends the Payroll Levy Collection Act to insert new sections 13A, 13B and 13C of that Act. 425. New section 13A of the Payroll Levy Collection Act directs the reader to Part 4 of the Regulatory Powers Act, and new sections 13B and 13C of the Payroll Levy Collection Act replicate sections 49CE and 49CF of the Administration Act. 426. The insertion of new sections 13A, 13B and 13C of the Payroll Levy Collection Act by item 44 of this Schedule preserves existing arrangements under the Payroll Levy Collection Act, but makes it clear that civil penalties may be used to enforce the civil penalty provisions of the Payroll Levy Collection Act. Currently, readers are directed to current Part 7A of the Administration Act (see the notes to current subsections 5(4), 10(3) and 10A(5) of the Payroll Levy Collection Act). 427. Item 33 is consequential to the insertion of new section 13A of the Payroll Levy Collection Act by item 44 below, which applies the civil penalty provisions of Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Payroll Levy Collection Act. Item 34 - Paragraph 49CF(1)(b) 428. Item 34 omits the phrase 'or the Payroll Levy Collection Act' from paragraph 49CF(1)(b) of the Administration Act. 429. Section 49CF of the Administration Act provides guidelines for a court to have regard to when determining whether, for the purposes of section 49CE of the Administration Act, an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention of a civil penalty provision. 430. Current paragraph 49CF(1)(b) of the Administration Act provides that, for the purposes of section 49CE of the Administration Act, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention of a civil penalty provision, a court is to have regard to what action (if any) the officer took when he or she became aware that the body was contravening the Administration Act or the Payroll Levy Collection Act. 431. There is no equivalent to section 49CF of the Administration Act in the Regulatory Powers Act. 432. It is necessary to retain section 49CF of the Administration Act due to the important role that executive officers have in directing and controlling the actions of an employer body corporate that controls funds for the benefit of eligible employees. Retention of this provision gives effect to the purpose of the Administration Act, complements section 49CE of the Administration Act and provides greater certainty to coal mining industry employees, bodies corporate and executive officers for the purposes of the Administration Act. 433. The phrase 'and the Payroll Levy Collection Act' is no longer necessary for the purposes of paragraph 49CF(1)(b) of the Administration Act, as item 44 of this Schedule amends the Payroll Levy Collection Act to insert new sections 13A, 13B and 13C of that Act. 136
434. New section 13A of the Payroll Levy Collection Act directs the reader to Part 4 of the Regulatory Powers Act, and new sections 13B and 13C of the Payroll Levy Collection Act replicate sections 49CE and 49CF of the Administration Act. 435. The insertion of new sections 13A, 13B and 13C of the Payroll Levy Collection Act by item 44 of this Schedule preserves existing arrangements under the Payroll Levy Collection Act, but makes it clear that civil penalties may be used to enforce the civil penalty provisions of the Payroll Levy Collection Act. Currently, readers are directed to current Part 7A of the Administration Act (see the notes to current subsections 5(4), 10(3) and 10A(5) of the Payroll Levy Collection Act). 436. Item 34 is consequential to the insertion of new section 13A of the Payroll Levy Collection Act by item 44 below, which applies the civil penalty provisions of Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Payroll Levy Collection Act. Item 35 - At the end of subsection 52A(5) 437. Item 33 inserts 'Civil penalty: 60 penalty units' at the end of subsection 52A(5) of the Administration Act. 438. Subsection 52A(5) of the Administration Act states that if a person is given a notice under subsection 52A(2) of that Act, that person must comply with the notice. 439. Subsection 52A(2) of the Administration Act provides that the Corporation may, by written notice, require the person to give the information by the time, and in the manner and form, specified in the notice, or produce the document, or a certified copy of the document, to the Corporation by the time, and in the manner, specified in the notice. 440. Subsection 52A(1) of the Administration Act states that section 52A of that Act applies if the Corporation (as defined in the Administration Act) believes on reasonable grounds that a person has information, or a document containing information, relating to the employment of an eligible employee or an employer of an eligible employee, or information that is reasonably necessary to enable the Corporation to perform its functions under section 7 of the Administration Act. 441. Current subsection 52A(7) of the Administration Act provides that subsection 52A(5) of that Act is a civil penalty provision. The note to current subsection 52A(7) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 36 below repeals current subsection 52A(7) of the Administration Act, including the note. 442. Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 above. 443. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 above), preserve the effect of current subsection 49A(5) of the Administration Act. 137
444. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 445. Item 35 is consequential to the amendments made by item 27 above, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act. Item 36 - Subsection 52A(7) 446. Item 36 repeals subsection 52A(7) of the Administration Act, including the note. 447. Current subsection 52A(7) of the Administration Act states that subsection 52A(5) of that Act is a civil penalty provision. 448. Subsection 52A(5) of the Administration Act states that if a person is given a notice under subsection 52A(2) of that Act, that person must comply with the notice. 449. Subsection 52A(2) of the Administration Act provides that the Corporation (as defined in the Administration Act) may, by written notice, require the person to give the information by the time, and in the manner and form, specified in the notice, or produce the document, or a certified copy of the document, to the Corporation by the time, and in the manner, specified in the notice. 450. Subsection 52A(1) of the Administration Act states that section 52A of that Act applies if the Corporation believes on reasonable grounds that a person has information, or a document containing information, relating to the employment of an eligible employee or an employer of an eligible employee, or information that is reasonably necessary to enable the Corporation to perform its functions under section 7 of the Administration Act. 451. The note to current subsection 52A(7) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 452. Item 36 is consequential to the amendments made by items 27 and 35 above. Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 Item 37 - Section 3 453. Item 37 amends section 3 of the Payroll Levy Collection Act to insert definitions of civil penalty provision, executive officer and Regulatory Powers Act. 454. The definition for civil penalty provision inserted in section 3 of the Payroll Levy Collection Act directs the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. 455. The definition for executive officer inserted in section 3 of the Payroll Levy Collection Act directs the reader to the Administration Act, which defines executive officer of a body corporate in subsection 4(1) of that Act as a person, by whatever name called and 138
whether or not a director of the body corporate, who is concerned in, or takes part in, the management of the body corporate. 456. The definition for Regulatory Powers Act inserted in section 3 of the Payroll Levy Collection Act provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. 457. Item 37 is consequential to the insertion of new section 13A of the Payroll Levy Collection Act by item 44 below, which applies the civil penalty provisions of Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Payroll Levy Collection Act. Item 38 - At the end of subsection 5(1) 458. Item 38 inserts 'Civil penalty: 40 penalty units' at the end of subsection 5(1) of the Payroll Levy Collection Act. 459. Subsection 5(1) of the Payroll Levy Collection Act provides that a person who employs an eligible employee at any time during a month must, within 28 days after the end of that month, make a return in accordance with subsection 5(2) of that Act in respect of that month. 460. Subsection 5(2) of the Payroll Levy Collection Act states that a return for the purposes of section 5 of that Act: a. must be made: i. if the Corporation (as defined in the Payroll Levy Collection Act by reference to the Administration Act) has given written notice to the person who is required to make the return that a person specified in the notice is authorised, in lieu of the Corporation, to receive returns under this section--to the specified person in such a manner as is prescribed by the regulations or, if there are no such regulations, as that person directs, or ii. otherwise--to the Corporation in such a manner as is prescribed by the regulations or, if there are no such regulations, as the Board of Directors of the Corporation directs, and b. must be in accordance with a form approved by the Board of Directors of the Corporation, and c. must contain such information as is required by that form. 461. Current subsection 5(4) of the Payroll Levy Collection Act provides that subsection 5(1) of that Act is a civil penalty provision. The note to current subsection 5(4) of the Payroll Levy Collection Act directs the reader to current Part 7A of the Administration Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 39 below repeals current subsection 5(4) of the Payroll Levy Collection Act, including the note. 462. Current Part 7A of the Administration Act includes subsection 49A(6) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Payroll Levy Collection Act must not be more than 40 penalty units where the person is not a body 139
corporate, or more than 200 penalty units where the person is a body corporate. That subsection is repealed by item 27 above. 463. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 44 below), preserve the effect of subsection 49A(6) of the Administration Act. 464. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 465. Item 38 is consequential to the amendments made by item 27 above and item 44 below. Item 39 - Subsection 5(4) 466. Item 39 repeals subsection 5(4) of the Payroll Levy Collection Act, including the note. 467. Current subsection 5(4) of the Payroll Levy Collection Act states that subsection 5(1) of that Act is a civil penalty provision. 468. Subsection 5(1) of the Payroll Levy Collection Act provides that a person who employs an eligible employee at any time during a month must, within 28 days after the end of that month, make a return in accordance with subsection 5(2) of that Act in respect of that month. 469. Subsection 5(2) of the Payroll Levy Collection Act states that a return for the purposes of section 5 of that Act: a. must be made: i. if the Corporation (as defined in the Payroll Levy Collection Act by reference to the Administration Act) has given written notice to the person who is required to make the return that a person specified in the notice is authorised, in lieu of the Corporation, to receive returns under this section--to the specified person in such a manner as is prescribed by the regulations or, if there are no such regulations, as that person directs, or ii. otherwise--to the Corporation in such a manner as is prescribed by the regulations or, if there are no such regulations, as the Board of Directors of the Corporation directs, and b. must be in accordance with a form approved by the Board of Directors of the Corporation, and c. must contain such information as is required by that form. 470. The note to current subsection 5(4) of the Payroll Levy Collection Act directs the reader to current Part 7A of the Administration Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 140
471. Item 39 is consequential to the amendments made by items 27 and 38 above. Item 40 - At the end of subsection 10(1) 472. Item 40 inserts 'Civil penalty: 40 penalty units' at the end of subsection 10(1) of the Payroll Levy Collection Act. 473. Subsection 10(1) of the Payroll Levy Collection Act provides that, if a person employs an eligible employee at any time during a financial year, the person must, no later than 6 months after the end of the financial year, give to the Corporation (as defined in the Payroll Levy Collection Act by reference to the Administration Act) a report prepared by an auditor that: a. states whether, in the opinion of the auditor, the person has paid all amounts of levy, or amounts of additional levy under section 7 of the Payroll Levy Collection Act, that the person was required to pay in respect of the financial year, and b. if, in the opinion of the auditor, the person has not paid all amounts of such levy or additional levy--specifies in what respect and to what extent, in the opinion of the auditor, the person has not paid those amounts, and c. if, during the financial year, the person was paid an amount under Part 7 of the Administration Act--states whether, in the opinion of the auditor, the amount paid is correct, and d. includes reasons for the opinions contained in the report. 474. Current subsection 10(3) of the Payroll Levy Collection Act provides that subsection 10(1) of that Act is a civil penalty provision. The note to current subsection 10(3) of the Payroll Levy Collection Act directs the reader to current Part 7A of the Administration Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 41 below repeals current subsection 10(3) of the Payroll Levy Collection Act, including the note. 475. Current Part 7A of the Administration Act includes subsection 49A(6) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Payroll Levy Collection Act must not be more than 40 penalty units where the person is not a body corporate, or more than 200 penalty units where the person is a body corporate. That subsection is repealed by item 27 above. 476. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 44 below), preserve the effect of subsection 49A(6) of the Administration Act. 477. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 478. Item 40 is consequential to the amendments made by item 27 above and item 44 below. 141
Item 41 - Subsection 10(3) 479. Item 41 repeals subsection 10(3) of the Payroll Levy Collection Act, including the note. 480. Current subsection 10(3) of the Payroll Levy Collection Act states that subsection 10(1) of that Act is a civil penalty provision. 481. Subsection 10(1) of the Payroll Levy Collection Act provides that, if a person employs an eligible employee at any time during a financial year, the person must, no later than 6 months after the end of the financial year, give to the Corporation (as defined in the Payroll Levy Collection Act by reference to the Administration Act) a report prepared by an auditor that: a. states whether, in the opinion of the auditor, the person has paid all amounts of levy, or amounts of additional levy under section 7 of the Payroll Levy Collection Act, that the person was required to pay in respect of the financial year, and b. if, in the opinion of the auditor, the person has not paid all amounts of such levy or additional levy--specifies in what respect and to what extent, in the opinion of the auditor, the person has not paid those amounts, and c. if, during the financial year, the person was paid an amount under Part 7 of the Administration Act--states whether, in the opinion of the auditor, the amount paid is correct, and d. includes reasons for the opinions contained in the report. 482. The note to current subsection 10(3) of the Payroll Levy Collection Act directs the reader to current Part 7A of the Administration Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 483. Item 41 is consequential to the amendments made by items 27 and 40 above. Item 42 - At the end of subsection 10A(3) 484. Item 42 inserts 'Civil penalty: 40 penalty units' at the end of subsection 10A(3) of the Payroll Levy Collection Act. 485. Subsection 10A(3) of the Payroll Levy Collection Act provides that an auditor must comply with a notice given under subsection 10A(1) of that Act. 486. Subsection 10A(1) of the Payroll Levy Collection Act provides that, if a person employs an eligible employee at any time during a particular period, the Board of Directors of the Corporation (as defined in the Payroll Levy Collection Act by reference to the Administration Act) may, by written notice given to the person's auditor, require the auditor to give to the Corporation, by the time specified in the notice, a report prepared by the auditor that: a. states whether, in the opinion of the auditor, the person has paid all amounts of levy, or amounts of additional levy under section 7 of the Payroll Levy Collection Act, that the person was required to pay in respect of the period, and 142
b. if, in the opinion of the auditor, the person has not paid all amounts of such levy or additional levy--specifies in what respect and to what extent, in the opinion of the auditor, the person has not paid those amounts, and c. if, during the period, the person was paid an amount under Part 7 of the Administration Act--states whether, in the opinion of the auditor, the amount paid is correct, and d. includes reasons for the opinions contained in the report. 487. Current subsection 10A(5) of the Payroll Levy Collection Act provides that subsection 10A(1) of that Act is a civil penalty provision. The note to current subsection 10A(5) of the Payroll Levy Collection Act directs the reader to current Part 7A of the Administration Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 43 below repeals current subsection 10A(5) of the Payroll Levy Collection Act, including the note. 488. Current Part 7A of the Administration Act includes subsection 49A(6) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Payroll Levy Collection Act must not be more than 40 penalty units where the person is not a body corporate, or more than 200 penalty units where the person is a body corporate. That subsection is repealed by item 27 above. 489. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 44 below), preserve the effect of subsection 49A(6) of the Administration Act. 490. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 491. Item 42 is consequential to the amendments made by item 27 above and item 43 below. Item 43 - Subsection 10A(5) 492. Item 43 repeals subsection 10A(5) of the Payroll Levy Collection Act, including the note. 493. Current subsection 10A(5) of the Payroll Levy Collection Act states that subsection 10A(3) of that Act is a civil penalty provision. 494. Subsection 10A(3) of the Payroll Levy Collection Act provides that an auditor must comply with a notice given under subsection 10A(1) of that Act. 143
495. Subsection 10A(1) of the Payroll Levy Collection Act provides that, if a person employs an eligible employee at any time during a particular period, the Board of Directors of the Corporation (as defined in the Payroll Levy Collection Act by reference to the Administration Act) may, by written notice given to the person's auditor, require the auditor to give to the Corporation, by the time specified in the notice, a report prepared by the auditor that: a. states whether, in the opinion of the auditor, the person has paid all amounts of levy, or amounts of additional levy under section 7 of the Payroll Levy Collection Act, that the person was required to pay in respect of the period, and b. if, in the opinion of the auditor, the person has not paid all amounts of such levy or additional levy--specifies in what respect and to what extent, in the opinion of the auditor, the person has not paid those amounts, and c. if, during the period, the person was paid an amount under Part 7 of the Administration Act--states whether, in the opinion of the auditor, the amount paid is correct, and d. includes reasons for the opinions contained in the report. 496. The note to current subsection 10A(5) of the Payroll Levy Collection Act directs the reader to current Part 7A of the Administration Act for the use of pecuniary penalties for contraventions of civil penalty provisions. 497. Item 43 is consequential to the amendments made by items 27 and 42 above. Item 44 - After section 13 498. Item 44 inserts new sections 13A, 13B and 13C after section 13 of the Payroll Levy Collection Act, and applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce the civil penalty provisions of the Payroll Levy Collection Act (see new section 13A of the Payroll Levy Collection Act). The comparison table provided at paragraph 223 above identifies the provisions of the Regulatory Powers Act applicable to the Payroll Levy Collection Act due to the insertion of new section 13A of that Act by this item. 499. The insertion of new sections 13A, 13B and 13C of the Payroll Levy Collection Act by this item preserves existing arrangements under the Payroll Levy Collection Act, but makes it clear that civil penalties may be used to enforce the civil penalty provisions of the Payroll Levy Collection Act. Currently, readers are directed to current Part 7A of the Administration Act (see the notes to current subsections 5(4), 10(3) and 10A(5) of the Payroll Levy Collection Act). Civil penalty provisions 500. New section 13A of the Payroll Levy Collection Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 13A(1) of the Payroll Levy Collection Act). New section 13A of the Payroll Levy Collection Act outlines matters in relation to the authorised applicant, relevant courts, delegations and additional matters to be taken into account in determining a pecuniary penalty. 144
501. New subsection 13A(1) of the Payroll Levy Collection Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the Payroll Levy Collection Act. Item 44 also inserts a note at the end of new subsection 13A(1) of the Payroll Levy Collection Act, which directs the reader to Part 4 of the Regulatory Powers Act. 502. New subsection 13A(2) of the Payroll Levy Collection Act identifies the Corporation (as defined in the Payroll Levy Collection Act by reference to the Administration Act) as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the Corporation, on behalf of the Commonwealth, to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New subsection 13A(2) of the Payroll Levy Collection Act preserves the effect of current subsection 49A(1) of the Administration Act, which is repealed by item 27 above. 503. New subsection 13A(3) of the Payroll Levy Collection Act provides the Corporation with the ability to delegate, in writing under its seal, its powers and functions in relation to the civil penalty provisions of the Payroll Levy Collection Act, to: a. a member of the Board of Directors of the Corporation, or b. a person employed by the Corporation, or c. a person engaged by the Corporation under a contract, or d. a person employed by a person engaged by the Corporation under a contract. 504. New subsection 13A(3) of the Payroll Levy Collection Act reflects existing arrangements under that Act (see section 50 of the Administration Act). 505. New subsection 13A(4) of the Payroll Levy Collection Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court in relation to the civil penalty provisions of the Payroll Levy Collection Act. This new subsection preserves the effect of current subsection 49A(1) of the Administration Act, which states that the Corporation may apply to those courts for a civil penalty order, and is repealed by item 27 above. 506. New subsection 13A(5) of the Payroll Levy Collection Act modifies the operation of subsection 82(6) of the Regulatory Powers Act, and provides that, where the person who contravened the civil penalty provision is a body corporate, the relevant court must take into account further matters when determining the applicable pecuniary penalty. The matters that the court must take into account are: a. the level of the employees, officers or agents of the body corporate involved in the contravention b. whether the body corporate exercised due diligence to avoid the contravention, and c. whether the body corporate had a corporate culture conducive to compliance. 507. New subsection 13A(5) of the Payroll Levy Collection Act preserves the effect of current subsection 49A(7) of the Administration Act, which is repealed by item 27 above. 145
508. Current subsection 49A(7) of the Administration Act lists specific factors that a court is required to take into account if the person who contravened the civil penalty provision is a body corporate (as opposed to a natural person), to determine the appropriate applicable penalty. It is necessary to preserve the effect of current subsection 49A(7) of the Administration Act through the inclusion of new subsection 13A(5) of the Payroll Levy Collection Act, as the additional factors provide specific guidance on what is expected of a body corporate to ensure that civil penalty provisions are not breached, and allows for the penalty to reflect the actions and culture of compliance of the body corporate that has contravened the provision. 509. Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Administration Act, as that Act currently applies to the Payroll Levy Collection Act. The comparison table provided at paragraph 223 above identifies the provision gained through alignment with the Regulatory Powers Act, which is not currently in the Administration Act (as that Act currently applies to the Payroll Levy Collection Act), that is merely procedural in nature and sets out matters in relation to burden of proof (see section 96 of the Regulatory Powers Act, which is discussed below). 510. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. Additional provisions relating to bodies corporate 511. New section 13B of the Payroll Levy Collection Act preserves the effect of current section 49CE of the Administration Act, as that provision currently applies to the Payroll Levy Collection Act (see the amendments made by items 30, 31 and 32 above). 512. Current subsection 49CE(1) of the Administration Act provides that an executive officer of a body corporate contravenes that provision if he or she knew the contravention would occur and was in a position to influence the conduct of the body corporate, but failed to take all reasonable steps to prevent the body corporate contravening the civil penalty provision. Current subsection 49CE(2) of the Administration Act provides that current subsection 49CE(1) of that Act is a civil penalty provision. There is no equivalent to this provision in the Regulatory Powers Act 513. It is necessary to preserve the application of current section 49CE of the Administration Act, as that section applies to the Payroll Levy Collection Act, through the insertion of new section 13B of the Payroll Levy Collection Act, due to the important role that executive officers have in directing and controlling the actions of an employer body corporate that controls funds for the benefit of eligible employees. Insertion of this provision gives effect to the purpose of the Administration Act and the Payroll Levy Collection Act, complements new section 13C of the Payroll Levy Collection Act and sections 49CE and 49CF of the Administration Act, and provides greater certainty to coal mining industry employees, bodies corporate and executive officers for the purposes of the Administration Act and the Payroll Levy Collection Act. 146
514. New section 13C of the Payroll Levy Collection Act preserves the effect of current section 49CF of the Administration Act, as that provision currently applies to the Payroll Levy Collection Act (see the amendments made by items 33 and 34 above). 515. Section 49CF of the Administration Act provides guidelines for a court to have regard to when determining whether, for the purposes of section 49CE of the Administration Act, an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention of a civil penalty provision. There is no equivalent to this provision in the Regulatory Powers Act. 516. It is necessary to preserve the application of current section 49CF of the Administration Act, as that section applies to the Payroll Levy Collection Act, through the insertion of new section 13C of the Payroll Levy Collection Act, due to the important role that executive officers have in directing and controlling the actions of an employer body corporate that controls funds for the benefit of eligible employees. Insertion of this provision gives effect to the purpose of the Administration Act and the Payroll Levy Collection Act, complements new section 13B of the Payroll Levy Collection Act and sections 49CE and 49CF of the Administration Act, and provides greater certainty to coal mining industry employees, bodies corporate and executive officers for the purposes of the Administration Act and the Payroll Levy Collection Act. PART 2--APPLICATION AND SAVING PROVISION Item 45 - Application and saving provision--civil penalties 517. Item 45 provides for the application of the amendments in this Schedule in relation to civil penalties (see Part 7A of the Administration Act as amended by this Schedule and new section 13A of the Payroll Levy Collection Act), and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions of the Administration Act or the Payroll Levy Collection Act, which occur on or after the commencement of this Schedule. 518. This item also provides that Part 7A of the Administration Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule, which are declared to be civil penalty provisions by the Administration Act or the Payroll Levy Collection Act as in force immediately before the commencement of this Schedule. 147
Schedule 5 - Defence Act 1903 GENERAL OUTLINE 519. The Defence Act 1903 provides for the naval and military defence and protection of the Commonwealth and the States and Territories. Current section 72TP of the Defence Act enables the Minister responsible for the department that administers the Defence Act to make Woomera Prohibited Area Rules. Part VIB of the Defence Act establishes a regulatory framework to allow non-defence users to access the Woomera Prohibited Area (the 'WPA') on a conditional basis. The framework includes a permit system for accessing the WPA, and offence and penalty provisions for entering the WPA without permission, or for failing to comply with a condition of a permit. The offence and penalty provisions are supported by an infringement notices scheme and demerit point system. 520. Current subsection 72TP(4) of the Defence Act provides that the Woomera Prohibited Area Rules may provide for an infringement notices scheme. Current subsection 72TP(5) of the Defence Act provides that a penalty in an infringement notice must not exceed one-fifth of the maximum fine that a court could impose on the person as a penalty for that offence. Part 6 of the Woomera Prohibited Area Rule 2014 deals with the use of infringement notices where an authorised person reasonably believes that an offence of strict liability has been committed against current subsection 72TG(1) of the Defence Act. 521. This Schedule amends the Defence Act to apply the standard infringement notices provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the Defence Act. 522. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices that may be issued in relation to a breach of an offence or civil penalty provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5 of that Act to operate, a provision of an Act or legislative instrument must be made subject to an infringement notice under that Part by another Act (a triggering Act). When a triggering Act applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an infringement officer or officers for the purposes of exercising powers under that Part (see section 101 of the Regulatory Powers Act). A triggering Act must also identify the relevant chief executive for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil penalty provisions of a triggering Act are subject to an infringement notice and apply in external Territories or offshore areas, the triggering Act should identify whether Part 5 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Defence Act 1903 523. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 3) for current subsections 72TP(4) and (5) of the Defence Act, which are repealed by item 4. 148
Current provision in the Defence Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Infringement notices scheme by 72TP Part 5-Infringement Regulation notices Rules may provide for an infringement 72TP(4) Repealed and N/A notices scheme substituted by new section 72TO Penalty in an infringement notice must not 72TP(5) Retained 104(2)(a) exceed one-fifth of the maximum fine that a court could impose on the person as a penalty for that offence Woomera Prohibited Area Rule 2014 524. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 3) for the provisions of the Woomera Prohibited Area Rule, which are made redundant by virtue of the repeal of current subsections 72TP(4) and (5) of the Defence Act by item 4. Part 6 of the Woomera Prohibited Area Rule will be repealed by regulation following the commencement of this Schedule. Current provision in the Woomera Provision Provision as Applicable Prohibited Area Rule amended by this provision Schedule (Regulatory Powers Act) Infringement notices Part 6 Part 5-Infringement notices Prescribed conditions in relation to 42 Redundant N/A infringement notices Secretary may appoint authorised officers 43 Retained N/A (see new subsection 72TO(2) of the Defence Act) When an infringement notice may be given 44 Aligned 103 Matters to be included in an infringement 45 Aligned See section 104 of notice the Regulatory Powers Act as amended by this Bill Infringement notice to state that demerit 45(j) Retained through N/A (see new points may be incurred if the amount is paid modification to subsection 72TO(5) or if the person is convicted or found guilty the operation of of the Defence Act) of the alleged contravention the Regulatory Powers Act Extension of time to pay amount 46 Retained 105 Withdrawal of an infringement notice 47 Retained 106 149
Current provision in the Woomera Provision Provision as Applicable Prohibited Area Rule amended by this provision Schedule (Regulatory Powers Act) Secretary may take into account whether a 47(3)(b)(i) Retained through N/A (see new court has previously imposed a penalty on modification to subsection 72TO(6) the person for a contravention of the operation of of the Defence Act) section 72TC, 72TG or 72TJ of the Defence the Regulatory Act when deciding whether or not to Powers Act withdraw an infringement notice Effect of payment of amount 48 Retained 107 If the amount stated in the infringement 48(1)(e) Retained through N/A (see new notice is paid before the end of the 28 day modification to subsection 72TO(7) period, demerit points may be incurred in the operation of of the Defence Act) accordance with Part 7 of the Woomera the Regulatory Prohibited Area Rule Powers Act Effect of Part 6 49 Retained 108 PART 1--AMENDMENTS Item 1 - Subsection 4(1) 525. Item 1 amends subsection 4(1) of the Defence Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 2 - At the end of subsection 72TG(2) 526. Item 2 inserts a note at the end of subsection 72TG(2) of the Defence Act to direct the reader to new section 72TO of that Act. 527. Subsection 72TG(2) of the Defence Act states that subsection 72TG(1) of that Act is an offence of strict liability. Subsection 72TG(1) of the Defence Act provides that a person commits an offence if that person has permission to be at a place in the Woomera Prohibited Area and that person does, or refuses or fails to do, an act or thing, which results in a failure to comply with a condition of the permission. 528. New section 72TO of the Defence Act applies Part 5 of the Regulatory Powers Act, which creates a framework for using infringement notices where an infringement officer reasonably believes that a provision subject to an infringement notice has been contravened. New subsection 72TO(1) of the Defence Act provides that an offence of strict liability against subsection 72TG(1) of that Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act. 529. Item 2 is consequential to the amendments made by item 3 below. Item 3 - After section 72TN 530. Item 3 inserts new section 72TO of the Defence Act, which applies Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to an alleged offence of strict liability against subsection 72TG(1) of the Defence Act. 150
Infringement notices 531. New section 72TO of the Defence Act directs the reader to Part 5 of the Regulatory Powers Act, which provides for provisions in relation to infringement notices (see the note to new subsection 72TO(1) of the Defence Act). New section 72TO of the Defence Act outlines matters in relation to the infringement officer, the relevant chief executive, additional matters to be included in an infringement notice, withdrawal of an infringement notice, the effect of payment of an amount payable under an infringement notice, and the extension of matters to external Territories. 532. New subsection 72TO(1) of the Defence Act states that an offence of strict liability against subsection 72TG(1) of that Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act, which ensures that Part 5 of the Regulatory Powers Act operates for the purposes of an offence of strict liability against subsection 72TG(1) of the Defence Act. Item 3 also inserts a note at the end of new subsection 72TO(1) of the Defence Act, which directs the reader to Part 5 of the Regulatory Powers Act. 533. New subsection 72TO(2) of the Defence Act states that the Secretary of the department that administers the Defence Act may, by written instrument, appoint one or more of the following persons as an infringement officer: a. a member of the Defence Force, or b. an APS employee in the department that administers the Defence Act. 534. New subsection 72TO(2) of the Defence Act provides that a person so identified is an infringement officer for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to an offence of strict liability against subsection 72TG(1) of the Defence Act. This new subsection will enable an infringement officer to issue an infringement notice to a person if they reasonably believe that the person has committed an offence of strict liability against subsection 72TG(1) of the Defence Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), the person may be prosecuted in a court for the alleged contravention. New subsection 72TO(2) of the Defence Act preserves the effect of current section 43 of the Woomera Prohibited Area Rule, which is made redundant due to the repeal of subsection 72TP(4) of the Defence Act by item 4 below. 535. New subsection 72TO(3) of the Defence Act identifies the Secretary as the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to an offence of strict liability against subsection 72TG(1) of the Defence Act. New subsection 72TO(3) of the Defence Act preserves existing arrangements under Part 6 of the Woomera Prohibited Area Rule, which is made redundant due to the repeal of subsection 72TP(4) of the Defence Act by item 4 below. 151
536. New subsection 72TO(4) of the Defence Act provides that the Secretary, as the relevant chief executive under Part 5 of the Regulatory Powers Act, as that Part applies to an offence of strict liability against subsection 72TG(1) of the Defence Act, may, in writing, delegate his or her powers and functions to: a. an APS employee who holds or performs the duties of an Executive Level 1 position, or equivalent or higher position, in the department that administers the Defence Act, or b. an officer of the Navy who holds the rank of Commander or a higher rank, or c. an officer of the Army who holds the rank of Lieutenant-Colonel or a higher rank, or d. an officer of the Air Force who holds the rank of Wing Commander or a higher rank. 537. New subsection 72TO(4) of the Defence Act preserves the effect of section 64 of the Woomera Prohibited Area Rule, which is made redundant due to the repeal of subsection 72TP(4) of the Defence Act by item 4 below. 538. New subsection 72TO(5) of the Defence Act modifies the operation of subsection 104(1) of the Regulatory Powers Act, and provides that an infringement notice must also state that demerit points may still be incurred if the amount payable under the notice is paid, or if the person is convicted or found guilty of the alleged contravention. New subsection 72TO(5) of the Defence Act preserves the effect of paragraph 45(j) of the Woomera Prohibited Area Rule, which is made redundant due to the repeal of subsection 72TP(4) of the Defence Act by item 4 below. 539. It is necessary to preserve the effect of paragraph 45(j) of the Woomera Prohibited Area Rule through the inclusion of new subsection 72TO(5) of the Defence Act to ensure that the recipient of an infringement notice is aware of the operation of Part 7 of the Woomera Prohibited Area Rule. 540. New subsection 72TO(6) of the Defence Act modifies the operation of subparagraph 106(3)(b)(i) of the Regulatory Powers Act, and provides that, when deciding whether or not to withdraw an infringement notice given to a person, the Secretary may take into account whether a court has previously imposed a penalty on the person for a contravention of section 72TC, 72TG or 72TJ of the Defence Act. New subsection 72TO(6) of the Defence Act preserves the effect of subparagraph 47(3)(b)(i) of the Woomera Prohibited Area Rule, which is made redundant due to the repeal of subsection 72TP(4) of the Defence Act by item 4 below. 541. It is necessary to preserve the effect of subparagraph 47(3)(b)(i) of the Woomera Prohibited Area Rule through the inclusion of new subsection 72TO(6) of the Defence Act, as this provision allows the Secretary to consider whether a person has a history of offences against 'Part VIB--The Woomera Prohibited Area' of the Defence Act. 542. New subsection 72TO(7) of the Defence Act modifies the operation of subsection 107(1) of the Regulatory Powers Act, and provides that if the recipient of an infringement notice pays the amount stated in the notice before the end of the 28 day period, demerit points may still be incurred in accordance with Part 7 of the Woomera Prohibited Area Rule. New subsection 72TO(7) of the Defence Act preserves the effect of section 48 of 152
the Woomera Prohibited Area Rule, which is made redundant due to the repeal of subsection 72TP(4) of the Defence Act by item 4 below. 543. It is necessary to preserve the effect of section 48 of the Woomera Prohibited Area Rule through the inclusion of new subsection 72TO(7) of the Defence Act, as this provision provides for the proper operation of Part 7 of the Woomera Prohibited Area Rule. 544. New subsection 72TO(8) of the Defence Act extends the application of Part 5 of the Regulatory Powers Act, as that Part applies to an offence of strict liability against subsection 72TG(1) of the Defence Act, to every external Territory. New subsection 72TO(8) of the Defence Act reflects existing arrangements under that Act (see section 5A of the Defence Act). 545. Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Defence Act. However, the comparison table provided at paragraph 524 above identifies that current section 44 of the Woomera Prohibited Area Rule is aligned to section 103 of the Regulatory Powers Act, and that current section 42 of the Woomera Prohibited Area Rule is made redundant without substitution. 546. Alignment with the Regulatory Powers Act does result in a minor modification to the language used in current subsection 44(1) of the Woomera Prohibited Area Rule due to the redundancy of current section 42 of that Rule, and the application of subsection 103(1) of the Regulatory Powers Act; however, this modification does not affect the operation of new section 72TO of the Defence Act, or existing arrangements under that Act or the Woomera Prohibited Area Rule. 547. Current subsection 44(1) of the Woomera Prohibited Area Rule provides that, if an authorised officer has reasonable grounds to believe that a person has contravened section 72TG of the Defence Act by failing to comply with a prescribed condition, the authorised officer may issue an infringement notice for the alleged contravention. 548. Subsection 103(1) of the Regulatory Powers Act states that, if an authorised officer believes on reasonable grounds that a person has contravened a provision subject to an infringement notice under Part 5 of that Act, the infringement officer may issue an infringement notice for the alleged contravention. New subsection 72TO(1) of the Defence Act provides that an offence of strict liability against subsection 72TG(1) of that Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act. 549. Subsection 72TG(1) of the Defence Act provides that a person commits an offence if that person has permission to be at a place in the Woomera Prohibited Area and that person does, or refuses or fails to do, an act or thing, which results in a failure to comply with a condition of the permission. Subsection 72TG(2) of the Defence Act states that subsection 72TG(1) of that Act is an offence of strict liability. 550. Although subsection 103(1) of the Regulatory Powers Act does not use the phrase 'failed to comply with a prescribed condition', the effect of this phrase in current subsection 44(1) of the Woomera Prohibited Area Rule is preserved through the operation of current subsection 72TG(1) of the Defence Act, and the fact that all conditions of permits are currently prescribed conditions in the Woomera Prohibited Area Rule. 153
551. Current section 42 of the Woomera Prohibited Area Rule provides that, for the purposes of section 44 of that Rule, the following conditions are prescribed: a. the conditions specified in subsections 29(2), (3) and (4) of the Woomera Prohibited Area Rule b. the conditions specified in subsections 31(2), 35(3), 36(2) and 36(4) of the Woomera Prohibited Area Rule, and c. the conditions specified in a permit under subsection 37(1) of the Woomera Prohibited Area Rule or imposed under subsection 37(2) of that Rule. 552. It is not necessary to preserve the effect of current section 42 of the Woomera Prohibited Area Rule through the inclusion of a new provision in the Defence Act due to the operation of subsection 72TG(1) of the Defence Act, and the fact that all conditions of permits are currently prescribed conditions in the Woomera Prohibited Area Rule. Item 4 - Subsections 72TP(4) and (5) 553. Item 4 repeals current subsections 72TP(4) and (5) of the Defence Act, which provide for matters in relation to infringement notices. 554. Current subsection 72TP(4) of the Defence Act provides that the Woomera Prohibited Area Rules may provide for an infringement notices scheme. Current subsection 72TP(5) of the Defence Act provides that a penalty in an infringement notice must not exceed one-fifth of the maximum fine that a court could impose on the person as a penalty for that offence. 555. Part 6 of the Woomera Prohibited Area Rule deals with the use of infringement notices where an authorised person reasonably believes that a person has committed an offence of strict liability against subsection 72TG(1) of the Defence Act. 556. Current subsections 72TP(4) and (5) of the Defence Act are no longer necessary, as this Schedule amends the Defence Act to apply the standard infringement notices provisions of the Regulatory Powers Act, and thus remove the power to provide for an infringement notices scheme by legislative instrument. The comparison table provided at paragraph 524 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Woomera Prohibited Area Rule, which are made redundant by virtue of the repeal of current subsections 72TP(4) and (5) of the Defence Act by this item. 557. The repeal of current subsection 72TP(4) of the Defence Act reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, rather than by regulation or legislative instrument. Part 6 of the Woomera Prohibited Area Rule will be repealed by regulation following the commencement of this Schedule. 558. The effect of current subsection 72TP(5) of the Defence Act is preserved through application of Part 5 of the Regulatory Powers Act by item 3 above (see paragraph 104(2)(a) of the Regulatory Powers Act). 559. Item 4 is consequential to the insertion of new section 72TO of the Defence Act by item 3 above. 154
PART 2--APPLICATION AND SAVING PROVISION Item 5 - Application and saving provision--infringement notices 560. Item 5 provides for the application of the amendments in this Schedule in relation to infringement notices, and makes it clear that the amendments apply in relation to alleged contraventions of subsection 72TG(1) of the Defence Act occurring on or after the commencement of this Schedule. 561. This item also provides that Part 6 of the Woomera Prohibited Area Rule, as in force immediately before the commencement of this Schedule, applies in relation to alleged contraventions of subsection 72TG(1) of the Defence Act occurring before the commencement of this Schedule. 562. Sub-item 5(3) provides that if, immediately before the repeal of current subsections 72TP(4) and (5) of the Defence Act by this Schedule, a person was an authorised person for the purposes of Part 6 of the Woomera Prohibited Area Rule, on and after the commencement of this Schedule, that person is taken to have been appointed as an infringement officer under new subsection 72TO(2) of the Defence Act by the Secretary of the department that administers the Defence Act. Sub-item 5(3) preserves existing arrangements under the Defence Act for the purposes of Part 6 of the Woomera Prohibited Area Rule, and ensures continuity in the implementation of the infringement notices scheme. 563. Sub-item 5(4) states that sub-item 3 does not prevent the Secretary from rescinding the appointment of a person who was an authorised person immediately before the repeal of current subsection 72TP(4) or (5), or appointing that person or another person as an infringement officer under new subsection 72TO(2) of the Defence Act. This sub-item preserves existing arrangements under the Defence Act, and ensures continuity in the implementation of the infringement notices scheme. 564. Sub-item 5(5) provides that nothing in this Schedule affects the application of Part 7 of the Woomera Prohibited Area Rule to contraventions of subsection 72TG(1) of the Defence Act, whether such contraventions occur before, on or after the commencement of this Schedule. This sub-item preserves existing arrangements under the Defence Act, and ensures continuity in the implementation of the demerit points scheme. 155
Schedule 6 - Defence Reserve Service (Protection) Act 2001 GENERAL OUTLINE 565. The Defence Reserve Service (Protection) Act 2001 protects members of the Reserves (as defined in the Defence Reserve Service (Protection) Act by reference to the Defence Act 1903) in their employment and education to facilitate their return to civilian life. The Act sets out the entitlements of those Reserve members who undertake certain Reserve service, and prohibits their employers and various organisations from restricting that Reserve service. The Defence Reserve Service (Protection) Act also provides penalties for employers who hinder a Reserve member from undertaking Reserve service. 566. Current section 75 of the Defence Reserve Service (Protection) Act deals with the use of injunctions to enforce the provisions of that Act. Injunctions may be prohibitory, mandatory or interim in nature. 567. This Schedule amends the Defence Reserve Service (Protection) Act to apply the standard injunctions provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the Defence Reserve Service (Protection) Act. 568. Part 7 of the Regulatory Powers Act creates a framework for the use of injunctions to enforce provisions of an Act. Subsection 117(2) of the Regulatory Powers Act states that, in order for Part 7 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 7 of the Regulatory Powers Act, it must identify an authorised person or persons and a relevant court or courts that may exercise powers under Part 7 of the Regulatory Powers Act (see sections 119 and 120 of the Regulatory Powers Act). A triggering Act must also express whether an authorised person or persons may delegate his or her powers and functions under Part 7 of the Regulatory Powers Act in relation to provisions subject to an injunction under the triggering Act (see subsection 119(3) of the Regulatory Powers Act). If provisions of the triggering Act are subject to an injunction and apply in external Territories or offshore areas, the triggering Act should identify whether Part 7 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Defence Reserve Service (Protection) Act 2001 569. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 2) for section 75 of the Defence Reserve Service (Protection) Act, which is repealed by item 2. 156
Current provision in the Defence Reserve Provision Provision as Applicable Service (Protection) Act amended by this provision Schedule (Regulatory Powers Act) Injunctions 75 Part 7-Injunctions Relevant courts 77(1) Retained N/A (see new subsection 75(3) of the Defence Reserve Service (Protection) Act) Prohibitory injunctions 75(2) Retained 121(1) 124(1) Mandatory injunctions 75(3) Retained 121(2) 124(2) Interim injunctions 75(4) Retained 122(1) Discharging or varying injunctions 75(5) Retained 123 No undertakings as to damages if applicant 75(6) Retained 122(2) is prescribed person Powers conferred are in addition to other 75(7) Retained 125 powers of the court PART 1--AMENDMENTS Item 1 - Section 7 570. Item 7 amends section 7 of the Defence Reserve Service (Protection) Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 2 - Section 75 571. Item 2 repeals current section 75 of the Defence Reserve Service (Protection) Act and substitutes new section 75 of that Act. This item applies the provisions of Part 7 of the Regulatory Powers Act for the use of injunctions to enforce provisions of the Defence Reserve Service (Protection) Act. Injunctions 572. Current section 75 of the Defence Reserve Service (Protection) Act is no longer necessary, as this Schedule amends that Act to apply the standard injunctions provisions of the Regulatory Powers Act. The comparison table provided at paragraph 569 above identifies the corresponding provisions of the Regulatory Powers Act for section 75 of the Defence Reserve Service (Protection) Act, which is repealed by this item. 573. New section 75 of the Defence Reserve Service (Protection) Act directs the reader to Part 7 of the Regulatory Powers Act, which provides for the use of injunctions to enforce provisions (see Note 2 to new subsection 75(1) of the Defence Reserve Service (Protection) Act). This new section also outlines matters in relation to the authorised person, relevant courts and the extension of matters to external Territories. 157
574. New subsection 75(1) of the Defence Reserve Service (Protection) Act provides that the provisions of that Act are enforceable under Part 7 of the Regulatory Powers Act, which ensures that Part 7 of the Regulatory Powers Act operates for the purposes of all provisions of the Defence Reserve Service (Protection) Act. 575. Item 2 also inserts notes at the end of new subsection 75(1) of the Defence Reserve Service (Protection) Act. New Note 1 to new subsection 75(1) of the Defence Reserve Service (Protection) Act provides that the expression this Act has an extended meaning and directs the reader to section 7 of that Act, which defines this Act to include the regulations. New Note 2 to new subsection 75(1) of the Defence Reserve Service (Protection) Act directs the reader to Part 7 of the Regulatory Powers Act, which creates a framework for the use of injunctions to enforce provisions of a triggering Act. 576. New subsection 75(2) of the Defence Reserve Service (Protection) Act identifies an interested person, and a prescribed person acting on behalf of an interested person, as an authorised person for the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of the Defence Reserve Service (Protection) Act. New subsection 75(2) of the Defence Reserve Service (Protection) Act preserves the effect of current subsection 75(1) of that Act, which is repealed by this item. 577. New subsection 75(3) of the Defence Reserve Service (Protection) Act provides that a court mentioned in subsection 77(1) of that Act is a relevant court for the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of the Defence Reserve Service (Protection) Act. 578. Subsection 77(1) of the Defence Reserve Service (Protection) Act identifies the following courts as having jurisdiction under that Act: a. all State and Territory courts (including courts of summary jurisdiction), so far as their jurisdiction extends to matters arising under the Defence Reserve Service (Protection) Act, and b. the Federal Court of Australia. 579. New subsection 75(3) of the Defence Reserve Service (Protection) Act reflects existing arrangements under that Act (see subsection 77(1) of the Defence Reserve Service (Protection) Act). 580. New subsection 75(4) of the Defence Reserve Service (Protection) Act extends the application of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of the Defence Reserve Service (Protection) Act, to every external Territory. New subsection 75(4) of the Defence Reserve Service (Protection) Act reflects existing arrangements under that Act (see section 6 of the Defence Reserve Service (Protection) Act). 581. Application of the standard injunctions provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Defence Reserve Service (Protection) Act. 158
PART 2--APPLICATION AND SAVING PROVISION Item 3 - Application and saving provisions--injunctions 582. Item 3 provides for the application of the amendments in this Schedule in relation to injunctions, and makes it clear that the amendments apply in relation to contraventions occurring on or after the commencement of this Schedule. 583. This item also provides that section 75 of the Defence Reserve Service (Protection) Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions occurring before the commencement of this Schedule. 584. Sub-item 3(3) states that if, immediately before the repeal of current section 75 of the Defence Reserve Service (Protection) Act by this Schedule, a person holding or acting in a particular office was a prescribed person for the purposes of current paragraph 75(1)(b) of that Act, a person holding or acting in that office is taken to be a prescribed person for the purposes of new paragraph 75(2)(b) of that Act, as that paragraph applies in relation to contraventions occurring on or after the commencement of this Schedule. 585. However, sub-item 3(4) states that sub-item 3(3) does not prevent the regulations from being amended or repealed by the Governor-General to change who is to be a prescribed person for the purposes of new paragraph 75(2)(b) of the Defence Reserve Service (Protection) Act. 586. Sub-items 3(3) and (4) preserve existing arrangements under the Defence Reserve Service (Protection) Act, and ensure continuity in the implementation of the injunctions scheme. 159
Schedule 7 - Greenhouse and Energy Minimum Standards Act 2012 GENERAL OUTLINE 587. The Greenhouse and Energy Minimum Standards Act 2012 (the 'GEMS Act') and associated legislation establishes a national scheme to govern Australia's Equipment Energy Efficiency (E3) Program, as well as allowing expansion of energy efficiency regulation to cover a wider range of products. This legislation creates a national framework to regulate energy efficiency and labelling standards. 588. Current Division 4 of Part 7 of the GEMS Act creates a framework for monitoring whether the provisions of that Act have been, or are being, complied with. That Division also creates a framework for monitoring whether information given in compliance, or purported compliance, with a provision of the GEMS Act is correct. Current Division 5 of Part 7 of the GEMS Act establishes a framework for gathering material that relates to the contravention of offence and civil penalty provisions of that Act. 589. Current Division 2 of Part 8 of the GEMS Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions. Current Division 3 of Part 8 of the GEMS Act deals with the use of infringement notices where an authorised person reasonably believes that a civil penalty provision has been contravened. Current Division 4 of Part 8 of the GEMS Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions of that Act. Current Division 5 of Part 8 of the GEMS Act deals with the use of injunctions to enforce provisions of that Act. 590. Part 10 of the GEMS Act outlines matters for the purposes of protecting information obtained by or disclosed to persons in connection with the GEMS Act. Part 10 of the GEMS Act includes sections 169, 170 and 171, which protect information that has been disclosed to, or obtained by, a person in the course of that person performing a function or duty, or exercising a power, under or in relation to that Act. The expression used in those sections is this Act/ which has an extended meaning and is defined by section 5 of the GEMS Act to include regulations and GEMS determinations made under that Act. 591. This Schedule amends the GEMS Act to apply the standard monitoring, investigation and enforcement provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the GEMS Act, and the provisions gained by alignment with the Regulatory Powers Act, which are not currently in the GEMS Act, are merely procedural matters in relation to investigation powers and civil penalty provisions. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the GEMS Act. 592. Schedule 7 also makes amendments to the GEMS Act to clarify that information obtained in the course of exercising powers under the Regulatory Powers Act, as that Act applies to the GEMS Act as amended by this Schedule, is information obtained in relation to the GEMS Act, and is subject to the protections afforded by Part 10 of the GEMS Act. 593. Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions of an Act or a legislative instrument have been, or are being complied with. This Part also establishes a framework for monitoring whether information given in compliance, or purported compliance, with a provision of an Act or legislative instrument is correct. 160
Subsection 7(2) of the Regulatory Powers Act states that, in order for Part 2 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made subject to monitoring under that Part, or information given in compliance, or purported compliance, with a provision of an Act or legislative instrument must be made subject to monitoring under that Part, by another Act (a triggering Act). When a triggering Act applies Part 2 of the Regulatory Powers Act, it must identify any related provisions and the authorised applicant or applicants, the authorised person or persons, the issuing officer or officers, the relevant chief executive and the relevant court or courts that may exercise powers under that Part (see sections 10, 11, 12, 14, 15 and 16 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person or persons may be assisted by another person, and whether the authorised applicant, authorised person, issuing officer or relevant chief executive may delegate his or her powers and functions in relation to the provisions and/or information subject to monitoring under the triggering Act (see section 23 and subsections 11(3), 12(3), 14(3) and 15(3) of the Regulatory Powers Act). If provisions or information subject to monitoring under the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 2 of the Regulatory Powers Act extends to any external Territories. 594. Part 3 of the Regulatory Powers Act creates a framework for gathering material that relates to the contravention of offence and civil penalty provisions of an Act. Subsection 37(2) of the Regulatory Powers Act states that, in order for Part 3 of the Regulatory Powers Act to operate, an offence or civil penalty provision of an Act must be made subject to investigation under that Part by a triggering Act. When a triggering Act applies Part 3 of the Regulatory Powers Act, it must identify any related provisions and the authorised applicant or applicants, the authorised person or persons, the issuing officer or officers, the relevant chief executive and the relevant court or courts that may exercise powers under that Part (see sections 40, 41, 42, 44, 45 and 46 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may be assisted by another person, and whether the authorised applicant, authorised person, issuing officer or relevant chief executive may delegate his or her powers and functions in relation to the provisions subject to investigation under the triggering Act (see section 53 and subsections 41(3), 42(3), 44(3) and 45(3) of the Regulatory Powers Act). If offence or civil penalty provisions subject to investigation under the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 3 of the Regulatory Powers Act extends to any external Territories. 595. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by a triggering Act. When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories. 161
596. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices that may be issued in relation to a breach of an offence or civil penalty provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5 of that Act to operate, a provision of an Act or legislative instrument must be made subject to an infringement notice under that Part by a triggering Act. When a triggering Act applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an infringement officer or officers for the purposes of exercising powers under that Part (see section 101 of the Regulatory Powers Act). A triggering Act must also identify the relevant chief executive for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil penalty provisions of a triggering Act are subject to an infringement notice and apply in external Territories or offshore areas, the triggering Act should identify whether Part 5 of the Regulatory Powers Act extends to any external Territories. 597. Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions of an Act. Subsection 110(2) of the Regulatory Powers Act states that, in order for Part 6 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made enforceable under that Part by a triggering Act. When a triggering Act applies Part 6 of the Regulatory Powers Act, it must identify the authorised person or persons and the relevant court or courts that may exercise powers under Part 6 of the Regulatory Powers Act (see sections 112 and 113 of the Regulatory Powers Act). It must also express whether the authorised person or persons may delegate his or her powers and functions under Part 6 of the Regulatory Powers Act in relation to the enforceable undertakings provisions of the triggering Act (see subsection 112(3) of the Regulatory Powers Act). If provisions of the triggering Act are subject to enforceable undertakings and apply in external Territories or offshore areas, the triggering Act should identify whether Part 6 of the Regulatory Powers Act extends to any external Territories. 598. Part 7 of the Regulatory Powers Act creates a framework for the use of injunctions to enforce provisions of an Act. Subsection 117(2) of the Regulatory Powers Act states that, in order for Part 7 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made enforceable under that Part by a triggering Act. When a triggering Act applies Part 7 of the Regulatory Powers Act, it must identify an authorised person or persons and a relevant court or courts that may exercise powers under Part 7 of the Regulatory Powers Act (see sections 119 and 120 of the Regulatory Powers Act). A triggering Act must also express whether an authorised person or persons may delegate his or her powers and functions under Part 7 of the Regulatory Powers Act in relation to provisions subject to an injunction under the triggering Act (see subsection 119(3) of the Regulatory Powers Act). If provisions of the triggering Act are subject to an injunction and apply in external Territories or offshore areas, the triggering Act should identify whether Part 7 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Greenhouse and Energy Minimum Standards Act 2012 599. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by items 35 and 39) for the provisions of the GEMS Act that are repealed by items 35 and 39. 162
Current provision in the GEMS Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Relevant courts 5 Extended to the N/A (see the Federal Circuit definition of relevant Court court in section 5 of the GEMS Act as amended by this Schedule) Monitoring powers Division 4, Part 2-Monitoring Part 7 Identity cards 84; Retained through 35; 85 modification to See also new the operation of subsection 87(11) of the Regulatory the GEMS Act) Powers Act GEMS inspector may enter premises by 87 Retained 18 consent or under warrant GEMS inspector not authorised to enter the 87(2)(a) Retained 25(6)(b) premises unless the GEMS inspector has shown his or her identity card if occupier requests Monitoring powers of GEMS inspectors 88 Retained 19 Operating electronic equipment 89 Retained 20 Accessing information held on certain 90 Repealed N/A premises-notification to occupier Expert assistance to operate electronic 91 Retained 21 equipment Extension of periods in which things 91(7) Retained 33 secured Securing evidence of the contravention of a 92 Retained See section 22 of the related provision Regulatory Powers Act as amended by this Bill Extension of periods in which things 92(5) Retained 33 secured Persons assisting GEMS inspectors 93 Retained 23 Monitoring warrants 94 Retained 32 Monitoring warrant may remain in force 94(4)(f) Aligned 32(4)(f) for up to 6 months (note: monitoring warrant may remain in force for up to 3 months) Consent of occupier of premises 113 Retained 25 Announcement before entry under warrant 114 Aligned 26 GEMS inspector to be in possession of 115 Retained 27 warrant 163
Current provision in the GEMS Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Details of warrant etc. to be given to 116 Retained 28 occupier Use of force in executing a warrant 117 Retained through N/A (see new modification to subsection 87(14) of the operation of the GEMS Act) the Regulatory Powers Act GEMS inspector may ask questions and 118 Retained 24 seek production of documents Occupier entitled to observe execution of 119 Retained 30 warrant Occupier to provide GEMS inspector with 120 Retained 31 facilities and assistance Compensation for damage to electronic 121 Retained 29 equipment Investigation powers Division 5, Part 3-Investigation Part 7 Identity cards 84; Retained through 76; 85 modification to See also new the operation of subsection 88(10) of the Regulatory the GEMS Act) Powers Act GEMS inspector may enter premises by 95 Retained 48 consent or under a warrant GEMS inspector not authorised to enter the 95(2)(a) Retained 55(6)(b) premises unless the GEMS inspector has shown his or her identity card if occupier requests Investigation powers of GEMS inspectors 96 Retained 49 Operating electronic equipment 97 Retained 50 Accessing evidential material held on 98 Repealed N/A certain premises-notification to occupier Expert assistance to operate electronic 99 Retained 51 equipment Extension of periods in which things 99(7) Retained 74 secured Seizing evidence of contravention of 100 Retained 52 related provision Persons assisting GEMS inspectors 101 Retained 53 GEMS inspector may ask questions and 118 Retained 54 seek production of documents Consent of occupier of premises 113 Retained 55 Announcement before entry under warrant 114 Retained 56 164
Current provision in the GEMS Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) GEMS inspector to be in possession of 115 Retained 57 warrant Details of warrant etc. to be given to 116 Retained 58 occupier Use of force in executing a warrant 117 Retained through N/A (see new modification to subsection 88(13) of the operation of the GEMS Act) the Regulatory Powers Act Compensation for damage to electronic 121 Retained 61 equipment Occupier entitled to observe execution of 119 Retained 62 warrant Occupier to provide GEMS inspector with 120 Retained 63 facilities and assistance Copies of seized things to be provided 102 Retained 64 Receipts for seized things 103 Retained 65 Return of seized things 104 Retained 66 Issuing officer may permit a thing to be 105 Retained 67 retained Disposal of things 106 Retained 68 Investigation warrants 107 Retained 70 Investigation warrants by telephone, fax 108 Retained 71 etc. Authority of warrant 109 Retained 72 Offence relating to warrants by telephone, 110 Retained 73 fax etc. Completing execution of an investigation 111 Retained 59 warrant after temporary cessation Completing execution of warrant stopped 112 Retained 60 by court order Powers of issuing officers 127 Retained 75 N/A (Compensation for acquisition of N/A Gained 69 property) Civil penalty provisions Division 2, Part 4-Civil penalty Part 8 provisions Civil penalty orders 130 Retained 82 Civil enforcement of penalty 131 Retained 83 Conduct contravening more than one civil 132 Retained 84 penalty provision Multiple contraventions 133 Retained 85 165
Current provision in the GEMS Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Proceedings may be heard together 134 Retained 86 Civil evidence and procedure rules for civil 135 Retained 87 penalty orders Contravening a civil penalty provision is 136 Repealed N/A not an offence Civil proceedings after criminal 137 Retained 88 proceedings Criminal proceedings during civil 138 Retained 89 proceedings Criminal proceedings after civil 139 Retained 90 proceedings Evidence given in civil proceedings not 140 Retained 91 admissible in criminal proceedings Ancillary contravention of civil penalty 141 Retained 92 provisions Continuing contraventions of civil penalty 142 Retained 93 provisions Mistake of fact 143 Retained 95 State of mind 144 Retained 94 Exceptions etc. to civil penalty 16(7); Retained through N/A modifies provisions-burden of proof 17(7); modification to operation of 18(7); the operation of section 96 of the the Regulatory Regulatory Powers 19(7) Powers Act Act (see new subsection 129(4) of the GEMS Act) N/A (Civil penalty provisions contravened N/A Gained 97 by employees, agents or officers) Infringement notices Division 3, Part 5-Infringement Part 8 notices When an infringement notice may be given 146 Retained 103 Matters to be included in an infringement 147 Aligned See section 104 of notice the Regulatory Powers Act as amended by this Bill Infringement notice must state that the 147(1)(i) Retained through N/A (see new giving of the notice and the payment of the modification to subsection 130(7) of amount payable under the notice may be the operation of the GEMS Act) publicised under section 162 the Regulatory Powers Act 166
Current provision in the GEMS Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Infringement notice must state that if the 147(1)(m) Repealed N/A notice is withdrawn any amount paid under (note: see the notice must be refunded subsection 106(5) of the Regulatory Powers Act) Extension of time to pay amount 148 Retained 105 Withdrawal of infringement notice 149 Retained 106 Effect of payment of amount 150 Retained 107 Effect of this Division 151 Retained 108 Regulations may make further provision in 152 Repealed N/A relation to infringement notices Enforceable undertakings Division 4, Part 6-Enforceable Part 8 undertakings Acceptance of undertakings 154 Retained 114 Acceptance of written undertaking that the 154(1)(d) Retained through N/A (see new person will pay another person an amount modification to subsection 131(4) of worked out in accordance with the the operation of the GEMS Act) undertaking, in order to provide the Regulatory compensation for loss or damage suffered Powers Act as a result of the contravention by the person Enforcement of undertakings 155 Retained 115 Injunctions Division 5, Part 7-Injunctions Part 8 Grant of injunctions 157 Retained 157 Consent injunctions 157(3) Retained through N/A (see new modification to subsection 132(4) of the operation of the GEMS Act) the Regulatory Powers Act Interim injunctions 158 Retained 122 Discharging or varying injunctions 159 Retained 123 Certain limits on granting injunctions not to 160 Retained 124 apply Other powers of a relevant court unaffected 161 Retained 125 Other Division 6, N/A Part 8 GEMS Regulator may publicise certain 162 Retained through N/A (see section 162 offences, contraventions and adverse modification to of the GEMS Act as decisions the operation of amended by this the Regulatory Schedule) Powers Act 167
PART 1--AMENDMENTS Item 1 - Section 3 600. Item 1 repeals part of the 'Guide to this Act' in section 3 of the GEMS Act, and substitutes new text that is consequential to the amendments made by items 35 and 39 below, which repeal current Divisions 4, 5 and 6 of Part 7 and current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act, and apply the standard monitoring, investigation and enforcement provisions in Parts 2, 3, 4, 5, 6 and 7 of the Regulatory Powers Act. 601. This item repeals the entirety of the section of the Guide entitled 'Compliance and enforcement (Parts 7 and 8)', and substitutes new text under the new subheading 'Monitoring, investigation and enforcement (Parts 7 and 8)', which directs the reader to Parts 2, 3, 4, 5, 6 and 7 of the Regulatory Powers Act. Item 2 - Section 5 (definition of civil penalty order) 602. Item 2 repeals the definition of civil penalty order in section 5 of the GEMS Act. That definition is no longer necessary, as this Schedule amends the GEMS Act to apply the standard provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act. 603. It is not necessary to substitute a new definition of civil penalty order in section 5 of the GEMS Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act. Where the phrase 'civil penalty order' is used in a provision external to current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act, that phrase is amended to 'civil penalty order under the Regulatory Powers Act' (see items 14, 17, 20, 23 and 40 below). Item 3 - Section 5 (definition of civil penalty provision) 604. Item 3 repeals the definition of civil penalty provision in section 5 of the GEMS Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. Item 4 - Section 5 605. Item 4 amends section 5 of the GEMS Act to insert a definition of compliance obligation, which provides that an offence against the GEMS Act, a civil penalty provision of that Act and an offence against the Crimes Act or the Criminal Code that relates to the GEMS Act, is a compliance obligation. This item ensures that the provisions of the Crimes Act and the Criminal Code, as they relate to the GEMS Act, are included in the core provisions of the GEMS Act that are subject to monitoring, investigation and enforcement. 606. Item 4 also preserves the effect of the definition of related provision in section 5 of the GEMS Act, which is repealed by item 7 below. It is no longer necessary to define related provision in the GEMS Act, as this Schedule amends that Act to apply the standard provisions of the Regulatory Powers Act, which defines 'a related provision' in section 4 of that Act by reference to Parts 2 and 3 of that Act. Insertion of the definition of compliance obligation in section 5 of the GEMS Act clarifies that a person must comply with offence and civil penalty provisions of that Act, and offence provisions of the Crimes Act or the Criminal Code that relate to the GEMS Act. 168
Item 5 - Section 5 607. Item 5 repeals the definitions of damage, enforceable, evidential material, investigation powers, investigation warrant, monitoring powers/ monitoring warrant and person assisting in section 5 of the GEMS Act. Those definitions are no longer necessary, as this Schedule amends the GEMS Act to apply the standard provisions of the Regulatory Powers Act, and those terms are defined in section 4 of that Act. 608. It is not necessary to substitute new definitions of damage, enforceable, evidential material, investigation powers, investigation warrant, monitoring powers, monitoring warrant and person assisting in section 5 of the GEMS Act, as those definitions are only relevant for the purposes of monitoring, investigation and enforcement provisions, and are not applied in any other provisions of that Act. Item 6 - Section 5 609. Item 6 amends section 5 of the GEMS Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 7 - Section 5 (definition of related provision) 610. Item 7 repeals the definition of related provision in section 5 of the GEMS Act, which provides that an offence against that Act, a civil penalty provision of that Act and an offence against the Crimes Act or Criminal Code that relates to the GEMS Act is a related provision. 611. It is no longer necessary to define related provision in the GEMS Act, as this Schedule amends that Act to apply the standard provisions of the Regulatory Powers Act, which defines 'a related provision' in section 4 of that Act by reference to Parts 2 and 3 of that Act. 612. Further, item 4 above inserts a definition of compliance obligation in section 5 of the GEMS Act, which clarifies that a person must comply with offence and civil penalty provisions of that Act, and offence provisions of the Crimes Act or the Criminal Code that relate to the GEMS Act. Item 4 above preserves the effect of the definition of related provision in section 5 of the GEMS Act, which is repealed by this item. Item 8- Section 5 (after paragraph (a) of the definition of relevant court) 613. Item 8 inserts 'the Federal Circuit Court of Australia' after paragraph (a) of the definition of relevant court in section 5 of the GEMS Act, which provides that the Federal Court of Australia and a Supreme Court of a State or Territory are relevant courts for the purposes of the GEMS Act. 614. Insertion of the Federal Circuit Court at new paragraph (aa) of the definition of relevant court in section 5 of the GEMS Act will provide the Federal Circuit Court with jurisdiction in relation to matters arising under the GEMS Act. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. Jurisdiction should be conferred as widely as possible to ensure that 169
disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. Item 9 - Section 5 (definition of secure) 615. Item 9 repeals the definition of secure from section 5 of the GEMS Act, which states that secure means secure by any means (including by locking up or placing a guard). 616. It is no longer necessary to define secure in the GEMS Act, as this Schedule amends that Act to apply the standard provisions of the Regulatory Powers Act, and that definition is preserved by subsections 21(2), 22(1) and 51(2) of the Regulatory Powers Act. Subsections 21(2), 22(1) and 51(2) of the Regulatory Powers Act provide, among other things, that equipment or things may be secured by locking them up, placing them a guard or any other means (note, see the amendments to current subsection 22(1) of the Regulatory Powers Act made by Schedule 1 to this Bill). Accordingly, it is no longer necessary to retain the definition of secure in the GEMS Act. Item 10 - Section 6 617. Item 10 repeals section 6 of the GEMS Act and substitutes a new section 6 of that Act. Current subsection 6(1) of the GEMS Act states that current section 6 of that Act applies where a provision of that Act declares that a person contravening another provision of that Act (the conduct rule provision) commits an offence or is liable to a civil penalty provision. The note to current subsection 6(1) of the GEMS Act states that the expression this Act has an extended meeting, and directs the reader to the Dictionary in section 5 of that Act. Current subsection 6(2) of the GEMS Act provides that, for the purposes of that Act, the person is taken to contravene the offence or civil penalty provision (as the case requires) if the person contravenes the conduct rule provision. 618. New subsection 6(1) of the GEMS Act states that new section 6 of that Act applies where a provision of that Act provides that a person contravening another provision of that Act (the conduct provision) commits an offence or is liable to a civil penalty. The note to new subsection 6(1) of the GEMS Act that the expression this Act has an extended meeting, and directs the reader to the Dictionary in section 5 of that Act. New subsection 6(2) of the GEMS Act provides that, for the purposes of that Act, and the Regulatory Powers Act to the extent that it relates to the GEMS Act, a reference to a contravention of an offence or civil penalty provision includes a reference to a contravention of the conduct provision. 619. The expression this Act is defined by section 5 of the GEMS Act to include regulations and GEMS determinations made under that Act. 620. Item 10 is consequential to the amendments made by items 35 and 39 below, which repeal current Divisions 4, 5 and 6 of Part 7 and current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and apply the standard monitoring, investigation and enforcement provisions in Parts 2, 3, 4, 5, 6 and 7 of the Regulatory Powers Act. Item 11 - Subsection 7(3) 621. Item 11 repeals subsection 7(3) of the GEMS Act, which states that, although that Act does not make the Crown liable to be prosecuted for an offence, this does not prevent the Crown from being liable to pay a pecuniary penalty under current section 130 or 146 of the 170
GEMS Act. This subsection is no longer necessary, as current sections 130 and 146 are repealed by item 39 below. The effect of current subsection 7(3) of the GEMS Act is preserved through the insertion of new subsections 129(6) and 130(9) by item 39 below. Item 12 - Subsection 16(5) (note 1) 622. Item 12 omits 'section 144' from Note 1 to subsection 16(5) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 16(5) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 623. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 624. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 625. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 of that Act does not apply to ancillary contraventions of civil penalty provisions, or where the relevant provision expressly provides otherwise. 626. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 627. Item 12 is consequential to the amendments made by item 39 below. Item 13 - Subsection 16(6) (note 1) 628. Item 13 omits 'section 144' from Note 1 to subsection 16(6) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 16(6) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 629. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 171
630. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 631. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. 632. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 633. Item 13 is consequential to the amendments made by item 39 below. Item 14 - Subsection 16(8) 634. Item 14 inserts 'under the Regulatory Powers Act' after 'civil penalty order' in subsection 16(8) of the GEMS Act. This item clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 39 below. 635. Current subsection 16(8) of the GEMS Act states that, in proceedings for a civil penalty order for a contravention of subsection 16(5) or (6) of that Act, a person who wishes to rely on paragraph 16(2)(a) of that Act bears an evidential burden in relation to a matter in that paragraph, and the person applying for the order bears an evidential burden in relation to the matters in paragraphs 16(2)(b) and (c) of that Act. 636. Subsection 16(5) of the GEMS Act states that a person is liable to a civil penalty of 60 penalty units if that person contravenes subsection 16(1) of that Act and the product is a category A product for the product class. 637. Subsection 16(6) of the GEMS Act states that a person is liable to a civil penalty of 120 penalty units if that person contravenes subsection 16(1) of that Act and the product is a category B product for the product class. 638. Subsection 16(1) of the GEMS Act provides that a person must not supply, or offer to supply, a GEMS product (as defined in the GEMS Act) if the product is in a product class covered by a GEMS determination and either or both of the following apply: a. the product does not comply with a requirement of the GEMS determination, or b. a requirement of the GEMS determination is not complied with in supplying, or offering to supply, the product. 639. Subsection 16(2) of the GEMS Act provides that subsection 16(1) of that Act does not apply if: a. the product is a second-hand product at the time of the supply or offer, or b. the following conditions are satisfied: 172
i. the model of the product is exempt under section 37 of the GEMS Act from the requirement ii. any conditions of the exemption (see subsection 37(2) of the GEMS Act) are complied with in connection with the supply or offer, or c. the following conditions are satisfied: i. the product is imported into, or the product's last process of manufacture is performed in, Australia at a time (the earlier time) before the GEMS determination comes into force ii. if there is a limited grandfathering period under the GEMS determination for the product class (see section 31 of the GEMS Act)--the supply or offer occurs before the end of that period iii. all transitional GEMS labelling requirements of the GEMS determination that was in force at the earlier time, and iv. if there was no such pre-existing GEMS determination--the supply of the product (or an offer to supply the product) in a State or Territory at the earlier time would not have contravened a law of the State or Territory relating to energy use by products, or greenhouse gases resulting from operating products. 640. Item 14 is consequential to the amendments made by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. Item 15 - Subsection 17(5) (note 1) 641. Item 15 omits 'section 144' from Note 1 to subsection 17(5) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 17(5) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 642. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 643. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 644. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 does 173
not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. 645. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 646. Item 15 is consequential to the amendments made by item 39 below. Item 16 - Subsection 17(6) (note 1) 647. Item 16 omits 'section 144' from Note 1 to subsection 17(6) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 17(6) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 648. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 649. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 650. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. 651. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 652. Item 16 is consequential to the amendments made by item 39 below. Item 17 - Subsection 17(8) 653. Item 17 inserts 'under the Regulatory Powers Act' after 'civil penalty order' in subsection 17(8) of the GEMS Act. This item clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 39 below. 654. Current subsection 17(8) of the GEMS Act states that, in proceedings for a civil penalty order for a contravention of subsection 17(5) or (6) of that Act, a person who wishes to rely on paragraph 17(2)(a) of that Act bears an evidential burden in relation to a matter in that paragraph, and the person applying for the order bears an evidential burden in relation to the matters in paragraph 17(2)(b) of that Act. 174
655. Subsection 17(5) of the GEMS Act states that a person is liable to a civil penalty of 60 penalty units if that person contravenes subsection 17(1) of that Act and the product is a category A product for the product class. 656. Subsection 17(6) of the GEMS Act states that a person is liable to a civil penalty of 120 penalty units if that person contravenes subsection 17(1) of that Act and the product is a category B product for the product class. 657. Subsection 17(1) of the GEMS Act provides that a person must not supply, or offer to supply, a GEMS product (as defined in the GEMS Act) if the product is in a product class covered by a GEMS determination, and the model of the product is not registered against the GEMS determination in relation to that product class. 658. Subsection 17(2) of the GEMS Act provides that subsection 17(1) of that Act does not apply if the product is a second-hand product at the time of the supply or offer, or the model of the product is exempt under section 30 of that Act from registration in relation to that product class. 659. Item 17 is consequential to the amendments made by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. Item 18 - Subsection 18(5) (note 1) 660. Item 18 omits 'section 144' from Note 1 to subsection 18(5) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 18(5) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 661. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 662. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 663. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. 664. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 175
665. Item 18 is consequential to the amendments made by item 39 below. Item 19 - Subsection 18(6) (note 1) 666. Item 19 omits 'section 144' from Note 1 to subsection 18(6) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 18(6) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 667. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 668. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 669. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. 670. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 671. Item 19 is consequential to the amendments made by item 39 below. Item 20 - Subsection 18(8) 672. Item 20 inserts 'under the Regulatory Powers Act' after 'civil penalty order' in subsection 18(8) of the GEMS Act. This item clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 39 below. 673. Current subsection 18(8) of the GEMS Act states that, in proceedings for a civil penalty order for a contravention of subsection 18(5) or (6) of that Act, a person who wishes to rely on paragraphs 18(2)(a) or (b) of that Act bears an evidential burden in relation to a matter in that paragraph, and the person applying for the order bears an evidential burden in relation to the matters in paragraphs 18(2)(c) or (d) of that Act. 674. Subsection 18(5) of the GEMS Act states that a person is liable to a civil penalty of 60 penalty units if that person contravenes subsection 18(1) of that Act and the product is a category A product for the product class. 176
675. Subsection 18(6) of the GEMS Act states that a person is liable to a civil penalty of 120 penalty units if that person contravenes subsection 18(1) of that Act and the product is a category B product for the product class. 676. Subsection 18(1) of the GEMS Act provides that a person must not use a GEMS product (as defined in the GEMS Act) for a commercial purpose if the GEMS product is in a product class covered by a GEMS determination, that product does not comply with a requirement of that determination and that is the person's first use of the product. 677. Subsection 18(2) of the GEMS Act provides that subsection 18(1) of that Act does not apply if: a. the product was supplied to the person in Australia, or b. the use of the product is exempt under section 20 of the GEMS Act, or c. the following conditions are satisfied: i. the model of the product is exempt under section 37 of the GEMS Act from the requirement ii. any conditions of the exemption (see subsection 37(2) of the GEMS Act are complied with in connection with the use of the product, or d. the following conditions are satisfied: i. the product is imported into, or the product's last process of manufacture is performed in, Australia at a time (the earlier time) before the GEMS determination comes into force ii. if there is a limited grandfathering period under the GEMS determination for the product class (see section 31 of the GEMS Act)--the use of the produce occurs before the end of that period iii. the product currently complies with any pre-existing GEMS determination that was in force at the earlier time, and iv. if there was no such pre-existing GEMS determination--the use of the product for a commercial purpose in a State or Territory at the earlier time would not have contravened a law of the State or Territory relating to energy use by products, or greenhouse gases resulting from operating products. 678. Item 20 is consequential to the amendments made by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. Item 21 - Subsection 19(5) (note 1) 679. Item 21 omits 'section 144' from Note 1 to subsection 19(5) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 19(5) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 680. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) 177
of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 681. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 682. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. 683. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 684. Item 21 is consequential to the amendments made by item 39 below. Item 22 - Subsection 19(6) (note 1) 685. Item 22 omits 'section 144' from Note 1 to subsection 19(6) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 19(6) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 686. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 687. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 688. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. 689. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 178
690. Item 22 is consequential to the amendments made by item 39 below. Item 23 - Subsection 19(8) 691. Item 23 inserts 'under the Regulatory Powers Act' after 'civil penalty order' in subsection 19(8) of the GEMS Act. This item clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 39 below. 692. Current subsection 19(8) of the GEMS Act states that, in proceedings for a civil penalty order for a contravention of subsection 19(5) or (6) of that Act, a person who wishes to rely on paragraphs 19(2)(a) or (b) of that Act bears an evidential burden in relation to a matter in that paragraph, and the person applying for the order bears an evidential burden in relation to the matters in paragraph 19(2)(c) of that Act. 693. Subsection 19(5) of the GEMS Act states that a person is liable to a civil penalty of 60 penalty units if that person contravenes subsection 19(1) of that Act and the product is a category A product for the product class. 694. Subsection 19(6) of the GEMS Act states that a person is liable to a civil penalty of 120 penalty units if that person contravenes subsection 19(1) of that Act and the product is a category B product for the product class. 695. Subsection 19(1) of the GEMS Act provides that a person must not use a GEMS product (as defined in the GEMS Act) for a commercial purpose if the GEMS product is in a product class covered by a GEMS determination, the model of that product is not registered against that determination in relation to that product class, and that is the person's first use of the product. 696. Subsection 19(2) of the GEMS Act provides that subsection 19(1) of that Act does not apply if the product was supplied to the person in Australia, or the use of the product is exempt under section 20 of that Act, or the model of the product is exempt under section 30 of that Act from registration in relation to that product class. 697. Item 23 is consequential to the amendments made by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. Item 24 - Subsection 55(3) (note) 698. Item 24 omits 'section 144' from the note to subsection 55(3) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 55(3) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 699. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 179
700. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 701. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. 702. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 703. Item 24 is consequential to the amendments made by item 39 below. Item 25 - Subsection 59(1) (note) 704. Item 25 repeals the note to subsection 59(1) of the GEMS Act, which directs the reader to current section 127 of that Act for provisions relating to the powers of issuing officers under that Act. 705. Current section 127 of the GEMS Act provides that a power conferred on an issuing officer by that Act is conferred on that officer in a personal capacity and not as a court or a member of a court. However, current subsection 127(3) of the GEMS Act provides that an issuing officer exercising power conferred by that Act has the same protections and immunities as if the issuing officer were exercising the power as the court of which the issuing officer is a member, or as a member of the court of which the issuing officer is a member. Current subsection 127(2) of the GEMS Act states that the issuing officer does not have to accept the power conferred on that officer by that Act. 706. Current section 127 of the GEMS Act is repealed by item 37 below, which repeals current Division 9 of Part 7 of the GEMS Act. 707. Item 35 below repeals current Divisions 4, 5 and 6 of Part 7 of the GEMS Act and applies the standard provisions pertaining to monitoring and investigation powers in Parts 2 and 3 of the Regulatory Powers Act. That item preserves the effect of current section 127 of the GEMS Act (as that section applies to provisions subject to monitoring and investigation in the GEMS Act), through the application of sections 34 and 75 of the Regulatory Powers Act. 708. Section 34 of the Regulatory Powers Act provides for matters in relation to the powers of issuing officers for the purposes of monitoring powers in language identical to current section 127 of the GEMS Act. Section 75 of the Regulatory Powers Act provides for matters in relation to the powers of issuing officers for the purposes of investigation powers in language identical to current section 127 of the GEMS Act. These sections recognise that issuing a monitoring or investigation warrant is an executive function, and not an exercise of judicial power. 709. Item 25 is consequential to the amendments made by items 35 and 37 below. 180
Item 26 - Paragraph 59(3)(b) 710. Item 26 omits 'related provision' from paragraph 59(3)(b) of the GEMS Act and substitutes 'compliance obligation'. 711. Current paragraph 59(3)(b) of the GEMS Act states that an issuing officer may order that a product, given in accordance with subsection 57(1) of that Act, continue to be retained for a period specified in the order if the issuing officer is satisfied that it is necessary for the product to continue to be retained for the purposes of an investigation as to whether a related provision has been contravened. 712. Subsection 57(1) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may give the registrant (as defined in the GEMS Act), for a registration of a model in relation to a product class, a written notice requiring the registrant to give a product of that model to a specified GEMS inspector. 713. Item 26 is consequential to the amendments made by items 4 and 7 above. Item 7 repeals the definition of related provision in section 5 of the GEMS Act, and item 4 inserts a definition of compliance obligation in section 5 of that Act, which provides that an offence against the GEMS Act, a civil penalty provision of that Act and an offence against the Crimes Act or the Criminal Code that relates to the GEMS Act, is a compliance obligation. Item 27 - At the end of paragraph 59(3)(c) 714. Item 27 inserts 'under the Regulatory Powers Act' at the end of paragraph 59(3)(c) of the GEMS Act. This item clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 39 below. 715. Current paragraph 59(3)(c) of the GEMS Act states that an issuing officer may order that a product, given in accordance with subsection 57(1) of that Act, continue to be retained for a period specified in the order if the issuing officer is satisfied that it is necessary for the product to continue to be retained to enable evidence of a contravention mentioned in paragraph 59(3)(b) to be secured for the purposes of a prosecution or an action to obtain a civil penalty order. 716. Paragraph 59(3)(b) of the GEMS Act states that an issuing officer may order that a product, given in accordance with subsection 57(1) of that Act, continue to be retained for a period specified in the order if the issuing officer is satisfied that it is necessary for the product to continue to be retained for the purposes of an investigation as to whether a related provision has been contravened. 717. Subsection 57(1) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may give the registrant (as defined in the GEMS Act), for a registration of a model in relation to a product class, a written notice requiring the registrant to give a product of that model to a specified GEMS inspector. 718. Item 27 is consequential to the amendments made by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 to the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. 181
Item 28 - At the end of section 59 719. Item 28 inserts new subsections 59(5), (6) and (7) at the end of section 59 of the GEMS Act, which deals with matters in relation to the further retention of products given in accordance with subsection 57(1) of that Act. 720. Current section 59 of the GEMS Act provides an issuing officer with the ability to order that a product, given in accordance with subsection 57(1) of that Act, continue to be retained for further period if proceedings in respect of which the product may afford evidence have not been commenced before the end of: a. 6 months after the product was given, or b. a period previously specified in an order of an issuing officer under section 59 of the GEMS Act. 721. Subsection 57(1) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may give the registrant (as defined in the GEMS Act), for a registration of a model in relation to a product class, a written notice requiring the registrant to give a product of that model to a specified GEMS inspector. 722. Item 25 above repeals the current note to subsection 59(1) of the GEMS Act, which directs the reader to current section 127 of that Act for provisions relating to the powers of issuing officers under that Act. 723. Current subsection 127(1) of the GEMS Act provides that a power conferred on an issuing officer by that Act is conferred on that officer in a personal capacity and not as a court or a member of a court. However, current subsection 127(3) of the GEMS Act provides that an issuing officer exercising power conferred by that Act has the same protections and immunities as if the issuing officer were exercising the power as the court of which the issuing officer is a member, or as a member of the court of which the issuing officer is a member. Current subsection 127(2) of the GEMS Act states that the issuing officer does not have to accept the power conferred on that officer by that Act. Current section 127 of the GEMS Act is repealed by item 37 below, which repeals current Division 9 of Part 7 of the GEMS Act. 724. New subsection 59(5) of the GEMS Act provides that a power conferred on an issuing officer by that Act is conferred on that officer in a personal capacity and not as a court or a member of a court. 725. New subsection 59(6) of the GEMS Act provides that an issuing officer does not have to accept the power conferred on that officer by that Act. 726. New subsection 59(7) of the GEMS Act provides that an issuing officer exercising power conferred by that Act has the same protections and immunities as if the issuing officer were exercising the power as the court of which the issuing officer is a member, or as a member of the court of which the issuing officer is a member. 727. Item 28 is consequential to the amendments made by item 37 below, which repeals current Division 9 of Part 7 of the GEMS Act (note the only provision in that Division is current section 127 of the GEMS Act, which provides for matters in relation to the powers of issuing officers). 182
728. Item 28 is also consequential to the amendments made by item 35 below, which repeals current Divisions 4, 5 and 6 of Part 7 of the GEMS Act and applies the standard provisions pertaining to monitoring and investigation powers in Parts 2 and 3 of the Regulatory Powers Act. Item 35 preserves the effect of current section 127 of the GEMS Act, as that section applies to provisions subject to monitoring and investigation in that Act, through the application of sections 34 and 75 of the Regulatory Powers Act. 729. This item preserves the effect of current section 127 of the GEMS Act, as that section applies to provisions external to current Divisions 4, 5 and 6 of Part 7 and current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act. 730. Part 5 of the GEMS Act (which includes section 57 of that Act) does not apply the standard provisions of the Regulatory Powers Act, as those matters are unsuitable for alignment (that is, those provisions are not monitoring, investigation or enforcement provisions as defined by the Regulatory Powers Act). As section 57 of the GEMS Act, and Part 5 of that Act more broadly, does not apply the standard provisions of the Regulatory Powers Act, it is necessary that new subsections 59(5), (6) and (7) of the GEMS Act recognise that issuing an order under section 59 of that Act is an executive function, and not an exercise of judicial power. Item 29 - Subsection 62(3) (note) 731. Item 29 omits 'section 144' from the note to subsection 62(3) of the GEMS Act and substitutes 'section 94 of the Regulatory Powers Act'. Note 1 to subsection 62(3) of the GEMS Act currently states that it is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, and directs the reader to section 144 of the GEMS Act. 732. Current section 144 of the GEMS Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Current subsection 144(2) of the GEMS Act provides that subsection 144(1) of that Act does not affect the operation of current section 143 of that Act (note, current section 143 of the GEMS Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 733. Current sections 143 and 144 of the GEMS Act are repealed by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. That item also preserves the effect of current sections 143 and 144 of the GEMS Act through the application of sections 94 and 95 of the Regulatory Powers Act. 734. Section 94 of the Regulatory Powers Act provides for matters in relation to state of mind in language identical to current section 144 of the GEMS Act, with the exception of subsections 94(2) and (4) of the Regulatory Powers Act, which clarify that section 94 does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. 735. Section 95 of the Regulatory Powers Act provides for matters in relation to mistake of fact in language identical to current section 143 of the GEMS Act. 736. Item 29 is consequential to the amendments made by item 39 below. 183
Item 30 - Section 81 737. Item 30 repeals part of the 'Guide to this Part' in section 81 of the GEMS Act, and substitutes new text that is consequential to the amendments made by item 35 below, which repeals current Divisions 4, 5 and 6 of Part 7 of the GEMS Act and applies the standard monitoring and investigation provisions in Parts 2 and 3 of the Regulatory Powers Act. 738. This item repeals the entirety of the paragraph that begins with 'Division 4 (monitoring)' through to the end of the paragraph that begins with 'Division 6', and substitutes new text that directs the reader to Parts 2 and 3 of the Regulatory Powers Act. Item 31 - Section 81 739. Item 31 repeals the entirety of the paragraph that begins with 'Division 9' in the 'Guide to this Part' in section 81 of the GEMS Act. 740. This item is consequential to the amendments made by item 37 below, which repeals current Divisions 9 of Part 7 of the GEMS Act. Item 32 - Sections 84 and 85 741. Item 32 repeals sections 84 and 85 of the GEMS Act, which provide for matters in relation to the issuance and requirements of identity cards for GEMS inspectors. 742. Current subsection 84(1) of the GEMS Act provides that the GEMS Regulator must issue an identity card to a GEMS inspector appointed under section 82 of that Act. Current subsection 84(2) of the GEMS Act states that the Secretary of the department that administers the GEMS Act must issue an identity card to the GEMS Regulator. Current subsection 84(3) states that the identity card must be in the form approved by the GEMS Regulator, and contain a recent photograph of the GEMS inspector. Current subsection 84(4) of the GEMS Act requires a GEMS inspector to carry his or her identity card at all times when exercising powers as a GEMS inspector. 743. Current subsection 85(1) of the GEMS Act provides that a person commits an offence of strict liability, which carries a penalty of one penalty unit, if that person ceases to be a GEMS inspector but does not return their identity card to the GEMS Regulator within 14 days after that cessation. Current subsection 85(2) of the GEMS Act provides an exception to current subsection 85(1) of that Act where the identity card is lost or destroyed. 744. This item is consequential to the amendments made by item 35 below, which repeals current Divisions 4, 5 and 6 of Part 7 of the GEMS Act and applies the standard monitoring and investigation provisions in Parts 2 and 3 of the Regulatory Powers Act. Item 35 will preserve the effect of current sections 84 and 85 of the GEMS Act through the application of sections 35 and 76 of the Regulatory Powers Act, and the insertion of new subsections 87(11) and 88(10) of the GEMS Act. 745. Accordingly, current sections 84 and 85 of the GEMS Act are no longer necessary to retain, as this Schedule amends the GEMS Act to apply the standard provisions pertaining to monitoring and investigation in the Regulatory Powers Act, and matters relating to identity cards are provided for by sections 35 and 76 of that Act (see also the Regulatory Powers (Standard Provisions) Regulation 2015). 184
Item 33 - Paragraph 86(2)(c) 746. Item 33 omits 'related provision' from paragraph 86(2)(c) of the GEMS Act and substitutes 'compliance obligation'. 747. Current paragraph 86(2)(c) of the GEMS Act states that a GEMS inspector may only exercise a power under subsection 86(1) of that Act for determining whether information given in compliance or purported compliance with a provision of that Act is correct. 748. Subsection 86(1) of the GEMS Act provides that a GEMS inspector may enter a public area of GEMS business premises when the premises are open to the public and exercise the following powers for a purpose referred to in subsection 86(2) of that Act: a. the power to inspect GEMS products (as defined in the GEMS Act) b. the power to purchase any GEMS product that is available for sale c. the power to inspect or collect written information, advertising or any other document that is available, or made available, to the public in relation to GEMS products, d. the power to discuss product features of any GEMS products with any person, and e. the power to observe practices relating to the supply of GEMS products. 749. Subsection 86(2) of the GEMS Act states that a GEMS inspector may only exercise a power under subsection 86(1) of that Act for one or more of the following purposes: a. determining whether a provision of the GEMS Act has been, or is being, complied with, b. determining whether information given in compliance or purported compliance with a provision of the GEMS Act is correct, or c. investigating a possible contravention of a related provision. 750. The note to subsection 86(2) of the GEMS Act provides that the expression this Act has an extended meaning and directs the reader to section 5 of that Act, which defines this Act to include regulations and GEMS determinations made under the GEMS Act. 751. Item 33 is consequential to the amendments made by items 4 and 7 above. Item 7 repeals the definition of related provision in section 5 of the GEMS Act, and item 4 inserts a definition of compliance obligation in section 5 of that Act, which provides that an offence against the GEMS Act, a civil penalty provision of that Act and an offence against the Crimes Act or the Criminal Code that relates to the GEMS Act, is a compliance obligation. Item 34 - Subsection 86(4) 752. Item 34 omits 'Division 4, 5 or 6 of this Part' from subsection 86(4) of the GEMS Act and substitutes 'the Regulatory Powers Act'. 753. Current subsection 86(4) of the GEMS Act states that subsection 86(1) of that Act does not limit the powers of a GEMS inspector under current Division 4, 5 or 6 of Part 7 of that Act or any other power of a person to enter a public area of GEMS business premises. 185
754. Subsection 86(1) of the GEMS Act provides that a GEMS inspector may enter a public area of GEMS business premises when the premises are open to the public and exercise the following powers for a purpose referred to in subsection 86(2) of that Act: a. the power to inspect GEMS products (as defined in the GEMS Act) b. the power to purchase any GEMS product that is available for sale c. the power to inspect or collect written information, advertising or any other document that is available, or made available, to the public in relation to GEMS products, d. the power to discuss product features of any GEMS products with any person, and e. the power to observe practices relating to the supply of GEMS products. 755. Current subsection 86(2) of the GEMS Act states that a GEMS inspector may only exercise a power under subsection 86(1) of that Act for one or more of the following purposes: a. determining whether a provision of the GEMS Act has been, or is being, complied with, b. determining whether information given in compliance or purported compliance with a provision of the GEMS Act is correct, or c. investigating a possible contravention of a related provision. 756. The note to subsection 86(2) of the GEMS Act provides that the expression this Act has an extended meaning and directs the reader to section 5 of that Act, which defines this Act to include regulations and GEMS determinations made under the GEMS Act. 757. Item 34 is consequential to the amendments made by item 35 below, which repeals current Divisions 4, 5 and 6 of Part 7 of the GEMS Act and applies the standard monitoring and investigation provisions in Parts 2 and 3 of the Regulatory Powers Act. Item 35 - Divisions 4 to 6 of Part 7 758. Item 35 repeals current Divisions 4, 5 and 6 of Part 7 of the GEMS Act and substitutes new 'Division 4--Monitoring' and new 'Division 5--Investigation' of Part 7 of that Act. This item applies the provisions of Part 2 of the Regulatory Powers Act for provisions and information subject to monitoring under the GEMS Act, and Part 3 of the Regulatory Powers Act for the gathering of material that relates to the contravention of the offence and civil penalty provisions of the GEMS Act. Monitoring powers 759. Current Division 4 of Part 7 of the GEMS Act provides for provisions in relation to monitoring powers, and includes sections 87, 88, 89, 90, 91, 92, 93 and 94 of that Act. Those sections are no longer necessary, as this Schedule amends the GEMS Act to apply the standard provisions pertaining to monitoring powers in the Regulatory Powers Act. 760. Current Division 6 of Part 7 of the GEMS Act provides for general provisions in relation to monitoring and investigation powers, and includes sections 113, 114, 115, 116, 117, 118, 119, 120 and 121 of that Act. Those sections are no longer necessary, as this 186
Schedule amends the GEMS Act to apply the standard provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act. 761. The comparison table provided at paragraph 599 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the GEMS Act that are repealed by this item. 762. New Division 4 of Part 7 of the GEMS Act directs the reader to Part 2 of the Regulatory Powers Act, which creates a framework for monitoring whether provisions of an Act have been, or are being, complied with, and whether information given in compliance, or purported compliance, with a provision of an Act is correct (see the notes to new subsections 87(1) and 87(2) of the GEMS Act). New section 87 of the GEMS Act outlines matters in relation to related provisions, the authorised applicant, the authorised person, the issuing officer, the relevant chief executive, the identity card for the GEMS Regulator, relevant courts, persons assisting, use of force in executing a warrant and the extension of matters to external Territories. 763. New subsection 87(1) of the GEMS Act states that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is: a. a provision of the GEMS Act, or b. an offence against the Crimes Act or the Criminal Code that relates to the GEMS Act. 764. New subsection 87(1) of the GEMS Act ensures that Part 2 of the Regulatory Powers Act operates for the purposes of the provisions specified in that subsection. Item 35 also inserts a note at the end of new subsection 87(1) of the GEMS Act, which directs the reader to Part 2 of the Regulatory Powers Act. 765. New subsection 87(2) of the GEMS Act states that information given in compliance or purported compliance with a provision of that Act is subject to monitoring under Part 2 of the Regulatory Powers Act. New subsection 87(2) of the GEMS Act ensures that Part 2 of the Regulatory Powers Act operates for the purposes of all provisions of the GEMS Act and, where applicable, offences against the Crimes Act or the Criminal Code that relate to the GEMS Act. 766. Item 35 also inserts notes at the end of new subsection 87(2) of the GEMS Act. New Note 1 to new subsection 87(2) of the GEMS Act provides that the expression this Act has an extended meaning and directs the reader to section 5 of that Act, which defines this Act to include regulations and GEMS determinations made under the GEMS Act. New Note 2 to new subsection 87(2) of the GEMS Act directs the reader to Part 2 of the Regulatory Powers Act, which creates a framework for monitoring whether information is correct, and includes powers of entry and inspection. 767. New subsection 87(3) of the GEMS Act states that there are no related provisions for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. This new subsection reflects existing arrangements under the GEMS Act in relation to monitoring powers. 187
768. New subsection 87(4) of the GEMS Act identifies a GEMS inspector as an authorised applicant for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. 769. New subsection 87(5) of the GEMS Act identifies a GEMS inspector as an authorised person for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. 770. New subsections 87(4) and (5) of the GEMS Act will enable a GEMS inspector to apply to an issuing officer for a monitoring warrant in relation to premises. Those provisions will also enable a GEMS inspector to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or for the purpose of determining whether information subject to monitoring is correct. However, a GEMS inspector may not enter the premises unless the occupier has provided consent, or the inspector is in possession of a monitoring warrant. New subsections 87(4) and (5) of the GEMS Act reflect existing arrangements under that Act (see sections 82 and 83 of the GEMS Act). 771. New subsection 87(6) of the GEMS Act provides that if a person is prescribed as an issuing officer for the purposes of the GEMS Act, then that person is an issuing officer for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. New subsection 87(6) of the GEMS Act reflects existing arrangements under that Act in relation to issuing officers (see the definition of issuing officer in section 5 of the GEMS Act). 772. New subsection 87(7) of the GEMS Act identifies the GEMS Regulator (as defined in the GEMS Act) as the relevant chief executive for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. New subsection 87(7) of the GEMS Act reflects existing arrangements under that Act (see Part 6 of the GEMS Act). 773. New subsection 87(8) of the GEMS Act provides that the GEMS Regulator, as the relevant chief executive under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act, may, in writing, delegate his or her powers and functions to an officer or employee of an agency (however described) of the Commonwealth, a State or a Territory. New subsection 87(8) of the GEMS Act reflects existing arrangements under that Act (see subsection 80(1) of the GEMS Act). 774. New subsection 87(9) of the GEMS Act states that the GEMS Regulator must not delegate such a power or function to an officer or employee of an agency of a State or Territory without the agreement of the State or Territory. New subsection 87(9) of the GEMS Act reflects existing arrangements under that Act (see subsection 80(2) of the GEMS Act). 775. New subsection 87(10) of the GEMS Act provides that a delegate must comply with any directions of the GEMS Regulator, which reflects existing arrangements under that Act (see subsection 80(3) of the GEMS Act). 188
776. New subsection 87(11) of the GEMS Act modifies the operation of subsection 35(1) of the Regulatory Powers Act to enable the Secretary of the department that administers the GEMS Act to issue an identity card to the GEMS Regulator. New subsection 87(11) of the GEMS Act preserves the effect of current section 84 of that Act, which is repealed by item 32 above. 777. The GEMS Regulator must issue all GEMS inspectors with photographic identification cards, which must be carried by inspectors when exercising monitoring powers. However, section 83 of the GEMS Act states that the GEMS Regulator is also a GEMS inspector. It is necessary to modify the operation of subsection 35(1) of the Regulatory Powers Act through the inclusion of new subsection 87(11) of the GEMS Act to enable the GEMS Regulator to be provided with an identification card, and thus comply with section 35 of the Regulatory Powers Act. 778. New subsection 87(12) of the GEMS Act provides that if a court is a relevant court for the purposes of the GEMS Act, then that court or those courts are relevant courts for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. New subsection 87(12) of the GEMS Act reflects existing arrangements under that Act (see the definition of relevant court in section 5 of the GEMS Act, as amended by item 8 above). 779. New subsection 87(13) of the GEMS Act provides that a GEMS inspector may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. New subsection 87(13) of the GEMS Act preserves the effect of current section 93 of that Act, which is repealed by this item. 780. New subsection 87(14) of the GEMS Act modifies the operation of Part 2 of the Regulatory Powers Act, and provides that, in executing a monitoring warrant under that Part, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act, a GEMS inspector or person assisting a GEMS inspector may use such force against things as is necessary and reasonable in the circumstances. New subsection 87(14) of the GEMS Act preserves the effect of current section 117 of the GEMS Act, which is repealed by this item. 781. It is necessary to retain the power to use force against things in the GEMS Act, as a GEMS inspector executing a monitoring warrant may need to open locked doors, cabinets, drawers and other similar objects that the inspector reasonably suspects contain things or information that would provide evidence that provisions subject to monitoring have not been, or are not being, complied with, or that information subject to monitoring is incorrect. 782. Section 31 of the Regulatory Powers Act places an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 2 of the Regulatory Powers Act, for the purposes of executing a monitoring warrant. Subsection 31(2) of the Regulatory Powers Act provides that failure to comply with section 31 of that Act is an offence, and carries a penalty of 30 penalty units. Despite this obligation and its corresponding penalty for non-compliance, an occupier or other person may continue to 189
refuse access to locked premises or objects. It is necessary to retain the power to use force against things to ensure that the execution of a monitoring warrant is not frustrated, and prevent concealment, loss, destruction, use or continuation of use of information or things in the course of non-compliance with the GEMS Act (see new subsections 87(1) and (2) of the GEMS Act). 783. New subsection 87(15) of the GEMS Act extends the application of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act, to every external Territory. New subsection 87(15) of the GEMS Act reflects existing arrangements under that Act (see section 8 of the GEMS Act). 784. Application of the standard provisions pertaining to monitoring powers in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the GEMS Act. However, the comparison table provided at paragraph 599 above identifies that current paragraph 94(4)(f) of the GEMS Ac t is aligned to paragraph 32(4)(f) of the Regulatory Powers Act, current section 114 of the GEMS Act is aligned to section 26 of the Regulatory Powers Act and that current section 90 of the GEMS Act is repealed without substitution. 785. Current paragraph 94(4)(f) of the GEMS Act provides that a monitoring warrant may only remain in force for six months. That paragraph is repealed by this item, and paragraph 32(4)(f) of the Regulatory Powers Act provides that a monitoring warrant may only remain in force for three months. 786. Current subsection 114(1) of the GEMS Act provides that, before entering premises under a monitoring warrant or an investigation warrant, an inspector must announce that he or she is authorised to enter the premises, present his or her identity card to the occupier or any person at the premises, and give any person at the premises an opportunity to allow entry to the premises. Current subsection 114(2) of the GEMS Act provides that an inspector is not required to comply with current subsection 114(1) of that Act if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure the safety of a person, or to ensure that effective execution of the warrant is not frustrated. 787. There is no equivalent provision to current subsection 114(2) of the GEMS Act in the Regulatory Powers Act for the purposes of a monitoring warrant issued under Part 2 of that Act. Current section 114 of the GEMS Act is repealed by this item, and section 26 of the Regulatory Powers Act will apply for the purposes of the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. 788. Alignment with the Regulatory Powers Act will also repeal current section 90 of the GEMS Act. Current subsection 90(1) of the GEMS Act provides that if: a. an exercise of power under current subsection 89(1) of the GEMS Act involves operating electronic equipment on premises to access information held on other premises, and b. it is practicable to notify the occupier of the premises on which the information is held that the information has been accessed, then the GEMS inspector must: 190
c. notify the occupier as soon as practicable, and d. if the inspector has exercised, or intends to exercise, powers under current subsection 89(3) of the GEMS Act to allow for continued access to that information--state that fact in the notification. 789. Current subsection 90(2) of the GEMS Act states that a notification under current subsection 90(1) of that Act must include sufficient information to allow the occupier of the premises on which the accessed information is held to contact the GEMS inspector. 790. Current section 89 of the GEMS Act provides for matters in relation to the operation of electronic equipment for the purposes of exercising monitoring powers. 791. There is no equivalent provision to current section 90 of the GEMS Act in the Regulatory Powers Act for the purposes of exercising monitoring powers under Part 2 of that Act. It is no longer necessary to retain this provision for the purposes of the regulatory powers framework of the GEMS Act. Further, current section 89 of the GEMS Act is repealed by this item, and section 20 of the Regulatory Powers Act will apply for the purposes of the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. Investigation powers 792. Current Division 5 of Part 7 of the GEMS Act provides for provisions in relation to investigation powers, and includes sections 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111 and 112 of that Act. Those sections are no longer necessary, as this Schedule amends the GEMS Act to apply the standard provisions pertaining to investigation powers in the Regulatory Powers Act. 793. Current Division 6 of Part 7 of the GEMS Act provides for general provisions in relation to monitoring and investigation powers, and includes sections 113, 114, 115, 116, 117, 118, 119, 120 and 121 of that Act. Those sections are no longer necessary, as this Schedule amends the GEMS Act to apply the standard provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act. 794. The comparison table provided at paragraph 599 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the GEMS Act that are repealed by this item. 795. New Division 5 of Part 7 of the GEMS Act directs the reader to Part 3 of the Regulatory Powers Act, which creates a framework for gathering material that relates to the contravention of offence and civil penalty provisions (see the note to new subsection 88(1) of the GEMS Act). New section 88 of the GEMS Act outlines matters in relation to related provisions, the authorised applicant, the authorised person, the issuing officer, the relevant chief executive, the identity card for the GEMS Regulator, relevant courts, persons assisting, use of force in executing a warrant, and the extension of matters to external Territories. 796. New subsection 88(1) of the GEMS Act states that each compliance obligation is subject to investigation under Part 3 of the Regulatory Powers Act, which ensures that Part 3 of the Regulatory Powers Act operates for the purposes of a compliance obligation. Item 4 above amends section 5 of the GEMS Act to insert a definition of compliance obligation, which provides that an offence against the GEMS Act, a civil penalty provision of that Act 191
and an offence against the Crimes Act or the Criminal Code that relates to the GEMS Act, is a compliance obligation (note, item 4 preserves the effect of the definition of related provision in section 5 of the GEMS Act, which is repealed by item 7 above). Item 35 also inserts a note at the end of new subsection 88(1) of the GEMS Act, which directs the reader to Part 3 of the Regulatory Powers Act. 797. New subsection 88(2) of the GEMS Act states that there are no related provisions for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of the GEMS Act. This new subsection reflects existing arrangements under the GEMS Act in relation to investigation powers. 798. New subsection 88(3) of the GEMS Act identifies a GEMS inspector as an authorised applicant for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of the GEMS Act. 799. New subsection 88(4) of the GEMS Act identifies a GEMS inspector as an authorised person for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of the GEMS Act. 800. New subsections 88(3) and (4) of the GEMS Act will enable a GEMS inspector to apply to an issuing officer for an investigation warrant in relation to premises. Those provisions will also enable a GEMS inspector to enter any premises and exercise investigation powers where the inspector suspects on reasonable grounds that there may be material on the premises related to the contravention of a provision identified in new subsection 88(1) of the GEMS Act. However, a GEMS inspector may not enter the premises unless the occupier has provided consent or the inspector is in possession of an investigation warrant. New subsections 88(3) and (4) of the GEMS Act reflect existing arrangements under that Act (see sections 82 and 83 of the GEMS Act). 801. New subsection 88(5) of the GEMS Act provides that if a person is prescribed as an issuing officer for the purposes of the GEMS Act, then that person is an issuing officer for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of the GEMS Act. New subsection 88(5) of the GEMS Act reflects existing arrangements under that Act in relation to issuing officers (see the definition of issuing officer in section 5 of the GEMS Act). 802. New subsection 88(6) of the GEMS Act identifies the GEMS Regulator (as defined in the GEMS Act) as the relevant chief executive for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of the GEMS Act. New subsection 88(6) of the GEMS Act reflects existing arrangements under that Act (see Part 6 of the GEMS Act). 803. New subsection 88(7) of the GEMS Act provides that the GEMS Regulator, as the relevant chief executive under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of the GEMS Act, may, in writing, delegate his or her powers and functions to an officer or employee of an agency (however described) of the Commonwealth, a State or a Territory. New subsection 88(7) of the GEMS Act reflects existing arrangements under that Act (see subsection 80(1) of the GEMS Act). 804. New subsection 88(8) of the GEMS Act states that the GEMS Regulator must not delegate such a power or function to an officer or employee of an agency of a State or 192
Territory without the agreement of the State or Territory. New subsection 88(8) of the GEMS Act reflects existing arrangements under that Act (see subsection 80(2) of the GEMS Act). 805. New subsection 88(9) of the GEMS Act provides that a delegate must comply with any directions of the GEMS Regulator, which reflects existing arrangements under that Act (see subsection 80(3) of the GEMS Act). 806. New subsection 88(10) of the GEMS Act modifies the operation of subsection 76(1) of the Regulatory Powers Act to enable the Secretary of the department that administers the GEMS Act to issue an identity card to the GEMS Regulator. New subsection 88(10) of the GEMS Act preserves the effect of current section 84 of that Act, which is repealed by item 32 above. 807. The GEMS Regulator must issue all GEMS inspectors with photographic identification cards, which must be carried by inspectors when exercising investigation powers. However, section 83 of the GEMS Act states that the GEMS Regulator is also a GEMS inspector. It is necessary to modify the operation of subsection 76(1) of the Regulatory Powers Act through the inclusion of new subsection 88(10) of the GEMS Act to enable the GEMS Regulator to be provided with an identification card, and thus comply with section 76 of the Regulatory Powers Act. 808. New subsection 88(11) of the GEMS Act provides that if a court is a relevant court for the purposes of the GEMS Act, then that court or those courts are relevant courts for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of the GEMS Act. New subsection 88(11) of the GEMS Act reflects existing arrangements under that Act (see the definition of relevant court in section 5 of the GEMS Act, as amended by item 8 above). 809. New subsection 88(12) of the GEMS Act provides that a GEMS inspector may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of the GEMS Act. New subsection 88(12) of the GEMS Act preserves the effect of current section 101 of that Act, which is repealed by this item. 810. New subsection 88(13) of the GEMS Act modifies the operation of Part 3 of the Regulatory Powers Act, and provides that, in executing an investigation warrant under that Part, as that Part applies to the provisions identified in new subsection 88(1) of the GEMS Act, a GEMS inspector or person assisting a GEMS inspector may use such force against things as is necessary and reasonable in the circumstances. New subsection 88(13) of the GEMS Act preserves the effect of current section 117 of the GEMS Act, which is repealed by this item. 811. It is necessary to retain the power to use force against things in the GEMS Act, as a GEMS inspector executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the inspector reasonably suspects contain evidential material that would demonstrate that a provision identified in new subsection 88(1) of the GEMS Act has been contravened. 812. Section 63 of the Regulatory Powers Act places an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary 193
for the authorised person to effectively exercise their powers under Part 3 of the Regulatory Powers Act, for the purposes of executing an investigation warrant. Subsection 63(2) of the Regulatory Powers Act provides that failure to comply with section 63 of that Act is an offence, and carries a penalty of 30 penalty units. Despite this obligation, and its corresponding penalty for non-compliance, an occupier or other person may continue to refuse access to locked premises or objects. It is necessary to retain the power to use force against things to ensure that the execution of an investigation warrant is not frustrated, and to prevent concealment, loss, destruction, use or continuation of use of information or things in the course of contravening a provision identified in new subsection 88(1) of the GEMS Act. 813. New subsection 88(14) of the GEMS Act extends the application of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions of the GEMS Act identified in new subsection 88(1) of that Act, to every external Territory. New subsection 88(14) of the GEMS Act reflects existing arrangements under that Act (see section 8 of the GEMS Act). 814. Application of the standard provisions pertaining to investigation powers in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the GEMS Act. The comparison table provided at paragraph 599 above identifies the provision of the Regulatory Powers Act gained through alignment with the Regulatory Powers Act, which is not currently in the GEMS Act, that is merely procedural in nature and sets out matters in relation to compensation for property seized under an investigation warrant (see section 69 of the Regulatory Powers Act, which is discussed below). 815. Section 69 of the Regulatory Powers Act requires that the Commonwealth must pay reasonable compensation to a person if the operation of section 68 of that Act would result in an acquisition of property otherwise than on just terms. Section 69 of the Regulatory Powers Act ensures the constitutional validity of acquisition powers and protects persons against unjust acquisitions. 816. The comparison table provided at paragraph 599 above also identifies that current section 98 of the GEMS Act is repealed without substitution. 817. Current subsection 98(1) of the GEMS Act provides that if: a. an exercise of power under current subsection 97(1) of the GEMS Act involves operating electronic equipment on premises to access evidential material held on other premises, and b. it is practicable to notify the occupier of the premises on which the evidential material is held that the evidential material has been accessed, then the GEMS inspector must: c. notify the occupier as soon as practicable, and d. if the inspector has exercised, or intends to exercise, powers under current subsection 97(2) of the GEMS Act to allow for continued access to that evidential material--state that fact in the notification. 818. Current subsection 98(2) of the GEMS Act states that a notification under current subsection 98(1) of that Act must include sufficient information to allow the occupier of the premises on which the evidential material is held to contact the GEMS inspector. 194
819. Current section 97 of the GEMS Act provides for matters in relation to the operation of electronic equipment for the purposes of exercising investigation powers. 820. There is no equivalent provision to current section 98 of the GEMS Act in the Regulatory Powers Act for the purposes of exercising investigation powers under Part 3 of that Act. It is no longer necessary to retain this provision for the purposes of the regulatory powers framework of the GEMS Act. Further, current section 97 of the GEMS Act is repealed by this item, and section 50 of the Regulatory Powers Act will apply for the purposes of the provisions identified in new subsection 88(1) of the GEMS Act. Item 36 - Paragraph 126(1)(d) 821. Item 36 repeals paragraph 126(1)(d) of the GEMS Act and substitutes a new paragraph 126(1)(d) of that Act. 822. Current paragraph 126(1)(d) of the GEMS Act states that a person who is authorised to test GEMS products (as defined in the GEMS Act) in a product class may test, examine and sample a GEMS product seized under section 96 or 100 of that Act, for the purpose of determining whether a product, or a model of the product, complies with a provision of that Act. 823. New paragraph 126(1)(d) of the GEMS Act states that a person who is authorised to test GEMS products in a product class may test, examine and sample a GEMS product seized under Part 3 of the Regulatory Powers Act, as that Part applies under new section 88 of the GEMS Act, for the purpose of determining whether a product, or a model of the product, complies with a provision of that Act. 824. Item 36 is consequential to the amendments made by item 35 above, which repeals current Divisions 4, 5 and 6 of Part 7 of the GEMS Act and applies the standard monitoring and investigation provisions in Parts 2 and 3 of the Regulatory Powers Act. Item 37 - Division 9 of Part 7 825. Item 37 repeals current Division 9 of Part 7 of the GEMS Act, which only includes current section 127 of that Act. 826. Current subsection 127(1) of the GEMS Act provides that power conferred on an issuing officer by that Act is conferred on that officer in a personal capacity and not as a court or a member of a court. However, current subsection 127(3) of the GEMS Act provides that an issuing officer exercising power conferred by that Act has the same protections and immunities as if the issuing officer were exercising the power as the court of which the issuing officer is a member, or as a member of the court of which the issuing officer is a member. Current subsection 127(2) of the GEMS Act states that the issuing officer does not have to accept the power conferred on that officer by that Act. 827. Item 37 is consequential to the amendments made by item 35 above, which repeals current Divisions 4, 5 and 6 of Part 7 of the GEMS Act and applies the standard provisions pertaining to monitoring and investigation in Parts 2 and 3 of the Regulatory Powers Act. That item also preserves the effect of current section 127 of the GEMS Act (as that section applies to provisions subject to monitoring and investigation in the GEMS Act), through the application of sections 34 and 75 of the Regulatory Powers Act. 195
828. Section 34 of the Regulatory Powers Act provides for matters in relation to the powers of issuing officers for the purposes of monitoring powers in language identical to current section 127 of the GEMS Act. Section 75 of the Regulatory Powers Act provides for matters in relation to the powers of issuing officers for the purposes of investigation powers in language identical to current section 127 of the GEMS Act. Those sections recognise that issuing a monitoring or investigation warrant is an executive function, and not an exercise of judicial power. 829. Item 28 above also preserves the effect of current section 127 of the GEMS Act (as that section applies to provisions external to current Divisions 4, 5 and 6 of Part 7 of the GEMS Act), through the insertion of new subsections 59(5), (6) and (7) of that Act, which provide for matters in relation to the powers of issuing officers for the purposes of registering models of GEMS products (as defined in the GEMS Act), in language identical to current section 127 of the GEMS Act. Item 38 - Section 128 830. Item 38 repeals part of the 'Guide to this Part' in section 128 of the GEMS Act, and substitutes new text that is consequential to the amendments made by item 39 below, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. 831. This item repeals the entirety of the paragraph that begins with 'Division 2' in the Guide, and substitutes new text to direct the reader to Parts 4, 5, 6 and 7 of the Regulatory Powers Act. Item 39 - Divisions 2 to 5 of Part 8 832. Item 39 repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and substitutes new 'Division 2--Civil penalty provisions', new 'Division 3--Infringement notices', new 'Division 4--Enforceable undertakings' and new 'Division 5--Injunctions'. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce civil penalty provisions in the GEMS Act, and Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to alleged contraventions of civil penalty provisions in the GEMS Act. Item 39 also applies Part 6 of the Regulatory Powers Act for accepting and enforcing undertakings relating to compliance with provisions of the GEMS Act, and Part 7 of the Regulatory Powers Act for the use of injunctions to enforce provisions of the GEMS Act. Civil penalty provisions 833. Current Division 2 of Part 8 of the GEMS Act provides for provisions in relation to civil penalty orders, and includes sections 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143 and 144 of that Act. Those sections are no longer necessary, as this Schedule amends the GEMS Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 599 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the GEMS Act that are repealed by this item. 834. New Division 2 of Part 8 of the GEMS Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see 196
the note to new subsection 129(1) of the GEMS Act). New section 129 of the GEMS Act outlines matters in relation to the authorised applicant, relevant courts, burden of proof, the extension of matters to external Territories and liability of the Crown. 835. New subsection 129(1) of the GEMS Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the GEMS Act. Item 39 also inserts a note at the end of new subsection 129(1) of the GEMS Act, which directs the reader to Part 4 of the Regulatory Powers Act. 836. New subsection 129(2) of the GEMS Act identifies the GEMS Regulator (as defined in the GEMS Act) as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the GEMS Regulator to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New subsection 129(2) of the GEMS Act preserves the effect of current subsection 130(1) of that Act, which is repealed by this item. 837. New subsection 129(3) of the GEMS Act provides that if a court is a relevant court for the purposes of the GEMS Act, then that court or those courts are relevant courts for the purposes of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the GEMS Act. New subsection 129(3) of the GEMS Act reflects existing arrangements under that Act (see the definition of relevant court in section 5 of the GEMS Act, as amended by item 8 above). 838. New subsection 129(4) of the GEMS Act modifies the operation of section 96 of the Regulatory Powers Act, and provides that section 96 of the Regulatory Powers Act does not apply to proceedings for a civil penalty order for a contravention of a civil penalty provision in Part 3 of the GEMS Act. New subsection 129(4) of the GEMS Act reflects existing arrangements under that Act (see Part 3 of the GEMS Act). 839. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 840. It is necessary to modify the operation of section 96 of the Regulatory Powers Act through the inclusion of new subsection 129(4) of the GEMS Act, as Part 3 of the GEMS Act provides that the person wishing to rely on certain exceptions or exemptions has the burden of proof for those matters, while the person seeking the civil penalty order has the burden in relation to other matters. The matters for which the person seeking to rely on the exceptions or exemptions has the burden of proof are primarily matters that are solely within the knowledge of the applicant for an order under that Part (for example, see paragraphs 16(2)(b) and (c) and paragraph 16(8)(b) of the GEMS Act). 841. New subsection 129(5) of the GEMS Act extends the application of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the GEMS Act, to every external Territory. New subsection 129(5) of the GEMS Act reflects existing arrangements under that Act (see section 8 of the GEMS Act). 197
842. New subsection 129(6) of the GEMS Act provides that, although subsection 7(2) of the GEMS Act states that the GEMS Act does not make the Crown liable to be prosecuted for an offence, this does not prevent the Crown from being liable to pay a pecuniary penalty under Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the GEMS Act. New subsection 129(6) of the GEMS Act preserves the effect of current subsection 7(3) of that Act, which is repealed by item 11 above. 843. Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the GEMS Act. The comparison table provided at paragraph 599 above identifies the provision of the Regulatory Powers Act that is gained through alignment with that Act, which is not currently in the GEMS Act, that is merely procedural in nature and sets out matters in relation to vicarious liability (see section 97 of the Regulatory Powers Act, which is discussed below). 844. Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. 845. Alignment with the Regulatory Powers Act will also repeal current section 136 of the GEMS Act, which provides that a contravention of a civil penalty provision is not an offence. That section is no longer necessary, as that provision does not add anything beyond the established common law principle, and its inclusion is no longer in line with current drafting standards. Infringement notices 846. Current Division 3 of Part 8 of the GEMS Act provides for provisions in relation to infringement notices, and includes sections 145, 146, 147, 148, 149, 150, 151 and 152 of that Act. Those sections are no longer necessary, as this Schedule amends the GEMS Act to apply the standard infringement notices provisions of the Regulatory Powers Act. The comparison table provided at paragraph 599 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the GEMS Act that are repealed by this item. 847. New Division 3 of Part 8 of the GEMS Act directs the reader to Part 5 of the Regulatory Powers Act, which provides for provisions in relation to infringement notices (see the note to new subsection 130(1) of the GEMS Act). New section 130 of the GEMS Act outlines matters in relation to the infringement officer, the relevant chief executive, additional matters to be included in an infringement notice, the extension of matters to external Territories and liability of the Crown. 848. New subsection 130(1) of the GEMS Act states that a civil penalty provision of that Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act, which ensures that Part 5 of the Regulatory Powers Act operates for the purposes of the civil penalty provisions of the GEMS Act. Item 39 also inserts a note at the end of new subsection 130(1) of the GEMS Act, which directs the reader to Part 5 of the Regulatory Powers Act. 849. New subsection 130(2) of the GEMS Act identifies a GEMS inspector as an infringement officer for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the GEMS Act. This new subsection will enable a GEMS inspector to issue an infringement notice to a person if they reasonably believe that 198
person has contravened a civil penalty provision of the GEMS Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), proceedings seeking a civil penalty order under Part 4 of the Regulatory Powers Act may be brought against the person. New subsection 130(2) of the GEMS Act reflects existing arrangements under that Act (see sections 82 and 83 of the GEMS Act), and preserves the effect of current subsection 146(1) of the GEMS Act, which is repealed by this item. 850. New subsection 130(3) of the GEMS Act identifies the GEMS Regulator (as defined in the GEMS Act) as the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the GEMS Act. New subsection 130(3) of the GEMS Act reflects existing arrangements under that Act (see Part 6 of the GEMS Act). 851. New subsection 130(4) of the GEMS Act provides that the GEMS Regulator, as the relevant chief executive under Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the GEMS Act, may, in writing, delegate his or her powers and functions to an officer or employee of an agency (however described) of the Commonwealth, a State or a Territory. New subsection 130(4) of the GEMS Act reflects existing arrangements under that Act (see subsection 80(1) of the GEMS Act). 852. New subsection 130(5) of the GEMS Act states that the GEMS Regulator must not delegate such a power or function to an officer or employee of an agency of a State or Territory without the agreement of the State or Territory. New subsection 130(5) of the GEMS Act reflects existing arrangements under that Act (see subsection 80(2) of the GEMS Act). 853. New subsection 130(6) of the GEMS Act provides that a delegate must comply with any directions of the GEMS Regulator, which reflects existing arrangements under that Act (see subsection 80(3) of the GEMS Act). 854. New subsection 130(7) of the GEMS Act modifies the operation of subsection 104(1) of the Regulatory Powers Act, and provides that an infringement notice must also state that the giving of the notice and the payment of the amount payable under the notice may be publicised under section 162 of the GEMS Act. New subsection 130(7) of the GEMS Act preserves the effect of current paragraph 147(1)(i) of that Act, which is repealed by this item. 855. Section 162 of the GEMS Act provides that, amongst other things, the GEMS Regulator may publicise the giving of an infringement notice, on the basis that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. The insertion of new subsection 130(7) of the GEMS Act ensures that a recipient of the infringement notice is aware of the operation of section 162 of that Act. 856. New subsection 130(8) of the GEMS Act extends the application of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the GEMS Act, to every external Territory. This new subsection reflects existing arrangements under the GEMS Act (see section 8 of the GEMS Act). 199
857. New subsection 130(9) of the GEMS Act provides that, although subsection 7(2) of the GEMS Act states that the GEMS Act does not make the Crown liable to be prosecuted for an offence, this does not prevent the Crown from being liable to be given an infringement notice under Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the GEMS Act. This new subsection preserves the effect of current subsection 7(3) of the GEMS Act, which is repealed by item 11 above. 858. Application of the standard infringement notice provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the GEMS Act. However, the comparison table provided at paragraph 599 above identifies that current paragraph 147(1)(m) and current section 152 of the GEMS Act are repealed without substitution. 859. Current paragraph 147(1)(m) of the GEMS Act provides that an infringement notice must state that if the notice is withdrawn, any amount paid under the notice must be refunded. That paragraph is not necessary to retain, as subsection 106(5) of the Regulatory Powers Act provides that, if the infringement notice is withdrawn, the Commonwealth must refund any amount paid under the notice. The absence of the requirement in current paragraph 147(1)(m) of the GEMS Act does not impact the operation of subsection 106(5) of the Regulatory Powers Act. 860. Current section 152 of the GEMS Act provides that the regulations may prescribe further matters in relation to infringement notices issued under the GEMS Act. That section is repealed by this item. The repeal of section 152 of the GEMS Act reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, rather than by regulation or legislative instrument. There are currently no additional provisions prescribing further matters in relation to infringement notices in regulations made under the GEMS Act. Enforceable undertakings 861. Current Division 4 of Part 8 of the GEMS Act provides for provisions in relation to enforceable undertakings, and includes sections 153, 154 and 155 of that Act. Those sections are no longer necessary, as this Schedule amends the GEMS Act to apply the standard enforceable undertakings provisions of the Regulatory Powers Act. The comparison table provided at paragraph 599 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the GEMS Act that are repealed by this item. 862. New Division 4 of Part 8 of the GEMS Act directs the reader to Part 6 of the Regulatory Powers Act, which provides for provisions in relation to enforceable undertakings (see the note to new subsection 131(1) of the GEMS Act). New section 131 of the GEMS Act outlines matters in relation to the authorised person, relevant courts, other undertakings and the extension of matters to external Territories. 863. New subsection 131(1) of the GEMS Act provides that a provision is enforceable under Part 6 of the Regulatory Powers Act if it is an offence against the GEMS Act or a civil penalty provision of that Act. New subsection 131(1) of the GEMS Act ensures that Part 6 of the Regulatory Powers Act operates for the purposes of the provisions specified in that subsection. 200
864. Item 39 also inserts notes at the end of new subsection 131(1) of the GEMS Act. New Note 1 to new subsection 131(1) of the GEMS Act provides that the expression this Act has an extended meaning and directs the reader to section 5 of that Act, which defines this Act to include regulations and GEMS determinations made under the GEMS Act. New Note 2 to new subsection 131(1) of the GEMS Act directs the reader to Part 6 of the Regulatory Powers Act, which creates a framework for accepting and enforcing undertakings relating to compliance with provisions of a triggering Act. 865. New subsection 131(2) of the GEMS Act identifies the GEMS Regulator (as defined in the GEMS Act) as an authorised person in relation to the offence and civil penalty provisions subject to enforceable undertakings under the GEMS Act. This will enable the GEMS Regulator to accept and enforce undertakings relating to compliance with the offence and civil penalty provisions of the GEMS Act. New subsection 131(2) of the GEMS Act reflects existing arrangements under that Act (see Part 6 of the GEMS Act). 866. New subsection 131(3) of the GEMS Act provides that if a court is a relevant court for the purposes of the GEMS Act, then that court or those courts are relevant courts for the purposes of Part 6 of the Regulatory Powers Act, as that Part applies to the offence and civil penalty provisions of the GEMS Act. New subsection 131(3) of the GEMS Act reflects existing arrangements under that Act (see the definition of relevant court in section 5 of the GEMS Act, as amended by item 8 above). 867. New subsections 131(4), (5) and (6) of the GEMS Act modify the operation of subsection 114(1) of the Regulatory Powers Act. 868. New subsection 131(4) of the GEMS Act provides that the GEMS Regulator may accept a written undertaking given by a person that the person will, in order to provide compensation for loss or damage suffered as a result of a contravention by that person of an offence or civil penalty provision subject to enforceable undertakings, pay another person an amount worked out in accordance with the undertaking. 869. New subsection 131(5) of the GEMS Act clarifies that the power in new subsection 131(4) of the GEMS Act is in addition to the power of the GEMS Regulator under subsection 114(1) of the Regulatory Powers Act. 870. New subsection 131(6) of the GEMS Act provides that Part 6 of the Regulatory Powers Act, other than subsection 114(1) of that Act, applies to an undertaking accepted under new subsection 131(4) of the GEMS Act as if it were an undertaking accepted under subsection 114(1) of the Regulatory Powers Act. 871. It is necessary to modify the operation of subsection 114(1) of the Regulatory Powers Act through the inclusion of new subsections 131(4), (5) and (6) of the GEMS Act, as undertakings provide an alternative remedy to financial sanctions for past or anticipated contraventions of the GEMS Act. For example, if the GEMS Regulator becomes aware that a person is offering to supply non-compliant GEMS products (as defined in the GEMS Act), the Regulator can notify the person of the anticipated contravention, and accept an undertaking that the person will refrain from supplying those products. Conversely, if a person is found to have supplied non-compliant GEMS products, the Regulator can accept an undertaking under new subsection 131(4) of the GEMS Act that the supplier, for example, will compensate buyers and fund greenhouse gas offset measures to account for the 201
difference between the reported energy consumption of the products, and the actual energy consumption of the products. 872. New subsection 131(4) of the GEMS Act preserves the effect of current subsection 154(1)(d) of that Act, which is repealed by this item. New subsections 131(5) and (6) of the GEMS Act clarify how new subsection 131(4) of that Act interacts with Part 6 of the Regulatory Powers Act, as that Part applies to the offence and civil penalty provisions of the GEMS Act. 873. New subsection 131(7) of the GEMS Act extends the application of Part 6 of the Regulatory Powers Act, as that Part applies to the offence and civil penalty provisions of the GEMS Act, to every external Territory. New subsection 131(7) of the GEMS Act reflects existing arrangements under that Act (see section 8 of the GEMS Act). 874. Application of the standard enforceable undertakings provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the GEMS Act. Injunctions 875. Current Division 5 of Part 8 of the GEMS Act provides for provisions in relation to injunctions, and includes sections 156, 157, 158, 159, 160 and 161 of that Act. Those sections are no longer necessary, as this Schedule amends the GEMS Act to apply the standard injunctions provisions of the Regulatory Powers Act. The comparison table provided at paragraph 599 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the GEMS Act that are repealed by this item. 876. New Division 5 of Part 8 of the GEMS Act directs the reader to Part 7 of the Regulatory Powers Act, which provides for provisions in relation to injunctions (see the note to new subsection 132(1) of the GEMS Act). New section 132 of the GEMS Act outlines matters in relation to the authorised person, relevant courts, consent injunctions and the extension of matters to external Territories. 877. New subsection 132(1) of the GEMS Act provides that a provision is enforceable under Part 7 of the Regulatory Powers Act if it is an offence against Part 3 or 5 of the GEMS Act, or a civil penalty provision of Part 3 or 5 of the GEMS Act. New subsection 132(1) ensures that Part 7 of the Regulatory Powers Act operates for the purposes of the provisions identified in that subsection. Item 39 also inserts a note at the end of new subsection 132(1) of the GEMS Act, which directs the reader to Part 7 of the Regulatory Powers Act. 878. New subsection 132(2) of the GEMS Act identifies the GEMS Regulator (as defined in the GEMS Act) as an authorised person in relation to the offence and civil penalty provisions in Parts 3 and 5 of the GEMS Act. This will enable the GEMS Regulator to use injunctions to enforce offence and civil penalty provisions in Parts 3 or 5 of the GEMS Act. New subsection 132(2) of the GEMS Act preserves the effect of current section 157 of that Act, which is repealed by this item. 879. New subsection 132(3) of the GEMS Act provides that if a court is a relevant court for the purposes of the GEMS Act, then that court or those courts are relevant courts for the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the offence and civil penalty provisions in Parts 3 and 5 of the GEMS Act. New subsection 132(3) of the GEMS 202
Act reflects existing arrangements under that Act (see the definition of relevant court in section 5 of the GEMS Act, as amended by item 8 above). 880. New subsection 132(4) of the GEMS Act modifies the operation of Part 7 of the Regulatory Powers Act, and provides that a relevant court may grant an injunction under that Part in relation to an offence or civil penalty provision in Parts 3 or 5 of the GEMS Act by consent of all the parties to proceedings brought under Part 7 of the Regulatory Powers Act, whether or not the court is satisfied that section 121 of the Regulatory Powers Act applies. New subsection 132(4) of the GEMS Act preserves the effect of current subsection 157(3) of that Act, which is repealed by this item. 881. Subsection 121(1) of the Regulatory Powers Act provides that if a person has engaged, or is proposing to engage, in conduct that contravenes a provision enforceable under Part 7 of that Act, a relevant court may, on application by an authorised person, grant an injunction restraining the person from engaging in the conduct and, if the court considers it desirable to do so, requiring that person to do a thing. Subsection 121(2) of the Regulatory Powers Act provides that if a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing and the refusal or failure was, is or would be a contravention of a provision enforceable under Part 7 of that Act, a relevant court may, on application by an authorised person, grant an injunction requiring the person to do that thing. 882. It is necessary to modify the operation of Part 7 of the Regulatory Powers Act through the inclusion of new subsection 132(4) of the GEMS Act, as it reflects the cooperative nature of the regulatory program and the history of strong industry engagement with the E3 Program. 883. New subsection 132(5) of the GEMS Act extends the application of Part 7 of the Regulatory Powers Act, as that Part applies to provisions identified in new subsection 132(1) of the GEMS Act, to every external Territory. New subsection 132(5) of the GEMS Act reflects existing arrangements under that Act (see section 8 of the GEMS Act). 884. Application of the standard injunctions provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the GEMS Act. Item 40 - Paragraph 162(1)(b) 885. Item 40 inserts 'under the Regulatory Powers Act' after 'civil penalty order' in paragraph 162(1)(b) of the GEMS Act, which clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 39 above. 886. Current paragraph 162(1)(b) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may publicise, in any way he or she thinks appropriate, that a civil penalty order has been made against a person for contravening a civil penalty provision, the nature of the conduct constituting the contravention and that person's name. Current paragraph 162(1)(b) of the GEMS Act recognises that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. 887. Item 40 is consequential to the amendments made by item 39 above, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. 203
Item 41 - Paragraph 162(1)(b) 888. Item 41 inserts 'of this Act' after 'provision' in paragraph 162(1)(b) of the GEMS Act, which makes it clear that subsection 162(1)(b) of that Act only applies to compliance with a civil penalty provision provided for in the GEMS Act. 889. Current paragraph 162(1)(b) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may publicise, in any way he or she thinks appropriate, that a civil penalty order has been made against a person for contravening a civil penalty provision, the nature of the conduct constituting the contravention and that person's name. Current paragraph 162(1)(b) of the GEMS Act recognises that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. 890. Item 41 is consequential to the amendments made by item 39 above, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. Item 42 - Paragraph 162(1)(c) 891. Item 42 omits 'under section 146' from paragraph 162(1)(c) of the GEMS Act, and substitutes ', in relation to a civil penalty provision of this Act, under section 103 of the Regulatory Powers Act'. 892. Current paragraph 162(1)(c) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may publicise, in any way he or she thinks appropriate, that a person has been given an infringement notice under section 146 of that Act, the civil penalty provision that is believed to have been contravened, the nature of the conduct constituting the alleged contravention and that person's name. Current paragraph 162(1)(c) of the GEMS Act recognises that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. 893. Item 42 is consequential to the amendments made by item 39 above, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. 894. The amendments made by this item also complement new subsection 130(7) of the GEMS Act, which is inserted by item 39 above, and provides that an infringement notice must also state that the giving of the notice and the payment of the amount payable under the notice may be publicised under section 162 of the GEMS Act. New subsection 130(7) of the GEMS Act preserves the effect of current paragraph 147(1)(i) of that Act, which is repealed by that item. Item 43 - Paragraph 162(1)(c) 895. Item 43 inserts 'of this Act' after 'provision' in paragraph 162(1)(c) of the GEMS Act, which makes it clear that subsection 162(1)(c) of that Act only applies to compliance with a civil penalty provision provided for in the GEMS Act. 896. Current paragraph 162(1)(c) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may publicise, in any way he or she thinks appropriate, that a person has been given an infringement notice under section 146 of that Act, the civil penalty 204
provision that is believed to have been contravened, the nature of the conduct constituting the alleged contravention and that person's name. Current paragraph 162(1)(c) of the GEMS Act recognises that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. 897. Item 43 is consequential to the amendments made by item 39 above, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. Item 44 - Paragraph 162(1)(d) 898. Item 44 omits 'an infringement notice given under section 146' from paragraph 162(1)(d) of the GEMS Act, and substitutes 'such an infringement notice'. 899. Current paragraph 162(1)(d) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may publicise, in any way he or she thinks appropriate, that a person has paid the amount stated in an infringement notice given under section 146 of the GEMS Act. Current paragraph 162(1)(d) of the GEMS Act recognises that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. 900. Item 44 is consequential to the amendments made by item 39 above, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. 901. The amendments made by this item also complement new subsection 130(7) of the GEMS Act, which is inserted by item 39 above, and provides that an infringement notice must also state that the giving of the notice and the payment of the amount payable under the notice may be publicised under section 162 of the GEMS Act. New subsection 130(7) of the GEMS Act preserves the effect of current paragraph 147(1)(i) of that Act, which is repealed by that item. Item 45 - Paragraph 162(1)(e) 902. Item 45 omits 'that an undertaking given under section 154 by a person has been accepted' from paragraph 162(1)(e) from the GEMS Act, and substitutes 'that an undertaking, in relation to this Act, has been accepted under subsection 114(1) of the Regulatory Powers Act (including because of subsection 131(6) of this Act)'. 903. Current paragraph 162(1)(e) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may publicise, in any way he or she thinks appropriate, that an undertaking given under section 154 of that Act by a person has been accepted, the terms of the undertaking and that person's name. Current paragraph 162(1)(e) of the GEMS Act recognises that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. 904. Item 45 is consequential to the amendments made by item 39 above, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. 205
Item 46 - Paragraph 162(1)(f) 905. Item 46 omits 'that an order has been made against a person under subsection 155(2) in relation to a breach of an undertaking given under section 154' from paragraph 162(1)(f) of the GEMS Act, and substitutes 'that an order has been made against a person under subsection 115(2) of the Regulatory Powers Act in relation to a breach of such an undertaking'. 906. Current paragraph 162(1)(f) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may publicise, in any way he or she thinks appropriate, that an order has been made against a person under subsection 155(2) of that Act in relation to a breach of an undertaking given under subsection 154 of that Act, the terms of the order and that person's name. Current paragraph 162(1)(f) of the GEMS Act recognises that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. 907. Item 46 is consequential to the amendments made by item 39 above, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. Item 47 - Paragraph 162(1)(g) 908. Item 47 omits 'that an injunction under section 157' from paragraph 162(1)(g) of the GEMS Act, and substitutes 'that an injunction, in relation to this Act, under section 121 of the Regulatory Powers Act'. 909. Current paragraph 162(1)(g) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may publicise, in any way he or she thinks appropriate, that an injunction under section 157 of that Act restraining a person from engaging in conduct, or requiring a person to do an act or thing, has been granted or varied, the nature of the conduct, act or thing, and that person's name. Current paragraph 162(1)(g) of the GEMS Act recognises that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. 910. Item 47 is consequential to the amendments made by item 39 above, which repeals current Divisions 2, 3, 4 and 5 of Part 8 of the GEMS Act and applies the standard enforcement provisions in Parts 4, 5, 6 and 7 of the Regulatory Powers Act. PART 2--APPLICATION AND SAVING PROVISIONS Item 48 - Saving provision--supplying GEMS products 911. Item 48 provides that subsections 16(8), 17(8) and 19(8) of the GEMS Act, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to proceedings for a civil penalty order instituted under current Division 2 of Part 8 of the GEMS Act before the commencement of this Schedule. This item preserves existing arrangements under the GEMS Act, and ensures continuity in the implementation of the civil penalty provisions scheme. 206
Item 49 - Application and saving provision--retention of GEMS products 912. Item 49 provides that the amendment of paragraph 59(3)(c) of the GEMS Act made by this Schedule does not affect the validity of an order made under subsection 59(3) of that Act before the commencement of this Schedule. 913. This item also provides that new subsection 59(7) of the GEMS Act applies in relation to a power exercised before, on or after the commencement of this Schedule. 914. Item 49 provides clarity for an issuing officer (as defined in the GEMS Act) who makes an order under section 59 of the GEMS Act, and ensures that an issuing officer may make such an order with the protections and immunities afforded by new subsection 59(7) of that Act from the time of the commencement of this Schedule, regardless of whether or not the order was made before, on or after that commencement. 915. Section 59 of the GEMS Act provides an issuing officer with the ability to order that a product, given in accordance with subsection 57(1) of that Act, continue to be retained for further period if proceedings in respect of which the product may afford evidence have not been commenced before the end of: a. 6 months after the product was given, or b. a period previously specified in an order of an issuing officer under section 59 of the GEMS Act. 916. Subsection 57(1) of the GEMS Act provides that the GEMS Regulator (as defined in the GEMS Act) may give the registrant (as defined in the GEMS Act), for a registration of a model in relation to a product class, a written notice requiring the registrant to give a product of that model to a specified GEMS inspector. 917. New subsection 59(5) of the GEMS Act provides that power conferred on an issuing officer by that Act is conferred on that officer in a personal capacity and not as a court or a member of a court. However, new subsection 59(7) of the GEMS Act provides that an issuing officer exercising power conferred by that Act has the same protections and immunities as if the issuing officer were exercising the power as the court of which the issuing officer is a member, or as a member of the court of which the issuing officer is a member. New subsections 59(5) and (7) of the GEMS Act recognise that issuing an order under section 59 of that Act is an executive function, and not an exercise of judicial power. 918. As this Schedule does not expand the operation of section 59 of the GEMS Act, the retrospective application provided for by this item does not impact rights or impose liabilities. Item 50 - Saving provision--identity cards 919. Item 50 provides that, despite the repeal of section 85 of the GEMS Act by this Schedule, that section, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to a person who ceased to be a GEMS inspector before the commencement of this Schedule. 920. This item preserves the effect of section 85 of the GEMS Act, which provides that a person commits an offence of strict liability if that person ceases to be a GEMS inspector but does not return their identity card to the GEMS Regulator within 14 days after that cessation. 207
921. Where a person ceases to be a GEMS inspector after the commencement of this Schedule, sections 35 and 76 of the Regulatory Powers Act will apply. Item 51 - Application and saving provision--monitoring 922. Item 51 provides for the application of the amendments in this Schedule in relation to monitoring powers, and makes it clear that the amendments apply in relation to: a. determining compliance with the compliance obligations (within the meaning of the GEMS Act) before, on or after the commencement of this Schedule, and b. determining whether information given before, on or after the commencement of this Schedule in compliance, or purported compliance, with 'this Act' (within the meaning of the GEMS Act) is correct. 923. This item provides clarity for a GEMS inspector exercising monitoring powers under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act, and ensures that an inspector may exercise those powers from the time of the commencement of this Schedule, regardless of whether or not non-compliance occurred before, on or after that commencement. 924. As this Schedule does not expand the existing regulatory framework of the GEMS Act in relation to monitoring powers, the retrospective application provided for by this item does not impact rights or impose liabilities on a person subject to monitoring powers under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 87(1) of the GEMS Act and information mentioned in new subsection 87(2) of that Act. 925. This item also provides that sections 84 and 85 and Divisions 4 and 6 of Part 7 of the GEMS Act, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to: a. an application for a monitoring warrant made, but not decided, under Part 7 of the GEMS Act before the commencement of this Schedule b. a monitoring warrant issued under Part 7 of the GEMS Act before, on or after the commencement of this Schedule as a result of an application made before that commencement c. powers exercised, rights created and duties imposed under Part 7 of the GEMS Act before, on or after the commencement of this Schedule as a result of i. an entry onto premises before that commencement with the consent of the occupier of the premises, or ii. an entry onto premises before, on or after that commencement as a result of a monitoring warrant issued under Part 7 of the GEMS Act before, on or after the commencement of this Schedule as a result of an application made before that commencement, and d. a requirement made under subsection 118(3) of the GEMS Act before, on or after the commencement of this Schedule. 208
Item 52 - Application and saving provision--investigation 926. Item 52 provides for the application of the amendments in this Schedule in relation to investigation powers, and makes it clear that the amendments apply in relation to contraventions occurring before, on or after the commencement of this Schedule. 927. This item provides clarity for a GEMS inspector exercising investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of that Act, and ensures that an inspector may exercise those powers from the time of the commencement of this Schedule, regardless of whether or not the suspected contravention occurred before, on or after that commencement. 928. As this Schedule does not expand the existing regulatory framework of the GEMS Act in relation to investigation powers, the retrospective application provided for by this item does not impact rights or impose liabilities on a person subject to investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 88(1) of that Act. 929. This item also provides that sections 84 and 85 and Divisions 5 and 6 of Part 7 of the GEMS Act, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to: a. an application for an investigation warrant made, but not decided, under Part 7 of the GEMS Act before the commencement of this Schedule b. an investigation warrant issued under Part 7 of the GEMS Act before, on or after the commencement of this Schedule as a result of an application made before that commencement c. powers exercised, rights created and duties imposed under Part 7 of the GEMS Act before, on or after the commencement of this Schedule as a result of i. an entry onto premises before that commencement with the consent of the occupier of the premises, or ii. an entry onto premises before, on or after that commencement as a result of an investigation warrant issued under Part 7 of the GEMS Act before, on or after the commencement of this Schedule as a result of an application made before that commencement d. things seized under Part 7 of the GEMS Act before, on or after the commencement of this Schedule, and e. a requirement made under subsection 118(3) of the GEMS Act before, on or after the commencement of this Schedule. Item 53 - Saving provision--testing of GEMS products etc. 930. Item 53 provides that, despite the repeal and substitution of paragraph 126(1)(d) of the GEMS Act made by this Schedule, that paragraph, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to a GEMS product (as defined in the GEMS Act) seized under section 96 of 100 of the GEMS Act before, on or after the commencement of this Schedule. This item preserves existing arrangements under the GEMS Act, and ensures continuity in the implementation of the matters provided for in current Division 8 of Part 7 of the GEMS Act. 209
Item 54 - Saving provision--issuing officers 931. Item 54 provides that Division 9 of Part 7 of the GEMS Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to a power conferred on an issuing officer under that Part before that commencement, and a power exercised by an issuing officer under that Part before, on or after that commencement. Item 55 - Application and saving provision--civil penalties 932. Item 55 provides for the application of the amendments in this Schedule in relation to civil penalties, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 933. This item also provides that Division 2 of Part 8 of the GEMS Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule. Item 56 - Application and saving provision--infringement notices 934. Item 56 provides for the application of the amendments in this Schedule in relation to infringement notices, and makes it clear that the amendments apply in relation to alleged contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 935. This item also provides that Division 3 of Part 8 of the GEMS Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to alleged contraventions of civil penalty provisions occurring before the commencement of this Schedule. Item 57 - Saving provision--enforceable undertakings 936. Item 57 provides for the application of the amendments in this Schedule in relation to enforceable undertakings, and makes it clear that the amendments apply in relation to undertakings given on or after the commencement of this Schedule. 937. This item also provides that Division 4 of Part 8 of the GEMS Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to the following: a. an undertaking given under that Division before the commencement of this Schedule b. an application for an order made, but not decided, under that Division before the commencement of this Schedule, and c. an order made under that Division before, on or after the commencement of this Schedule as a result of an application made before that commencement. 210
Item 58 - Application and saving provision--injunctions 938. Item 57 provides for the application of the amendments in this Schedule in relation to injunctions, and makes it clear that the amendments apply in relation to contraventions given on or after the commencement of this Schedule. 939. This item also provides that Division 5 of Part 8 of the GEMS Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions occurring before the commencement of this Schedule. Item 59 - Saving provision--publicising certain offences, contraventions and adverse decisions 940. Item 59 provides that, despite the amendment of paragraphs 162(1)(b), (c), (d), (e), (f) and (g) of the GEMS Act made by this Schedule, those paragraphs, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to the following: a. a civil penalty order made under Division 2 of Part 8 of that Act before, on or after that commencement b. an infringement notice given under section 146 of that Act before that commencement c. an undertaking given under section 154 of that Act before that commencement d. an order made under subsection 155(2) of that Act before, on or after that commencement, and e. an injunction granted under section 157 of that Act before, on or after that commencement. 211
Schedule 8 - Horse Disease Response Levy Collection Act 2011 GENERAL OUTLINE 941. The Horse Disease Response Levy Collection Act 2011 (the 'Horse Disease Act') provides the Commonwealth with the authority to collect and administer levies on manufactured horse feed and worm treatments for horses. Levies are imposed by the Horse Disease Response Levy Act 2011 (the 'Levy Act'). Funds raised through the imposition of these levies are held in the Commonwealth's Consolidated Revenue Fund and then appropriated to Animal Health Australia, which manages the funds on behalf of the horse industry. The Horse Disease Act also imposes penalties for unpaid levies, allows the Commonwealth to recover levies that are due, and provides for refunds where necessary. 942. Current Part 3 of the Horse Disease Act creates a framework for monitoring whether the provisions of that Act have been, or are being, complied with. That Part also creates a framework for monitoring whether information given in compliance, or purported compliance, with a provision of the Horse Disease Act is correct. Current Part 3 of the Horse Disease Act allows an authorised person to seize any thing on the premises as part of his or her monitoring powers that he or she may exercise in relation to premises. 943. This Schedule amends the Horse Disease Act to apply the standard provisions pertaining to monitoring powers in the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the Horse Disease Act, and the provision pertaining to monitoring powers that is gained by alignment, which is not currently in the Horse Disease Act, is merely a procedural matter in relation to the process for extending the period during which a thing may be secured. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the Horse Disease Act. 944. Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions of an Act or a legislative instrument have been, or are being complied with. This Part also establishes a framework for monitoring whether information given in compliance, or purported compliance, with a provision of an Act or legislative instrument is correct. Subsection 7(2) of the Regulatory Powers Act states that, in order for Part 2 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made subject to monitoring under that Part, or information given in compliance, or purported compliance, with a provision of an Act or legislative instrument must be made subject to monitoring under that Part, by another Act (a triggering Act). When a triggering Act applies Part 2 of the Regulatory Powers Act, it must identify any related provisions and the authorised applicant or applicants, the authorised person or persons, the issuing officer or officers, the relevant chief executive and the relevant court or courts that may exercise powers under that Part (see sections 10, 11, 12, 14, 15 and 16 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person or persons may be assisted by another person, and whether the authorised applicant, authorised person, issuing officer or relevant chief executive may delegate his or her powers and functions in relation to the provisions and/or information subject to monitoring under the triggering Act (see section 23 and subsections 11(3), 12(3), 14(3) and 15(3) of the Regulatory Powers Act). If provisions or information subject to monitoring under the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 2 of the Regulatory Powers Act extends to any external Territories. 212
COMPARISON OF PROVISIONS Horse Disease Response Levy Collection Act 2011 945. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 4) for the provisions of the Horse Disease Act that are repealed by items 4 and 5. Current provision in the Horse Disease Provision Provision as Applicable Act amended by this provision Schedule (Regulatory Powers Act) Monitoring powers Division 2, Part 2-Monitoring Part 3 Relevant courts 24(3); Retained N/A (see new 32(3) subsection 13(11) of the Horse Disease Act) Authorised person may enter premises by 13 Retained 18 consent or under a warrant Monitoring powers of authorised persons 14 Retained 19 Power to seize any thing at any premises 14(f) Retained through N/A modifies entered due to consent or under a modification to operation of Part 2 monitoring warrant the operation of of the Regulatory the Regulatory Powers Act Powers Act (see new subsections 13(12) and (13) of the Horse Disease Act) Operating electronic equipment 15 Retained 20 Securing evidence of the contravention of a 16 Retained See section 22 of related provision the Regulatory Powers Act as amended by this Bill Persons assisting authorised persons 17 Retained 23 Authorised person may ask questions and 18 Retained 24 seek production of documents Consent 19 Retained 25 Announcement before entry under warrant 20 Aligned 26 Authorised person to be in possession of 21 Retained 27 warrant Details of warrant etc. to be given to 22 Retained 28 occupier Expert assistance to operate electronic 23 Retained 21 equipment Compensation for damage to electronic 24 Retained 29 equipment 213
Current provision in the Horse Disease Provision Provision as Applicable Act amended by this provision Schedule (Regulatory Powers Act) Occupier entitled to observe execution of 25 Retained 30 warrant Occupier to provide authorised person with 26 Retained 31 facilities and assistance Copies of seized things to be provided 27 Retained through N/A modifies modification to operation of Part 2 the operation of of the Regulatory the Regulatory Powers Act Powers Act (see new section 14 of the Horse Disease Act) Receipts for seized things 28 Retained through N/A modifies modification to operation of Part 2 the operation of of the Regulatory the Regulatory Powers Act Powers Act (see new section 15 of the Horse Disease Act) Return of seized things 29 Retained through N/A modifies modification to operation of Part 2 the operation of of the Regulatory the Regulatory Powers Act Powers Act (see new section 16 of the Horse Disease Act) Magistrate may permit a thing to be 30 Retained through N/A modifies retained modification to operation of Part 2 the operation of of the Regulatory the Regulatory Powers Act Powers Act (see new section 17 of the Horse Disease Act) Disposal of things 31 Retained through N/A modifies modification to operation of Part 2 the operation of of the Regulatory the Regulatory Powers Act Powers Act (see new section 18 of the Horse Disease Act) Compensation for acquisition of property 32 Retained through N/A modifies modification to operation of Part 2 the operation of of the Regulatory the Regulatory Powers Act Powers Act (see new section 19 of the Horse Disease Act) Monitoring warrants 33 Retained 32 214
Current provision in the Horse Disease Provision Provision as Applicable Act amended by this provision Schedule (Regulatory Powers Act) Monitoring warrant may remain in force for 33(4)(f) Aligned 32(4)(f) up to 6 months (note: monitoring warrant may remain in force for up to 3 months) Powers of magistrates 34 Retained 34 Identity cards 38 Retained 35 N/A (Process for the extension of periods in N/A Gained 33 which things secured) PART 1--AMENDMENTS Item 1 - Section 3 946. Item 1 repeals the definitions of damage, monitoring powers, monitoring warrant, person assisting and premises in section 3 of the Horse Disease Act. Those definitions are no longer necessary, as this Schedule amends the Horse Disease Act to apply the standard provisions of the Regulatory Powers Act, and those terms are defined in section 4 of that Act. 947. It is not necessary to substitute new definitions of damage, monitoring powers, monitoring warrant, person assisting and premises in section 3 of the Horse Disease Act, as those definitions are only relevant for the purposes of provisions pertaining to monitoring powers, and are not applied in any other provisions of that Act. Item 2 - Section 3 948. Item 2 amends section 3 of the Horse Disease Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 3 - Part 3 (heading) 949. Item 3 repeals the heading to Part 3 of the Horse Disease Act, and substitutes a new heading, 'Part 3--Enforcement'. Part 3 of the Horse Disease Act is currently entitled 'Part 3--Investigation'. 950. The repeal of the current heading to Part 3 of the Horse Disease Act is consequential to amendments made by item 4 below, which repeals current Division 2 of Part 3 of the Horse Disease Act and applies the standard provisions pertaining to monitoring in Part 2 of the Regulatory Powers Act. 951. However, as this Schedule modifies the operation of Part 2 of the Regulatory Powers Act to retain the existing power to seize in the Horse Disease Act, amended Part 3 of the Horse Disease Act will concern matters relating to enforcement. As such, the heading to Part 3 of the Horse Disease Act is updated accordingly. 215
Item 4 - Division 2 of Part 3 952. Item 4 repeals current Division 2 of Part 3 of the Horse Disease Act, and substitutes new 'Division 2--Monitoring'. This item applies the provisions of Part 2 of the Regulatory Powers Act for provisions and information subject to monitoring under the Horse Disease Act. This item also modifies the operation of Part 2 of the Regulatory Powers Act to retain the power to seize in the Horse Disease Act, as the power to seize under the Regulatory Powers Act is limited to investigation powers exercised under an investigation warrant (see sections 49, 50 and 52 of the Regulatory Powers Act). 953. Current Division 2 of Part 3 of the Horse Disease Act provides for provisions in relation to monitoring powers, and includes sections 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 of that Act. Those sections are no longer necessary, as this Schedule amends the Horse Disease Act to apply the standard provisions pertaining to monitoring powers in the Regulatory Powers Act. The comparison table provided at paragraph 945 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Horse Disease Act that are repealed by this item. 954. New Division 2 of Part 3 of the Horse Disease Act directs the reader to Part 2 of the Regulatory Powers Act, which creates a framework for monitoring whether provisions of an Act have been, or are being, complied with, and whether information given in compliance, or purported compliance, with a provision of an Act is correct (see the notes to new subsections 13(1) and (2) of the Horse Disease Act). 955. New Division 2 of Part 3 of the Horse Disease Act includes 'Subdivision A-- Monitoring powers' and 'Subdivision B--General provisions relating to seizure'. Monitoring powers 956. New Subdivision A of new Division 2 of Part 3 of the Horse Disease Act includes new section 13 of that Act, which outlines matters in relation to related provisions, the authorised applicant, the authorised person, the issuing officer, the relevant chief executive, relevant courts, the power to seize, and persons assisting. 957. New subsection 13(1) of the Horse Disease Act states that the levy law (as defined in the Horse Disease Act) is subject to monitoring under Part 2 of the Regulatory Powers Act, which ensures that Part 2 of the Regulatory Powers Act operates for the purposes of the provisions specified in that subsection. Item 4 also inserts a note at the end of new subsection 13(1) of the Horse Disease Act, which directs the reader to Part 2 of the Regulatory Powers Act. 958. New subsection 13(2) of the Horse Disease Act states that information given in compliance or purported compliance with the levy law or Division 1 of Part 3 of that Act is subject to monitoring under Part 2 of the Regulatory Powers Act. Section 3 of the Horse Disease Act defines levy law as Part 2 of that Act, the regulations, the Levy Act and the regulations made under that Act. New subsection 13(2) of the Horse Disease Act ensures that Part 2 of the Regulatory Powers Act operates for the purposes of the provisions specified in that subsection. Item 4 also inserts a note at the end of new subsection 13(2) of the Horse Disease Act, which directs the reader to Part 2 of the Regulatory Powers Act. 216
959. New subsection 13(3) of the Horse Disease Act states that there are no related provisions for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions of the Horse Disease Act identified in new subsection 13(1) of that Act, and information mentioned in new subsection 13(2) of that Act. This new subsection reflects existing arrangements under the Horse Disease Act in relation to monitoring powers. 960. New subsection 13(4) of the Horse Disease Act provides that, if a person is an authorised person for the purposes of any provisions of that Act, then, for the purposes of Part 2 of the Regulatory Powers Act, that person is an authorised applicant in relation to the provisions of the Horse Disease Act identified in new subsection 13(1) of that Act, and information mentioned in new subsection 13(2) of that Act. 961. New subsection 13(5) of the Horse Disease Act provides that, if a person is an authorised person for the purposes of any provisions of that Act, then, for the purposes of Part 2 of the Regulatory Powers Act, that person is an authorised person in relation to the provisions of the Horse Disease Act identified in new subsection 13(1) of that Act, and information mentioned in new subsection 13(2) of that Act. 962. New subsections 13(4) and (5) of the Horse Disease Act will enable an authorised person to apply to an issuing officer for a monitoring warrant in relation to premises. These provisions will also enable an authorised person to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or for the purpose of determining whether information subject to monitoring is correct. However, an authorised person may not enter the premises unless the occupier has provided consent, or the authorised person is in possession of a monitoring warrant. New subsections 13(4) and (5) of the Horse Disease Act reflect existing arrangements under that Act (see subsection 37(1) of the Horse Disease Act). 963. New subsection 13(6) of the Horse Disease Act provides that a magistrate is an issuing officer for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions of the Horse Disease Act identified in new subsection 13(1) of that Act, and information mentioned in new subsection 13(2) of that Act. New subsection 13(6) of the Horse Disease Act preserves the effect of existing arrangements under that Act, which are repealed by this item (see, for example, current subsections 16(3), 23(6) and 33(1) and section 30 of the Horse Disease Act). 964. New subsection 13(7) of the Horse Disease Act identifies the Secretary of the department that administers the Horse Disease Act as the relevant chief executive for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act. New subsection 13(7) of the Horse Disease Act reflects existing arrangements under that Act (see section 37 of the Horse Disease Act). 965. New subsection 13(8) of the Horse Disease Act provides that the Secretary, as the relevant chief executive under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions of the identified in new subsection 13(1) of that Act, and information mentioned in new subsection 13(2) of that Act, may, in writing, delegate his or her powers and functions to an APS employee in the department that administers the Horse Disease Act. New subsection 13(8) of the Horse Disease Act reflects existing arrangements under that Act (see subsection 37(1) of the Horse Disease Act). 217
966. New subsection 13(9) of the Horse Disease Act provides that a delegate is subject to the directions of the Secretary, which reflects existing arrangements under that Act (see subsection 39(2) of the Horse Disease Act). 967. New subsection 13(10) of the Horse Disease Act states that if the Secretary gives a direction under new subsection 13(9) in writing, that direction is not a legislative instrument, which reflects existing arrangements under that Act (see subsection 39(3) of the Horse Disease Act). 968. Subsection 39(3) of the Horse Disease Act provides that, if the Secretary gives a direction under subsection 39(2) of that Act in writing, the direction is not a legislative instrument. 969. New subsection 13(10) of the Horse Disease Act is included to assist the reader, as that provision is merely declaratory of the law and does not represent a substantive exemption from the Legislative Instruments Act 2003.1 Item 1 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 provides that an instrument of delegation, including any directions to the delegate, is not a legislative instrument.2 970. New subsection 13(11) of the Horse Disease Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act. New subsection 13(11) of the Horse Disease Act reflects existing arrangements under that Act (see the use of the phrase 'court of competent jurisdiction' in current subsections 24(3) and 32(3) of the Horse Disease Act). 971. New subsections 13(12) and (13) of the Horse Disease Act modify the operation of Part 2 of the Regulatory Powers Act, and provide that, for the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or for the purpose of determining whether information subject to monitoring is correct, an authorised person may seize any thing at any premises entered under section 18 of the Regulatory Powers Act for the purposes of exercising monitoring powers. 972. New subsection 13(13) of the Horse Disease Act extends the standard provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act, as seizure under the Regulatory Powers Act is limited to investigation powers exercised under an investigation warrant (see sections 49, 50 and 52 of the Regulatory Powers Act). 973. New subsections 13(12) and (13) of the Horse Disease Act preserve the effect of current paragraph 14(f) of that Act (including the power to seize things where entry to premises is by consent), which is repealed by this item. 974. It is necessary to retain the power to seize in the Horse Disease Act through the inclusion of new subsections 13(12) and (13) of the Horse Disease Act in order to ensure 1 Amendments to the Legislative Instruments Act 2003, made by the Acts and Instruments Framework Reform Act 2015, will commence on 5 March 2016, which includes a change in name to the Legislation Act 2003. 2 Due to the amendments made by the Acts and Instruments Framework Reform Act 2015 to the Legislative Instruments Act 2003, which will commence on 5 March 2016, this class of instrument will be identified as an instrument that is not a legislative instrument in item 1 of the table in regulation 6 of Part 2 to the Legislation (Exemptions and Other Matters) Regulation 2015, which also commences on 5 March 2016. 218
compliance with levy collection requirements. The power to take possession of records (or other things) relating to the administration or payment of levies enables authorised persons to remove documents where examination of material on-site is not possible (for example, due to the volume or complexity of the material). Retention of the power to seize prevents a thing from being concealed, lost or destroyed. 975. The power to seize in new subsections 13(12) and (13) of the Horse Disease Act is also consistent with an equivalent power in section 19 of the Primary Industry Levies and Charges Collection Act 1991 (the 'PILCC Act'), which governs the collection of Emergency Animal Disease Response levies for other livestock, including pigs, cattle and chickens. The retention of the power to seize in the Horse Disease Act ensures equal treatment for all industries with an emergency response levy in place. The department that administers the PILCC Act, the Horse Disease Act and the Levy Act is scheduled to undertake a review of the regulatory powers of these Acts in the next 12 months. 976. New subsection 13(14) of the Horse Disease Act provides that an authorised person or persons may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act. New subsection 13(14) of the Horse Disease Act preserves the effect of current section 17 of that Act, which is repealed by this item. 977. Application of the standard provisions pertaining to monitoring powers in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Horse Disease Act. The comparison table provided at paragraph 945 above identifies a provision gained through alignment with the Regulatory Powers Act, which is not currently in the Horse Disease Act, that is merely procedural in nature and sets out matters in relation to the process for extending the period during which a thing may be secured (see section 33 of the Regulatory Powers Act, which is discussed below). 978. Section 33 of the Regulatory Powers Act applies where an authorised person applies to an issuing officer under subsection 21(5) or 22(2) of that Act for an extension of the period during which a thing may be secured. Subsection 33(4) of the Regulatory Powers Act outlines information that must be included in an order of extension. 979. The comparison table provided at paragraph 945 above also identifies that current section 20 of the Horse Disease Act is aligned to section 26 of the Regulatory Powers Act, and current paragraph 33(4)(f) of the Horse Disease Act is aligned to paragraph 32(4)(f) of the Regulatory Powers Act. 980. Current subsection 20(1) of the Horse Disease Act provides that, before entering premises under a monitoring warrant, an authorised person must announce that he or she is authorised to enter the premises, present his or her identity card to the occupier or any person at the premises, and give any person at the premises an opportunity to allow entry to the premises. Current subsection 20(2) of the Horse Disease Act provides that an authorised person is not required to comply with current subsection 20(1) of that Act if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure the safety of a person, or to ensure that effective execution of the warrant is not frustrated. Current subsection 20(3) of the Horse Disease Act states that, if an authorised person does not comply with current subsection 20(1) of that Act because of subsection 20(2) of that Act, and the occupier of the premises, or another person who apparently represents the occupier, is 219
at present at the premises, the authorised person must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person. 981. There are no equivalent provisions for current subsections 20(2) and (3) of the Horse Disease Act in the Regulatory Powers Act for the purposes of a monitoring warrant issued under Part 2 of that Act. 982. Current section 20 of the Horse Disease Act is repealed by this item, and section 26 of the Regulatory Powers Act will apply for the purposes of the provisions identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act. 983. Section 26 of the Regulatory Powers Act provides that, before entering premises under a monitoring warrant, an authorised person must announce that he or she is authorised to enter the premises, present his or her identity card to the occupier or any person at the premises, and give any person at the premises an opportunity to allow entry to the premises. 984. Current paragraph 33(4)(f) of the Horse Disease Act provides that a monitoring warrant may only remain in force for six months. That paragraph is repealed by this item, and paragraph 32(4)(f) of the Regulatory Powers Act provides that a monitoring warrant may only remain in force for three months. General provisions relating to seizure 985. New Subdivision B of new Division 2 of Part 3 of the Horse Disease Act includes new sections 14, 15, 16, 17, 18 and 19 of that Act, which provide for provisions in relation to the power to seize (see also new subsections 13(12) and (13) of the Horse Disease Act). 986. Item 4 modifies the operation of Part 2 of the Regulatory Powers Act to retain the power to seize in the Horse Disease Act, as the power to seize under the Regulatory Powers Act is limited to investigation powers exercised under an investigation warrant (see sections 49, 50 and 52 of the Regulatory Powers Act). Division 5 of Part 3 of the Regulatory Powers Act provides for general provisions relating to seizure. New sections 14, 15, 16, 17, 18 and 19 of the Horse Disease Act are modelled on sections 64, 65, 66, 67, 68 and 69 of the Regulatory Powers Act, which ensures consistency and uniformity with that Act in the use of the power to seize for the purposes of exercising regulatory powers. 987. New section 14 of the Horse Disease Act applies where an authorised person is exercising monitoring powers under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions of identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act. New subsection 14(1) of the Horse Disease Act states that new section 14 of that Act applies where an authorised person seizes a storage device (that contains information that can be readily copied), a document, film, computer file or other thing that can be readily copied. Under new subsection 14(2) of the Horse Disease Act, the occupier of the premises, or another person who apparently represents the occupier, may request a copy of the thing or information from the authorised person. Where such a request is made, the authorised person must provide a copy of the seized thing as soon as practicable after the seizure (see new subsection 14(3) of the Horse Disease Act). New subsection 14(4) of the Horse Disease Act states that an authorised person is not required to comply with the request if possession of the seized thing by the occupier or other person could constitute an offence against a law of the Commonwealth. 220
988. New section 14 of the Horse Disease Act is modelled on section 64 of the Regulatory Powers Act, which provides for matters in language substantially similar to new section 14 of the Horse Disease Act; however, section 64 of the Regulatory Powers Act only applies where seizure occurs in the course of the execution of an investigation warrant. 989. Unlike section 64 of the Regulatory Powers Act, new section 14 of the Horse Disease Act is not limited to the execution of a monitoring warrant. As such, an authorised person may seize any thing at any premises entered with the consent of the occupier under section 18 of the Regulatory Powers Act. New section 14 of the Horse Disease Act ensures that a person can retain a copy of seized materials for their own records or use. New section 14 of the Horse Disease Act preserves the effect of current section 27 of that Act, which is repealed by this item. 990. New section 15 of the Horse Disease Act provides that the authorised person must provide a receipt for a thing that is seized under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act. A single receipt may cover two or more seized things. This new section ensures that there is a record of items or information seized (note, see section 65 of the Regulatory Powers Act for an equivalent provision in relation to investigation powers). New section 15 of the Horse Disease Act preserves the effect of current section 28 of that Act, which is repealed by this item. 991. New section 16 of the Horse Disease Act states that the Secretary of the department that administers the Horse Disease Act must take reasonable steps to return a thing seized under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act, when the reason for the thing's seizure no longer exists, it is decided that the thing is not to be used in evidence, or the period of 60 days after the thing's seizure ends--whichever occurs first (note, see section 66 of the Regulatory Powers Act for an equivalent provision in relation to investigation powers). 992. New subsection 16(2) of the Horse Disease Act provides that the Secretary is not required to take reasonable steps to return a thing if there is a contrary order of a court, the thing is forfeited or forfeitable to the Commonwealth, or is the subject of a dispute as to ownership. Further, new subsection 16(3) provides that the Secretary is not required to take reasonable steps to return a thing at the end of the period of 60 days of the thing's seizure if: a. proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and those proceedings (and any appeal from those proceedings) have not been completed b. the thing may continue to be retained because of an order under new section 17 of the Horse Disease Act, or c. the Commonwealth or the relevant chief executive is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing. 993. New subsection 16(4) of the Horse Disease Act states that a thing that is required to be returned under new section 16 of that Act must be returned to the person from whom it was seized, or to the owner if that person is not entitled to possess it. New section 16 of the Horse Disease Act ensures that seized items are not retained indefinitely. New section 16 of 221
the Horse Disease Act preserves the effect of current section 29 of that Act, which is repealed by this item. 994. New section 17 of the Horse Disease Act provides that a magistrate may make an order for a seized thing to be retained for a further period of time (note, see section 67 of the Regulatory Powers Act for an equivalent provision in relation to investigation powers). 995. New subsection 17(1) of the Horse Disease Act states that the Secretary may apply to a magistrate for an order permitting retention of a thing seized under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act, for a further period if proceedings in respect of which the thing may afford evidence have not commenced before the end of 60 days after the seizure, or a period previously specified in an order of a magistrate under new section 17 of the Horse Disease Act. New subsection 17(2) of the Horse Disease Act states that prior to making such an application, the Secretary must take reasonable steps to discover who has an interest in the retention of the seized thing and, if it is practicable to do so, notify each such person of the proposed application. New subsection 17(3) of the Horse Disease Act provides that a person notified under new subsection 17(2) of that Act is entitled to be heard in relation to the application. 996. Under new subsection 17(4) of the Horse Disease Act, a magistrate may order that the seized thing be retained for a specified period if he or she is satisfied that it is necessary to continue retention of the thing for the purposes of an investigation as to the existence or amount of a liability under the levy law (as defined in the Horse Disease Act), or to enable evidence of such a liability to be secured for the purposes of recovering levy or late payment penalty. New subsection 17(5) of the Horse Disease Act states that the extended period specified in order must not exceed 3 years. 997. New section 17 of the Horse Disease Act ensures that the 60 day limit for retention of seized things does not prejudice ongoing investigations or legal proceedings. New section 17 of the Horse Disease Act preserves the effect of current section 30 of that Act, which is repealed by this item. 998. New section 18 of the Horse Disease Act allows the Secretary to dispose of the seized material in a manner he or she thinks appropriate if he or she has taken reasonable steps to return the thing to a person, and the person cannot be located or the person has refused to take possession of the thing (note, see section 68 of the Regulatory Powers Act for an equivalent provision in relation to investigation powers). New section 18 of the Horse Disease Act preserves the effect of current section 31 of that Act, which is repealed by this item. 999. New section 19 of the Horse Disease Act requires that the Commonwealth must pay reasonable compensation to a person if the operation of new section 18 of that Act would result in an acquisition of property otherwise than on just terms (note, see section 69 of the Regulatory Powers Act for an equivalent provision in relation to investigation powers). 1000. New subsection 19(2) of the Horse Disease Act states that, if the Commonwealth and the person do not agree on the amount of the compensation, that person may institute proceedings in the Federal Court of Australia or Federal Circuit Court of Australia, for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. New section 19 of the Horse Disease Act ensures the constitutional validity of acquisition powers and protects persons against unjust acquisitions. New section 19 of the 222
Horse Disease Act preserves the effect of current section 32 of that Act, which is repealed by this item. Item 5 - Section 38 1001. Item 5 repeals section 38 of the Horse Disease Act, which provides for matters in relation to identity cards. 1002. Current section 38 of the Horse Disease Act provides that the Secretary of the department that administers the Horse Disease Act must issue an identity card to an authorised person. The identity card must be in the form prescribed by the regulations, and contain a recent photograph of the authorised person. Current subsections 38(3) and (4) of the Horse Disease Act provide that a person commits an offence of strict liability, which carries a penalty of one penalty unit, if that person ceases to be an authorised person but does not return their identity card to the Secretary as soon as practicable after that cessation. Current subsection 38(5) of the Horse Disease Act provides an exception to current subsection 82(3) of that Act where the identity card is lost or destroyed. Current subsection 38(6) of the Horse Disease Act requires an authorised person to carry the identity card at all times when exercising powers as an authorised person. 1003. Item 5 is consequential to the amendments made by item 4 above, which repeals current Division 2 of Part 3 of that Act and applies the standard provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act. Item 4 will preserve the effect of current section 38 of the Horse Disease Act through the application of section 35 of the Regulatory Powers Act, which provides for matters relating to identity cards in language substantially similar to current section 38 of the Horse Disease Act (note, see the amendments to paragraph 35(2)(b) of the Regulatory Powers Act made by Schedule 1 to this Bill). PART 2--APPLICATION AND SAVING PROVISIONS Item 6 - Application and saving provision--monitoring 1004. Item 6 provides for the application of the amendments in this Schedule in relation to monitoring powers, and makes it clear that Part 2 of the Regulatory Powers Act, as that Part applies under Division 2 of Part 3 of the Horse Disease Act, applies in relation to the following: a. determining whether the levy law (as defined in the Horse Disease Act) has been complied with before, on or after the commencement of this Schedule, and b. determining whether information given in compliance, or purported compliance, with the levy law or Division 1 of Part 3 of the Horse Disease Act before, on or after that commencement is correct. 1005. This item provides clarity for an authorised person exercising monitoring powers under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act, and ensures that an authorised person may exercise those powers from the time of the commencement of this Schedule, regardless of whether or not non-compliance occurred before, on or after that commencement. 223
1006. As this Schedule does not expand the existing regulatory framework of the Horse Disease Act in relation to monitoring powers, the retrospective application provided for by this item does not impact rights or impose liabilities on a person subject to monitoring powers under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 13(1) of the Horse Disease Act and information mentioned in new subsection 13(2) of that Act. 1007. Sub-item 6(2) provides that Division 2 of Part 3 and section 38 of the Horse Disease Act, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to the following: a. an application for a warrant made, but not decided, under Part 3 of the Horse Disease Act before the commencement of this Schedule b. a monitoring warrant issued under Part 3 of the Horse Disease Act before, on or after the commencement of this Schedule as a result of an application made before that commencement c. powers exercised, rights created and duties imposed under Part 3 of the Horse Disease Act before, on or after the commencement of this Schedule in relation to: i. an entry onto premises before that commencement with the consent of the occupier of the premises, or ii. an entry onto premises before, on or after that commencement as a result of a monitoring warrant issued under Part 3 of the Horse Disease Act before, on or after the commencement of this Schedule as a result of an application made before that commencement d. things secured or seized under Part 3 of the Horse Disease Act before the commencement of this Schedule e. a requirement made under subsection 18(3) of the Horse Disease Act before, on or after the commencement of this Schedule f. a power conferred on a magistrate under Part 3 of the Horse Disease Act before the commencement of this Schedule, and g. a power exercised by a magistrate under Part 3 of the Horse Disease Act before, on or after the commencement of this Schedule. Item 7 - Application and saving provision--identity cards 1008. Item 7 provides that, despite the repeal of section 38 of the Horse Disease Act by this Schedule, that section, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to a person who ceased to be an authorised person before the commencement of this Schedule. 1009. This item preserves the effect of section 38 of the Horse Disease Act, which provides that a person commits an offence of strict liability, which carries a penalty of one penalty unit, if that person ceases to be an authorised person but does not return their identity card to the Secretary of the department that administers the Horse Disease Act as soon as practicable after that cessation. 224
1010. Where a person ceases to be an authorised person after the commencement of this Schedule, section 35 of the Regulatory Powers Act will apply. 225
Schedule 9 - Illegal Logging Prohibition Act 2012 GENERAL OUTLINE 1011. The Illegal Logging Prohibition Act 2012 (the 'Illegal Logging Act') aims to reduce the harmful environmental, social and economic impacts of illegal logging by restricting the importation and sale of illegally logged timber products in Australia. The Illegal Logging Act prohibits the importation of illegally logged timber and the processing of illegally logged raw logs. That Act also requires importers of regulated timber products and processors of raw logs to conduct due diligence in order to reduce the risk that illegally logged timber is imported or processed. The Illegal Logging Act allows inspectors to exercise monitoring, investigation and enforcement powers for the purposes of the Act. 1012. Current Division 2 of Part 4 of the Illegal Logging Act creates a framework for monitoring whether the provisions of that Act have been, or are being, complied with (note, this includes an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act due to the current definition of contravention in section 7 of that Act). That Division also creates a framework for monitoring whether information given in compliance, or purported compliance, with a provision of the Illegal Logging Act is correct. Current Division 3 of Part 4 of the Illegal Logging Act establishes a framework for gathering material that relates to the contravention of offence provisions and civil penalty provisions of that Act, or an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act. 1013. Current Division 5 of Part 4 of the Illegal Logging Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions of that Act. Current Division 6 of Part 4 of the Illegal Logging Act deals with the use of infringement notices where an authorised person reasonably believes that a civil penalty provision of that Act has been contravened, a strict liability offence against that Act has been committed, or an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act has been committed. 1014. This Schedule amends the Illegal Logging Act to apply the standard monitoring, investigation, civil penalty and infringement notice provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the Illegal Logging Act, and the new provisions gained by alignment with the Regulatory Powers Act, which are not currently in the Illegal Logging Act, are merely procedural matters in relation to monitoring and investigation powers, and civil penalty provisions. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the Illegal Logging Act. Further, the time period for the making of an application for a civil penalty order will be increased from within 4 years to within 6 years of the alleged contravention (see subsection 82(2) of the Regulatory Powers Act as amended by Schedule 1 to this Bill). 1015. Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions of an Act or a legislative instrument have been, or are being complied with. This Part also establishes a framework for monitoring whether information given in compliance, or purported compliance, with a provision of an Act or legislative instrument is correct. Subsection 7(2) of the Regulatory Powers Act states that, in order for Part 2 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made subject to monitoring under that Part, or information given in compliance, or purported compliance, 226
with a provision of an Act or legislative instrument must be made subject to monitoring under that Part, by another Act (a triggering Act). When a triggering Act applies Part 2 of the Regulatory Powers Act, it must identify any related provisions and the authorised applicant or applicants, the authorised person or persons, the issuing officer or officers, the relevant chief executive and the relevant court or courts that may exercise powers under that Part (see sections 10, 11, 12, 14, 15 and 16 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person or persons may be assisted by another person, and whether the authorised applicant, authorised person, issuing officer or relevant chief executive may delegate his or her powers and functions in relation to the provisions and/or information subject to monitoring under the triggering Act (see section 23 and subsections 11(3), 12(3), 14(3) and 15(3) of the Regulatory Powers Act). If provisions or information subject to monitoring under the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 2 of the Regulatory Powers Act extends to any external Territories. 1016. Part 3 of the Regulatory Powers Act creates a framework for gathering material that relates to the contravention of offence and civil penalty provisions of an Act. Subsection 37(2) of the Regulatory Powers Act states that, in order for Part 3 of the Regulatory Powers Act to operate, an offence or civil penalty provision of an Act must be made subject to investigation under that Part by a triggering Act. When a triggering Act applies Part 3 of the Regulatory Powers Act, it must identify any related provisions and the authorised applicant or applicants, the authorised person or persons, the issuing officer or officers, the relevant chief executive and the relevant court or courts that may exercise powers under that Part (see sections 40, 41, 42, 44, 45 and 46 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may be assisted by another person, and whether the authorised applicant, authorised person, issuing officer or relevant chief executive may delegate his or her powers and functions in relation to the provisions subject to investigation under the triggering Act (see section 53 and subsections 41(3), 42(3), 44(3) and 45(3) of the Regulatory Powers Act). If offence or civil penalty provisions subject to investigation under the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 3 of the Regulatory Powers Act extends to any external Territories. 1017. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by a triggering Act. When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories. 1018. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices that may be issued in relation to a breach of an offence or civil penalty provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5 of that Act to operate, a provision of an Act or legislative instrument must be made subject to an 227
infringement notice under that Part by a triggering Act. When a triggering Act applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an infringement officer or officers for the purposes of exercising powers under that Part (see section 101 of the Regulatory Powers Act). A triggering Act must also identify the relevant chief executive for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil penalty provisions of a triggering Act are subject to an infringement notice and apply in external Territories or offshore areas, the triggering Act should identify whether Part 5 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Illegal Logging Prohibition Act 2012 1019. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 8) for the provisions of the Illegal Logging Act that are repealed by item 8. Current provision in the Illegal Logging Provision Provision as Applicable Act amended by provision this Schedule (Regulatory Powers Act) Relevant courts 7 Extended to the N/A (see new Federal Circuit subsection 21(9) of Court the Illegal Logging Act) Monitoring powers Division 2, Part 2-Monitoring Part 4 Identity cards 20 Retained 35 Inspector may enter premises by consent or 22 Retained 18 under a warrant Monitoring powers of inspectors 23 Retained 19 Power to sample anything on the premises 23(h) Retained N/A (see new through subsection 21(11) of modification to the Illegal Logging the operation of Act) the Regulatory Powers Act Operating electronic equipment 24 Retained 20 Expert assistance to operate electronic 25 Retained 21 equipment Securing evidential material 26 Retained See section 22 of the Regulatory Powers Act as amended by this Bill Persons assisting inspectors 27 Retained 23 Monitoring warrants 28 Retained 32 228
Current provision in the Illegal Logging Provision Provision as Applicable Act amended by provision this Schedule (Regulatory Powers Act) Monitoring warrant may remain in force for 28(4)(f) Aligned 32(4)(f) up to 6 months (note: monitoring warrant may remain in force for up to 3 months) Consent 49 Retained 25 Announcement before entry under warrant 50 Aligned 26 Inspector to be in possession of warrant 51 Retained 27 Details of warrant etc. to be given to 52 Retained 28 occupier Use of force in executing a monitoring 53 Repealed N/A warrant Inspector may ask questions and seek 54 Retained 24 production of documents Occupier entitled to observe execution of 55 Retained 30 warrant Occupier to provide inspector with facilities 56 Retained 31 and assistance Powers of issuing officers 57 Retained 34 Compensation for damage to electronic 58 Retained 29 equipment N/A (Process for extension of periods in N/A Gained 33 which things are secured) Investigation powers Division 3, Part 3-Investigation Part 4 Identity cards 20 Retained 35 Inspector may enter premises by consent or 30 Retained 48 under a warrant Investigation powers of inspectors 31 Retained 49 Power to sample any thing on the premises 31(f) Retained N/A (see new through subsection 22(10) of modification to the Illegal Logging the operation of Act) the Regulatory Powers Act Operating electronic equipment 32 Retained 50 Expert assistance to operate electronic 33 Retained 51 equipment Seizing other evidential material 34 Retained 52 Persons assisting inspectors 35 Retained 53 Copies of seized things to be provided 36 Retained 64 Receipts for seized things 37 Retained 65 229
Current provision in the Illegal Logging Provision Provision as Applicable Act amended by provision this Schedule (Regulatory Powers Act) Return of seized things 38 Retained 66 Issuing officer may permit a thing to be 39 Retained 67 retained Disposal of things 40 Retained 68 Compensation for acquisition of property 41 Retained 69 Investigation warrants 42 Retained 70 Investigation warrants by telephone, fax, 43 Retained 71 etc. Authority of warrant 44 Retained 72 Offence relating to warrants by telephone, 45 Retained 73 fax etc Completing execution of an investigation 46 Retained 59 warrant after temporary cessation Completing execution of an investigation 47 Retained 60 warrant stopped by court order Consent 49 Retained 55 Announcement before entry under warrant 50 Retained 56 Inspector to be in possession of warrant 51 Retained 57 Details of warrant etc. to be given to 52 Retained 58 occupier Use of force in executing an investigation 53 Retained N/A (see new warrant through subsection 22(11) of modification to the Illegal Logging the operation of Act) the Regulatory Powers Act Inspector may ask questions and seek 54 Retained 54 production of documents Occupier entitled to observe execution of 55 Retained 62 warrant Occupier to provide inspector with facilities 56 Retained 63 and assistance Powers of issuing officers 57 Retained 75 Compensation for damage to electronic 58 Retained 61 equipment N/A (Person entitled to be heard in relation N/A Gained 67(3) to application for retention of a seized thing) N/A (Process for extension of periods in N/A Gained 74 which things secured) 230
Current provision in the Illegal Logging Provision Provision as Applicable Act amended by provision this Schedule (Regulatory Powers Act) Civil penalty provisions Division 5, Part 4-Civil penalty Part 4 provisions Civil penalty orders 60 Retained 82 Application for civil penalty order to be 60(2) Aligned See subsection 82(2) made within 4 years of the Regulatory Powers Act as amended by this Bill Civil enforcement of penalty 61 Retained 83 Conduct contravening more than one civil 62 Retained 84 penalty provision Multiple contraventions 63 Retained 85 Proceedings may be heard together 64 Retained 86 Civil evidence and procedure rules for civil 65 Retained 87 penalty orders Contravening a civil penalty provision is 66 Repealed N/A not an offence Civil proceedings after criminal 67 Retained 88 proceedings Criminal proceedings during civil 68 Retained 89 proceedings Criminal proceedings after civil 69 Retained 90 proceedings Evidence given in civil proceedings not 70 Retained 91 admissible in criminal proceedings Ancillary contraventions of civil penalty 71 Retained 92 provisions Continuing contraventions of civil penalty 72 Retained 93 provisions Mistake of fact 73 Retained 95 State of mind 74 Retained 94 N/A (Exceptions etc. to civil penalty N/A Gained 96 provisions - burden of proof) N/A (Civil penalty provisions contravened N/A Gained 97 by employees, agents or officers) Infringement notices Division 6, Part 5-Infringement Part 4 notices When an infringement notice may be given 76 Retained 103 Matters to be included in an infringement 77 Aligned See section 104 of notice the Regulatory Powers Act as amended by this Bill Extension of time to pay amount 78 Retained 105 231
Current provision in the Illegal Logging Provision Provision as Applicable Act amended by provision this Schedule (Regulatory Powers Act) Withdrawal of an infringement notice 79 Retained 106 Evidence given in the course of making 79(6) Repealed N/A representation for withdrawal not admissible against the person in proceedings Effect of payment of amount 80 Retained 107 Effect of Division 81 Retained 108 Regulations may make further provision in 82 Repealed N/A relation to infringement notices PART 1--AMENDMENTS Item 1 - Section 6 1020. Item 1 repeals part of the 'Guide to this Act' in section 6 of the Illegal Logging Act, and substitutes new text that is consequential to the amendments made by item 8 below, which repeals current Divisions 2, 3, 4, 5 and 6 of Part 4 to the Illegal Logging Act and applies the standard monitoring, investigation, civil penalty and infringement notices provisions in Parts 2, 3, 4 and 5 of the Regulatory Powers Act. 1021. This item repeals the entirety of the paragraph that begins with 'Part 4' in the Guide, and substitutes new text which uses the same language and key terms as the Regulatory Powers Act. Item 2 - Section 7 (definition of civil penalty order) 1022. Item 2 repeals the definition of civil penalty order in section 7 of the Illegal Logging Act. That definition is no longer necessary, as this Schedule amends the Illegal Logging Act to apply the standard provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act. 1023. It is not necessary to substitute a new definition of civil penalty order in section 7 of the Illegal Logging Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act. Item 3 - Section 7 (definition of civil penalty provision) 1024. Item 3 repeals the definition of civil penalty provision in section 7 of the Illegal Logging Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. Item 4 - Section 7 1025. Item 4 repeals the definitions of contravention, damage, evidential burden, evidential material, investigation powers, investigation warrant, issuing officer, monitoring powers, monitoring warrant, occupier, person assisting and premises in section 7 of the Illegal Logging Act. Those definitions are no longer necessary, as this Schedule amends the 232
Illegal Logging Act to apply the standard provisions of the Regulatory Powers Act, and those terms are defined in section 4 of that Act, except for contravention and occupier. 1026. The current definition of contravention in section 7 of the Illegal Logging Act provides that a contravention of that Act means a contravention of an offence or civil penalty provision in that Act, or a contravention of the Crimes Act or the Criminal Code that relates to the Illegal Logging Act. 1027. It is no longer necessary to define contravention in the Illegal Logging Act as: a. new subsection 21(1) of the Illegal Logging Act provides that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is a provision of the Illegal Logging Act, or an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act b. new subsection 22(1) of the Illegal Logging Act provides that a provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is an offence against the Illegal Logging Act, a civil penalty provision of that Act or an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act, and c. new subsection 24(1) of the Illegal Logging Act provides that a strict liability offence against the Illegal Logging Act, a civil penalty provision of that Act or an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act. 1028. New subsections 21(1), 22(1) and 24(1) of the Illegal Logging Act are inserted by item 8 below. 1029. The current definition of occupier in section 7 of the Illegal Logging Act provides that occupier of premises includes the person apparently in charge of the premises. It is no longer necessary to define occupier in the Illegal Logging Act, as the current definition in that Act does not expand upon the ordinary meaning of occupier. Repeal of that definition aligns section 7 of the Illegal Logging Act with current drafting standards. 1030. It is not necessary to substitute new definitions of damage, evidential burden, evidential material, investigation powers, investigation warrant, issuing officer, monitoring powers, monitoring warrant, person assisting and premises in section 7 of the Illegal Logging Act, as those definitions are only relevant for the purposes of monitoring, investigation and enforcement provisions, and are not applied in any other provisions of that Act. Item 5 - Section 7 1031. Item 5 amends section 7 of the Illegal Logging Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 6 - Section 7 (definition of relevant court) 1032. Item 6 repeals the definition of relevant court in section 7 of the Illegal Logging Act. That definition currently provides that relevant court means the Federal Court of Australia. 233
Courts identified as a relevant court for the purposes of the Regulatory Powers Act, as that Act applies to the Illegal Logging Act, are identified in new subsections 21(9), 22(8) and 23(3) of the Illegal Logging Act. New subsections 21(9), 22(8) and 23(3) of the Illegal Logging Act are inserted by item 8 below. 1033. It is not necessary to substitute a new definition of relevant court in section 7 of the Illegal Logging Act, as that definition is only relevant for the purposes of the monitoring and investigation powers of the Illegal Logging Act, and the use of civil penalty orders to enforce provisions of that Act, and is not applied in any other provision of that Act. Item 7 - Section 20 1034. Item 7 repeals section 20 of the Illegal Logging Act, which provides for matters in relation to identity cards. 1035. Current subsection 20(1) of the Illegal Logging Act states that the Secretary of the department that administers the Illegal Logging Act must issue an identity card to an inspector (as defined in the Illegal Logging Act). Current subsection 20(2) of the Illegal Logging Act provides that the identity card must be in the form prescribed by the regulations and contain a recent photograph of the inspector. Current subsections 20(3) and (4) of the Illegal Logging Act provides that a person commits an offence of strict liability, which carries a penalty of one penalty unit, if that person ceases to be an inspector but does not return their identity card to the Secretary within 14 days after that cessation. Current subsection 20(5) of the Illegal Logging Act provides an exception to current subsection 20(3) of that Act where the identity card is lost or destroyed. Current subsection 20(6) of the Illegal Logging Act requires an inspector to carry his or her identity card at all times when exercising powers as an inspector. 1036. This item is consequential to the amendments made by item 8 below, which repeals current Divisions 2, 3, 4, 5 and 6 of Part 4 to the Illegal Logging Act and applies the standard monitoring, investigation, civil penalty and infringement notices provisions in Parts 2, 3, 4 and 5 of the Regulatory Powers Act. Item 8 will preserve the effect of current section 20 of the Illegal Logging Act through the application of sections 35 and 76 of the Regulatory Powers Act, which provide for matters in relation to identity cards for the purposes of exercising monitoring and investigation powers, respectively. 1037. Accordingly, current sections 20 of the Illegal Logging Act is no longer necessary to retain, as this Schedule amends the Illegal Logging Act to apply the standard provisions pertaining to monitoring and investigation in the Regulatory Powers Act, and matters relating to identity cards are provided for by sections 35 and 76 of that Act (see also the Regulatory Powers (Standard Provisions) Regulation 2015). Item 8 - Divisions 2 to 6 of Part 4 1038. Item 8 repeals Divisions 2, 3, 4, 5 and 6 of Part 4 of the Illegal Logging Act, and substitutes new 'Division 2--Monitoring', 'Division 3--Investigation', 'Division 4--Civil penalty provisions' and 'Division 5--Infringement notices'. This item applies the provisions of Part 2 of the Regulatory Powers Act for provisions and information subject to monitoring under the Illegal Logging Act, and Part 3 of the Regulatory Powers Act for the gathering of material that relates to the contravention of the offence and civil penalty provisions of the 234
Illegal Logging Act, and contraventions of provisions of the Crimes Act and Criminal Code that relate to that Act. 1039. Item 8 also applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce the civil penalty provisions in the Illegal Logging Act, and Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to alleged contraventions of offence and civil penalty provisions of the Illegal Logging Act, and alleged contraventions of provisions of the Crimes Act and Criminal Code that relate to that Act. Monitoring powers 1040. Current Division 2 of Part 4 of the Illegal Logging Act provides for provisions in relation to monitoring powers, and includes sections 21, 22, 23, 24, 25, 26, 27 and 28 of the Illegal Logging Act. Those sections are no longer necessary, as this Schedule amends the Illegal Logging Act to apply the standard provisions of the Regulatory Powers Act. 1041. Current Division 4 of Part 4 of the Illegal Logging Act provides for general provisions in relation to monitoring and investigation powers, and includes sections 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 and 58 of that Act. Those sections are no longer necessary, as this Schedule amends the Illegal Logging Act to apply the standard provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act. 1042. The comparison table provided at paragraph 1019 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Illegal Logging Act that are repealed by this item. 1043. New Division 2 of Part 4 of the Illegal Logging Act directs the reader to Part 2 of the Regulatory Powers Act, which creates a framework for monitoring whether provisions of an Act have been, or are being, complied with, and whether information given in compliance, or purported compliance, with a provision of an Act is correct (see the notes to new subsections 21(1) and (2) of the Illegal Logging Act). New section 21 of the Illegal Logging Act outlines matters in relation to related provisions, the authorised applicant, the authorised person, the issuing officer, the relevant chief executive, relevant courts, the power to take samples and persons assisting. 1044. New subsection 21(1) of the Illegal Logging Act states that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is: a. a provision of the Illegal Logging Act, or b. an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act. 1045. New subsection 21(1) of the Illegal Logging Act ensures that Part 2 of the Regulatory Powers Act operates for the purposes of the provisions specified in that subsection. Item 8 also inserts a note at the end of new subsection 21(1) of the Illegal Logging Act, which directs the reader to Part 2 of the Regulatory Powers Act. 1046. New subsection 21(2) of the Illegal Logging Act states that information given in compliance or purported compliance with a provision of that Act is subject to monitoring under Part 2 of the Regulatory Powers Act. New subsection 21(2) of the Illegal Logging Act ensures that Part 2 of the Regulatory Powers Act operates for the purposes of all provisions of 235
the Illegal Logging Act. Item 8 also inserts a note at the end of new subsection 21(2) of the Illegal Logging Act, which directs the reader to Part 2 of the Regulatory Powers Act. 1047. New subsection 21(3) of the Illegal Logging Act states that there are no related provisions for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions of identified in new subsection 21(1) of that Act, and information mentioned in new subsection 21(2) of that Act. This new subsection reflects existing arrangements under the Illegal Logging Act in relation to monitoring powers. 1048. New subsection 21(4) of the Illegal Logging Act identifies an inspector (as defined in the Illegal Logging Act) as an authorised applicant and authorised person for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 21(1) of the Illegal Logging Act and information mentioned in new subsection 21(2) of that Act. This will enable an inspector to apply to an issuing officer for a monitoring warrant in relation to premises. New subsection 21(4) of the Illegal Logging Act will also enable an inspector to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or for the purpose of determining whether information subject to monitoring is correct. However, an authorised person may not enter the premises unless the occupier has provided consent, or the authorised person is in possession of a monitoring warrant. New subsection 21(4) of the Illegal Logging Act reflects existing arrangements under that Act (see section 19 of the Illegal Logging Act). 1049. New subsection 21(5) of the Illegal Logging Act provides that each of the following persons is an issuing officer for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 21(1) of the Illegal Logging Act and information mentioned in new subsection 21(2) of that Act: a. a magistrate, b. a Judge of a court of a State or Territory, c. if a Judge of the Federal Circuit Court of Australia or a Judge of the Federal Court of Australia has consented to act as an issuing officer for the purposes of the Illegal Logging Act and that consent is in force--the Judge. 1050. New subsection 21(5) of the Illegal Logging Act preserves the effect of the current definition of issuing officer in section 7 of that Act, which is repealed by item 4 above. 1051. New subsection 21(6) of the Illegal Logging Act identifies the Secretary of the department that administers the Illegal Logging Act as the relevant chief executive for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 21(1) of that Act and information mentioned in new subsection 21(2) of that Act. New subsection 21(6) of the Illegal Logging Act reflects existing arrangements under that Act (see section 19 of the Illegal Logging Act). 1052. New subsection 21(7) of the Illegal Logging Act provides that the Secretary, as the relevant chief executive under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 21(1) of the Illegal Logging Act and information mentioned in new subsection 21(2) of that Act, may, in writing, delegate his or her powers and functions to an SES employee or acting SES employee in the department that administers the Illegal Logging Act. New subsection 21(7) of the Illegal Logging Act reflects existing arrangements under that Act (see subsection 85(1) of the Illegal Logging Act). 236
1053. New subsection 21(8) of the Illegal Logging Act provides that a delegate must comply with any directions of the Secretary, which reflects existing arrangements under that Act (see subsection 85(2) of the Illegal Logging Act). 1054. New subsection 21(9) of the Illegal Logging Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 21(1) of the Illegal Logging Act and information mentioned in new subsection 21(2) of that Act. New subsection 21(9) of the Illegal Logging Act preserves the effect of the current definition of relevant court in section 7 of that Act, which is repealed by item 6 above. New subsection 21(9) of the Illegal Logging Act also extends jurisdiction under that Act to the Federal Circuit Court of Australia. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 1055. New subsection 21(10) and (11) of the Illegal Logging Act modify the operation of Part 2 of the Regulatory Powers Act, and provide that, for the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or for the purpose of determining whether information subject to monitoring is correct, the power to take samples of any thing at any premises entered under section 18 of the Regulatory Powers Act is taken to be included in the monitoring powers under Part 2 of that Act. New subsections 21(10) and (11) of the Illegal Logging Act preserve the effect of current paragraph 23(h) of that Act, which is repealed by this item. 1056. It is necessary to retain the power to take samples in the Illegal Logging Act, as this power is an essential element of an inspector's monitoring and enforcement powers under the current regulatory powers framework of that Act. The retention of the power ensures that inspectors are able to take a physical or DNA sample from a timber or wood-based product. It is often difficult to determine the nature or origin of a timber product by visual inspection alone. Obtaining a sample of a product is necessary in order for an inspector to verify particular characteristics of the timber included in a product, such as its genus, species and country of region of harvest. Information gathered through this process can be used to confirm whether the product is what the importer or processor claims it to be, and whether any supporting paperwork or certification is relevant to that product (that is, whether information given in compliance, or purported compliance, is correct). The importance of this power is likely to increase in the future, as improved DNA sampling techniques will enable inspectors to gather detailed evidence from timber samples. Similar DNA sampling techniques have been exercised in countries such as Germany and the United Kingdom to investigate a range of imported timber products, which has subsequently resulted in a range of enforcement actions against importers and processors for falsely declared products. 1057. New subsection 21(12) of the Illegal Logging Act provides that an inspector may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 21(1) of the Illegal Logging Act and information mentioned in new subsection 21(2) of that Act. New subsection 21(12) of the Illegal Logging Act preserves the effect of current section 27 of that Act, which is repealed by this item. 237
1058. New subsection 21(13) of the Illegal Logging Act provides that Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 21(1) of the Illegal Logging Act and information mentioned in new subsection 21(2) of that Act, does not extend to the external Territories. New subsection 21(13) of the Illegal Logging Act reflects existing arrangements under that Act (see section 4 of the Illegal Logging Act). 1059. Application of the standard provisions pertaining to monitoring powers in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Illegal Logging Act. The comparison table provided at paragraph 1019 above identifies a provision gained through alignment with the Regulatory Powers Act, which is not currently in the Illegal Logging Act, that is merely procedural in nature and sets out matters in relation to the process for extending the period during which a thing may be secured (see section 33 of the Regulatory Powers Act, which is discussed below). 1060. Section 33 of the Regulatory Powers Act applies where an authorised person applies to an issuing officer under subsection 21(5) or 22(2) of that Act for an extension of the period during which a thing may be secured. Subsection 33(4) of the Regulatory Powers Act outlines information that must be included in an order of extension. 1061. The comparison table provided at paragraph 1019 above also identifies that current paragraph 28(4) (f) of the Illegal Logging Act is aligned to paragraph 32(4)(f) of the Regulatory Powers Act, current section 50 of the Illegal Logging Act is aligned to section 26 of the Regulatory Powers Act, and current section 53 of the Illegal Logging Act is repealed without substitution. 1062. Current paragraph 28(4)(f) of the Illegal Logging Act provides that a monitoring warrant may only remain in force for six months. That paragraph is repealed by this item, and paragraph 32(4)(f) of the Regulatory Powers Act provides that a monitoring warrant may only remain in force for three months. 1063. Current subsection 50(1) of the Illegal Logging Act provides that, before entering premises under a monitoring warrant or an investigation warrant, an inspector must announce that he or she is authorised to enter the premises, present his or her identity card to the occupier or any person at the premises, and give any person at the premises an opportunity to allow entry to the premises. Current subsection 50(2) of the Illegal Logging Act provides that an inspector is not required to comply with current subsection 50(1) of that Act if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure the safety of a person, or to ensure that effective execution of the warrant is not frustrated. 1064. There is no equivalent provision to current subsection 50(2) of the Illegal Logging Act in the Regulatory Powers Act for the purposes of a monitoring warrant issued under Part 2 of that Act. Current section 50 of the Illegal Logging Act is repealed by this item, and section 26 of the Regulatory Powers Act will apply for the purposes of the provisions identified in new subsection 21(1) of the Illegal Logging Act and information mentioned in new subsection 21(2) of that Act. 1065. Current section 53 of the Illegal Logging Act provides that, in executing a monitoring or an investigation warrant, an inspector, or a person assisting the inspector, may use such force against persons and things as is necessary and reasonable in the circumstances. There is no equivalent use of force provision in the Regulatory Powers Act for the purposes of 238
exercising monitoring powers. Current section 53 of the Illegal Logging Act, as that section relates to monitoring powers, is repealed without substitution, as retention of this provision is no longer required for the purposes of that Act. Investigation powers 1066. Current Division 3 of Part 4 of the Illegal Logging Act provides for provisions in relation to investigation powers, and includes sections 29, 30, 32, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and 47 of that Act. Those sections are no longer necessary, as this Schedule amends the Illegal Logging Act to apply the standard provisions pertaining to investigation powers in the Regulatory Powers Act. 1067. Current Division 4 of Part 4 of the Illegal Logging Act provides for general provisions in relation to monitoring and investigation powers, and includes sections 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 and 58 of that Act. Those sections are no longer necessary, as this Schedule amends the Illegal Logging Act to apply the standard provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act. 1068. The comparison table provided at paragraph 1019 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Illegal Logging Act that are repealed by this item. 1069. New Division 3 of Part 4 of the Illegal Logging Act directs the reader to Part 3 of the Regulatory Powers Act, which creates a framework for gathering material that relates to the contravention of offence and civil penalty provisions (see the note to new subsection 22(1) of the Illegal Logging Act). New section 22 of the Illegal Logging Act outlines matters in relation to related provisions, the authorised applicant, the authorised person, the issuing officer, the relevant chief executive, relevant courts, the power to take samples, use of force in executing a warrant, and persons assisting. 1070. New subsection 22(1) of the Illegal Logging Act states that a provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is: a. an offence against the Illegal Logging Act, b. a civil penalty provision of the Illegal Logging Act, or c. an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act. 1071. New subsection 22(1) of the Illegal Logging Act ensures that Part 3 of the Regulatory Powers Act operates for the purposes of the provisions identified in that subsection. Item 8 also inserts a note at the end of new subsection 22(1) of the Illegal Logging Act, which directs the reader to Part 3 of the Regulatory Powers Act. 1072. New subsection 22(2) of the Illegal Logging Act states that there are no related provisions for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 22(1) of the Illegal Logging Act. This new subsection reflects existing arrangements under the Illegal Logging Act in relation to investigation powers. 1073. New subsection 22(3) of the Illegal Logging Act identifies an inspector (as defined in the Illegal Logging Act) as an authorised applicant and authorised person for the purposes of 239
Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 22(1) of the Illegal Logging Act. This will enable an inspector to apply to an issuing officer for an investigation warrant in relation to premises. If an investigation warrant is granted by an issuing officer, an inspector may enter any premises and exercise investigation powers where the inspector suspects on reasonable grounds that there may be material on the premises related to the contravention of a provision identified in new subsection 22(1) of the Illegal Logging Act. However, an authorised person may not enter the premises unless the occupier has provided consent, or the authorised person is in possession of an investigation warrant. New subsection 22(3) of the Illegal Logging Act reflects existing arrangements under that Act (see section 19 of the Illegal Logging Act). 1074. New subsection 22(4) of the Illegal Logging Act provides that each of the following persons is an issuing officer for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 22(1) of the Illegal Logging Act: a. a magistrate, b. a Judge of a court of a State or Territory, c. if a Judge of the Federal Circuit Court of Australia or a Judge of the Federal Court of Australia has consented to act as an issuing officer for the purposes of the Illegal Logging Act and that consent is in force--the Judge. 1075. New subsection 22(4) of the Illegal Logging Act preserves the effect of the current definition of issuing officer in section 7 of that Act, which is repealed by item 4 above. 1076. New subsection 22(5) of the Illegal Logging Act identifies the Secretary of the department that administers the Illegal Logging Act as the relevant chief executive for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 22(1) of that Act. New subsection 22(5) of the Illegal Logging Act reflects existing arrangements under that Act (see section 19 of the Illegal Logging Act). 1077. New subsection 22(6) of the Illegal Logging Act provides that the Secretary, as the relevant chief executive under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 22(1) of that Act, may, in writing, delegate his or her powers and functions to an SES employee or acting SES employee in the department that administers the Illegal Logging Act. New subsection 22(6) of the Illegal Logging Act reflects existing arrangements under that Act (see subsection 85(1) of the Illegal Logging Act). 1078. New subsection 22(7) of the Illegal Logging Act provides that a delegate must comply with any directions of the Secretary, which reflects existing arrangements under that Act (see subsection 85(2) of the Illegal Logging Act). 1079. New subsection 22(8) of the Illegal Logging Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 22(1) of that Act. New subsection 22(8) of the Illegal Logging Act preserves the effect of the current definition of relevant court in section 7 of that Act, which is repealed by item 6 above. New subsection 22(8) of the Illegal Logging Act also extends jurisdiction under that Act to the Federal Circuit Court of Australia. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed 240
to the Federal Court. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 1080. New subsections 22(9) and (10) of the Illegal Logging Act modify the operation of Part 3 of the Regulatory Powers Act, and provide that, in executing an investigation warrant under that Part, as that Part applies to evidential material that relates to a provision identified in new subsection 22(1) of the Illegal Logging Act, the power to take samples of any thing at any premises entered under section 48 of the Regulatory Powers Act is taken to be included in the investigation powers under Part 3 of that Act. New subsections 22(9) and (10) of the Illegal Logging Act preserve the effect of current paragraph 31(f) of that Act, which is repealed by this item. 1081. It is necessary to retain the power to take samples in the Illegal Logging Act, as this power is an essential element of an inspector's monitoring and enforcement powers under the current regulatory powers framework of that Act. The retention of the power ensures that inspectors are able to take a physical or DNA sample from a timber or wood-based product. It is often difficult to determine the nature or origin of a timber product by visual inspection alone. Obtaining a sample of a product is necessary in order for an inspector to verify particular characteristics of the timber included in a product, such as its genus, species and country of region of harvest. Information gathered through this process can be used to confirm whether the product is what the importer or processor claims it to be, and whether any supporting paperwork or certification is relevant to that product. The importance of this power is likely to increase in the future, as improved DNA sampling techniques will enable inspectors to gather detailed evidence from timber samples. Similar DNA sampling techniques have been exercised in countries such as Germany and the United Kingdom to investigate a range of imported timber products, which has subsequently resulted in a range of enforcement actions against importers and processors for falsely declared products. 1082. New subsection 22(11) of the Illegal Logging Act modifies the operation of Part 3 of the Regulatory Powers Act, and provides that, in executing an investigation warrant under that Part, as that Part applies to evidential material that relates to a provision identified in new subsection 22(1) of the Illegal Logging Act, an inspector or person assisting an inspector may use such force against things as is necessary and reasonable in the circumstances. New subsection 22(11) of the Illegal Logging Act partially preserves the effect of current section 53 of that Act, which is repealed by this item; however, new subsection 22(11) of the Illegal Logging Act restricts use of the power to use of force against things only. 1083. Current section 53 of the Illegal Logging Act provides that, in executing a monitoring or an investigation warrant, an inspector, or a person assisting the inspector, may use such force against persons and things as is necessary and reasonable in the circumstances. There is no equivalent to this provision in the Regulatory Powers Act. 1084. It is necessary to include the power to use force against things for the purposes of exercising investigation powers, as an authorised person executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain evidential material that would demonstrate that a provision identified in new subsection 22(1) of the Illegal Logging Act has been contravened. 241
1085. Section 63 of the Regulatory Powers Act places an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 3 of the Regulatory Powers Act, for the purposes of executing an investigation warrant. Subsection 63(2) of the Regulatory Powers Act provides that failure to comply with section 63 of that Act is an offence, and carries a penalty of 30 penalty units. Despite this obligation, and its corresponding penalty for non-compliance, an occupier or other person may continue to refuse access to locked premises or objects. It is necessary to retain the power to use force against things to ensure that the execution of an investigation warrant is not frustrated, and to prevent concealment, loss, destruction, use or continuation of use of information or things in the course of contravening a provision identified in new subsection 22(1) of the Illegal Logging Act. 1086. New subsection 22(12) of the Illegal Logging Act provides that an inspector may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 22(1) of that Act. New subsection 22(12) of the Illegal Logging Act preserves the effect of current section 35 of that Act, which is repealed by this item. 1087. New subsection 22(13) of the Illegal Logging Act provides that Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 22(1) of the Illegal Logging Act, does not extend to the external Territories. New subsection 22(13) of the Illegal Logging Act reflects existing arrangements under that Act (see section 4 of the Illegal Logging Act). 1088. Application of the standard provisions pertaining to investigation powers in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Illegal Logging Act. The comparison table provided at paragraph 1019 above identifies provisions gained through alignment with the Regulatory Powers Act, which are not currently in the Illegal Logging Act, that are merely procedural in nature and set out matters in relation to the right of a person to be heard in response to an application for retention of a seized thing, and the process for extending the period during which a thing may be secured (see subsection 67(3) and section 74 of the Regulatory Powers Act, which are discussed below). 1089. Subsection 67(3) of the Regulatory Powers Act provides that a person notified under paragraph 67(2)(b) of that Act is entitled to be heard in relation to an application for an order permitting the further retention of a thing seized under Part 3 of that Act. Paragraph 67(2)(b) of the Regulatory Powers Act requires the relevant chief executive to, before making the application and if it is practicable to do so, notify each person whom the relevant chief executive believes to have an interest in the retention of the seized thing. 1090. Section 74 of the Regulatory Powers Act applies where an authorised person applies to an issuing officer under subsection 51(5) of that Act for an extension of the period during which a thing may be secured. Subsection 74(4) of the Regulatory Powers Act outlines information that must be included in an order of extension. 242
Civil penalty provisions 1091. Current Division 5 of Part 4 of the Illegal Logging Act provides for provisions in relation to civil penalty orders, and includes sections 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73 and 74 of that Act. Those sections are no longer necessary, as this Schedule amends the Illegal Logging Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1019 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Illegal Logging Act that are repealed by this item. 1092. New Division 4 of Part 4 of the Illegal Logging Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 23(1) of the Illegal Logging Act). New section 23 of the Illegal Logging Act outlines matters in relation to authorised applicants and relevant courts. 1093. New subsection 23(1) of the Illegal Logging Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the Illegal Logging Act. Item 8 also inserts a note at the end of new subsection 23(1) of the Illegal Logging Act, which directs the reader to Part 4 of the Regulatory Powers Act. 1094. New subsection 23(2) of the Illegal Logging Act identifies the Secretary of the department that administers the Illegal Logging Act as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the Secretary to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New subsection 23(2) of the Illegal Logging Act preserves the effect of current subsection 60(1) of that Act, which is repealed by this item. 1095. New subsection 23(3) of the Illegal Logging Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the Illegal Logging Act. New subsection 23(3) of the Illegal Logging Act preserves the effect of the current definition of relevant court in section 7 of that Act, which is repealed by item 6 above. New subsection 23(3) of the Illegal Logging Act also extends jurisdiction under that Act to the Federal Circuit Court of Australia. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 1096. New subsection 23(4) of the Illegal Logging Act provides that Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the Illegal Logging Act, does not extend to the external Territories. New subsection 23(4) of the Illegal Logging Act reflects existing arrangements under that Act (see section 4 of the Illegal Logging Act). 243
1097. Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Illegal Logging Act. The comparison table provided at paragraph 1019 above identifies provisions gained through alignment with the Regulatory Powers Act, which are not currently in the Illegal Logging Act, that are merely procedural in nature and set out matters in relation to burden of proof and vicarious liability (see sections 96 and 97 of the Regulatory Powers Act, which are discussed below). 1098. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 1099. Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. 1100. Application of the standard civil penalty provisions in Part 4 of the Regulatory Powers Act will also align subsection 60(2) of the Illegal Logging Act with subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill), and repeal section 66 of the Illegal Logging Act, without substitution. 1101. Current subsection 60(2) of the Illegal Logging Act provides that the Secretary must make an application for a civil penalty order within 4 years of the alleged contravention. Application of subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill) will increase this time period from within 4 years to within 6 years of the alleged contravention (see the discussion of amended subsection 82(2) of the Regulatory Powers Act in Schedule 1 to this Bill). 1102. Current section 66 of the Illegal Logging Act provides that a contravention of a civil penalty provision is not an offence. That section is no longer necessary, as that provision does not add anything beyond the common law principle and its inclusion is no longer in line with current drafting standards. Infringement notices 1103. Current Division 6 of Part 4 of the Illegal Logging Act provides for provisions in relation to infringement notices, and includes sections 75, 76, 77, 78, 79, 80, 81 and 82 of that Act. Those sections are no longer necessary, as this Schedule amends the Illegal Logging Act to apply the standard infringement notices provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1019 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Illegal Logging Act that are repealed by this item. 1104. New Division 5 of Part 4 of the Illegal Logging Act directs the reader to Part 5 of the Regulatory Powers Act, which provides for provisions in relation to infringement notices (see the note to new subsection 24(1) of the Illegal Logging Act). New section 24 of the Illegal Logging Act outlines matters in relation to infringement officers and the relevant chief executive. 244
1105. New subsection 24(1) of the Illegal Logging Act states that the following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act: a. a strict liability offence against the Illegal Logging Act, b. a civil penalty provision of the Illegal Logging Act, or c. an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act. 1106. New subsection 24(1) of the Illegal Logging Act ensures that Part 5 of the Regulatory Powers Act operates for the purposes of the provisions identified in that subsection. Item 8 also inserts a note at the end of new subsection 24(1) of the Illegal Logging Act, which directs the reader to Part 5 of the Regulatory Powers Act. 1107. New subsection 24(2) of the Illegal Logging Act identifies an inspector (as defined in the Illegal Logging Act) as an infringement officer for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 24(1) of the Illegal Logging Act. This new subsection will enable the infringement officer to issue an infringement notice to a person if they reasonably believe the person has contravened a provision identified in new subsection 24(1) of the Illegal Logging Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), the person may be prosecuted in a court for the alleged contravention or proceedings seeking a civil penalty order under Part 4 of the Regulatory Powers Act may be brought against the person. New subsection 24(2) of the Illegal Logging Act reflects existing arrangements under that Act (see section 19 of the Illegal Logging Act). 1108. New subsection 24(3) of the Illegal Logging Act identifies the Secretary of the department that administers the Illegal Logging Act as the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 24(1) of that Act. New subsection 24(3) of the Illegal Logging Act reflects existing arrangements under that Act (see section 19 of the Illegal Logging Act). 1109. New subsection 24(4) of the Illegal Logging Act provides that the Secretary, as the relevant chief executive under Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 24(1) of that Act, may, in writing, delegate his or her powers and functions to an SES employee or acting SES employee in the department that administers the Illegal Logging Act. New subsection 24(4) of the Illegal Logging Act reflects existing arrangements under that Act (see subsection 85(1) of the Illegal Logging Act). 1110. New subsection 24(5) of the Illegal Logging Act provides that a delegate must comply with any directions of the Secretary, which reflects existing arrangements under that Act (see subsection 85(2) of the Illegal Logging Act). 1111. New subsection 24(6) of the Illegal Logging Act provides that Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 24(1) of the Illegal Logging Act, does not extend to the external Territories. New subsection 24(6) of the Illegal Logging Act reflects existing arrangements under that Act (see section 4 of the Illegal Logging Act). 245
1112. Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Illegal Logging Act. However, the comparison table provided at paragraph 1019 above identifies that current subsection 79(6) and current section 82 of the Illegal Logging Act are repealed without substitution. 1113. Current subsection 79(6) of the Illegal Logging Act provides that evidence or information that the person, or a representative of the person, gives to the Secretary in the course of making representations for withdrawal of an infringement notice under current section 79 of that Act is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information being false or misleading). There is no equivalent to this provision in the Regulatory Powers Act, as the ability of a person to make representations for the withdrawal of an infringement notice is not designed to be an information or evidence gathering exercise for the regulator. Current subsection 79(6) of the Illegal Logging Act is repealed without substitution, as retention of this provision is no longer required for the purposes of that Act. 1114. Current section 82 of the Illegal Logging Act provides that the regulations may prescribe further matters in relation to infringement notices issued under the Illegal Logging Act. The repeal of current section 82 of the Illegal Logging Act reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, rather than by regulation or legislative instrument. There are currently no additional provisions prescribing further matters in relation to infringement notices in regulations made under the Illegal Logging Act. PART 2--APPLICATION AND SAVING PROVISIONS Item 9 - Saving provision--identity cards 1115. Item 9 provides that, despite the repeal of section 20 of the Illegal Logging Act by this Schedule, that section, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to a person who ceased to be an inspector before the commencement of this Schedule. 1116. This item preserves the effect of section 20 of the Illegal Logging Act, which provides that a person commits an offence of strict liability if a person ceases to be an inspector but does not return their identity card to the Secretary of the department that administers the Illegal Logging Act as soon as practicable after that cessation. 1117. Where a person ceases to be an inspector after the commencement of this Schedule, sections 35 and 76 of the Regulatory Powers Act will apply. Item 10 - Application and saving provision--monitoring and investigation 1118. Item 10 provides for the application of the amendments in this Schedule in relation to monitoring and investigation powers. 246
1119. Sub-item 10(1) makes it clear that Part 2 of the Regulatory Powers Act, as that Part applies under Division 2 of Part 4 of the Illegal Logging Act, applies in relation to: a. determining whether a provision identified in new subsection 21(1) of the Illegal Logging Act has been complied with before, on or after the commencement of this Schedule, and b. determining whether information given in compliance or purported compliance with a provision of the Illegal Logging Act before on or after the commencement of this Schedule is correct. 1120. Sub-item 10(2) makes it clear that Part 3 of the Regulatory Powers Act, as that Part applies under Division 3 of Part 4 of the Illegal Logging Act, applies in relation to evidential material that relates to a provision identified in new subsection 22(1) of the Illegal Logging Act, if the suspected contravention of the provision occurred before, on or after the commencement of this Schedule. 1121. Sub-items 10(1) and (2) provide clarity for an authorised person exercising monitoring powers under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 21(1) of the Illegal Logging Act and information mentioned in new subsection 21(2) of that Act, and an authorised person exercising investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 22(1) of the Illegal Logging Act. Sub-items 10(1) and (2) also ensure that an authorised person may exercise those powers from the time of the commencement of this Schedule, regardless of whether or not non-compliance or the suspected contravention occurred before, on or after that commencement. 1122. As this Schedule does not expand the existing regulatory framework of the Illegal Logging Act in relation to monitoring or investigation powers, the retrospective application provided for by this item does not impact rights or impose liabilities on a person subject to monitoring or investigation powers under Parts 2 or 3 of the Regulatory Powers Act, as those Parts apply to the provisions identified in new subsections 21(1) and 22(1) of the Illegal Logging Act and information mentioned in new subsection 21(2) of that Act. 1123. Sub-item 10(3) provides that Divisions 2, 3 and 4 of Part 4 of the Illegal Logging Act, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to the following: a. an application for a warrant made, but not decided, under the relevant Division of the Illegal Logging Act before the commencement of this Schedule, b. a warrant issued, or completed and signed, under the relevant Division of the Illegal Logging Act before, on or after the commencement of this Schedule as a result of an application made before that commencement, c. powers exercised, rights created and duties imposed, under the relevant Division of the Illegal Logging Act before, on or after the commencement of this Schedule in relation to: i. an entry onto premises before that commencement with the consent of the occupier or occupiers of the premises, or, ii. an entry onto premises before, on or after that commencement as a result of a warrant issued, or completed and signed, under the relevant Division of the Illegal Logging Act before, on or after the 247
commencement of this Schedule as a result of an application made before the commencement of this Schedule, d. things secured or seized under the relevant Division of the Illegal Logging Act before, on or after that commencement, e. a requirement made under current subsection 54 of the Illegal Logging Act before, on or after that commencement. Item 11 - Application and saving provision--civil penalties 1124. Item 11 provides for the application of the amendments in this Schedule in relation to civil penalties, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 1125. This item also provides that Division 5 of Part 4 of the Illegal Logging Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule. Item 12 - Application and saving provision--infringement notices 1126. Item 12 provides for the application of the amendments in this Schedule in relation to infringement notices, and makes it clear that the amendments apply in relation to alleged contraventions of provisions referred to in new subsection 24(1) of the Illegal Logging Act occurring on or after the commencement of this Schedule. 1127. This item also provides that Division 6 of Part 4 of the Illegal Logging Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to alleged contraventions of offence and civil penalty provisions in that Act, and alleged contraventions of provisions of the Crimes Act and Criminal Code that relate to that Act, occurring before the commencement of this Schedule. 248
Schedule 10 - Industrial Chemicals (Notification and Assessment) Act 1989 GENERAL OUTLINE 1128. The Industrial Chemicals (Notification and Assessment) Act 1989 (the 'ICNA Act') establishes the National Industrial Chemicals Notification and Assessment Scheme (the 'NICNAS') as a national system of notification and assessment of industrial chemicals for the protection of human health and the environment. 1129. Current section 83 of the ICNA Act deals with the use of injunctions to enforce the provisions of the ICNA Act or the regulations made under that Act, section 6 of the Crimes Act in relation to an offence against the ICNA Act or the regulations made under that Act, or section 11.1, 11.4 or 11.5 of the Criminal Code in relation to an offence against the ICNA Act or the regulations made under that Act. 1130. Current sections 86 and 88 of the ICNA Act create a framework for monitoring whether the provisions of that Act or the regulations made under that Act have been, or are being, complied with. 1131. Current sections 87 and 88 of the ICNA Act establish a framework for gathering material that relates to the contravention of an offence against that Act or the regulations made under that Act, an offence against section 6 of the Crimes Act in relation to an offence against the ICNA Act or the regulations made under that Act, or an offence against section 11.1, 11.4 or 11.5 of the Criminal Code in relation to an offence against the ICNA Act or the regulations made under that Act. 1132. Current section 89 of the ICNA Act provides that an occupier may make an application for information or documents supplied or obtained by an inspector to be treated as exempt information under current section 75 of that Act. 1133. This Schedule amends the ICNA Act to apply the standard monitoring, investigation and injunctions provisions of the Regulatory Powers Act. Application of these provisions does result in an expansion of the current investigation and monitoring powers of the ICNA Act, as the powers provided for in sections 9, 20, 21, 22, 50 and 51 of the Regulatory Powers Act are gained through alignment (see the discussion at item 6 of this Schedule below). Other provisions gained through alignment with the Regulatory Powers Act, which are not currently in the ICNA Act, are merely procedural matters in relation to monitoring and investigation powers and injunctions. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the ICNA Act, including current section 89 of the ICNA Act. 1134. Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions of an Act or a legislative instrument have been, or are being complied with. This Part also establishes a framework for monitoring whether information given in compliance, or purported compliance, with a provision of an Act or legislative instrument is correct. Subsection 7(2) of the Regulatory Powers Act states that, in order for Part 2 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made subject to monitoring under that Part, or information given in compliance, or purported compliance, with a provision of an Act or legislative instrument must be made subject to monitoring under that Part, by another Act (a triggering Act). When a triggering Act applies Part 2 of the Regulatory Powers Act, it must identify any related provisions and the authorised applicant or applicants, the authorised person or persons, the issuing officer or officers, the relevant chief 249
executive and the relevant court or courts that may exercise powers under that Part (see sections 10, 11, 12, 14, 15 and 16 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person or persons may be assisted by another person, and whether the authorised applicant, authorised person, issuing officer or relevant chief executive may delegate his or her powers and functions in relation to the provisions and/or information subject to monitoring under the triggering Act (see section 23 and subsections 11(3), 12(3), 14(3) and 15(3) of the Regulatory Powers Act). If provisions or information subject to monitoring under the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 2 of the Regulatory Powers Act extends to any external Territories. 1135. Part 3 of the Regulatory Powers Act creates a framework for gathering material that relates to the contravention of offence and civil penalty provisions of an Act. Subsection 37(2) of the Regulatory Powers Act states that, in order for Part 3 of the Regulatory Powers Act to operate, an offence or civil penalty provision of an Act must be made subject to investigation under that Part by a triggering Act. When a triggering Act applies Part 3 of the Regulatory Powers Act, it must identify any related provisions and the authorised applicant or applicants, the authorised person or persons, the issuing officer or officers, the relevant chief executive and the relevant court or courts that may exercise powers under that Part (see sections 40, 41, 42, 44, 45 and 46 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may be assisted by another person, and whether the authorised applicant, authorised person, issuing officer or relevant chief executive may delegate his or her powers and functions in relation to the provisions subject to investigation under the triggering Act (see section 53 and subsections 41(3), 42(3), 44(3) and 45(3) of the Regulatory Powers Act). If offence or civil penalty provisions subject to investigation under the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 3 of the Regulatory Powers Act extends to any external Territories. 1136. Part 7 of the Regulatory Powers Act creates a framework for the use of injunctions to enforce provisions of an Act. Subsection 117(2) of the Regulatory Powers Act states that, in order for Part 7 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made enforceable under that Part by a triggering Act. When a triggering Act applies Part 7 of the Regulatory Powers Act, it must identify an authorised person or persons and a relevant court or courts that may exercise powers under Part 7 of the Regulatory Powers Act (see sections 119 and 120 of the Regulatory Powers Act). A triggering Act must also express whether an authorised person or persons may delegate his or her powers and functions under Part 7 of the Regulatory Powers Act in relation to provisions subject to an injunction under the triggering Act (see subsection 119(3) of the Regulatory Powers Act). If provisions of the triggering Act are subject to an injunction and apply in external Territories or offshore areas, the triggering Act should identify whether Part 7 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Industrial Chemicals (Notification and Assessment) Act 1989 1137. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by items 5 and 6) for the provisions of the ICNA Act that are repealed by items 5, 6 and 7. 250
Current provision in the ICNA Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Injunctions 83 Part 7-Injunctions Relevant courts 83(1) Extended to the N/A (see new Federal Circuit subsection 83(3) of Court and a court the ICNA Act) of a State or Territory that has jurisdiction in relation to matters arising under the ICNA Act Grant of injunctions 83 Retained 121 Interim injunctions 83(2) Retained 122 Discharging or varying injunctions 83(3) Retained 123 Certain limits on granting injunctions not to 83(4); Retained 124 apply 83(5) Power to grant an injunction restraining a 83(4)(c) Retained through N/A (see new person from engaging in conduct may be modification to subsection 83(4) of exercised whether or not conduct of that the operation of the ICNA Act) kind constitutes a serious and immediate the Regulatory risk of adverse health effects or adverse Powers Act environmental effects Power to grant an injunction requiring a 83(5)(c) Retained through N/A (see new person from engaging in conduct may be modification to subsection 83(5) of exercised whether or not conduct of that the operation of the ICNA Act) kind constitutes a serious and immediate the Regulatory risk of adverse health effects or adverse Powers Act environmental effects if the person refuses or fails to do that thing N/A (Other powers of a relevant court N/A Gained 125 unaffected) Monitoring powers 86, 88 Part 2-Monitoring Identity cards 85 Retained 35 Relevant courts 86(1) Extended to the N/A (see new Federal Circuit subsection 85(9) of Court and a court the ICNA Act) of a State or Territory that has jurisdiction in relation to matters arising under the ICNA Act Entering premises by consent or under a 86(1); Retained 18 warrant 86(2) General monitoring powers 86(1) Expanded 19 251
Current provision in the ICNA Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Power to take and keep samples of any 86(1)(c) Retained through N/A (see new substance at any premises modification to subsection 85(13) of the operation of the ICNA Act) the Regulatory Powers Act Monitoring warrants 86(2); Retained 32 86(3); 86(4) Use of force in executing a warrant 86(4)(b) Retained through N/A (see new modification to subsection 85(11) of the operation of the ICNA Act) the Regulatory Powers Act Persons assisting authorised persons 86(4)(b) Retained 23 Monitoring warrant may remain in force for 86(4)(d) Aligned 32(4)(f) up to 6 months (note: monitoring warrant may remain in force for up to 3 months) Power to require information and 88 Retained 24 documents Privilege against self-incrimination not 88(4) Retained 17 abrogated N/A (Information subject to monitoring) N/A Gained 9 N/A (Operating electronic equipment) N/A Gained 20 N/A (Securing electronic equipment to N/A Gained 21 obtain expert assistance) N/A (Securing evidence of the N/A Gained See section 22 of the contravention of a related provision) Regulatory Powers Act as amended by this Bill N/A (Consent) N/A Gained 25 N/A (Announcement before entry under N/A Gained 26 warrant) N/A (Authorised person to be in possession N/A Gained 27 of warrant) N/A (Details of warrant etc. to be given to N/A Gained 28 occupier) N/A (Compensation for damage to N/A Gained 29 electronic equipment) N/A (Occupier's right to observe execution N/A Gained 30 of warrant) N/A (Occupier's responsibility to provide N/A Gained 31 facilities and assistance) 252
Current provision in the ICNA Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) N/A (Extension of periods in which things N/A Gained 33 secured) N/A (Powers of issuing officers) N/A Gained 34 Investigation powers 87, 88 Part 3-Investigation Identity cards 85 Retained 76 Relevant courts 87 Extended to the N/A (see new Federal Circuit subsection 86(8) of Court and a court the ICNA Act) of a State or Territory that has jurisdiction in relation to matters arising under the ICNA Act Inspector may enter premises by consent or 87(1) Retained 48 under a warrant Investigation powers of inspectors 87(1) Expanded 49 Investigation warrant 87(2); Retained 70 87(3); 87(4) Use of force in executing a warrant 87(2) Retained through N/A (see new modification to subsection 86(10) of the operation of the ICNA Act) the Regulatory Powers Act Persons assisting authorised persons 87(2) Retained 53 Seizing evidence of related provisions 87(5) Retained 52 Retention and return of seized thing 87(6), Retained 66 87(7) Power to require information and 88 Retained 54 documents N/A (Operating electronic equipment) N/A Gained 50 N/A (Securing electronic equipment to N/A Gained 51 obtain expert assistance) N/A (Consent) N/A Gained 55 N/A (Announcement before entry under N/A Gained 56 warrant) N/A (Authorised person to be in possession N/A Gained 57 of warrant) N/A (Details of warrant etc. to be given to N/A Gained 58 occupier) 253
Current provision in the ICNA Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) N/A (Completing execution of an N/A Gained 59 investigation warrant after temporary cessation) N/A (Completing execution of an N/A Gained 60 investigation warrant stopped by court order) N/A (Compensation for damage to N/A Gained 61 electronic equipment) N/A (Occupier's right to observe execution N/A Gained 62 of warrant) N/A (Occupier's responsibility to provide N/A Gained 63 facilities and assistance) N/A (Copies of seized things to be N/A Gained 64 provided) N/A (Receipts for seized things) N/A Gained 65 N/A (Issuing officer may permit a thing to N/A Gained 67 be retained) N/A (Disposal of things) N/A Gained 68 N/A (Compensation for acquisition of N/A Gained 69 property) N/A (Investigation warrants by telephone, N/A Gained 71 fax, etc.) N/A (Authority of warrant) N/A Gained 72 N/A (Offence relating to warrants by N/A Gained 73 telephone, fax etc) N/A (Extension of time in which things N/A Gained 74 secured) N/A (Powers of issuing officers) N/A Gained 75 Exempt information given to inspectors 89 N/A Occupier may apply to the Director to treat 89 Retained through N/A (see new some or all of the information supplied or modification to section 89 of the obtained by an inspector under sections 86 the operation of ICNA Act) or 88 as exempt information under the Regulatory section 75 Powers Act PART 1--AMENDMENTS Item 1 - Subsection 5(1) (at the end of the definition of exempt information) 1138. Item 1 inserts a note at the end of the current definition of exempt information in subsection 5(1) of the ICNA Act, which directs the reader to new subsection 89(3) of that Act. 254
1139. Subsection 5(1) of the ICNA Act defines exempt information as information about which the Director of the NICNAS has given a notification under current section 75 of the ICNA Act, and includes information for which an application for treatment as exempt information has been made under that Act but not finalised. 1140. Item 1 is consequential to the amendments made by item 7 below, which repeals current section 89 of the ICNA Act and inserts a new section 89 of that Act. Item 2 - Subsection 5(1) 1141. Item 2 amends subsection 5(1) of the ICNA Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 3 - Section 76 1142. Item 3 inserts 'or the Regulatory Powers Act as that Act applies in relation to this Act or the regulations' after the first occurrence of 'under this Act' in current section 76 of the ICNA Act. This item clarifies that an officer may obtain exempt information by performing duties or functions under the Regulatory Powers Act, as that Act applies in relation to the ICNA Act. 1143. Current section 76 of the ICNA Act states that, subject to section 79 of that Act, an officer who has exempt information, and has that information only because of performing functions or duties under that Act, must not make a record of, or disclose, any of the information except: a. in the course of carrying out functions and duties under the ICNA Act, b. by order of a court, or c. with the consent of the person because of whose application the information is exempt information. 1144. Section 79 of the ICNA Act provides that, in certain listed circumstances, the Director of the NICNAS must disclose exempt information about a chemical to an inquirer. 1145. It is necessary for item 3 to make this amendment, as this Schedule amends the ICNA Act to apply the standard monitoring, investigation and injunctions provisions of the Regulatory Powers Act, and exempt information may be obtained throughout the course of performing duties or functions under the Regulatory Powers Act, as that Act applies to the ICNA Act. 1146. Item 3 is consequential to the amendments made by items 5, 6 and 7 below, which repeal current sections 83, 85, 86, 87, 88 and 89 of the ICNA Act and apply the standard monitoring, investigation and injunctions provisions in Parts 2, 3 and 7 of the Regulatory Powers Act. Item 4 - Paragraph 76(a) 1147. Item 4 inserts 'or the Regulatory Powers Act as that Act applies in relation to this Act or the regulations' after 'under this Act' in current paragraph 76(a) of the ICNA Act. This item clarifies that an officer may make a record of or disclose exempt information in the 255
course of carrying out functions and duties under the Regulatory Powers Act, as that Act applies in relation to the ICNA Act. 1148. Current section 76 of the ICNA Act states that, subject to section 79 of that Act, an officer who has exempt information, and has that information only because of performing functions or duties under that Act, must not make a record of, or disclose, any of the information except: a. in the course of carrying out functions and duties under the ICNA Act, b. by order of a court, or c. with the consent of the person because of whose application the information is exempt information. 1149. Section 79 of the ICNA Act provides that, in certain listed circumstances, the Director of the NICNAS must disclose exempt information about a chemical to an inquirer. 1150. It is necessary for item 4 to make this amendment, as this Schedule amends the ICNA Act to apply the standard monitoring, investigation and enforcement provisions of the Regulatory Powers Act, and exempt information may be required to be recorded or disclosed in the course of performing duties or functions under the Regulatory Powers Act, as that Act applies to the ICNA Act. 1151. Item 4 is consequential to the amendments made by items 5, 6 and 7 below, which repeal current sections 83, 85, 86, 87, 88 and 89 of the ICNA Act and apply the standard monitoring, investigation and injunctions provisions in Parts 2, 3 and 7 of the Regulatory Powers Act. Item 5 - Section 83 1152. Item 5 repeals section 83 of the ICNA Act and substitutes new section 83 of that Act, which applies the provisions of Part 7 of the Regulatory Powers Act for the use of injunctions to enforce the offence provisions of the ICNA Act, and the offence provisions of the Crimes Act and Criminal Code that relate to the ICNA Act. Injunctions 1153. Current section 83 of the ICNA Act creates a framework for the use of injunctions under the ICNA Act, and is no longer necessary, as this Schedule amends the ICNA Act to apply the standard injunctions provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1137 above identifies the corresponding provisions of the Regulatory Powers Act for section 83 of the ICNA Act, which is repealed by this item. 1154. New section 83 of the ICNA Act directs the reader to Part 7 of the Regulatory Powers Act, which provides for provisions in relation to injunctions (see the note to new subsection 83(1) of the ICNA Act). This new section outlines matters in relation to the authorised person, relevant courts, additional matters and the extension of matters to external Territories. 1155. New subsection 83(1) of the ICNA Act provides that a provision is enforceable under Part 7 of the Regulatory Powers Act if it is an offence against the ICNA Act or the regulations made under that Act, or an offence against the Crimes Act or the Criminal Code 256
that relates to the ICNA Act or the regulations made under that Act. New subsection 83(1) of the ICNA Act ensures that Part 7 of the Regulatory Powers Act operates for the purposes of the provisions identified in that subsection. Item 5 also inserts a note at the end of new subsection 83(1) of the ICNA Act, which directs the reader to Part 7 of the Regulatory Powers Act. 1156. New subsection 83(2) of the ICNA Act identifies the Minister responsible for the department that administers the ICNA Act, or any other person, as an authorised person in relation to the provisions identified in new subsection 83(1) of the ICNA Act. This will enable an authorised person to use injunctions to enforce the provisions identified in new subsection 83(1) of the ICNA Act. New subsection 83(2) of the ICNA Act preserves the effect of existing arrangements in current section 83 of that Act in relation to authorised persons, as that section is repealed by this item. 1157. New subsection 83(3) of the ICNA Act identifies the following courts as a relevant court in relation to the provisions identified in new subsection 83(1) of that Act: a. the Federal Court of Australia b. the Federal Circuit Court of Australia, and c. a court of a State or Territory that has jurisdiction in relation to matters arising under the ICNA Act. 1158. New subsection 83(3) of the ICNA Act preserves the effect of existing arrangements in current subsection 83(1) of that Act, which is repealed by this item, and extends jurisdiction to the Federal Circuit Court and State or Territory courts that have jurisdiction in relation to matters arising under that Act. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. It is also appropriate to confer jurisdiction on a court of a State or Territory that has jurisdiction in relation to matters arising under the ICNA Act. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 1159. New subsections 83(4) and (5) of the ICNA Act modify the operation of Part 7 of the Regulatory Powers Act, and provide that a relevant court may grant an injunction restraining a person from engaging in conduct, or requiring a person to do a thing, regardless of whether or not conduct of that kind constitutes a serious or immediate risk of adverse health effects or adverse environmental effects, or there is a serious or immediate risk of adverse health effects or adverse environmental effects if the person fails or refuses to do that thing. 1160. New subsection 83(4) of the ICNA Act ensures that a court may prevent conduct that would be contrary to the purposes of the Act, without needing to wait for the countervailing conduct to occur. New subsection 83(5) of the ICNA Act ensures that a court may require conduct to uphold the purposes of the Act, without needing to wait for the danger to manifest. 1161. New subsections 83(4) and (5) of the ICNA Act preserve the effect of current subsections 83(4) and (5) of that Act, which are repealed by this item. 257
1162. New subsection 83(6) of the ICNA Act provides that new subsection 83(4) and (5) of that Act are in addition to, and do not limit, subsections 124(1) and (2) of the Regulatory Powers Act. 1163. New subsection 83(7) of the ICNA Act extends the application of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 83(1) of the ICNA Act, to every external Territory. New subsection 83(7) of the ICNA Act reflects existing arrangements under that Act (see section 8 of the ICNA Act). 1164. Application of the standard injunctions provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the ICNA Act. The comparison table provided at paragraph 1137 above identifies the provision gained through alignment with the Regulatory Powers Act, which is not currently in the ICNA Act, that is merely procedural in nature and sets out matters in relation to the powers of a relevant court (see section 125 of the Regulatory Powers Act, which is discussed below). 1165. Section 125 of the Regulatory Powers Act provides that the powers conferred on a relevant court under Part 7 of that Act are in addition to, and not instead of, any other powers of the court, whether conferred by that Act or otherwise. Application of this provision to the ICNA Act clarifies that the use of injunction powers under Part 7 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 83(1) of the ICNA Act, are in addition to, not in replacement of, any other powers of a relevant court identified in new subsection 83(3) of the ICNA Act. Item 6 - Sections 85 to 88 1166. Item 6 repeals sections 85, 86, 87 and 88 of the ICNA Act, and substitutes new sections 85 and 86 of that Act. This item applies the provisions of Part 2 of the Regulatory Powers Act for provisions and information subject to monitoring under the ICNA Act (note, this includes an offence against the Crimes Act or the Criminal Code that relates to the ICNA Act or the regulations made under that Act), and Part 3 of the Regulatory Powers Act for the gathering of material that relates to the contravention of the offence provisions of the ICNA Act or the regulations made under that Act, or the contravention of the offence provisions of the Crimes Act or the Criminal Code that relate to the ICNA Act or the regulations made under that Act. 1167. Current sections 85, 86, 87 and 88 of the ICNA Act provide for matters in relation to monitoring and investigation powers, and are no longer necessary, as this Schedule amends the ICNA Act to apply the standard provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act. The comparison table provided at paragraph 1137 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the ICNA Act that are repealed by this item. Monitoring powers 1168. New section 85 of the ICNA Act directs the reader to Part 2 of the Regulatory Powers Act, which creates a framework for monitoring whether provisions of an Act have been, or are being, complied with, and whether information given in compliance, or purported compliance, with a provision of an Act is correct (see the notes to new subsections 85(1) and (2) of the ICNA Act). New section 85 of the ICNA Act outlines matters in relation to related provisions, the authorised applicant, the authorised person, the issuing officer, the 258
relevant chief executive, relevant courts, persons assisting, use of force in executing a monitoring warrant, additional monitoring powers, and the extension of matters to external Territories. 1169. New subsection 85(1) of the ICNA Act states that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is: a. a provision of the ICNA Act or the regulations made under that Act, or b. an offence against the Crimes Act or the Criminal Code that relates to the ICNA Act or the regulations made under that Act. 1170. New subsection 85(1) of the ICNA Act ensures that Part 2 of the Regulatory Powers Act operates for the purposes of the provisions identified in that subsection. Item 6 also inserts a note at the end of new subsection 85(1) of the ICNA Act, which directs the reader to Part 2 of the Regulatory Powers Act. 1171. New subsection 85(2) of the ICNA Act states that information given in compliance or purported compliance with a provision of that Act or the regulations made under that Act is subject to monitoring under Part 2 of the Regulatory Powers Act. New subsection 85(2) of the ICNA Act ensures that Part 2 of the Regulatory Powers Act operates for the purposes of all provisions of the ICNA Act and the regulations made under that Act. Item 6 also inserts a note at the end of new subsection 85(2) of the ICNA Act, which directs the reader to Part 2 of the Regulatory Powers Act. 1172. The ability to monitor the correctness of information given in compliance, or purported compliance, with a provision of the ICNA Act or the regulations made under that Act complements existing monitoring powers of that Act. There is currently no equivalent to new subsection 85(2) of the ICNA Act in the ICNA Act (see section 9 of the Regulatory Powers Act). The application of monitoring powers to information given in compliance or purported compliance with a provision of an Act is important for the purposes of an effective monitoring scheme. It is necessary to extend existing monitoring powers of the ICNA Act to information, as information is necessary for various provisions of that Act and the regulations made under that Act, and monitoring the correctness of that information upholds the objects of the ICNA Act. 1173. New subsection 85(3) of the ICNA Act states that there are no related provisions for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 85(1) of the ICNA Act and information mentioned in new subsection 85(2) of that Act. This new subsection reflects existing arrangements under the ICNA Act in relation to monitoring powers. 1174. New subsection 85(4) of the ICNA Act identifies an inspector as an authorised applicant for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 85(1) of the ICNA Act and information mentioned in new subsection 85(2) of that Act. This will enable an inspector (as defined in the ICNA Act) to apply to an issuing officer for a monitoring warrant in relation to premises. New subsection 85(4) of the ICNA Act preserves the effect of existing arrangements in current section 86 of that Act in relation to monitoring warrants, as that section is repealed by this item. 259
1175. New subsection 85(5) of the ICNA Act identifies an inspector as an authorised person for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 85(1) of the ICNA Act and information mentioned in new subsection 85(2) of that Act. This will enable an inspector to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or for the purpose of determining whether information subject to monitoring is correct. However, an authorised person may not enter the premises unless the occupier has provided consent, or the authorised person is in possession of a monitoring warrant. New subsection 85(5) of the ICNA Act preserves the effect of existing arrangements in current section 86 of that Act in relation to monitoring warrants, as that section is repealed by this item. 1176. New subsection 85(6) of the ICNA Act provides that a magistrate is an issuing officer for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 85(1) of the ICNA Act and information mentioned in new subsection 85(2) of that Act. New subsection 85(6) of the ICNA Act preserves the effect of existing arrangements in current section 86 of that Act in relation to monitoring warrants, as that section is repealed by this item. 1177. New subsection 85(7) of the ICNA Act identifies the Director of the NICNAS as the relevant chief executive for the purposes of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 85(1) of the ICNA Act and information mentioned in new subsection 85(2) of that Act. New subsection 85(7) of the ICNA Act reflects existing arrangements under that Act (see section 91 of the ICNA Act). 1178. New subsection 85(8) of the ICNA Act provides that the Director of the NICNAS, as the relevant chief executive under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 85(1) of the ICNA Act and information mentioned in new subsection 85(2) of that Act, may, in writing, delegate his or her powers and functions to: a. a person whose classification level appears in Group 7 or 8 of Schedule 1 to the Classification Rules under the Public Service Act 1999, or b. a person who is acting in a position usually occupied by a person with a classification level that appears in Group 7 or 8 of Schedule 1 to the Classification Rules under the Public Service Act. 1179. New subsection 85(8) of the ICNA Act reflects existing arrangements under that Act (see section 104A of the ICNA Act). 1180. New subsection 85(9) of the ICNA Act identifies the following courts as a relevant court in relation to the provisions identified in new subsection 85(1) of that Act and information mentioned in new subsection 85(2) of that Act: a. the Federal Court of Australia b. the Federal Circuit Court of Australia, and c. a court of a State or Territory that has jurisdiction in relation to matters arising under the ICNA Act 1181. New subsection 85(9) of the ICNA Act preserves the effect of existing arrangements in current section 86 of that Act, which is repealed by this item, and extends jurisdiction to 260
the Federal Circuit Court and State or Territory courts that have jurisdiction in relation to matters arising under that Act. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. It is also appropriate to confer jurisdiction on a court of a State or Territory that has jurisdiction in relation to matters arising under the ICNA Act. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 1182. New subsection 85(10) of the ICNA Act provides that an inspector may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 85(1) of the ICNA Act and information mentioned in new subsection 85(2) of that Act. New subsection 85(10) of the ICNA Act preserves the effect of existing arrangements in current paragraph 86(4)(b) of that Act in relation to monitoring warrants, as that paragraph is repealed by this item. 1183. New subsection 85(11) of the ICNA Act modifies the operation of Part 2 of the Regulatory Powers Act, and provides that, in executing a monitoring warrant under that Part in relation to the provisions and information subject to monitoring under the ICNA Act, an inspector or person assisting an inspector may use such force against things as is necessary and reasonable in the circumstances. New subsection 85(11) of the ICNA Act preserves the effect of current paragraph 86(4)(b) of that Act, which is repealed by this item. 1184. New subsection 85(11) of the ICNA Act limits the use of force to against things, and does not permit the use of force against persons. It is necessary to retain this power through the inclusion of new subsection 85(11) of the ICNA Act, as an authorised person executing a monitoring warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain things or information that would provide evidence that provisions subject to monitoring have not been, or are not being, complied with, or that information subject to monitoring is incorrect (for example, chemical supplies that were introduced contrary to the ICNA Act). 1185. Section 31 of the Regulatory Powers Act places an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 2 of the Regulatory Powers Act, for the purposes of executing a monitoring warrant. Subsection 31(2) of the Regulatory Powers Act provides that failure to comply with section 31 of that Act is an offence, and carries a penalty of 30 penalty units. Despite this obligation and its corresponding penalty for non-compliance, an occupier or other person may continue to refuse access to locked premises or objects. It is necessary to retain the power to use force against things to ensure that the execution of a monitoring warrant is not frustrated, and prevent concealment, loss, destruction, use or continuation of use of information or things in the course of non-compliance with the ICNA Act (see new subsections 85(1) and (2) of the ICNA Act). 1186. New subsections 85(12) and (13) of the ICNA Act modify the operation of Part 2 of the Regulatory Powers Act, and provide that, for the purpose of determining whether 261
provisions subject to monitoring have been, or are being, complied with, or for the purpose of determining whether information subject to monitoring is correct, the powers to take and keep samples of any substance at any premises entered under section 18 of the Regulatory Powers Act are taken to be included in the monitoring powers under Part 2 of that Act. New subsections 85(12) and (13) of the ICNA Act preserve the effect of current paragraph 86(1)(c) of that Act, which is repealed by this item. 1187. Substances introduced contrary to the provisions of the ICNA Act have the potential to cause harm to human and environmental health and safety. It is necessary to retain the power to take samples through the inclusion of new subsections 85(12) and (13) of the ICNA Act in order to determine the chemical identity of substances found during a monitoring inspection, which an authorised person reasonably suspects were not lawfully introduced under the ICNA Act. The taking of samples allows necessary tests to be conducted on items and substances in order to determine compliance with the ICNA Act. 1188. New subsection 85(14) of the ICNA Act extends the application of Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 85(1) of the ICNA Act and information mentioned in new subsection 85(2) of that Act, to every external Territory. New subsection 85(14) of the ICNA Act reflects existing arrangements under that Act (see section 8 of that Act). 1189. Application of the standard provisions pertaining to monitoring powers in the Regulatory Powers Act does result in an expansion of the current regulatory powers framework of the ICNA Act. The comparison table provided at paragraph 1137 above identifies the provisions of the Regulatory Powers Act that are gained through alignment with that Act, which do not currently exist in the ICNA Act (see sections 20, 21 and 22 of the Regulatory Powers Act, which are discussed below). 1190. Section 20 of the Regulatory Powers Act provides an authorised person, for the purposes of Part 2 of the Regulatory Powers Act, with the power to operate electronic equipment on the premises, and the power to use a disk, tape or other storage device that is on the premises and can be used with the electronic equipment or is associated with it. If relevant data is found in the exercise of these powers, subsection 20(4) of the Regulatory Powers Act provides the authorised person with the following powers: a. the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises, and b. the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that is brought to the premises for the exercise of the power, or is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises, in order to remove the disk, tape or other storage device from the premises. 1191. Subsection 20(3) of the Regulatory Powers Act defines relevant data as information relevant to determining whether a provision that is subject to monitoring under Part 2 of that Act has been, or is being, complied with, or that information subject to monitoring under that Part is correct. Subsection 20(5) of the Regulatory Powers Act provides that an authorised person may only operate electronic equipment under section 20 of that Act if they believe on reasonable grounds that such operation can be carried out without damage to the equipment 262
(note, section 29 of the Regulatory Powers Act outlines matters in relation to compensation for damage to electronic equipment). Typically, electronic equipment refers to, but is not limited to, data storage equipment such as computers, which may have information relevant to monitoring compliance. 1192. Section 20 of the Regulatory Powers Act is necessary to ensure that an authorised person can obtain access to electronic records that may indicate whether a provision of an Act or legislative instrument, subject to Part 2 of the Regulatory Powers Act, has been, or is being, complied with, or that information subject to monitoring under that Part is correct. 1193. Section 21 of the Regulatory Powers Act applies if an authorised person, for the purposes of Part 2 of the Regulatory Powers Act, enters premises under a monitoring warrant. This section allows an authorised person to secure electronic equipment under a monitoring warrant for up to 24 hours to provide the authorised person with sufficient time to engage expert assistance to operate electronic equipment. Section 21 of the Regulatory Powers Act is necessary, as an authorised person may not be accompanied by an expert assistant when exercising monitoring powers, but expert or specialised assistance may be required to operate electronic equipment to access relevant information (note, section 29 of the Regulatory Powers Act outlines matters in relation to compensation for damage to electronic equipment). 1194. Subsection 21(3) of the Regulatory Powers Act provides that an authorised person must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the authorised person's intention to secure the equipment, and the fact that the equipment may be secured for up to 24 hours. An authorised person may only secure equipment if the authorised person suspects on reasonable grounds that: a. there is relevant data on the premises, and b. the relevant data may be accessible by operating the equipment, and c. expert assistance is required to operate the equipment, and d. the relevant data may be destroyed, altered or otherwise interfered with, if the authorised person does not take action under section 21 of the Regulatory Powers Act. 1195. Under subsection 21(4) of the Regulatory Powers Act, the equipment may be secured until the 24-hour period ends or the equipment has been operated by the expert--whichever occurs first. Subsection 21(5) of the Regulatory Powers Act enables the authorised person to apply to an issuing officer, for the purposes of Part 2 of that Act, for an extension of the 24-hour period if the authorised person believes on reasonable grounds that the equipment needs to be secured for longer than that period (note, subsection 21(7) of the Regulatory Powers Act provides that the period may be extended more than once). 1196. Subsection 21(6) of the Regulatory Powers Act states that, before making the application, the authorised person must give notice to the occupier of the premises, or their apparent representative, of his or her intention to apply for an extension. This subsection further provides that the occupier or other person is entitled to be heard in relation to that application (note, section 33 of the Regulatory Powers Act outlines the process by which an issuing officer may extend the 24-hour period). 263
1197. Subsection 22(1) of the Regulatory Powers Act, as amended by Schedule 1 to this Bill, grants an authorised person the power to secure a thing, for a period not exceeding 24 hours, if: a. the thing is found during the exercise of monitoring powers on the premises, and b. an authorised person believes on reasonable grounds that: i. a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act, or a related provision, has been contravened with respect to the thing, or ii. the thing affords evidence of the contravention of a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act, or a related provision, or iii. the thing is intended to be used for the purpose of contravening a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act, or a related provision, or iv. the thing affords evidence that information subject to monitoring under Part 2 of the Regulatory Powers Act is not correct, and c. the authorised person believes on reasonable grounds that: i. it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained, and ii. it is necessary to secure the thing without a warrant because the circumstances are serious and urgent. 1198. Subsection 22(2) of the Regulatory Powers Act enables the authorised person to apply to an issuing officer, for the purposes of Part 2 of that Act, for an extension of the 24-hour period if the authorised person believes on reasonable grounds that the equipment needs to be secured for longer than that period (note, subsection 22(4) of the Regulatory Powers Act provides that the period may be extended more than once). 1199. Subsection 22(3) of the Regulatory Powers Act states that, before making the application, the authorised person must give notice to the occupier of the premises, or their apparent representative, of his or her intention to apply for an extension. This subsection further provides that the occupier or other person is entitled to be heard in relation to that application (note, section 33 of the Regulatory Powers Act outlines the process by which an issuing officer may extend the 24-hour period). 1200. The comparison table provided at paragraph 1137 above also identifies that current subsection 86(1) of the ICNA Act is expanded due to the application of section 19 of the Regulatory Powers Act, and that current paragraph 86(4)(d) of the ICNA Act is aligned to paragraph 32(4)(f) of the Regulatory Powers Act. 264
1201. Current subsection 86(1) of the ICNA Act provides that an inspector may, to the extent that it is reasonably necessary for the purpose of ascertaining whether that Act or the regulations made under that Act have been complied with, enter any premises with the consent of the occupier or under a monitoring warrant and: a. search the premises b. take photographs, or make sketches, of the premises or any substance or thing at the premises c. take and keep samples of any substance at the premises d. inspect any record or document kept at the premises, or e. remove, or make copies of, any such record or document. 1202. Section 19 of the Regulatory Powers Act provides for the following monitoring powers that an authorised person may exercise in relation to premises entered under section 18 of that Act: a. the power to search the premises and any thing on the premises b. the power to examine or observe any activity conducted on the premises c. the power to inspect, examine, take measurements of or conduct tests on any thing on the premises d. the power to make any still or moving image or any recording of the premises or any thing on the premises e. the power to inspect any document on the premises f. the power to take extracts from, or make copies of, any such document g. the power to take onto the premises such equipment and materials as the authorised person requires for the purpose of exercising powers in relation to the premises, and h. the powers set out in subsections 20(1) and (4), 21(2) and 22(1) of the Regulatory Powers Act. 1203. Current paragraph 86(4)(d) of the ICNA Act provides that a monitoring warrant may only remain in force for six months. That paragraph is repealed by this item, and paragraph 32(4)(f) of the Regulatory Powers Act provides that a monitoring warrant may only remain in force for three months. 1204. The comparison table provided at paragraph 1137 above identifies other provisions gained through alignment with the Regulatory Powers Act, which are not currently in the ICNA Act, that are merely procedural in nature and do not expand the currently regulatory framework of that Act (see sections 25, 26, 27, 28, 29, 30, 31, 33 and 34 of the Regulatory Powers Act, which are discussed below). For example, these provisions set out matters in relation to consent, the requirement for the authorised person to be in possession of a warrant, compensation for damage to electronic equipment, an occupier's right to observe execution of a warrant, and the powers of issuing officers (see sections 25, 27, 29, 30 and 34 of the Regulatory Powers Act). 1205. Under Part 2 of the Regulatory Powers Act, an authorised person may enter premises and exercise monitoring powers with the consent of the occupier. Section 25 of the 265
Regulatory Powers Act outlines matters in relation to valid consent, including that consent must be informed and voluntary, and may be withdrawn at any time by the occupier. Subsection 25(6) of the Regulatory Powers Act provides that an authorised person must present their identity card to the occupier prior to entry or as soon as is reasonably practicable after entry to the premises. 1206. Section 26 of the Regulatory Powers Act provides that, before entering premises under a monitoring warrant, an authorised person must: a. announce that he or she is authorised to enter the premises, and b. show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises, and c. give any person at the premises an opportunity to allow entry to the premises. 1207. Section 27 of the Regulatory Powers Act states that an authorised person who is executing a monitoring warrant must be in possession of the warrant or a copy of the warrant. 1208. Section 28 of the Regulatory Powers Act requires an authorised person to provide a copy of the monitoring warrant to the occupier of the premises, or another person who apparently represents the occupier, if either person is present at the premises. Under subsection 28(2) of the Regulatory Powers Act, the authorised person must also inform, in writing, the occupier or other person of their rights and responsibilities under sections 30 and 31 of that Act. 1209. Section 29 of the Regulatory Powers Act provides that a person is entitled to compensation for damage to electronic equipment, damage to data recorded on that equipment, or damage to or corruption of programs associated with the use of that equipment or data, which is caused due to insufficient care when operating that equipment during the course of exercising monitoring powers. 1210. Section 30 of the Regulatory Powers Act provides the occupier of premises, or another person who apparently represents the occupier, with the right to observe the execution of a monitoring warrant on their premises, if the occupier or other person is present at the premises at the time of execution of the warrant. Subsection 30(2) of the Regulatory Powers Act states that the right ceases if the occupier or other person impedes execution of the warrant. 1211. Section 31 of the Regulatory Powers Act imposes an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 2 of the Regulatory Powers Act, for the purposes of executing a monitoring warrant. Subsection 31(2) of the Regulatory Powers Act provides that failure to comply with section 31 of that Act is an offence, and carries a penalty of 30 penalty units. 1212. Section 33 of the Regulatory Powers Act applies where an authorised person applies to an issuing officer under subsection 21(5) or 22(2) of that Act for an extension of the period during which a thing may be secured. Subsection 33(4) of the Regulatory Powers Act outlines information that must be included in an order of extension. 266
1213. Section 34 of the Regulatory Powers Act provides that a power conferred on an issuing officer by Part 2 of that Act is conferred on that person in a personal capacity, and not as a court or as a member of a court. However, subsection 34(3) of the Regulatory Powers Act provides that an issuing officer exercising power conferred by Part 2 of that Act has the same protections and immunities as if the issuing officer were exercising the power as the court of which the issuing officer is a member, or as a member of the court of which the issuing officer is a member. This section recognises that issuing a warrant is an executive function and not an exercise of judicial power. Investigation powers 1214. New section 86 of the ICNA Act directs the reader to Part 3 of the Regulatory Powers Act, which creates a framework for gathering material that relates to the contravention of offence provisions (see the note to new subsection 86(1) of the ICNA Act). New section 86 of the ICNA Act outlines matters in relation to related provisions, the authorised applicant, the authorised person, the issuing officer, the relevant chief executive, relevant courts, persons assisting, use of force in executing a warrant, and the extension of matters to external Territories. 1215. New subsection 86(1) of the ICNA Act states that a provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is: a. a provision of the ICNA Act or the regulations made under that Act, or b. an offence against the Crimes Act or the Criminal Code that relates to the ICNA Act or the regulations made under that Act. 1216. New subsection 86(1) of the ICNA Act ensures that Part 3 of the Regulatory Powers Act operates for the purposes of the provisions identified in that subsection. Item 6 also inserts a note at the end of new subsection 86(1) of the ICNA Act, which directs the reader to Part 3 of the Regulatory Powers Act. 1217. New subsection 86(2) of the ICNA Act states that there are no related provisions for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act. This new subsection reflects existing arrangements under the ICNA Act in relation to investigation powers. 1218. New subsection 86(3) of the ICNA Act identifies an inspector (as defined in the ICNA Act) as an authorised applicant for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act. This will enable an inspector to apply to an issuing officer for an investigation warrant in relation to premises. New subsection 86(3) of the ICNA Act preserves the effect of existing arrangements in current section 87 of that Act in relation to investigation warrants, as that section is repealed by this item. 1219. New subsection 86(4) of the ICNA Act identifies an inspector as an authorised person for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act. This will enable an inspector to enter any premises and exercise investigation powers where the inspector suspects on reasonable grounds that there may be material on the premises related to the contravention of an offence provision subject to investigation, as identified in new 267
subsection 86(1) of the ICNA Act. However, an authorised person may not enter the premises unless the occupier has provided consent, or the authorised person is in possession of an investigation warrant. New subsection 86(4) of the ICNA Act preserves the effect of existing arrangements in current section 87 of that Act in relation to investigation warrants, as that section is repealed by this item. 1220. New subsection 86(5) of the ICNA Act provides that a magistrate is an issuing officer for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act. New subsection 86(5) of the ICNA Act preserves the effect of existing arrangements in current section 87 of that Act in relation to investigation warrants, as that section is repealed by this item. 1221. New subsection 86(6) of the ICNA Act identifies the Director of the NICNAS as the relevant chief executive for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act. New subsection 86(6) of the ICNA Act reflects existing arrangements under that Act (see section 91 of the ICNA Act). 1222. New subsection 86(7) of the ICNA Act provides that the Director of the NICNAS, as the relevant chief executive under Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act, may, in writing, delegate his or her powers and functions to: a. a person whose classification level appears in Group 7 or 8 of Schedule 1 to the Classification Rules under the Public Service Act 1999, or b. a person who is acting in a position usually occupied by a person with a classification level that appears in Group 7 or 8 of Schedule 1 to the Classification Rules under the Public Service Act. 1223. New subsection 86(7) of the ICNA Act reflects existing arrangements under that Act (see section 104A of the ICNA Act). 1224. New subsection 86(8) of the ICNA Act identifies the following courts as a relevant court in relation to the provisions identified in new subsection 86(1) of that Act: a. the Federal Court of Australia b. the Federal Circuit Court of Australia, and c. a court of a State or Territory that has jurisdiction in relation to matters arising under the ICNA Act. 1225. New subsection 86(8) of the ICNA Act preserves the effect of existing arrangements in current section 87 of that Act, which is repealed by this item, and extends jurisdiction to the Federal Circuit Court and State or Territory courts that have jurisdiction in relation to matters arising under that Act. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. It is also appropriate to confer jurisdiction on a court of a State or Territory that has jurisdiction in relation to matters arising under the ICNA Act. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and 268
that workload is distributed between courts to encourage efficiency in dealing with related matters. 1226. New subsection 86(9) of the ICNA Act provides that an inspector may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act. New subsection 86(9) of the ICNA Act preserves the effect of existing arrangements in current section 87 of that Act in relation to investigation warrants, as that section is repealed by this item. 1227. New subsection 86(10) of the ICNA Act modifies the operation of Part 3 of the Regulatory Powers Act, and provides that, in executing an investigation warrant under that Part, as that Part applies to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act, an inspector or person assisting an inspector may use such force against things as is necessary and reasonable in the circumstances. New subsection 86(10) of the ICNA Act partially preserves the effect of current subsection 87(2) of that Act (as that subsection applies in relation to use of force), which is repealed by this item. 1228. New subsection 86(10) of the ICNA Act limits the use of force to against things, and does not permit the use of force against persons. It is necessary to retain this power through the inclusion of new subsection 86(10) of the ICNA Act, as an authorised person executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain evidential material that would demonstrate that a provision identified in new subsection 86(1) of the ICNA Act has been contravened (for example, chemical supplies that were introduced contrary to the ICNA Act). 1229. Section 63 of the Regulatory Powers Act places an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 3 of the Regulatory Powers Act, for the purposes of executing an investigation warrant. Subsection 63(2) of the Regulatory Powers Act provides that failure to comply with section 63 of that Act is an offence, and carries a penalty of 30 penalty units. Despite this obligation and its corresponding penalty for non-compliance, an occupier or other person may continue to refuse access to locked premises or objects. It is necessary to retain the power to use force against things to ensure that the execution of an investigation warrant is not frustrated, and prevent concealment, loss, destruction, use or continuation of use of information or things in the course of contravening the ICNA Act (see new subsection 86(1) of the ICNA Act). 1230. New subsection 86(11) of the ICNA Act extends the application of Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act, to every external Territory. New subsection 86(11) of the ICNA Act reflects existing arrangements under that Act (see section 8 of the ICNA Act). 1231. Application of the standard provisions pertaining to investigation powers in the Regulatory Powers Act does result in an expansion of the current regulatory powers framework of the ICNA Act. The comparison table provided at paragraph 1137 above identifies the provisions of the Regulatory Powers Act that are gained through alignment with 269
that Act, which do not currently exist in the ICNA Act (see sections 50 and 51 of the Regulatory Powers Act, which are discussed below). 1232. Section 50 of the Regulatory Powers Act provides an authorised person, for the purposes of Part 3 of the Regulatory Powers Act, with the power to operate electronic equipment on the premises, and the power to use a disk, tape or other storage device that is on the premises and can be used with the electronic equipment or is associated with it, if the authorised person suspects on reasonable grounds that the electronic equipment, disk, tape or other storage device is or contains evidential material. 1233. If evidential material is found in the exercise of these powers, subsection 50(2) of the Regulatory Powers Act provides the authorised person with the following powers: a. if entry to the premises is under an investigation warrant--the power to seize the equipment and the disk, tape or other storage device referred to in subsection 50(1) of the Regulatory Powers Act b. the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises, and c. the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that is brought to the premises for the exercise of the power, or is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises, in order to remove the disk, tape or other storage device from the premises. 1234. Subsection 50(3) of the Regulatory Powers Act provides that an authorised person may only operate electronic equipment under section 50 of that Act if they believe on reasonable grounds that such operation can be carried out without damage to the equipment (note, section 61 of the Regulatory Powers Act outlines matters in relation to compensation for damage to electronic equipment). Section 50 of the Regulatory Powers Act is necessary to ensure that an authorised person can obtain access to electronic records that may contain evidential material. 1235. Section 51 of the Regulatory Powers Act applies if an authorised person, for the purposes of Part 3 of the Regulatory Powers Act, enters premises under an investigation warrant. This section allows an authorised person to secure electronic equipment under an investigation warrant for up to 24 hours to provide the authorised person with sufficient time to engage expert assistance to operate electronic equipment. 1236. Section 51 of the Regulatory Powers Act is necessary, as an authorised person may not be accompanied by an expert assistant when exercising investigation powers, but expert or specialised assistance may be required to operate electronic equipment to access evidential material (note, section 61 of the Regulatory Powers Act outlines matters in relation to compensation for damage to electronic equipment). 270
1237. Subsection 51(3) of the Regulatory Powers Act provides that an authorised person must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the authorised person's intention to secure the equipment, and the fact that the equipment may be secured for up to 24 hours. An authorised person may only secure equipment if the authorised person suspects on reasonable grounds that: a. there is evidential material of the kind specified in the warrant on the premises, and b. the evidential material may be accessible by operating the equipment, and c. expert assistance is required to operate the equipment, and d. the evidential material may be destroyed, altered or otherwise interfered with, if the authorised person does not take action under section 51 of the Regulatory Powers Act. 1238. Under subsection 51(4) of the Regulatory Powers Act, the equipment may be secured until the 24-hour period end or the equipment has been operated by the expert--whichever occurs first. Subsection 51(5) of the Regulatory Powers Act enables the authorised person to apply to an issuing officer, for the purposes of Part 3 of that Act, for an extension of the 24-hour period if the authorised person believes on reasonable grounds that the equipment needs to be secured for longer than that period (note, subsection 51(7) of the Regulatory Powers Act provides that the period may be extended more than once). 1239. Subsection 51(6) of the Regulatory Powers Act states that, before making the application, the authorised person must give notice to the occupier of the premises, or their apparent representative, of his or her intention to apply for an extension. This subsection further provides that the occupier or other person is entitled to be heard in relation to that application (note, section 74 of the Regulatory Powers Act outlines the process by which an issuing officer may extend the 24-hour period). 1240. The comparison table provided at paragraph 1137 above also identifies that current subsection 87(1) of the ICNA Act is expanded due to the application of section 49 of the Regulatory Powers Act. 1241. Current subsection 87(1) of the ICNA Act provides that, where an inspector has reasonable grounds for suspecting that there may be on any premises a particular thing that may afford evidence as to the commission of an offence against that Act, the inspector may: a. search the premises for the thing, and b. if the inspector finds the thing on or in the premises--seize the thing. 1242. Section 49 of the Regulatory Powers Act provides for the following investigation powers that an authorised person may exercise in relation to premises entered under section 48 of that Act: a. if entry to the premises is with the occupier's consent--the power to search the premises and any thing on the premises for the evidential material the authorised person suspects on reasonable grounds may be on the premises 271
b. if entry to the premises is under an investigation warrant: i. the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant, and ii. the power to seize evidential material of that kind if the authorised person finds it on the premises c. the power to inspect, examine, take measurements of or conduct tests on evidential material found on the premises due to consent of the occupier or under an investigation warrant d. the power to make any still or moving image or any recording of the premises or evidential material found on the premises due to consent of the occupier or under an investigation warrant e. the power to take onto the premises such equipment and materials as the authorised person requires for the purpose of exercising powers in relation to the premises, and f. the powers set out in subsection 50(1) and (2), subsection 51(2) and section 52. 1243. The comparison table provided at paragraph 1137 above identifies other provisions gained through alignment with the Regulatory Powers Act, which are not currently in the ICNA Act, that are merely procedural in nature and do not expand the currently regulatory framework of that Act (see sections 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71, 72, 73, 74 and 75 of the Regulatory Powers Act, which are discussed below). For example, these provisions set out matters in relation to consent, the requirement for the authorised person to be in possession of a warrant, compensation for damage to electronic equipment, an occupier's right to observe execution of a warrant, and the powers of issuing officers (see sections 55, 57, 61, 62 and 75 of the Regulatory Powers Act). 1244. Under Part 3 of the Regulatory Powers Act, an authorised person may enter premises and exercise investigation powers with the consent of the occupier. Section 55 of the Regulatory Powers Act outlines matters in relation to valid consent, including that consent must be informed and voluntary, and may be withdrawn at any time by the occupier. Subsection 55(6) of the Regulatory Powers Act provides that an authorised person must present their identity card to the occupier prior to entry or as soon as is reasonably practicable after entry to the premises. 1245. Section 56 of the Regulatory Powers Act provides that, before entering premises under an investigation warrant, an authorised person must: a. announce that he or she is authorised to enter the premises, and b. show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises, and c. give any person at the premises an opportunity to allow entry to the premises. 1246. Subsection 56(2) of the Regulatory Powers Act states that an authorised person is not required to comply with subsection 56(1) of that Act if the authorised person believes on reasonable grounds that immediate entry to the premises is required to ensure the safety of a person or to ensure that the effective execution of the warrant is not frustrated. 272
1247. Section 57 of the Regulatory Powers Act states that an authorised person who is executing an investigation warrant must be in possession of the warrant or a copy of the warrant, and the form of warrant completed under subsection 71(6) of that Act or a copy of that completed form. 1248. Section 58 of the Regulatory Powers Act requires an authorised person to provide a copy of the investigation warrant to the occupier of the premises, or another person who apparently represents the occupier, if either person is present at the premises. Under subsection 58(2) of the Regulatory Powers Act, the authorised person must also inform, in writing, the occupier or other person of their rights and responsibilities under sections 62 and 63 of that Act. 1249. Section 59 of the Regulatory Powers Act applies if an authorised person, and all persons assisting, who are executing an investigation warrant in relation to premises, temporarily cease execution of the warrant and leave the premises. The authorised person, and persons assisting, may complete the execution of the warrant if the warrant is still in force, and the absence from the premises was for not more than one hour or, in the case of an emergency, for not more than 12 hours (or such longer period as allowed by an issuing officer under subsection 59(5) of the Regulatory Powers Act), or for a longer period with the written consent of the occupier of the premises. An authorised person, or persons assisting, may apply to an issuing officer for an extension of the 12-hour period if there is an emergency situation, and the applicant believes on reasonable grounds that they are unable to return to the premises within that period. However, subsection 59(5) of the Regulatory Powers Act states that the issuing officer must be satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension, and that the extension would not result in the period ending after the warrant ceases to be in force. 1250. Section 60 of the Regulatory Powers Act provides that an authorised person, or persons assisting, may complete the execution of a warrant that has been stopped by an order of a court if that order is later revoked or reversed on appeal, and the warrant is still in force when the order is revoked or reversed. 1251. Section 61 of the Regulatory Powers Act provides that a person is entitled to compensation for damage to electronic equipment, damage to data recorded on that equipment, or damage to or corruption of programs associated with the use of that equipment or data, which is caused due to insufficient care when operating that equipment during the course of exercising investigation powers. 1252. Section 62 of the Regulatory Powers Act provides the occupier of premises, or another person who apparently represents the occupier, with the right to observe the execution of an investigation warrant on their premises, if the occupier or other person is present at the premises at the time of execution of the warrant. Subsection 62(2) of the Regulatory Powers Act states that the right ceases if the occupier or other person impedes execution of the warrant. 1253. Section 63 of the Regulatory Powers Act imposes an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 3 of the Regulatory Powers Act, for the purposes of executing an investigation warrant. Subsection 63(2) of the 273
Regulatory Powers Act provides that failure to comply with section 63 of that Act is an offence, and carries a penalty of 30 penalty units. 1254. Section 64 of the Regulatory Powers Act applies where, in the course of the execution of an investigation warrant, an authorised person seizes a storage device (that contains information that can be readily copied), a document, film, computer file or other thing that can be readily copied. Under subsection 64(2) of the Regulatory Powers Act, the occupier of the premises, or another person who apparently represents the occupier, may request a copy of the thing or information from the authorised person. Where such a request is made, the authorised person must provide a copy of the seized thing as soon as practicable after the seizure. Subsection 64(4) of the Regulatory Powers Act states that an authorised person is not required to comply with the request if possession of the seized thing by the occupier or other person could constitute an offence against a law of the Commonwealth. 1255. Section 65 of the Regulatory Powers Act provides that the authorised person must provide a receipt for a thing that is seized under Part 3 of that Act. This section ensures there is a record of items or information seized under an investigation warrant. 1256. Under section 66 of the Regulatory Powers Act, the relevant chief executive must take reasonable steps to return a thing seized under Part 3 of that Act when the reason for the thing's seizure no longer exists, it is decided that the thing is not to be used in evidence, or the period of 60 days after the thing's seizure ends (whichever occurs first). The relevant chief executive is not required to take reasonable steps to return a thing if there is a contrary order of a court, the thing is forfeited or forfeitable to the Commonwealth, or is the subject of a dispute as to ownership. Further, subsection 66(3) provides that the relevant chief executive is not required to take reasonable steps to return a thing at the end of the period of 60 days of the thing's seizure if: a. proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and those proceedings (and any appeal from those proceedings) have not been completed b. the thing may continue to be retained because of an order under section 67 of the Regulatory Powers Act, or c. the Commonwealth or the relevant chief executive is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing. 1257. Section 67 of the Regulatory Powers Act provides that, where relevant proceedings have not commenced before the end of the 60 days after the seizure or a period specified in an order under subsection 67(4) of that Act, the relevant chief executive officer may apply to an issuing officer for an order permitting the retention of a seized thing for a further period that does not exceed three years. Prior to making such an application, the relevant chief executive must take reasonable steps to discover who has an interest in retention of the seized thing, and, if it is practicable, notify each such person of the proposed application. Under subsection 67(4) of the Regulatory Powers Act, an issuing officer may order that the seized thing be retained for a specified period if he or she is satisfied that it is necessary to continue retention: a. for the purposes of an investigation as to whether an offence provision or civil penalty provision that is subject to investigation under Part 3 of the Regulatory Powers Act has been contravened, or 274
b. for the purposes of an investigation as to whether a related provision has been contravened, or c. to enable evidence of a contravention of an offence provision or civil penalty provision that is subject to investigation under Part 3 of the Regulatory Powers Act, or contravention of a related provision, to be secured for the purposes of a prosecution or an action to obtain a civil penalty order. 1258. Section 68 of the Regulatory Powers Act allows the relevant chief executive to dispose of the seized material in a manner he or she thinks appropriate if he or she has taken reasonable steps to return the thing to a person, and the person cannot be located or the person has refused to take possession of the thing. 1259. Section 69 of the Regulatory Powers Act provides that the Commonwealth must pay reasonable compensation to a person if the operation of section 68 of that Act would result in an acquisition of property otherwise than on just terms. 1260. Section 71 of the Regulatory Powers Act sets out the procedure by which an investigation warrant may be obtained from an issuing officer by electronic means where the warrant is urgently required, or delay would frustrate the effective execution of the warrant. Subsection 71(6) of the Regulatory Powers Act places an obligation on the authorised applicant to complete a form of warrant in the same terms as the warrant completed and signed by the issuing officer under subsection 71(4) of that Act. 1261. Section 72 of the Regulatory Powers Act provides that a form of warrant completed under subsection 71(6) of that Act is authority for the same powers authorised by a warrant completed and signed by an issuing officer under subsection 71(4) of that Act (if all legal requirements are complied with). 1262. Section 73 of the Regulatory Powers Act establishes an offence punishable by two years' imprisonment for a range of conduct by an authorised applicant in respect of an investigation warrant issued under section 71 of that Act. 1263. Section 74 of the Regulatory Powers Act applies where an authorised person applies to an issuing officer under subsection 51(5) of that Act for an extension of the period during which a thing may be secured. Subsection 74(4) of the Regulatory Powers Act outlines information that must be included in an order of extension. 1264. Section 75 of the Regulatory Powers Act provides that a power conferred on an issuing officer by Part 3 of that Act is conferred on that person in a personal capacity, and not as a court or as a member of a court. However, subsection 75(3) of the Regulatory Powers Act provides that an issuing officer exercising power conferred by Part 3 of that Act has the same protections and immunities as if the issuing officer were exercising the power as the court of which the issuing officer is a member, or as a member of the court of which the issuing officer is a member. This section recognises that issuing a warrant is an executive function and not an exercise of judicial power. Item 7 - Section 89 1265. Item 7 repeals section 89 of the ICNA Act and inserts a new 'Division 5--Exempt information given to inspectors', which includes new section 89 of that Act. New section 89 of the ICNA Act modifies the operation of Parts 2 and 3 of the Regulatory Powers Act, and 275
provides for matters in relation to exempt information for the purposes of Part 2 or 3 of that Act. 1266. Current section 89 of the ICNA Act provides that where an inspector (as defined in the ICNA Act) requires a person to supply information or produce a document under current section 88 of the ICNA Act, or an inspector enters premises under current section 86 of that Act, the person so required or the occupier of the premises may: a. apply to the Director of the NICNAS in the approved form that some or all of i. the information supplied, or ii. the information in the document, or iii. the information obtained because of the entry or the exercise of powers under current section 86 of the ICNA Act be treated as exempt information under section 75 of the ICNA Act, and b. inform the inspector of the intention to apply and identify the information to which the application will relate. 1267. New subsection 89(1) of the ICNA Act provides that if: a. an inspector enters premises under Part 2 or 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions identified in new subsections 85(1) and 86(1) of the ICNA Act, or information mentioned in new subsection 85(2) of the ICNA Act, and b. the inspector asks the occupier of the premises, or requires any person on the premises, to answer any question or produce any document the occupier or person may apply to the Director of the NICNAS, in the approved form, for one or more of the following to be treated as exempt information under section 75 of the ICNA Act: c. specified information given in answer to the question d. specified information in the document, or e. specified information obtained by the inspector, or a person assisting the inspector, because of that entry or of the exercise of powers under Part 2 or 3 of the Regulatory Powers Act as a result of that entry. 1268. New subsection 89(2) of the ICNA Act states that before making such an application, the occupier of the premises, or the person on the premises, may inform the inspector of: a. the occupier's or person's intention to make such an application, and b. the information (the prospective information) to be specified in such an application. 1269. New subsection 89(3) of the ICNA Act provides that, if the occupier of the premises, or the person on the premises, so informs the inspector, the prospective information is taken to be exempt information for the purposes of the ICN Act until the occupier or the person makes the application, or the end of the period of 7 days beginning on the day the inspector was so informed--whichever occurs first. 276
1270. It is necessary to amend and retain this current section 89 of the ICNA Act, as new section 89 of that Act allows an occupier or other person subject to monitoring or investigation under Parts 2 or 3 of the Regulatory Powers Act, as those Parts apply in relation to the ICNA Act, to apply to the Director of the NICNAS for their personal or business information to be treated as exempt information under section 75 of the ICNA Act. 1271. Section 75 of the ICNA Act provides for mattes in relation to exempt information. Subsection 75(1) of the ICNA Act states that, subject to section 75 of that Act, if, on an application under section 21AAA, 21P, 21ZB, 22O, 35, 29, 30A, 40D, 42, 45, 50, 60, 66 or 89 of the ICNA Act, the Director is satisfied that: a. publication of the information specified in the application could reasonably be expected to prejudice substantially the commercial interests of the applicant, and b. the prejudice outweighs the public interest in the publication of the information then the information is to be treated as exempt information for the purposes of the ICNA Act. 1272. Subsection 75(2) of the ICNA Act provides that the Director of the NICNAS must not grant an application under subsection 75(1) of that Act in relation to basic information about a chemical. Further, subsection 75(2A) of the ICNA Act states that the Director of the NICNAS must not grant under subsection 75(1) of that Act an application under section 21AAA of that Act in relation to information about the chemical name of a chemical unless the application includes a trade name of the chemical. Subsection 75(3) of the ICNA Act provides that the Director of the NICNAS must give the applicant written notice of the decision about the application. Under subsection 75(4) of the ICNA Act, where the application is rejected, the application is not to be taken to have been finalised under section 75 of that Act for the purposes of the definition of exempt information in section 5 of that Act, for 28 days after the giving of the notice or, where the applicant applies during those days to the Tribunal under section 102 of the ICNA Act for the review of the decision, until the application to the Tribunal is finalised. 1273. Section 5 of the ICNA Act defines exempt information as information about which the Director of the NICNAS has given a notification under section 75 of that Act, and includes information for which an application for treatment as exempt information has been made under that Act but has not been finalised. 1274. New section 89 of the ICNA Act preserves the effect of current section 89 of that Act, which is repealed by this item, and clarifies that section 89 of that Act covers provisions subject to monitoring or investigation under Parts 2 or 3 of the Regulatory Powers Act, as those Parts apply in relation to the ICNA Act. 1275. Item 7 is consequential to the amendments made by item 6 above, which repeals current sections 85, 86, 87 and 88 of the ICNA Act and applies the standard provisions pertaining to monitoring and investigation powers in Parts 2 and 3 of the Regulatory Powers Act. 277
Item 8 - Section 104 1276. Item 8 omits 'section 83 and 105' from current section 104 of the ICNA Act, and substitutes 'section 105'. 1277. Current section 104 of the ICNA Act provides that the Minister responsible for the department that administers the ICNA Act may, by signed instrument, delegate to: a. the holder of an office established by an Act, or b. the person holding or performing the duties of the office of Secretary of the department that administers the ICNA Act, or c. an SES employee, or acting SES employee, in the department that administers the ICNA Act all or any of the Minister's functions or powers under the ICNA Act, other than those under sections 30, 41, 43, 83 and 105 or subsections 61(2) and 67(1) of that Act. 1278. It is no longer necessary to refer to section 83 of the ICNA Act in section 104 of that Act, as new subsection 83(2) of that Act identifies the Minister, or any other person, as an authorised person for the purposes of exercising powers and functions under Part 7 of the Regulatory Powers Act, as that Part applies to the provisions mentioned in new subsection 83(1) of the ICNA Act. 1279. Item 8 is consequential to the amendments made by item 5 above, which repeals current section 83 of the ICNA Act and applies the standard injunctions provisions in Part 7 of the Regulatory Powers Act. PART 2--APPLICATION AND SAVING PROVISIONS Item 9 - Application and saving provision--injunctions 1280. Item 9 provides for the application of the amendments in this Schedule in relation to injunctions, and makes it clear that the amendments apply in relation to contraventions occurring on or after the commencement of this Schedule. 1281. This item also provides that section 83 of the ICNA Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions occurring before the commencement of this Schedule. Item 10 - Saving provision--identity cards 1282. Item 10 provides that, despite the repeal of current section 85 of the ICNA Act by this Schedule that section continues to apply on and after that commencement in relation to a person who ceased to be an inspector (as defined in the ICNA Act) before the commencement of this Schedule. 1283. This item preserves the effect of current section 85 of the ICNA Act, which provides that a person commits an offence of strict liability if a person ceases to be an inspector but does not return their identity card to the Director of the NICNAS as soon as practicable after that cessation. 278
1284. Where a person ceases to be an inspector after the commencement of this Schedule, sections 35 and 76 of the Regulatory Powers Act will apply. Item 11 - Application and saving provisions--monitoring and investigation 1285. Item 11 provides for the application of the amendments in this Schedule in relation to monitoring and investigation powers. 1286. Sub-item 11(1) makes it clear that Part 2 of the Regulatory Powers Act, as that Part applies under Division 3 of Part 4 of the ICNA Act, applies in relation to: a. determining whether a provision identified in new subsection 85(1) of the ICNA Act has been complied with before, on or after the commencement of this Schedule, and b. determining whether information given in compliance or purported compliance with a provision of the ICNA Act, or the regulations made under that Act, before on or after the commencement of this Schedule is correct. 1287. Sub-item 11(2) makes it clear that Part 3 of the Regulatory Powers Act, as that Part applies under Division 4 of Part 4 of the ICNA Act, applies in relation to evidential material that relates to a provision identified in new subsection 86(1) of the ICNA Act, if the suspected contravention of the provision occurred before, on or after the commencement of this Schedule. 1288. Sub-items 11(1) and (2) provide clarity for an authorised person exercising monitoring powers under Part 2 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 85(1) of the ICNA Act and information mentioned in new subsection 85(2) of that Act, and an authorised person exercising investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 86(1) of that Act. Sub-items 11(1) and (2) also ensure that an authorised person may exercise those powers from the time of the commencement of this Schedule, regardless of whether or not non-compliance or the suspected contravention occurred before, on or after that commencement. 1289. Although this Schedule does expand the existing regulatory framework of the ICNA Act in relation to monitoring or investigation powers due to the acquisition of sections 20, 21, 22, 50 and 51 of the Regulatory Powers Act, the retrospective application provided for by this item does not impact rights or impose liabilities on a person subject to monitoring or investigation powers under Part 2 or 3 of the Regulatory Powers Act, as those Parts apply to the ICNA Act. 1290. Sub-item 11(3) provides that sections 85, 86, 87 and 88 of the ICNA Act, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to the following: a. an application for a warrant made, but not decided, under current section 86 or 87 of the ICNA Act before the commencement of this Schedule b. a warrant issued under current section 86 or 87 of the ICNA Act before, on or after the commencement of this Schedule as a result of an application made before that commencement 279
c. powers exercised under current section 86 or 87 of the ICNA Act before, on or after the commencement of this Schedule in relation to: i. an entry onto premises before that commencement with the consent of the occupier of the premises, or ii. an entry onto premises before, on or after that commencement as a result of a warrant issued under current section 86 or 87 of the ICNA Act as a result of an application made before the commencement of this Schedule d. things seized under current section 87 of the ICNA Act before, on or after that commencement, and e. a requirement made under current subsection 88(1) of the ICNA Act before, on or after that commencement. Item 12 - Saving provision--exempt information 1291. Item 12 provides that information that is exempt information immediately before the commencement of this Schedule, due to an application under current paragraph 89(1)(d) of the ICNA Act, continues to be exempt information on and after the commencement of this Schedule. 1292. This item also states that if, before the commencement of this Schedule, an application was made but not finalised under current paragraph 89(1)(d) of the ICNA Act, then that Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to that application and information that is exempt information as a result of that application. 1293. Sub-item 12(3) provides that if, before the commencement of this Schedule, a person informed an inspector (as defined in the ICNA Act) under current paragraph 89(1)(e) of the ICNA Act of that person's intention to make an application but, before the commencement of this Schedule, the application had not been made and the 7-day period mentioned in current paragraph 89(2)(b) of the ICNA Act had not ended, then: a. the ICNA Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to the informing of the inspector, and b. the person may make an application on or after that commencement under current paragraph 89(1)(d) of the ICNA Act. Item 13 - Saving provision--regulations 1294. Item 13 provides that the amendments to the ICNA Act made by this Schedule do not affect the continuity of regulations that were made for the purposes of section 110 of that Act, and were in force immediately before the commencement of this Schedule. 280
Schedule 11 - Paid Parental Leave Act 2010 GENERAL OUTLINE 1295. The Paid Parental Leave Act 2010 (the 'PPL Act') establishes the Paid Parental Leave Scheme, which is a Government-funded payment that complements the entitlement to unpaid leave under the National Employment Standards in the Fair Work Act 2009. The Paid Parental Leave Scheme currently consists of the Parental Leave Pay and the Dad and Partner Pay. Parental Leave Pay is an 18-week payment at the rate of the national minimum wage for eligible primary carers (mostly birth mothers) of newborn and recently adopted children. Dad and Partner Pay is a two-week payment at the rate of the national minimum wage for eligible dads or partners caring for newborn or recently adopted children. 1296. Current section 127 of the PPL Act deals with matters relating to obtaining and using protected information for the purposes of the PPL Act. Current Division 3 of Part 4-2 of the PPL Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions. Current Division 5 of Part 4-2 of the PPL Act deals with the use of infringement notices where an authorised person reasonably believes that a civil penalty provision has been contravened. 1297. This Schedule amends the PPL Act to apply the standard civil penalty and infringement notices provisions of the Regulatory Powers Act. Application of these provisions does result in a minor expansion of the current regulatory powers framework of the PPL Act due to the acquisition of section 93 of the Regulatory Powers Act; however that provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. Further, the time period for the making of an application for a civil penalty order will be increased from within 4 years to within 6 years of the alleged contravention (see subsection 82(2) of the Regulatory Powers Act as amended by Schedule 1 to this Bill). 1298. The other provisions gained by alignment with the Regulatory Powers Act, which are not currently in the PPL Act, are merely procedural matters in relation to civil penalty and infringement notices provisions. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the PPL Act. 1299. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories. 1300. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices that may be issued in relation to a breach of an offence or civil penalty provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5 of that Act to 281
operate, a provision of an Act or legislative instrument must be made subject to an infringement notice under that Part by a triggering Act. When a triggering Act applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an infringement officer or officers for the purposes of exercising powers under that Part (see section 101 of the Regulatory Powers Act). A triggering Act must also identify the relevant chief executive for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil penalty provisions of a triggering Act are subject to an infringement notice and apply in external Territories or offshore areas, the triggering Act should identify whether Part 5 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Paid Parental Leave Act 2010 1301. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by items 17 and 20) for the provisions of the PPL Act that are repealed by items 17 and 20. Current provision in the PPL Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Obtaining and using protected 127 N/A information A person may obtain and use protected 127 Retained through N/A (see section 127 information if the information is obtained modification to of the PPL Act as for the purposes of the Paid Parental Leave the operation of amended by this Act or another listed purpose the Regulatory Schedule) Powers Act Civil penalty provisions Division 3, Part 4-Civil penalty Part 4-2 provisions Relevant courts 147(1) Retained N/A (see new subsection 147(3) of the PPL Act) Civil penalty orders 147 Retained 82 Civil enforcement of penalty 147(5); Retained 83 147(6) Proceedings may be heard together 148 Retained 86 Proceedings for a civil penalty order may 149 Aligned See subsection 82(2) be commenced no later than 4 years after of the Regulatory the contravention Powers Act as amended by this Bill Civil evidence and procedure rules for civil 150 Retained 87 penalty orders Conduct contravening more than one civil 151 Retained 84 penalty provision Civil proceedings after criminal 152 Retained 88 proceedings 282
Current provision in the PPL Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Criminal proceedings during civil 153 Retained 89 proceedings Criminal proceedings after civil 154 Retained 90 proceedings Evidence given in proceedings for penalty 155 Retained 91 not admissible in criminal proceedings Requirement for person to assist in 156 Retained through N/A applications for civil penalty orders modification to the operation of the Regulatory Powers Act N/A (Multiple contraventions) N/A Gained 85 N/A (Ancillary contravention of civil N/A Gained 92 penalty provisions) N/A (Continuing contraventions of civil N/A Gained 93 penalty provisions) N/A (State of mind) N/A Gained 94 N/A (Mistake of fact) N/A Gained 95 N/A (Exceptions etc. to civil penalty N/A Gained 96 provisions-burden of proof) N/A (Civil penalty provisions contravened N/A Gained 97 by employees, agents or officers) Infringement notices Division 5, Part 5-Infringement Part 4-2 notices Giving an infringement notice 159 Retained 103 Time limit for giving an infringement 159(3) Retained through N/A (see new notice modification to subsection 159(5) of the operation of the PPL Act) the Regulatory Powers Act Matters to be included in an infringement 159(4) Expanded See section 104 of notice the Regulatory Powers Act as amended by this Bill An infringement notice must set out any 159(4)(f) Repealed N/A other matters prescribed by the PPL rules Amount to be stated in an infringement 159(5), Retained through N/A (see new notice 159(6) modification to subsection 159(6) of the operation of the PPL Act) the Regulatory Powers Act Withdrawal of an infringement notice 160 Retained 106 What happens if the penalty is paid 161 Retained 107 283
Current provision in the PPL Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Effect of this Division on civil proceedings 162 Retained 108 PPL Rules may make further provision in 163 Repealed N/A relation to infringement notices N/A (Extension of time to pay amount) N/A Gained 105 PART 1--AMENDMENTS Item 1 - Subsection 3(3) 1302. Item 1 repeals subsection 3(3) of the PPL Act, which states that, although that Act does not make the Crown liable to be prosecuted for an offence, that does not prevent the Crown from being liable to pay a pecuniary penalty under current section 147 or 159 of the PPL Act. Current subsection 3(3) of the PPL Act is no longer necessary, as current sections 147 and 159 are repealed by items 17 and 20 below. 1303. Item 1 is consequential to the amendments made by items 17 and 20 below. The effect of current subsection 3(3) of the PPL Act is preserved by the insertion of new subsection 147(8) by item 17 below. Item 2 - Section 6 (definition of civil penalty order) 1304. Item 2 repeals the definition of civil penalty order in section 6 of the PPL Act. That definition is no longer necessary, as this Schedule amends the PPL Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act. 1305. It is not necessary to substitute a new definition of civil penalty order in section 6 of the PPL Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act. Where the phrase 'civil penalty order' is used in a provision external to new section 147 of the PPL Act, that phrase is amended to 'civil penalty order under the Regulatory Powers Act' or 'civil penalty order under Part 4 of the Regulatory Powers Act' (see items 9, 11, 18, 19 and 21 below). Item 3 - Section 6 (definition of civil penalty provision) 1306. Item 3 repeals the definition of civil penalty provision in section 6 of the PPL Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. Item 4 - Section 6 (definition of infringement notice) 1307. Item 4 repeals the definition of infringement notice in section 6 of the PPL Act, which directs the reader to current subsections 159(1) and (2) of that Act. Those subsections are repealed by item 20 below. 284
1308. The definition of infringement notice in section 6 of the PPL Act is no longer necessary, as this Schedule amends the PPL Act to apply the standard provisions of the Regulatory Powers Act, and infringement notice is defined by reference to Part 5 of that Act. 1309. Item 4 is consequential to the amendments made by item 20 below, which repeals current Division 5 of Part 4-2 of the PPL Act and applies the standard infringement notices provisions in Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to alleged contraventions of civil penalty provisions in the PPL Act. Item 5 - Section 6 (definition of involved in) 1310. Item 5 repeals the definition of involved in in section 6 of the PPL Act, which directs the reader to current subsection 145(2) of that Act for 'involved in a contravention of a civil penalty provision'. 1311. Current subsection 145(2) of the PPL Act states that a person is involved in a contravention of a civil penalty provision if, and only if, the person: a. has aided, abetted, counselled or procured the contravention, or b. has induced the contravention, whether by threats or promises or otherwise, or c. has been in any way, by act or omission, directly or indirectly, knowingly concerned in or a party to the contravention, or d. has conspired with others to effect the contravention. 1312. Current subsection 145(2) of the PPL Act is repealed by item 13 below. 1313. Item 17 below repeals current sections 147 to 155 of the PPL Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act, which includes section 92 of that Act. 1314. Section 92 of the Regulatory Powers Act supports the enforcement regime of that Act by ensuring that conduct ancillary to the contravention of a civil penalty provision is considered to be a contravention of the provision itself. That section provides for matters in relation to ancillary contraventions of civil penalty provisions in language identical to current subsection 145(2) of the PPL Act. 1315. The current definition of involved in in section 6 of the PPL Act is no longer necessary, as this Schedule amends the PPL Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and the effect of the current definition f involved in in section 6 and current subsection 145(2) of the PPL Act are preserved due to the operation of section 92 of the Regulatory Powers Act. 1316. Item 5 is consequential to the amendments made by item 13 below, which repeals current section 145 of the PPL Act. Item 6 - Section 6 1317. Item 6 amends section 6 of the PPL Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. 285
Item 7 - At the end of subsection 127(1) 1318. Item 7 inserts ', or the Regulatory Powers Act as that Act applies in relation to this Act' at the end of subsection 127(1) of the PPL Act. 1319. Current subsection 127(1) of the PPL Act provides that a person may obtain protected information if the information is obtained for the purposes of the PPL Act. 1320. Section 6 of the PPL Act defines protected information as: a. information about a person that is or was held in the records of the department that administers the PPL Act or the Department of Human Services, or b. information about a person that was held in the records of the Commonwealth Services Delivery Agency (within the meaning of the Commonwealth Services Delivery Agency Act 1997 as in force before 1 July 2011), or c. information about a person obtained by an officer under the PPL Act that was held in the records of Medicare Australia (within the meaning of the Medicare Australia Act 1973 as in force before 1 July 2011), or d. information to the effect that there is no information about a person held in the records of a PPL agency. 1321. Item 7 clarifies that a person may obtain protected information if that information is obtained for the purposes of carrying out powers, duties or functions under the Regulatory Powers Act, as that Act applies in relation to the provisions of the PPL Act. This item is necessary, as this Schedule amends the PPL Act to apply the standard civil penalty and infringement notices provisions of the Regulatory Powers Act, and protected information may need to be obtained in the course of carrying out powers and functions under the Regulatory Powers Act, as that Act applies to the PPL Act. 1322. Item 7 is consequential to the amendments made by items 17 and 20 below, which repeal current sections 147 to 155 and current Division 5 of Part 4-2 of the PPL Act and apply Parts 4 and 5 of the Regulatory Powers Act to the PPL Act. Item 8 - Paragraph 127(2)(d) 1323. Item 8 inserts ', or the Regulatory Powers Act as that Act applies in relation to this Act' after 'for the purposes of this Act' in paragraph 127(2)(d) of the PPL Act. 1324. Current paragraph 127(2)(d) of the PPL Act states that a person may make a record of, disclose or otherwise use protected information if that record, disclosure or use of that information by that person is made for the purposes of the PPL Act. 1325. Section 6 of the PPL Act defines protected information as: a. information about a person that is or was held in the records of the department that administers the PPL Act or the Department of Human Services, or b. information about a person that was held in the records of the Commonwealth Services Delivery Agency (within the meaning of the Commonwealth Services Delivery Agency Act 1997 as in force before 1 July 2011), or 286
c. information about a person obtained by an officer under the PPL Act that was held in the records of Medicare Australia (within the meaning of the Medicare Australia Act 1973 as in force before 1 July 2011), or d. information to the effect that there is no information about a person held in the records of a PPL agency. 1326. Item 8 clarifies that a person may make a record of, disclose or use protected information if that record, disclosure or use of the information is made for the purposes of carrying out powers, duties or functions under the Regulatory Powers Act, as that Act applies to the provisions of the PPL Act. This item is necessary, as this Schedule amends the PPL Act to apply the standard civil penalty and infringement notices provisions of the Regulatory Powers Act, and protected information may need to be recorded, disclosed or used for the purposes of the Regulatory Powers Act, as that Act applies to the PPL Act. 1327. Item 8 is consequential to the amendments made by items 17 and 20 below, which repeal current sections 147 to 155 and current Division 5 of Part 4-2 of the PPL Act and apply Parts 4 and 5 of the Regulatory Powers Act to the PPL Act. Item 9 - Subsection 128(1) 1328. Item 9 inserts 'or the Regulatory Powers Act as that Act applies in relation to this Act' after the first occurrence of 'under this Act' in subsection 128(1) of the PPL Act. 1329. Current subsection 128(1) of the PPL Act states that, despite sections 129 to 132 of that Act, the Secretary of the department that administers the PPL Act may disclose information acquired by an officer in the exercise of the officer's powers, or performance of the officer's duties or functions, under the PPL Act: a. to such persons and for such purposes as the Secretary determines, if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases, or b. to an Agency Head for the purposes of that Agency (within the meaning of the Public Service Act 1999), but only if the disclosure of the information is required by a law of the Commonwealth, or c. to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it, or d. to the Minister responsible for the department that administers the PPL Act for the purposes of assisting the Minister to consider a complaint or issue in relation to a matter arising under the PPL Act if the Secretary reasonably believes that the disclosure is likely to assist the Minister, or e. to an SES employee, or an APS employee, in the department that administers the PPL Act for the purposes of briefing, or considering briefing, the Minister if the Secretary reasonably believes that the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act. 1330. The note to current subsection 128(1) of the PPL Act provides that information disclosed under section 128 of that Act must also be dealt with in accordance with the Australian Privacy Principles. 287
1331. Sections 129 to 132 of the PPL Act provide for offences in relation to access, use, disclosure, solicitation and supply of protected information. 1332. Item 9 clarifies that, in certain listed circumstances, the Secretary may disclose personal information acquired by an officer in the exercise of the officer's powers, or performance of the officer's duties or functions, under the Regulatory Powers Act, as that Act applies to the provisions of the PPL Act. This item is necessary, as this Schedule amends the PPL Act to apply the standard civil penalty and infringement notices provisions of the Regulatory Powers Act, and personal information may need to be disclosed by the Secretary for the purposes of the Regulatory Powers Act, as that Act applies to the PPL Act. Item 9 provides for consistency, and preserves existing arrangements under the PPL Act. 1333. Item 9 is consequential to the amendments made by items 17 and 20 below, which repeal current sections 147 to 155 and current Division 5 of Part 4-2 of the PPL Act and apply Parts 4 and 5 of the Regulatory Powers Act to the PPL Act. Item 10 - Section 140 1334. Item 10 repeals part of the 'Guide to this Part' in section 140 of the PPL Act, and substitutes new text that is consequential to the amendments made by item 17 below, which repeals current sections 147 to 155 of the PPL Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the PPL Act. 1335. This item repeals the phrase 'Civil penalty orders may be sought in relation to contraventions of civil penalty provisions' from the Guide, and substitutes 'Civil penalty orders may be sought under Part 4 of the Regulatory Powers Act in relation to contraventions of the civil penalty provisions of this Act'. Item 11 - Section 140 1336. Item 11 amends the 'Guide to this Part' in section 140 of the PPL Act, and inserts new text that is consequential to the amendments made by item 20 below, which repeals current Division 5 of Part 4-2 of the PPL Act and applies the standard infringement notices provisions in Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to alleged contraventions of civil penalty provisions in the PPL Act. 1337. This item inserts 'An infringement notice may be issued under Part 5 of the Regulatory Powers Act for an alleged contravention of a civil penalty provision of this Act' after 'Division 5 deals with infringement notices' in the Guide. Item 12 - Section 140 1338. Item 12 amends the 'Guide to this Part' in section 140 of the PPL Act, and inserts new text that is consequential to the amendments made by item 17 below, which repeals current sections 147 to 155 of the PPL Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the PPL Act. 1339. This item inserts 'under Part 4 of the Regulatory Powers Act' after 'a civil penalty order' in the final paragraph of the Guide. 288
Item 13 - Section 145 1340. Item 13 repeals current section 145 of the PPL Act. 1341. Current subsection 145(1) of the PPL Act provides that a person who is involved in a contravention of a civil penalty provision is taken to have contravened that provision. 1342. Current subsection 145(2) of the PPL Act states that a person is involved in a contravention of a civil penalty provision if, and only if, the person: a. has aided, abetted, counselled or procured the contravention, or b. has induced the contravention, whether by threats or promises or otherwise, or c. has been in any way, by act or omission, directly or indirectly, knowingly concerned in or a party to the contravention, or d. has conspired with others to effect the contravention. 1343. The definition of involved in is currently provided for in section 6 of the PPL Act, which directs the reader to current subsection 145(2) of that Act for 'involved in a contravention of a civil penalty provision'. That definition is repealed by item 5 above. 1344. Item 17 below repeals current sections 147 to 155 of the PPL Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the PPL Act, which includes section 92 of that Act. 1345. Section 92 of the Regulatory Powers Act supports the enforcement regime of that Act by ensuring that conduct ancillary to the contravention of a civil penalty provision is considered to be a contravention of the provision itself. That section provides for matters in relation to ancillary contraventions of civil penalty provisions in language identical to current subsection 145(2) of the PPL Act. 1346. Current section 145 of the PPL Act is no longer necessary, as this Schedule amends the PPL Act to apply the standard provisions of the Regulatory Powers Act, and the effect of current section 145 of the PPL Act is preserved due to the operation of section 92 of the Regulatory Powers Act. 1347. Item 13 is consequential to the amendments made by item 17 below. Item 14 - Section 146 1348. Item 14 omits 'A provision referred to in column 1 of an item in the table is a civil penalty provision' from current section 146 of the PPL Act, and substitutes 'A provision referred to in column 1 of an item in the table is a civil penalty provision, and the pecuniary penalty for the civil penalty provision is that specified in column 2 of that item', which clarifies the contents of the columns of the table in current section 146 of the PPL Act. 1349. Item 14 is consequential to the amendments made by items 15 and 17 below. Item 15 - Section 146 (table, heading to column 2) 1350. Item 15 repeals the heading 'Maximum penalty' to column 2 of the table in current section 146 of the PPL Act, and substitutes a new heading 'Penalty' to column 2 of the table 289
in that section. Current section 146 of the PPL Act provides that a provision referred to in column 1 of the table in that section is a civil penalty provision. 1351. This item clarifies that the penalty listed in column 2 of the table in current section 146 of the PPL Act is not the maximum penalty where the person is a body corporate. This is due to the operation of subsection 82(5) of the Regulatory Powers Act, which is applied to the PPL Act by item 17 below. 1352. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 1353. Item 17 below also repeals current subsection 147(3) of the PPL Act, which provides that, where the person is a body corporate, a pecuniary penalty must not be more than five times the maximum number of penalty units referred to in the relevant item in column 2 of the table in current section 146 of that Act. Where the person is not a body corporate, the pecuniary penalty must not be more than the maximum number of penalty units referred to in the relevant item in column 2 of the table in current section 146 of the PPL Act. 1354. Accordingly, the amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act, preserve the effect of current subsection 147(3) of the PPL Act. 1355. Item 15 is consequential to the amendments made by item 17 below, which repeals current sections 147 to 155 of the PPL Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the PPL Act. Item 16 - At the end of section 146 1356. Item 16 inserts a new note at the end of current section 146 of the PPL Act to direct the reader to subsection 82(5) of the Regulatory Powers Act. 1357. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 1358. This item clarifies that the penalty listed in column 2 of the table in current section 146 of the PPL Act is not the maximum penalty where the person is a body corporate. This is due to the operation of subsection 82(5) of the Regulatory Powers Act, which is applied to the PPL Act by item 17 below. 1359. Item 17 below also repeals current subsection 147(3) of the PPL Act, which provides that, where the person is a body corporate, a pecuniary penalty must not be more than five times the maximum number of penalty units referred to in the relevant item in column 2 of the table in current section 146 of that Act. Where the person is not a body corporate, the pecuniary penalty must not be more than the maximum number of penalty units referred to in the relevant item in column 2 of the table in current section 146 of the PPL Act. 290
1360. Accordingly, the amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act, preserve the effect of current subsection 147(3) of the PPL Act. 1361. Item 16 is consequential to the amendments made by items 14 and 15 above and item 17 below. Item 17 - Sections 147 to 155 1362. Item 17 repeals current sections 147, 148, 149, 150, 151, 152, 153, 154 and 155 of the PPL Act, and substitutes new section 147 of that Act. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce civil penalty provisions in the PPL Act. Civil penalty provisions 1363. Current sections 147, 148, 149, 150, 151, 152, 153, 154 and 155 of the PPL Act are no longer necessary, as this Schedule amends the PPL Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1301 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the PPL Act that are repealed by this item. 1364. New section 147 of the PPL Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 147(1) of the PPL Act). This new section outlines matters in relation to the authorised applicant, relevant courts, delegations, the extension of matters to external Territories, and liability of the Crown. 1365. New subsection 147(1) of the PPL Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the PPL Act. Item 17 also inserts a note at the end of new subsection 147(1) of the PPL Act, which directs the reader to Part 4 of the Regulatory Powers Act. 1366. New subsection 147(2) of the PPL Act identifies the Secretary of the department that administers the PPL Act and the Fair Work Ombudsman as the authorised applicants in relation to the civil penalty provisions of that Act. This will enable the Secretary and the Fair Work Ombudsman to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New subsection 147(2) of the PPL Act preserves the effect of current subsection 147(1) of that Act, which is repealed by this item. 1367. New subsection 147(3) of the PPL Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the PPL Act. New subsection 147(3) of the PPL Act preserves the effect of current subsection 147(1) of that Act, which is repealed by this item. 1368. New subsection 147(4) of the PPL Act provides that the Secretary may, in writing, delegate his or her powers and functions under Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the PPL Act, to the Chief Executive Centrelink, 291
the Chief Executive Medicare, or an SES employee or acting SES employee in the department that administers the PPL Act. New subsection 147(4) of the PPL Act preserves the effect of current subsection 303(3) of that Act, which is repealed by item 26 below. 1369. New subsection 147(5) of the PPL Act provides that if the Secretary delegates his or her powers and functions under Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the PPL Act, to the Chief Executive Centrelink, then the Chief Executive Centrelink cannot, despite any provision in the Human Services (Centrelink) Act 1997, delegate that power to an APS employee in the department that administers the Human Services (Centrelink) Act who is neither an SES employee nor an acting SES employee in that department. New subsection 147(5) of the PPL Act preserves the effect of current subsection 303(3A) of that Act, which is repealed by item 26 below. 1370. New subsection 147(6) of the PPL Act provides that if the Secretary delegates his or her powers and functions under Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the PPL Act, to the Chief Executive Medicare, then the Chief Executive Medicare cannot, despite any provision in the Human Services (Medicare) Act 1973, delegate that power to an APS employee in the department that administers the Human Services (Medicare) Act who is neither an SES employee nor an acting SES employee in that department. New subsection 147(6) of the PPL Act preserves the effect of current subsection 303(3B) of that Act, which is repealed by item 26 below. 1371. New subsection 147(7) of the PPL Act extends the application of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the PPL Act, to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. New subsection 147(7) of the PPL Act reflects existing arrangements under that Act (see the definition of Australia in section 6 of the PPL Act). 1372. New subsection 147(8) of the PPL Act provides that, although subsection 3(2) of the PPL Act states that the PPL Act does not make the Crown liable to be prosecuted for an offence, that does not prevent the Crown from being liable to pay a pecuniary penalty under Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the PPL Act. New subsection 147(8) of the PPL Act preserves the effect of current subsection 3(3) of that Act, which is repealed by item 1 above. 1373. Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the PPL Act. The comparison table provided at paragraph 1301 above identifies the provision of the Regulatory Powers Act that is gained through alignment with that Act, which does not currently exist in the TPP Act (see section 93 of the Regulatory Powers Act, which is discussed below). 1374. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. 292
1375. The comparison table provided at paragraph 1301 above also identifies the provisions gained through alignment with the Regulatory Powers Act, which are not currently in the PPL Act, that are merely procedural in nature and set out matters in relation to multiple contraventions, ancillary contraventions, state of mind, mistake of fact, burden of proof, and vicarious liability (see sections 85, 92, 94, 95, 96 and 97 of the Regulatory Powers Act, which are discussed below). 1376. Section 85 of the Regulatory Powers Act clarifies that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions for the same or similar conduct. This provision aims to minimise court administration and consolidate legal proceedings. 1377. Section 92 of the Regulatory Powers Act supports the enforcement regime of Part 4 of that Act by ensuring that conduct ancillary to the contravention of a civil penalty provision is considered to be a contravention of the provision itself. 1378. Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act. 1379. Section 95 of the Regulatory Powers Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact. 1380. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 1381. Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. 1382. The comparison table provided at paragraph 1301 above also identifies that current section 149 of the PPL Act is aligned to subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill). 1383. Current section 149 of the PPL Act provides that proceedings for a civil penalty order may be commenced no later than 4 years after the contravention. Application of subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill) will increase this time period from within 4 years to within 6 years of the alleged contravention (see the discussion of amended subsection 82(2) of the Regulatory Powers Act in Schedule 1 to this Bill). 293
Item 18 - Paragraph 156(1)(a) 1384. Item 18 inserts 'under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act', after 'civil penalty order' in current paragraph 156(1)(a) of the PPL Act. 1385. Subsection 156(1) of the PPL Act states that a person commits an offence, with a corresponding penalty of 10 penalty units, if they fail to comply with a written request from the Secretary of the department that administers the PPL Act to give all reasonable assistance in connection with an application for a civil penalty order. 1386. There is no equivalent to current section 156 of the PPL Act in the Regulatory Powers Act. 1387. It is necessary to retain current section 156 of the PPL Act because that provision provides the Secretary with express authority to request that a person provide all reasonable assistance in connection with an application for a civil penalty order. Current section 156 of the PPL Act is necessary for the purposes of effectively enforcing the civil penalty provisions of that Act. 1388. Item 18 is consequential to the amendments made by item 17 above, which repeals current sections 147 to 155 of the PPL Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the PPL Act. Item 19 - Subsection 156(6) 1389. Item 19 inserts 'under the Regulatory Powers Act' after 'civil penalty order' in current subsection 156(6) of the PPL Act. 1390. Current subsection 156(6) of the PPL Act states that section 156 of that Act applies regardless of whether or not the application for the civil penalty order has actually been made. 1391. There is no equivalent to current section 156 of the PPL Act in the Regulatory Powers Act. 1392. It is necessary to retain current section 156 of the PPL Act because that provision provides the Secretary with express authority to request that a person provide all reasonable assistance in connection with an application for a civil penalty order. Current section 156 of the PPL Act is necessary for the purposes of effectively enforcing the civil penalty provisions of that Act. 1393. Item 19 is consequential to the amendments made by item 17 above, which repeals current sections 147 to 155 of the PPL Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the PPL Act. Item 20 - Division 5 of Part 4-2 1394. Item 20 repeals current Division 5 of Part 4-2 of the PPL Act, and substitutes new 'Division 5--Infringement notices' of Part 4-2 of that Act. This item applies the provisions of Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to alleged contraventions of civil penalty provisions in the PPL Act. 294
Infringement notices 1395. Current Division 5 of Part 4-2 of the PPL Act provides for provisions in relation to infringement notices, and includes sections 159, 160, 161, 162 and 163 of that Act. Those sections are no longer necessary, as this Schedule amends the PPL Act to apply the standard infringement notices provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1301 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the PPL Act that are repealed by this item. 1396. New Division 5 of Part 4-2 of the PPL Act directs the reader to Part 5 of the Regulatory Powers Act, which provides for provisions in relation to infringement notices (see the note to new subsection 159(1) of the PPL Act). New section 159 of the PPL Act outlines matters in relation to the infringement officer, the relevant chief executive, time limits for giving an infringement notice, the amount to be stated in an infringement notice, delegations, and the extension of matters to external Territories. 1397. New subsection 159(1) of the PPL Act states that subsections 82(2), 105(3) and 157(4) and section 103 of that Act are subject to an infringement notice under Part 5 of the Regulatory Powers Act. New subsection 159(1) of the PPL Act ensures that Part 5 of the Regulatory Powers Act operates for the purposes of the provisions identified in that subsection. Item 20 also inserts a note at the end of new subsection 159(1) of the PPL Act, which directs the reader to Part 5 of the Regulatory Powers Act. 1398. New subsection 159(2) of the PPL Act identifies the Secretary of the department that administers the PPL Act as the infringement officer and relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 159(1) of the PPL Act. New subsection 159(2) of the PPL Act preserves the effect of current subsection 159(1) of the PPL Act, which is repealed by this item. 1399. New subsection 159(2) of the PPL Act will enable the Secretary to issue an infringement notice to a person if they reasonably believe that person has contravened a provision identified in new subsection 159(1) of the PPL Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), proceedings seeking a civil penalty order under Part 4 of the Regulatory Powers Act may be brought against the person. 1400. New subsection 159(3) of the PPL Act states that the following further civil penalty provisions of that Act are subject to an infringement notice under Part 5 of the Regulatory Powers Act: a. subsection 70(2) of the PPL Act (which deals with unauthorised deductions from instalments) b. subsections 72(1), (2) and (3) of the PPL Act (which deal with when an employer pays instalments) c. section 74 of the PPL Act (which deals with the method of payment of instalments payable by an employer) 295
d. section 80 of the PPL Act (which deals with giving a person a record of a payment) e. subsections 81(1) and (2) of the PPL Act (which deal with keeping records), and f. subsection 157(4) of the PPL Act, in relation to a compliance notice given to a person by the Fair Work Ombudsman. 1401. New subsection 159(4) of the PPL Act identifies the Fair Work Ombudsman as the infringement officer and relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 159(3) of the PPL Act. New subsection 159(4) of the PPL Act preserves the effect of current subsection 159(2) of the PPL Act, which is repealed by this item. 1402. New subsection 159(4) of the PPL Act will enable the Fair Work Ombudsman to issue an infringement notice to a person if they reasonably believe that person has contravened a provision identified in new subsection 159(3) of the PPL Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), proceedings seeking a civil penalty order under Part 4 of the Regulatory Powers Act may be brought against the person. 1403. New subsection 159(5) of the PPL Act modifies the operation of subsection 103(2) of the Regulatory Powers Act, and provides that an infringement notice, given in relation to a failure to comply with a compliance notice issued under current subsection 157(4) of the PPL Act, must be given within 12 months of the day on which the 14-day period referred to in current subsection 157(3) of that Act ends. New subsection 159(5) of the PPL Act preserves the effect of current subsection 159(3) of the PPL Act, which is repealed by this item. 1404. Current subsection 157(3) of the PPL Act provides that the Secretary or the Fair Work Commissioner may give a person a compliance notice requiring the person to do the following within 14 days of the day on which the notice is given: a. take the action set out in the notice to rectify the contravention, and/or b. produce reasonable evidence of the person's compliance with the notice. 1405. It is necessary to modify the operation of subsection 103(2) of the Regulatory Powers Act through the inclusion of new subsection 159(5) of the PPL Act because, where a compliance notice has been issued under current subsection 157(3) of the PPL Act, a person has 14 days from the date of issue in which to remedy the non-compliance. New subsection 159(5) of the PPL Act ensures that this period in which to remedy non-compliance is preserved, as an infringement notice, given in relation to a failure to comply with a compliance notice issued under current subsection 157(4) of that Act, must be given within 12 months of the day on which the 14-day period referred to in current subsection 157(3) of that Act ends. 1406. New subsection 159(6) of the PPL Act modifies the operation of subsections 104(2) and (3) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill), and provides that the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of the 296
Regulatory Powers Act for an alleged contravention of a provision identified in new subsection 159(1) or (3) of the PPL Act must be: a. if the infringement notice is given to a body corporate for a single contravention: i. in relation to a contravention of section 80 of the PPL Act or subsection 81(1) or (2) of that Act--15 penalty units, and ii. in relation to a contravention of a compliance notice given in relation to a contravention of section 80 of the PPL Act or subsection 81(1) or (2) of that Act--15 penalty units, and iii. otherwise--30 penalty units, or b. if the infringement notice is given to a person other than a body corporate for a single contravention: i. in relation to a contravention of section 80 of the PPL Act or subsection 81(1) or (2) of that Act--3 penalty units, and ii. in relation to a contravention of a compliance notice given in relation to a contravention of section 80 of the PPL Act or subsection 81(1) or (2) of that Act--3 penalty units, and iii. otherwise--6 penalty units, or c. if the infringement notice is given to a person (whether or not a body corporate) for a number of contraventions--the number of penalty units worked out by multiplying the penalty units for a single contravention (worked out under new paragraph 159(6)(a) or (b) of the PPL Act) by the number of alleged contraventions to which the notice relates. 1407. New subsection 159(6) of the PPL Act preserves the effect of current subsections 159(5) and (6) of the PPL Act, which are repealed by this item. 1408. It is necessary to modify the operation of subsections 104(2) and (3) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill) through the inclusion of new subsection 159(6) of the PPL Act as that new subsection preserves the current penalty units in relation to infringement notices, which are one-tenth of the maximum pecuniary penalty that a court could order a person to pay in proceedings for a civil penalty order in relation to a contravention of a civil penalty provision. Those penalty units are consistent with the penalty units applicable to infringement notices issued under the Fair Work Act 2009 in relation to employer contraventions of penalty provisions, and are designed to deter employer non-compliance without causing financial hardship to businesses. 1409. New subsection 159(7) of the PPL Act provides that the Secretary may, in writing, delegate his or her powers and functions under Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsections 159(1) and (3) of the PPL Act, to the Chief Executive Centrelink, the Chief Executive Medicare, or an SES employee or acting SES employee in the department that administers the PPL Act. New subsection 159(7) of the PPL Act preserves the effect of current subsection 303(3) of that Act, which is repealed by item 26 below. 1410. New subsection 159(8) of the PPL Act provides that if the Secretary delegates any of his or her powers and functions under Part 5 of the Regulatory Powers Act, as that Part 297
applies to the provisions identified in new subsections 159(1) and (3) of the PPL Act, to the Chief Executive Centrelink, then the Chief Executive Centrelink cannot, despite any provision in the Human Services (Centrelink) Act 1997, delegate that power to an APS employee in the department that administers the Human Services (Centrelink) Act who is neither an SES employee nor an acting SES employee of that department. New subsection 159(8) of the PPL Act preserves the effect of current subsection 303(3A) of that Act, which is repealed by item 26 below. 1411. New subsection 159(9) of the PPL Act provides that if the Secretary delegates any of his or her powers and functions under Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsections 159(1) and (3) of the PPL Act, to the Chief Executive Medicare, then the Chief Executive Medicare cannot, despite any provision in the Human Services (Medicare) Act 1973, delegate that power to an APS employee in the department that administers the Human Services (Medicare) Act who is neither an SES employee nor an acting SES employee in that department. New subsection 159(9) of the PPL Act preserves the effect of current subsection 303(3B) of that Act, which is repealed by item 26 below. 1412. New subsection 159(10) of the PPL Act extends the application of Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsections 159(1) and (3) of the PPL Act, to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. New subsection 159(10) of the PPL Act reflects existing arrangements under the PPL Act (see the definition of Australia in section 6 of the PPL Act). 1413. Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the PPL Act. The comparison table provided at paragraph 1301 above identifies the provision gained through alignment with the Regulatory Powers Act, which is not currently in the PPL Act, that is merely procedural in nature and sets out matters in relation to an extension of time to pay an amount payable under an infringement notice (see section 105 of the Regulatory Powers Act, which is discussed below). 1414. Section 105 of the Regulatory Powers Act provides that a person who has received an infringement notice may apply to the relevant chief executive for an extension of time to pay the notice. This period may be extended more than once, and ensures that a person is not prevented from paying an infringement notice due to financial hardship or other difficulties. 1415. The comparison table provided at paragraph 1301 above also identifies that current subsection 159(4) of the PPL Act is expanded through alignment with section 104 of the Regulatory Powers Act (as amended by Schedule 1 to this Bill), and current paragraph 159(4)(f) and current section 163 of the PPL Act are repealed without substitution. 1416. Current subsection 159(4) of the PPL Act provides for matters that must be included in an infringement notice, which include the name of infringement officer, details of the alleged contravention and any other matters prescribed by the PPL rules. Application of section 104 of the Regulatory Powers Act (as amended by Schedule 1 to this Bill) will result in an expansion of the matters that must be included in an infringement notice, as section 104 of the Regulatory Powers Act provides for a more comprehensive list of particulars. 298
1417. Current paragraph 159(4)(f) of the PPL Act provides that an infringement notice must set out any other matters prescribed by the PPL rules. Current section 163 of the PPL Act provides that the Minister responsible for the department that administers the PPL Act may make further provisions in relation to infringement notices in the PPL Rules. Those provisions are repealed without substitution. The repeal of current paragraph 159(4)(f) and current section 163 of the PPL Act reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, rather than by regulation or legislative instrument. Accordingly, it is no longer necessary to retain paragraph 159(4)(f) or section 163 of the PPL Act. There are currently no additional provisions prescribing further matters in relation to infringement notices in rules made under the PPL Act. Item 21 - At the end of section 201A 1418. Item 21 inserts 'under the Regulatory Powers Act' at the end of current section 201A of the PPL Act, which provides that Part 4-3 of that Act does not apply to a debt arising from a civil penalty order. 1419. Item 21 is consequential to the amendments made by item 17 above, which repeals current sections 147 to 155 of the PPL Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the PPL Act. Item 22 - Subsection 303(1) 1420. Item 22 omits 'Divisions 3 and 5 of Part 4-2 and' from current subsection 303(1) of the PPL Act. 1421. Current subsection 303(1) of the PPL Act provides that the Secretary of the department that administers the PPL Act may, in writing, delegate all or any of his or her powers under the PPL Act, other than current Divisions 3 and 5 of Part 4-2 and current paragraph 128(1)(b) of that Act, to certain listed persons. 1422. Item 22 is consequential to the amendments made by items 17 and 20 above, which repeal current sections 147 to 155 and current Division 5 of Part 4-2 of the PPL Act and apply Parts 4 and 5 of the Regulatory Powers Act to the PPL Act. Item 23 - Subsection 303(1) 1423. Item 23 omits 'which deal with civil penalty orders, infringement notices and' from current subsection 303(1) of the PPL Act, and substitutes 'which deal with' in subsection 303(1) of that Act. 1424. Item 23 is consequential to the amendments made by item 22 above, which removes the reference to current Divisions 3 and 5 of Part 4-2 of the PPL Act. Those Divisions currently provide for matters in relation to civil penalty orders and infringement notices, but are repealed by items 17 and 20 above. As such, the reference to 'which deal with civil penalty orders, infringement notices and' in current subsection 303(1) of the PPL Act is no longer necessary. Item 24 - Subsection 303(2) 1425. Item 24 omits 'Divisions 3 and 5 of Part 4-2 and' from current subsection 303(2) of the PPL Act. 299
1426. Current subsection 303(2) of the PPL Act provides that the Secretary of the department that administers the PPL Act may, in writing, delegate all or any of his or her powers under the PPL Act, other than current Divisions 3 and 5 of Part 4-2 and current paragraph 128(1)(b) of that Act, to the Chief Executive Centrelink, the Chief Executive Medicare or an APS employee of the Department of Human Services. 1427. Item 24 is consequential to the amendments made by items 17 and 20 above, which repeal current sections 147 to 155 and current Division 5 of Part 4-2 of the PPL Act and apply Parts 4 and 5 of the Regulatory Powers Act to the PPL Act. Item 25 - Subsection 303(2) 1428. Item 25 omits 'which deal with civil penalty orders, infringement notices and' from current subsection 303(2) of the PPL Act, and substitutes 'which deal with' in subsection 303(2) of that Act. 1429. Item 25 is consequential to the amendments made by item 24 above, which removes the reference to current Divisions 3 and 5 of Part 4-2 of the PPL Act. Those Divisions currently provide for matters in relation to civil penalty orders and infringement notices, but are repealed by items 17 and 20 above. As such, the reference to 'which deal with civil penalty orders, infringement notices and' in current subsection 303(2) of the PPL Act is no longer necessary. Item 26 - Subsections 303(3), (3A) and (3B) 1430. Item 26 repeals current subsections 303(3), (3A) and (3B) of the PPL Act, which provide for matters in relation to delegations. 1431. Current subsection 303(3) of the PPL Act provides that the Secretary of the department that administers the PPL Act may, in writing, delegate his or her powers under current Division 3 or 5 of Part 4-2 of the PPL Act to: a. the Chief Executive Centrelink b. the Chief Executive Medicare, or c. an SES employee or an acting SES employee in the department that administers the PPL Act. 1432. Current subsection 303(3A) of the PPL Act provides that if the Secretary delegates his or her powers and functions under current Division 3 or 5 of Part 4-2 of the PPL Act to the Chief Executive Centrelink, then the Chief Executive Centrelink cannot, despite any provision in the Human Services (Centrelink) Act 1997, delegate that power to an APS employee in the department that administers the Human Services (Centrelink) Act who is neither an SES employee nor an acting SES employee of that department. 1433. Current subsection 303(3B) of the PPL Act provides that if the Secretary delegates his or her powers and functions under current Division 3 or 5 of Part 4-2 of the PPL Act to the Chief Executive Medicare, then the Chief Executive Medicare cannot, despite any provision in the Human Services (Medicare) Act 1973, delegate that power to an APS employee in the department that administers the Human Services (Medicare) Act who is neither an SES employee nor an acting SES employee in that department. 300
1434. Item 26 is consequential to the amendments made by items 17 and 20 above, which repeal current sections 147 to 155 and current Division 5 of Part 4-2 of the PPL Act and apply Parts 4 and 5 of the Regulatory Powers Act to the PPL Act. Items 17 and 20 preserve the effect of current subsections 303(3), (3A) and (3B) of the PPL Act through the inclusion of new subsections 147(4), (5) and (6) and new subsections 159(7), (8) and (9) of the PPL Act. PART 2--APPLICATION AND SAVING PROVISIONS Item 27 - Application and saving provision--civil penalties 1435. Item 27 provides for the application of the amendments in this Schedule in relation to civil penalties, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 1436. This item also provides that Division 3 of Part 4-2 of the PPL Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule. Item 28 - Application and saving provision--infringement notices 1437. Item 28 provides for the application of the amendments in this Schedule in relation to infringement notices, and makes it clear that the amendments apply in relation to alleged contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 1438. This item also provides that Division 5 of Part 4-2 of the PPL Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to alleged contraventions of civil penalty provisions occurring before the commencement of this Schedule. 301
Schedule 12 - Personal Property Securities Act 2009 GENERAL OUTLINE 1439. The Personal Property Securities Act 2009 (the 'PPS Act') replaces a complex and fragmented system, including over 70 Commonwealth, State and Territory Acts, with a single national regime for the creation, registration, priority and enforcement of security interests in personal property. The PPS Act also creates the Personal Property Securities Register (the 'Register') which consolidates and replaces over 40 Commonwealth, State and Territory registers used to provide notification to third parties of interests in personal property. Apart from giving secured parties a simple means of publicising and protecting their interests, the Register also provides an authoritative public record of interests in personal property for the benefit of third parties (such as financiers, lenders, insolvency practitioners and buyers of personal property). 1440. Current Divisions 2 and 3 of Part 6.3 of the PPS Act establish a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions. Current Division 4 of Part 6.3 of the PPS Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions of that Act. 1441. This Schedule amends the PPS Act to apply the standard civil penalty and enforceable undertakings provisions of the Regulatory Powers Act. Application of these provisions does result in a minor expansion of the current regulatory powers framework of the PPS Act due to the acquisition of section 93 of the Regulatory Powers Act; however that provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. The other provisions gained by alignment with the Regulatory Powers Act, which are not currently in the PPS Act, are merely procedural matters in relation to civil penalty provisions. 1442. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories. 1443. Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions of an Act. Subsection 110(2) of the Regulatory Powers Act states that, in order for Part 6 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made enforceable under that Part by a triggering Act. When a triggering Act applies Part 6 of the Regulatory Powers Act, it must identify the authorised person or persons and the relevant court or courts that may exercise powers under Part 6 of the Regulatory Powers Act (see sections 112 and 113 of the Regulatory Powers Act). It must also express whether the authorised person or persons may delegate his or her powers and functions under Part 6 of the Regulatory Powers Act in 302
relation to the enforceable undertakings provisions of the triggering Act (see subsection 112(3) of the Regulatory Powers Act). If provisions of the triggering Act are subject to enforceable undertakings and apply in external Territories or offshore areas, the triggering Act should identify whether Part 6 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Personal Property Securities Act 2009 1444. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 12) for the provisions of the PPS Act that are repealed by item 12. Current provision in the PPS Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Civil penalty provisions Divisions 2 Part 4-Civil penalty and 3, provisions Part 6.3, Chapter 6 Relevant courts Part 6.2, Extended to the N/A (see new Chapter 6 Federal Circuit subsection 221(3) of Court and a court the PPS Act) of a State or Territory that has jurisdiction in relation to matters arising under PPS Act Conduct contravening more than one civil 222(4) Retained 84 penalty provision Contravening a civil penalty provision is 223 Repealed N/A not an offence Persons involved in contravening civil 224 Retained 92 penalty provision Recovery of pecuniary penalty 225 Retained 83 Civil proceedings after criminal 226 Retained 88 proceedings Criminal proceedings during civil 227 Retained 89 proceedings Criminal proceedings after civil 228 Retained 90 proceedings Evidence given in proceedings for penalty 229 Retained 91 not admissible in criminal proceedings N/A (Multiple contraventions) N/A Gained 85 N/A (Proceedings may be heard together) N/A Gained 86 N/A (Civil evidence and procedure rules N/A Gained 87 for civil penalty orders) 303
Current provision in the PPS Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) N/A (Continuing contraventions of civil N/A Gained 93 penalty provisions) N/A (State of mind) N/A Gained 94 N/A (Mistake of fact) N/A Gained 95 N/A (Exceptions etc. to civil penalty N/A Gained 96 provisions - burden of proof) N/A (Civil penalty provisions contravened N/A Gained 97 by employees, agents or officers) Enforceable undertakings Division 4, Part 6-Enforceable Part 6.3 undertakings Relevant courts Part 6.2, Extended to the N/A (see new Chapter 6 Federal Circuit subsection 222(3) of Court and a court the PPS Act) of a State or Territory that has jurisdiction in relation to matters arising under PPS Act Acceptance of undertakings relating to 230 Retained 114 contraventions of civil penalty provisions Enforcement of undertakings 231 Retained 115 PART 1--AMENDMENTS Item 1 - Section 3 1445. Item 1 repeals part of the 'Guide to this Act' in section 3 of the PPS Act, and substitutes new text that is consequential to the amendments made by item 12 below, which repeals Part 6.3 of the PPS Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act, and standard enforceable undertakings provisions in Part 6 of that Act. This item repeals the entirety of the paragraph that begins with 'Chapter 6' in the Guide, and substitutes new text to direct the reader to Parts 4 and 6 of the Regulatory Powers Act. Item 2 - Section 10 (definition of civil penalty provision) 1446. Item 2 repeals the definition of civil penalty provision in section 10 of the PPS Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. Item 3 - Section 10 (definition of evidential burden) 1447. Item 3 repeals the definition of evidential burden in section 10 of the PPS Act. That definition is no longer necessary, as this Schedule amends the PPS Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and evidential burden is defined in section 4 of that Act. 304
1448. It is not necessary to substitute a new definition of evidential burden in section 10 of the PPS Act as, for the purposes of the civil penalty provisions in that Act, section 96 of the Regulatory Powers Act will apply. 1449. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 1450. Where the phrase evidential burden is used in other provisions of the PPS Act, section 13.3 of the Criminal Code defines evidential burden as the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. Item 4 - Section 10 1451. Item 4 amends section 10 of the PPS Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 5 - Subsections 151(1) and (2) (penalty) 1452. Item 5 repeals the current penalties prescribed in subsections 151(1) and (2) of the PPS Act, and inserts 'Civil penalty: 50 penalty units' at the end of those subsections. The current penalties at the end of subsections 151(1) and (2) of the PPS Act are identified as 50 penalty units for an individual and 250 penalty units for a body corporate. 1453. Subsection 151(1) of the PPS Act provides that a person must not apply to register a financing statement, or a financing change statement, that describes collateral, unless the person believes on reasonable grounds that the person described in the statement as the secured party is, or will become, a secured party in relation to the collateral (otherwise by virtue of the registration itself). 1454. Subsection 151(2) of the PPS Act states that if a financing statement, or a financing change statement, that describes collateral has been registered on the application of a person, that person must, within the period covered by subsection 151(3) of that Act, apply to register a financing change statement to amend the registration to end its effect with respect to the collateral if: a. the person described in the statement as the secured party has never, since the statement was registered, been a secured party in relation to the collateral (other than by virtue of the registration itself), and b. there are no reasonable grounds (or there are no longer any reasonable grounds) for the belief mentioned in subsection 151(1) of the PPS Act. 1455. Subsection 151(3) of the PPS Act identifies the period covered by that subsection as, as soon as practicable or 5 business days (note, this period may be extended by a court under section 293 of the PPS Act), whichever occurs first after: a. if there never have been, since the statement was registered, reasonable grounds for the belief mentioned in subsection 151(1) of the PPS Act--the day 305
of the registration time, or the amendment time, for the financing statement or financing change statement, or b. if there are no longer any reasonable grounds for that belief--the day when there stopped being reasonable grounds for the belief. 1456. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 12 below), preserve the effect of the current penalties at the end of subsections 151(1) and (2) of the PPS Act, which are repealed by this item. 1457. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 1458. Item 5 is consequential to the amendments made by item 12 below, which repeals current Part 6.3 of the PPS Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act, and standard enforceable undertakings provisions in Part 6 of that Act. Item 6 - Subsection 151(4) 1459. Item 6 repeals current subsection 151(4) of the PPS Act, which states that a person who wishes to establish that there were reasonable grounds for the belief mentioned in subsection 151(1) of that Act (at any particular time), bears an evidential burden in relation to the matter. The note to current subsection 151(4) of the PPS Act directs the reader to section 10 of that Act for the definition of evidential burden. That definition is repealed by item 3 above. 1460. Subsection 151(1) of the PPS Act provides that a person must not apply to register a financing statement, or a financing change statement, that describes collateral, unless the person believes on reasonable grounds that the person described in the statement as the secured party is, or will become, a secured party in relation to the collateral (otherwise by virtue of the registration itself). 1461. Current subsection 151(4) of the PPS Act, including the note to that subsection, is no longer necessary as this Schedule amends the PPS Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and evidential burden is defined in section 4 of that Act. 1462. As subsection 151(1) of the PPS Act is a civil penalty provision, section 96 of the Regulatory Powers Act will preserve the effect of current subsection 151(4), which is repealed by this item. 1463. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 306
Item 7 - Subsection 172(3) (penalty) 1464. Item 7 repeals the current penalties prescribed in subsection 172(3) of the PPS Act, and inserts 'Civil penalty: 50 penalty units' at the end of that subsection. The current penalties at the end of subsection 172(3) of the PPS Act are identified as 50 penalty units for an individual and 250 penalty units for a body corporate. 1465. Subsection 172(3) of the PPS Act provides that a searcher mentioned in an item in the table in subsection 172(2) of that Act must not, otherwise than for the purpose specified in the item: a. access the register to search for data, or b. use data obtained as a result of accessing the register, unless the searcher has also obtained the data lawfully from another source. 1466. Subsection 172(2) of the PPS Act provides a table that sets out what persons (searchers) may access the register to search for data and for what purpose. 1467. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 12 below), preserve the effect of the current penalties at the end of subsection 172(3) of the PPS Act, which are repealed by this item. 1468. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 1469. Item 7 is consequential to the amendments made by item 12 below, which repeals current Part 6.3 of the PPS Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act, and standard enforceable undertakings provisions in Part 6 of that Act. Item 8 - Subsection 172(4) 1470. Item 8 repeals current subsection 172(4) of the PPS Act, which states that a person bears an evidential burden where that person wishes to establish that a searcher mentioned in an item in the table in subsection 172(2) of that Act did an action mentioned in paragraph 172(3)(a) or (b) of that Act, for the purpose specified in the item. The note to current subsection 172(4) of the PPS Act directs the reader to section 10 of that Act for the definition of evidential burden. That definition is repealed by item 3 above. 1471. Subsection 172(3) of the PPS Act is a civil penalty provision, and provides that a searcher mentioned in an item in the table in subsection 172(2) of that Act must not, otherwise than for the purpose specified in the item: a. access the register to search for data, or b. use data obtained as a result of accessing the register, unless the searcher has also obtained the data lawfully from another source. 1472. Subsection 172(2) of the PPS Act provides a table that sets out what persons (searchers) may access the register to search for data and for what purpose. 307
1473. Current subsection 172(4) of the PPS Act, including the note to that subsection, is no longer required as this Schedule amends the PPS Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and evidential burden is defined in section 4 of that Act. 1474. As subsection 172(3) of the PPS Act is a civil penalty provision, section 96 of the Regulatory Powers Act will preserve the effect of current subsection 172(4), which is repealed by this item. 1475. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. Item 9 - Subsection 195A(4) (penalty) 1476. Item 9 repeals the current penalties prescribed in subsection 195A(4) of the PPS Act, and inserts 'Civil penalty: 50 penalty units' at the end of that subsection. The current penalties at the end of subsection 195A(4) of the PPS Act are identified as 50 penalty units for an individual and 250 penalty units for a body corporate. 1477. Subsection 195A(4) of the PPS Act states that a person contravenes that subsection if that person fails to comply with a notice issued under subsection 195A(2) of that Act. 1478. Subsection 195A(2) of the PPS Act states that, if the Registrar of Personal Property Securities believes on reasonable grounds that a person has information that is relevant to an investigation under subsection 195A(1) of that Act, the Registrar may, by written notice given to the person, require that person to give any such information to the Registrar, within the period and in the way specified in the notice. 1479. Subsection 195A(1) of the PPS Act provides that the Registrar of Personal Property Securities may conduct an investigation into any matter for the purpose of performing his or her functions. 1480. The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 12 below), preserve the effect of the current penalties at the end of subsection 195A(4) of the PPS Act, which are repealed by this item. 1481. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. 1482. Item 9 is consequential to the amendments made by item 12 below, which repeals current Part 6.3 of the PPS Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act, and standard enforceable undertakings provisions in Part 6 of that Act. Item 10 - Section 204 1483. Item 10 repeals part of the 'Guide to this Chapter' in section 204 of the PPS Act, and substitutes new text that is consequential to the amendments made by item 12 below, which 308
repeals Part 6.3 of the PPS Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act, and standard enforceable undertakings provisions in Part 6 of that Act. This item repeals the entirety of the paragraph that begins with 'Part 6.3' in the Guide, and substitutes new text to direct the reader to Parts 4 and 6 of the Regulatory Powers Act Item 11 - Subsection 206(6) 1484. Item 11 omits '(civil penalty proceedings)' from current subsection 206(6) of the PPS Act, and substitutes '(civil penalties and enforceable undertakings)'. Current subsection 206(6) of the PPS Act states that Part 6.2 of Chapter 6 of that Act does not apply to matters arising under current Part 6.3 (civil penalty proceedings) of Chapter 6 of that Act. 1485. Item 11 is consequential to the amendments made by item 12 below, which repeals Part 6.3 of Chapter 6 of the PPS Act and substitutes a new Part 6.3 of Chapter 6 of that Act. 1486. New Part 6.3 of Chapter 6 of the PPS Act applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act, and standard enforceable undertakings provisions in Part 6 of that Act. As current Part 6.3 of Chapter 6 of the PPS Act is amended by item 12 below to provide for civil penalty and enforceable undertakings provisions, current subsection 206(6) of that Act is amended to clarify that Part 6.2 of Chapter 6 of that Act does not apply to the civil penalty and enforceable undertakings provisions in new Part 6.3 of Chapter 6 of that Act. Item 12 - Part 6.3 1487. Item 12 repeals current Part 6.3 of Chapter 6 of the PPS Act, and substitutes new 'Part 6.3--Civil penalties and enforceable undertakings' of Chapter 6 of that Act. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce civil penalty provisions in the PPS Act, and Part 6 of the Regulatory Powers Act for accepting and enforcing undertakings relating to compliance with provisions of the PPS Act. 1488. Item 12 also repeals current section 220 of the PPS Act and inserts new section 220, of that Act, which replaces the 'Guide to this Part' to provide for the amendments made by this item to Part 6.3 of Chapter 6 of that Act. Civil penalty provisions 1489. Current Divisions 1, 2 and 3 of Part 6.3 of Chapter 6 of the PPS Act provide for provisions in relation to civil penalty orders, and include sections 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230 and 231 of that Act. Those sections are no longer necessary, as this Schedule amends the PPS Act to apply the standard provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1444 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the PPS Act that are repealed by this item. 1490. New section 221 of the PPS Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 221(1) of the PPS Act). New section 221 of the PPS Act outlines matters in relation to authorised applicants, relevant courts and the extension of matters to external Territories. 309
1491. New subsection 221(1) of the PPS Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the PPS Act. Item 12 also inserts a note at the end of new subsection 221(1) of the PPS Act, which directs the reader to Part 4 of the Regulatory Powers Act. 1492. New subsection 221(2) of the PPS Act identifies the Registrar of Personal Property Securities as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the Registrar to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New subsection 221(2) of the PPS Act preserves the effect of current subsection 222(1) of that Act, which is repealed by this item. 1493. New subsection 221(3) of the PPS Act identifies the following courts as a relevant court in relation to the civil penalty provisions of that Act: a. the Federal Court of Australia b. the Federal Circuit Court of Australia, and c. a court of a State or Territory that has jurisdiction in relation to matters arising under the PPS Act. 1494. New subsection 221(3) of the PPS Act reflects existing arrangements under that Act in relation to courts (see Division 2 of Part 6.2 of Chapter 6 of the PPS Act), and extends jurisdiction under new Part 6.3 of Chapter 6 of the PPS Act to the Federal Circuit Court and State or Territory courts that have jurisdiction in relation to matters arising under that Act. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. It is also appropriate to confer jurisdiction on a court of a State or Territory that has jurisdiction in relation to matters arising under the PPS Act. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 1495. New subsection 221(4) of the PPS Act extends the application of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the PPS Act, to Norfolk Island and such other external Territories (if any) as prescribed by the regulations for the purposes of section 7 of the PPS Act. This new subsection reflects existing arrangements under the PPS Act (see section 7 of that Act). 1496. Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the PPS Act. The comparison table provided at paragraph 1444 above identifies the provision of the Regulatory Powers Act that is gained through alignment with that Act, and which does not currently exist in the PPS Act (see section 93 of the Regulatory Powers Act, which is discussed below). 1497. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits 310
a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. 1498. The comparison table provided at paragraph 1444 above also identifies provisions gained through alignment with the Regulatory Powers Act, which are not currently in the PPS Act, that are merely procedural in nature (see sections 85, 86, 87, 94, 95, 96 and 97 of the Regulatory Powers Act, which are discussed below). These provisions set out matters in relation to, for example, the ability to hear proceedings together, civil evidence and procedure rules for civil penalty orders, state of mind, burden of proof and vicarious liability (see sections 86, 87, 94, 96 and 97 of the Regulatory Powers Act). 1499. Section 85 of the Regulatory Powers Act clarifies that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions for the same or similar conduct. This provision aims to minimise court administration and consolidate legal proceedings. 1500. Section 86 of the Regulatory Powers Act clarifies that a relevant court may hear two or more proceedings for civil penalty orders simultaneously. 1501. Section 87 of the Regulatory Powers Act clarifies that a relevant court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order. 1502. Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act. 1503. Section 95 of the Regulatory Powers Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact. 1504. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 1505. Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. 1506. Alignment with the Regulatory Powers Act will also repeal current section 223 of the PPS Act, which provides that a contravention of a civil penalty provision is not an offence. This section is no longer necessary, as the provision does not add anything beyond the established common law principle, and its inclusion is no longer in line with current drafting standards. 311
1507. Further, alignment with the Regulatory Powers Act means that a relevant court would no longer be restricted to making civil penalty orders for only serious contraventions of civil penalty provisions of that Act. Section 82 of the Regulatory Powers Act provides that a relevant court must simply be satisfied that a person has contravened the civil penalty provision in question. Enforceable undertakings 1508. Current Division 4 of Part 6.3 of the PPS Act provides for provisions in relation to enforceable undertakings and includes sections 230 and 231 of that Act. Those sections are no longer necessary, as this Schedule amends the PPS Act to apply the standard provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1444 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the PPS Act that are repealed by this item. 1509. New section 222 of the PPS Act directs the reader to Part 6 of the Regulatory Powers Act, which provides for provisions in relation to enforceable undertakings (see the note to new subsection 222(1) of the PPS Act). New section 222 of the PPS Act outlines matters in relation to authorised persons, relevant courts and the extension of matters to external Territories. 1510. New subsection 222(1) of the PPS Act provides that each civil penalty provision of the PPS Act is enforceable under Part 6 of the Regulatory Powers Act, which ensures that Part 6 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the PPS Act. Item 12 also inserts a note at the end of new subsection 222(1) of the PPS Act, which directs the reader to Part 6 of the Regulatory Powers Act. 1511. New subsection 222(2) of the PPS Act identifies the Registrar of Personal Property Securities as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the Registrar to accept and enforce undertakings relating to compliance with civil penalty provisions of the PPS Act. New subsection 222(2) of the PPS Act preserves the effect of current subsection 230(2) of that Act, which is repealed by this item. 1512. New subsection 223(3) of the PPS Act identifies the following courts as a relevant court for the purposes of Part 6 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the PPS Act: a. the Federal Court of Australia b. the Federal Circuit Court of Australia, and c. a court of a State or Territory that has jurisdiction in relation to matters arising under the PPS Act. 1513. New subsection 222(3) of the PPS Act reflects existing arrangements under that Act in relation to courts (see Division 2 of Part 6.2 of Chapter 6 of the PPS Act), and extends jurisdiction under new Part 6.3 of Chapter 6 of the PPS Act to the Federal Circuit Court and State or Territory courts that have jurisdiction in relation to matters arising under that Act. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. It is also appropriate to confer jurisdiction on a court of a State or Territory that has jurisdiction in relation to matters arising under the PPS 312
Act. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 1514. New subsection 222(4) of the PPS Act extends the application of Part 6 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the PPS Act, to Norfolk Island and such other external Territories (if any) as prescribed by the regulations for the purposes of section 7 of the PPS Act. This new subsection reflects existing arrangements under the PPS Act (see section 7 of that Act). 1515. Application of the standard enforceable undertakings provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the PPS Act. PART 2--APPLICATION AND SAVING PROVISIONS Item 13 - Application and saving provision--civil penalties 1516. Item 13 provides for the application of the amendments in this Schedule in relation to civil penalties, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 1517. This item also provides that Divisions 1 to 3 of Part 6.3 of Chapter 6 of the PPS Act, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule. Item 14 - Application and saving provision--enforceable undertakings 1518. Item 14 provides for the application of the amendments in this Schedule in relation to enforceable undertakings, and makes it clear that the amendments apply in relation to undertakings given on or after the commencement of this Schedule. 1519. This item also provides that Division 4 of Part 6.3 of Chapter 6 of the PPS Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to the following: a. an undertaking given before the commencement of this Schedule b. an application for an order made, but not decided, under current subsection 231(1) of the PPS Act before the commencement of this Schedule, and c. an order made under current subsection 231(2) of the PPS Act before, on or after the commencement of this Schedule as a result of an application made before that commencement. 313
Schedule 13 - Privacy Act 1988 GENERAL OUTLINE 1520. The Privacy Act 1988 regulates the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information, and access to and correction of that information. Article 17 of the International Covenant on Civil and Political Rights (the 'ICCPR') provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence. Australia gives effect to Article 17 of the ICCPR through the Privacy Act, which gives individuals rights in relation to how organisations and agencies handle personal information, both online and offline. 1521. Current Part VIB of the Privacy Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions. Current Division 3B of Part IV of the Privacy Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions of that Act. Current section 98 of the Privacy Act deals with the use of injunctions to enforce provisions of that Act. 1522. This Schedule amends the Privacy Act to apply the standard civil penalty, enforceable undertaking and injunction provisions of the Regulatory Powers Act. Application of these provisions does result in a minor expansion of the current regulatory powers framework of the Privacy Act due to the acquisition of section 93 of the Regulatory Powers Act; however that provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. The other provisions gained by alignment with the Regulatory Powers Act, which are not currently in the Privacy Act, are merely procedural matters in relation to civil penalty provisions. This Schedule also modifies the operation of the Regulatory Powers Act to retain an existing power in the Privacy Act. 1523. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories. 1524. Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions of an Act. Subsection 110(2) of the Regulatory Powers Act states that, in order for Part 6 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made enforceable under that Part by a triggering Act. When a triggering Act applies Part 6 of the Regulatory Powers Act, it must identify the authorised person or persons and the relevant court or courts that may exercise powers under Part 6 of the Regulatory Powers Act (see sections 112 and 113 of the Regulatory Powers Act). It must also express whether the authorised person or persons may delegate his or her powers and functions under Part 6 of the Regulatory Powers Act in 314
relation to the enforceable undertakings provisions of the triggering Act (see subsection 112(3) of the Regulatory Powers Act). If provisions of the triggering Act are subject to enforceable undertakings and apply in external Territories or offshore areas, the triggering Act should identify whether Part 6 of the Regulatory Powers Act extends to any external Territories. 1525. Part 7 of the Regulatory Powers Act creates a framework for the use of injunctions to enforce provisions of an Act. Subsection 117(2) of the Regulatory Powers Act states that, in order for Part 7 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made enforceable under that Part by a triggering Act. When a triggering Act applies Part 7 of the Regulatory Powers Act, it must identify an authorised person or persons and a relevant court or courts that may exercise powers under Part 7 of the Regulatory Powers Act (see sections 119 and 120 of the Regulatory Powers Act). A triggering Act must also express whether an authorised person or persons may delegate his or her powers and functions under Part 7 of the Regulatory Powers Act in relation to provisions subject to an injunction under the triggering Act (see subsection 119(3) of the Regulatory Powers Act). If provisions of the triggering Act are subject to an injunction and apply in external Territories or offshore areas, the triggering Act should identify whether Part 7 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Privacy Act 1988 1526. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 7) for the provisions of the Privacy Act that are repealed by items 6, 7 and 8. Current provision in the Privacy Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Civil penalty provisions Part VIB Part 4-Civil penalty provisions Relevant courts 80W(1) Retained N/A (see new subsection 80U(3) of the Privacy Act) Ancillary contravention of civil penalty 80V Retained 92 provisions Civil penalty orders 80W Retained 82 Civil enforcement of penalty 80X Retained 83 Conduct contravening more than one civil 80Y Retained 84 penalty provision Multiple contraventions 80Z Retained 85 Proceedings may be heard together 80ZA Retained 86 Civil evidence and procedure rules for 80ZB Retained 87 civil penalty orders Contravening a civil penalty provision is 80ZC Repealed N/A not an offence 315
Current provision in the Privacy Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Civil proceedings after criminal 80ZD Retained 88 proceedings Criminal proceedings during civil 80ZE Retained 89 proceedings Criminal proceedings after civil 80ZF Retained 90 proceedings Evidence given in proceedings for civil 80ZG Retained 91 penalty order not admissible in criminal proceedings N/A (Continuing contraventions of civil N/A Gained 93 penalty provisions) N/A (State of mind) N/A Gained 94 N/A (Mistake of fact) N/A Gained 95 N/A (Exceptions etc. to civil penalty N/A Gained 96 provisions - burden of proof) N/A (Civil penalty provisions contravened N/A Gained 97 by employees, agents or officers) Enforceable undertakings Division 3B, Part 6-Enforceable Part IV undertakings Relevant courts 33F(1) Retained N/A (see new subsection 80V(3) of the Privacy Act) Commissioner may accept undertakings 33E Retained 114 Commissioner may publish the 33E(5) Retained through N/A (see new undertaking on the Commissioner's modification to subsection 80V(4) website the Regulatory of the Privacy Act) Powers Act Enforcement of undertakings 33F Retained 115 N/A (A relevant court may order that a N/A Gained 115(2)(b) person who has breached an enforceable undertaking pay the Commonwealth an amount up to the amount of any financial benefit that the person obtained directly or indirectly, and that is reasonably attributable to the breach) Injunctions 98 Part 7-Injunctions Relevant courts 98 Retained N/A (see new subsection 80W(3) of the Privacy Act) Grant of injunctions 98(1); Retained 121 98(2) Interim injunctions 98(3) Retained 122 Discharging or varying injunctions 98(4) Retained 123 316
Current provision in the Privacy Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Certain limits on granting injunctions not 98(5); Retained 124 to apply 98(6) No undertakings as to damages 98(7) Retained 122(2) Other powers of a relevant court 98(8) Retained 125 unaffected PART 1--AMENDMENTS Item 1 - Subsection 6(1) (definition of civil penalty order) 1527. Item 1 repeals the definition of civil penalty order in subsection 6(1) of the Privacy Act. That definition is no longer necessary, as this Schedule amends the Privacy Act to apply the standard provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act. 1528. It is not necessary to substitute a new definition of civil penalty order in subsection 6(1) of the Privacy Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act. Where the phrase 'civil penalty order' is used in a provision external to current Part VIB of the Privacy Act, that phrase is amended to 'civil penalty order [that] has been made under subsection 82(3) of the Regulatory Powers Act' or 'civil penalty under the Regulatory Powers Act' (see items 4, 5 and 9 below). Item 2 - Subsection 6(1) (definition of civil penalty provision) 1529. Item 2 repeals the definition of civil penalty provision in subsection 6(1) of the Privacy Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. Item 3 - Subsection 6(1) 1530. Item 3 amends subsection 6(1) of the Privacy Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 4 - Subparagraph 25(1)(a)(i) 1531. Item 4 repeals current subparagraph 25(1)(a)(i) of the Privacy Act and substitutes a new subparagraph 25(1)(a)(i) of that Act. 1532. Current subparagraph 25(1)(a)(i) of the Privacy Act provides that the Federal Court or the Federal Circuit Court may order an entity to compensate a person for loss or damage (including injury to the person's feelings or humiliation) suffered by the person if a civil penalty order has been made against the entity for a contravention of a civil penalty provision (other than section 13G of the Privacy Act). 317
1533. New subparagraph 25(1)(a)(i) of the Privacy Act provides that the Federal Court or the Federal Circuit Court may order an entity to compensate a person for loss or damage (including injury to the person's feelings or humiliation) suffered by the person if a civil penalty order has been made under subsection 82(3) of the Regulatory Powers Act against the entity for a contravention of a civil penalty provision of the Privacy Act (other than section 13G of the Privacy Act). 1534. Item 4 clarifies that, due to the amendments made by item 7 below, a civil penalty order is made under the Regulatory Powers Act. 1535. Item 4 is consequential to the amendments made by item 7 below, which repeals current Part VIB of the Privacy Act and applies the standard civil penalty, enforceable undertakings and injunctions provisions of the Regulatory Powers Act. Item 5 - Subparagraph 25A(1)(a)(i) 1536. Item 5 repeals current subparagraph 25A(1)(a)(i) of the Privacy Act and substitutes a new subparagraph 25A(1)(a)(i) of that Act. 1537. Current subparagraph 25A(1)(a)(i) of the Privacy Act provides that section 25A of that Act applies if a civil penalty order has been made against an entity for a contravention of a civil penalty provision (other than section 13G of the Privacy Act). 1538. New subparagraph 25A(1)(a)(i) of the Privacy Act provides that section 25A of that Act applies if a civil penalty order has been made under subsection 82(3) of the Regulatory Powers Act against an entity for a contravention of a civil penalty provision of the Privacy Act (other than section 13G of the Privacy Act). 1539. Item 5 clarifies that, due to the amendments made by item 7 below, a civil penalty order is made under the Regulatory Powers Act. 1540. Item 5 is consequential to the amendments made by item 7 below, which repeals current Part VIB of the Privacy Act and applies the standard civil penalty, enforceable undertakings and injunctions provisions of the Regulatory Powers Act. Item 6 - Division 3B of Part IV 1541. Item 6 repeals current Division 3B of Part IV of the Privacy Act, which creates a framework for accepting and enforcing undertakings relating to compliance with provisions of that Act. 1542. This item is consequential to the amendments made by item 4 below, which inserts new 'Division 2--Enforceable undertakings' of new 'Part VIB--Enforcement' of the Privacy Act, and applies the standard enforceable undertakings provisions in Part 6 of the Regulatory Powers Act to the Privacy Act. Item 7 - Part VIB 1543. Item 7 repeals current Part VIB of the Privacy Act and substitutes new 'Part VIB-- Enforcement', which includes new 'Division 1--Civil penalties', new 'Division 2-- Enforceable undertakings' and new 'Division 3--Injunctions'. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce the 318
civil penalty provisions of the Privacy Act, and Part 6 of the Regulatory Powers Act for accepting and enforcing undertakings relating to provisions of the Privacy Act. Item 7 also applies the provisions of Part 7 of the Regulatory Powers Act for the use of injunctions to enforce provisions of the Privacy Act. Civil penalty provisions 1544. Current Divisions 1, 2 and 3 of Part VIB of the Privacy Act provide for provisions in relation to civil penalty orders, and include sections 80U, 80V, 80W, 80X, 80Y, 80Z, 80ZA, 80ZB, 80ZC, 80ZD, 80ZE, 80ZF and 80ZG of the Privacy Act. Those sections are no longer necessary, as this Schedule amends the Privacy Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1526 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Privacy Act that are repealed by this item. 1545. New Division 1 of Part VIB of the Privacy Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 80U(1) of the Privacy Act). New section 80U of the Privacy Act outlines matters in relation to authorised applicants, relevant courts and the extension of matters to external Territories. 1546. New subsection 80U(1) of the Privacy Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the Privacy Act. Item 7 also inserts a note at the end of new subsection 80U(1) of the Privacy Act, which directs the reader to Part 4 of the Regulatory Powers Act. 1547. New subsection 80U(2) of the Privacy Act identifies the Commissioner (defined in the Privacy Act as the Information Commissioner within the meaning of the Australian Information Commissioner Act 2010) as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the Commissioner to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New subsection 80U(2) of the Privacy Act preserves the effect of current subsection 80W(1) of that Act, which is repealed by this item. 1548. New subsection 80U(3) of the Privacy Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the Privacy Act. New subsection 80U(3) of the Privacy Act reflects existing arrangements under that Act in relation to courts, and preserves the effect of current subsection 80W(1) of the Privacy Act, which is repealed by this item. 1549. New subsection 80U(4) of the Privacy Act extends the application of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the Privacy Act, to every external Territory. New subsection 80U(4) of the Privacy Act reflects existing arrangements under that Act (see section 5A of the Privacy Act). 1550. Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the Privacy Act. The comparison table provided at paragraph 1526 above identifies the provision of the 319
Regulatory Powers Act that is gained through alignment with that Act, and which does not currently exist in the Privacy Act (see section 93 of the Regulatory Powers Act, which is discussed below). 1551. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. 1552. The comparison table provided at paragraph 1526 above also identifies other provisions gained through alignment with the Regulatory Powers Act, which are not currently in the Privacy Act, that are merely procedural in nature and set out matters in relation to state of mind, mistake of fact, burden of proof and vicarious liability (see sections 94, 95, 96 and 97 of the Regulatory Powers Act, which are discussed below). 1553. Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act. 1554. Section 95 of the Regulatory Powers Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact. 1555. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 1556. Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. 1557. Alignment with the Regulatory Powers Act will also repeal current section 80ZC of the Privacy Act. Current section 80ZC of the Privacy Act provides that a contravention of a civil penalty provision is not an offence. That section is no longer necessary, as the provision does not add anything beyond the established common law principle, and its inclusion is no longer in line with current drafting standards. Enforceable undertakings 1558. Current Division 3B of Part IV of the Privacy Act provides for provisions in relation to enforceable undertakings and includes sections 33E and 33F of that Act. Those sections are no longer necessary, as this Schedule amends the Privacy Act to apply the standard enforceable undertakings provisions of the Regulatory Powers Act. The comparison table 320
provided at paragraph 1526 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Privacy Act that are repealed by item 6 above. 1559. New section 80V of the Privacy Act directs the reader to Part 6 of the Regulatory Powers Act, which provides for provisions in relation to enforceable undertakings (see the note to new subsection 80V(1) of the Privacy Act). New section 80V of the Privacy Act outlines matters in relation to authorised persons, relevant courts, publication on the Commissioner's website and the extension of matters to external Territories. 1560. New subsection 80V(1) of the Privacy Act provides that the provisions of the Privacy Act are enforceable under Part 6 of the Regulatory Powers Act, which ensures that Part 6 of the Regulatory Powers Act operates for the purposes of all provisions in the Privacy Act. Item 7 also inserts a note at the end of new subsection 80V(1) of the Privacy Act, which directs the reader to Part 6 of the Regulatory Powers Act. 1561. New subsection 80V(2) of the Privacy Act identifies the Commissioner (defined in the Privacy Act as the Information Commissioner within the meaning of the Australian Information Commissioner Act 2010) as the authorised applicant in relation to the provisions mentioned in new subsection 80V(1) of that Act. This will enable the Commissioner to accept and enforce undertakings relating to compliance with provisions of the Privacy Act. New subsection 80V(2) of the Privacy Act preserves the effect of current section 33E of that Act, which is repealed by item 6 above. 1562. New subsection 80V(3) of the Privacy Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 6 of the Regulatory Powers Act, as that Part applies to the provisions of the Privacy Act. New subsection 80V(3) of the Privacy Act reflects existing arrangements under that Act in relation to courts, and preserves the effect of current subsection 33F(1) of the Privacy Act, which is repealed by item 6 above. 1563. New subsection 80V(4) of the Privacy Act modifies the operation of Part 6 of the Regulatory Powers Act, and provides that the Commissioner may publish an undertaking given in relation to a provision of that Act on the Commissioner's website. It is necessary to retain the Commissioner's power to publish in order to promote compliance with the obligations of the Privacy Act. New subsection 80V(4) of the Privacy Act preserves the effect of current subsection 33E(5) of that Act, which is repealed by item 6 above. 1564. New subsection 80V(5) of the Privacy Act extends the application of Part 6 of the Regulatory Powers Act, as that Part applies to the provisions of the Privacy Act, to every external Territory. New subsection 80V(5) of the Privacy Act reflects existing arrangements under that Act (see section 5A of the Privacy Act). 1565. Application of the standard enforceable undertakings provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Privacy Act. The comparison table provided at paragraph 1526 above identifies the provision that is gained through alignment with the Regulatory Powers Act, which is not currently in the Privacy Act, that is merely procedural in nature and sets out matters in relation to an order by a relevant court in relation to a breach of an enforceable undertaking (see paragraph 115(2)(b) of the Regulatory Powers Act, which is discussed below). 321
1566. Paragraph 115(2)(b) of the Regulatory Powers Act provides that a relevant court may order that a person who has breached an enforceable undertaking pay the Commonwealth an amount up to the amount of any financial benefit that the person obtained directly or indirectly, and that is reasonably attributable to the breach. Injunctions 1567. Current section 98 of the Privacy Act creates a framework for the use of injunctions under that Act, and is no longer necessary, as this Schedule amends the Privacy Act to apply the standard injunctions provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1526 above identifies the corresponding provisions of the Regulatory Powers Act for section 98 of the Privacy Act, which is repealed by item 8 below. 1568. New section 80W of the Privacy Act directs the reader to Part 7 of the Regulatory Powers Act, which provides for provisions in relation to injunctions (see the note to new subsection 80W(1) of the Privacy Act). This new section outlines matters in relation to authorised persons, relevant courts and the extension of matters to external Territories. 1569. New subsection 80W(1) of the Privacy Act provides that the provisions of that Act are enforceable under Part 7 of the Regulatory Powers Act. New subsection 80W(1) of the Privacy Act ensures that Part 7 of the Regulatory Powers Act operates for the purposes of all provisions in the Privacy Act. Item 7 also inserts a note at the end of new subsection 80W(1) of the Privacy Act, which directs the reader to Part 7 of the Regulatory Powers Act. 1570. New subsection 80W(2) of the Privacy Act identifies the Commissioner (defined in the Privacy Act as the Information Commissioner within the meaning of the Australian Information Commissioner Act 2010), or any other person, as an authorised person in relation to the provisions subject to injunctions under the Privacy Act. This will enable an authorised person to use injunctions to enforce the provisions of the Privacy Act. New subsection 80W(2) of the Privacy Act preserves the effect of current section 98 of that Act, which is repealed by item 8 below. 1571. New subsection 80W(3) of the Privacy Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of the Privacy Act. New subsection 80W(3) of the Privacy Act reflects existing arrangements under that Act in relation to courts, and preserves the effect of current section 98 of the Privacy Act, which is repealed by item 8 below. 1572. New subsection 80W(4) of the Privacy Act extends the application of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of the Privacy Act, to every external Territory. New subsection 80W(4) of the Privacy Act reflects existing arrangements under that Act (see section 5A of the Privacy Act). 1573. Application of the standard injunctions provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the Privacy Act. Item 8 - Section 98 1574. Item 8 repeals current section 98 of the Privacy Act, which creates a framework for the use of injunctions under that Act. 322
1575. This item is consequential to the amendments made by item 7 above, which inserts new 'Division 3--Injunctions' of new 'Part VIB--Enforcement' of the Privacy Act and applies Part 7 of the Regulatory Powers Act for the use injunctions to enforce the provisions of the Privacy Act. Item 9 - Section 99A 1576. Item 9 inserts 'under the Regulatory Powers Act (as it applies in relation to the civil penalty provisions of this Act)' after the every occurrence of 'civil penalty order' in current section 99A of the Privacy Act, which provides for matters in relation to the conduct of directors, employees and agents. 1577. Current section 99A of the Privacy Act provides for matters in relation to the conduct of directors, employees and agents. 1578. Item 9 clarifies that, due to the amendments made by item 7 above, a civil penalty order is made under the Regulatory Powers Act. 1579. Item 9 is consequential to the amendments made by item 7 above, which repeals current Part VIB of the Privacy Act and applies the standard civil penalty, enforceable undertakings and injunctions provisions of the Regulatory Powers Act. PART 2--APPLICATION AND SAVING PROVISIONS Item 10 - Application and saving provision--civil penalties 1580. Item 10 provides for the application of the amendments in this Schedule in relation to civil penalties, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 1581. This item also provides that Part VIB of the Privacy Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule. Item 11 - Application and saving provision--enforceable undertakings 1582. Item 11 provides for the application of the amendments in this Schedule in relation to enforceable undertakings, and makes it clear that the amendments apply in relation to undertakings given on or after the commencement of this Schedule. 1583. This item also provides that Division 3B of Part IV of the Privacy Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to the following: a. an undertaking given before the commencement of this Schedule b. an application for an order made, but not decided, under current subsection 33F(1) of the Privacy Act before the commencement of this Schedule, and 323
c. an order made under current subsection 33F(2) of the Privacy Act before, on or after the commencement of this Schedule as a result of an application made before that commencement. Item 12 - Application and saving provision--injunctions 1584. Item 12 provides for the application of the amendments in this Schedule in relation to injunctions, and makes it clear that the amendments apply in relation to contraventions occurring on or after the commencement of this Schedule. 1585. This item also provides that section 98 of the Privacy Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions occurring before the commencement of this Schedule. 324
Schedule 14 - Tobacco Plain Packaging Act 2011 GENERAL OUTLINE 1586. The Tobacco Plain Packaging Act 2011 (the 'TPP Act') sets out the requirements for the plain packaging of tobacco products. The legislation prohibits the use of logos, brand imagery and promotional text on tobacco products and packaging, and includes restrictions on colour, size, format and materials of packaging, as well as the appearance of brand and variant names. All tobacco products sold, offered for sale or otherwise supplied in Australia from 1 December 2012 are required to be in plain packaging, and be labelled with updated and expanded health warnings. 1587. Current Part 2 of Chapter 4 of the TPP Act establishes a framework for gathering material that relates to the contravention of offence and civil penalty provisions of that Act. Current Part 2 of Chapter 5 of the TPP Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions. Current Part 3 of Chapter 5 of the TPP Act deals with the use of infringement notices where an authorised person reasonably believes that a strict liability offence against that Act has been committed. 1588. This Schedule amends the TPP Act to apply the standard investigation, civil penalty and infringement notices provisions of the Regulatory Powers Act. Application of these provisions does result in a minor expansion of the current regulatory powers framework of the TPP Act due to the acquisition of section 93 of the Regulatory Powers Act, and acquisition of matters provided for in subsection 103(4) of the Regulatory Powers Act. 1589. Section 93 of the Regulatory Powers Act is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. Subsection 103(4) of the Regulatory Powers Act complements section 93 of that Act, and provides that a single infringement notice may be given to a person in respect of multiple contraventions of a single civil penalty provision, where those contraventions relate to the failure to comply with an obligation. 1590. The other provisions gained by alignment with the Regulatory Powers Act, which are not currently in the TPP Act, are merely procedural matters in relation to civil penalty provisions. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the TPP Act. 1591. Part 3 of the Regulatory Powers Act creates a framework for gathering material that relates to the contravention of offence and civil penalty provisions of an Act. Subsection 37(2) of the Regulatory Powers Act states that, in order for Part 3 of the Regulatory Powers Act to operate, an offence or civil penalty provision of an Act must be made subject to investigation under that Part by another Act (a triggering Act). When a triggering Act applies Part 3 of the Regulatory Powers Act, it must identify any related provisions and the authorised applicant or applicants, the authorised person or persons, the issuing officer or officers, the relevant chief executive and the relevant court or courts that may exercise powers under that Part (see sections 40, 41, 42, 44, 45 and 46 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may be assisted by another person, and whether the authorised applicant, authorised person, issuing officer or relevant chief executive may delegate his or her powers and functions in relation to the provisions subject to investigation under the triggering Act (see section 53 and 325
subsections 41(3), 42(3), 44(3) and 45(3) of the Regulatory Powers Act). If offence or civil penalty provisions subject to investigation under the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 3 of the Regulatory Powers Act extends to any external Territories. 1592. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by a triggering Act. When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories. 1593. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices that may be issued in relation to a breach of an offence or civil penalty provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5 of that Act to operate, a provision of an Act or legislative instrument must be made subject to an infringement notice under that Part by a triggering Act. When a triggering Act applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an infringement officer or officers for the purposes of exercising powers under that Part (see section 101 of the Regulatory Powers Act). A triggering Act must also identify the relevant chief executive for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil penalty provisions of a triggering Act are subject to an infringement notice and apply in external Territories or offshore areas, the triggering Act should identify whether Part 5 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Tobacco Plain Packaging Act 2011 1594. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by items 23 and 29) for the provisions of the TPP Act that are repealed by items 23, 27 and 29. Current provision in the TPP Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Investigation powers Part 2, Part 3-Investigation Chapter 4 Relevant courts 4(1) Extended to the N/A (see new Federal Circuit subsection 52(9) of Court the TPP Act) 326
Current provision in the TPP Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Authorised officer may enter premises by 52 Retained 52 consent or under a warrant Search powers of authorised officers 53 Retained 53 Power to take samples of evidential 53(c) Retained through N/A (see new material modification to subsection 52(11) of the operation of the TPP Act) the Regulatory Powers Act Powers relating to electronic equipment 54 Retained 50 Seizing other evidential material 55 Retained 52 Persons assisting authorised officers 56 Retained 53 Use of force in executing a warrant 57 Retained through N/A (see new modification to subsection 52(12) of the operation of the TPP Act) the Regulatory Powers Act Authorised officer may ask questions and 58 Retained 54 seek production of documents Consent 59 Retained 55 Announcement before entry under warrant 60 Retained 56 Authorised officer to be in possession of 61 Retained 57 warrant Details of warrant etc. to be given to 62 Retained 58 occupier Completing execution of warrant after 63 Retained 59 temporary cessation Completing execution of warrant stopped 64 Retained 60 by court order Expert assistance to operate electronic 65 Retained 51 equipment Extension of period in which things secured 65(5); Retained 74 65(6); 65(7); 65(8) Compensation for damage to electronic 66 Retained 61 equipment Occupier entitled to observe execution of 67 Retained 62 warrant Occupier to provide authorised officer with 68 Retained 63 facilities and assistance Copies of seized things to be provided 69 Retained 64 Receipts for seized things 70 Retained 65 327
Current provision in the TPP Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Return of seized things 71 Retained 66 Issuing officer may permit a seized thing to 72 Retained 67 be retained Disposal of seized things 73 Retained 68 Compensation for acquisition of property 74 Retained 69 Issue of warrants 75 Retained 70 Warrants by telephone, fax, etc. 76 Retained 71 Authority of warrant 77 Retained 72 Offence relating to warrants by telephone, 78 Retained 73 fax etc. Powers of issuing officers 79 Retained 75 Identity cards 82 Retained 76 Abrogation of the privilege against self- 83 Retained through N/A modifies incrimination modification to operation of the operation of subsection 47(1) of the Regulatory the Regulatory Powers Act Powers Act (see new subsections 52(14) and (15) and new section 80A of the TPP Act) Civil penalty provisions Part 2, Part 4-Civil penalty Chapter 5 provisions Relevant courts 4(1) Extended to the N/A (see new Federal Circuit subsection 85(3) of Court the TPP Act) Civil penalty orders 85 Retained 82 Civil enforcement of penalty 86 Retained 83 Conduct contravening more than one civil 87 Retained 84 penalty provision Multiple contraventions 88 Retained 85 Proceedings may be heard together 89 Retained 86 Civil evidence and procedure rules for civil 90 Retained 87 penalty orders Contravening a civil penalty provision is 91 Repealed N/A not an offence Civil proceedings after criminal 92 Retained 88 proceedings Criminal proceedings during civil 93 Retained 89 proceedings 328
Current provision in the TPP Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Criminal proceedings after civil 94 Retained 90 proceedings Evidence given in civil proceedings not 95 Retained 91 admissible in criminal proceedings Ancillary contravention of civil penalty 96 Retained 92 provisions Mistake of fact 97 Retained 95 State of mind 98 Retained 94 Civil penalty provisions contravened by 99 Retained 97 employees, agents or officers N/A (Continuing contraventions of civil N/A Gained 93 penalty provisions) N/A (Exceptions etc. to civil penalty N/A Gained 96 provisions-burden of proof) Infringement notices Part 3, Part 5-Infringement Chapter 5 notices When an infringement notice may be given 100 Expanded 103 Matters to be included in an infringement 101 Aligned See section 104 of notice the Regulatory Powers Act as amended by this Bill Extension of time to pay amount 102 Retained 105 Withdrawal of an infringement notice 103 Retained 106 Effect of payment of amount 104 Retained 107 Effect of this Part 105 Retained 108 PART 1--AMENDMENTS Item 1 - Subsection 4(1) (definition of civil penalty order) 1595. Item 1 repeals the definition of civil penalty order in subsection 4(1) of the TPP Act. That definition is no longer necessary, as this Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act. 1596. It is not necessary to substitute a new definition of civil penalty order in subsection 4(1) of the TPP Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provisions of that Act. Item 2 - Subsection 4(1) (definition of civil penalty provision) 1597. Item 2 repeals the definition of civil penalty provision in subsection 4(1) of the TPP Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act. 329
Item 3 - Subsection 4(1) 1598. Item 3 repeals the definitions of evidential burden, evidential material, Federal Court, issuing officer and person assisting in subsection 4(1) of the TPP Act. Those definitions are no longer necessary, as this Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act, and those terms are defined in section 4 of that Act, except for Federal Court. 1599. It is no longer necessary to define Federal Court in the TPP Act, as the current definition in that Act does not expand upon the ordinary meaning of Federal Court. Repeal of this definition aligns subsection 4(1) of the TPP Act with current drafting standards. 1600. It is not necessary to substitute new definitions of evidential material, issuing officer or person assisting in subsection 4(1) of the TPP Act, as those definitions are only relevant for the purposes of provisions pertaining to investigation powers, and are not applied in any other provisions of that Act. 1601. It is not necessary to substitute a new definition of evidential burden in subsection 4(1) of the TPP Act as, for the purposes of the civil penalty provisions in that Act, section 96 of the Regulatory Powers Act will apply. 1602. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 1603. Where the phrase evidential burden is used in other provisions of the TPP Act, section 13.3 of the Criminal Code defines evidential burden as the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. Item 4 - Subsection 4(1) 1604. Item 4 amends subsection 4(1) of the TPP Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 5 - Subsection 4(1) 1605. Item 5 repeals the definitions of search powers and warrant in subsection 4(1) of the TPP Act. 1606. Subsection 4(1) of the TPP Act provides that the phrase search powers has the meaning given by current sections 53, 54 and 55 of that Act. 1607. Subsection 4(1) of the TPP Act provides that warrant means a warrant issued by an issuing officer under current section 75 of that Act or a warrant signed by an issuing officer under current section 76 of that Act. 1608. The phrase search powers and the term warrant are only used in the context of provisions provided for in current Part 2 of Chapter 4 of the TPP Act, which includes current sections 53, 54, 55, 75 and 76 of that Act. These definitions are no longer necessary, as this 330
Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act, and current Part 2 of Chapter 4 of the TPP Act is repealed by item 23 below. 1609. Further, it is no longer necessary to define search powers and warrant in the TPP Act, as those terms are not used in the Regulatory Powers Act. The corresponding terminology used in the Regulatory Powers Act is investigation powers and investigation warrant, respectively. Section 4 of the Regulatory Powers Act defines investigation powers as having the meaning given by sections 49, 50, 51 and 52 of that Act, and investigation warrant as a warrant issued by an issuing officer under section 70 of that Act or a warrant signed by an issuing officer under section 71 of that Act. Item 6 - Subsection 7(1) 1610. Item 6 omits '(1) For' from subsection 7(1) of the TPP Act and substitutes 'For'. The subsection number '(1)' of subsection 7(1) of the TPP Act is no longer necessary due to the repeal of subsection 7(2) by item 7 below. Item 7 - Subsection 7(2) 1611. Item 7 repeals subsection 7(2) of the TPP Act, which provides that subsection 7(1) of that Act does not apply to section 91 (contravening a civil penalty provision is not an offence) of that Act. 1612. Subsection 7(1) of the TPP Act states that, for the purposes of that Act, if a provision of that Act refers to a contravention of a civil penalty provision or a person contravening a civil penalty provision, and that provision is in Chapter 3 of that Act, then the reference includes a reference to a contravention of, or a person contravening, subsection (1) of that section. 1613. The repeal of subsection 7(2) of the TPP Act is consequential to the repeal of section 91 of that Act by item 29 below, which repeals Parts 2 and 3 of Chapter 5 of the TPP Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. Item 8 - Subsection 9(2) 1614. Item 8 repeals current subsection 9(2) of the TPP Act and substitutes a new subsection 9(2) of that Act. Current subsection 9(2) of the TPP Act provides that the TPP Act does not make the Crown liable to be prosecuted for an offence, be subject to civil proceedings for a civil penalty order, or be given an infringement notice. New subsection 9(2) of the TPP Act provides that the TPP Act does not make the Crown liable to be prosecuted for an offence. 1615. The effect of current subsection 9(2) of the TPP Act, in relation to civil penalty orders and infringement notices, is preserved by new subsections 85(5) and 86(7) of that Act, respectively. Accordingly, it is no longer necessary for subsection 9(2) of the TPP Act to refer to matters in relation to civil penalty orders and infringement notices. Item 9 - Section 30 1616. Item 9 repeals the entirety of the paragraph at the third bullet point in the 'Simplified outline' in section 30 of the TPP Act, and substitutes new text that is consequential to the amendments made by item 29 below, which repeals Parts 2 and 3 of Chapter 5 of the TPP 331
Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. The new paragraph directs the reader to Division 3 of Part 4 of the Regulatory Powers Act. Item 10 - Subsections 31(5) and 32(6) (notes) 1617. Item 10 omits 'section 98' from the notes to subsections 31(5) and 32(6) of the TPP Act, and substitutes 'section 94 of the Regulatory Powers Act'. These amendments are consequential to the amendments made by item 29 below, which repeals Parts 2 and 3 of Chapter 5 of the TPP Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. 1618. Current section 98 of the TPP Act provides that it is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, except in limited circumstances. Current section 98 of the TPP Act is no longer necessary, as this Schedule amends that Act to apply the standard provisions of the Regulatory Powers Act, and matters pertaining to state of mind are provided for in section 94 of the Regulatory Powers Act. 1619. Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act (note, section 95 of that Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). Item 11 - Subsection 32(7) 1620. Item 11 repeals subsection 32(7) of the TPP Act, which states that a person who wishes to rely on subsection 32(2) of that Act in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. Subsection 32(2) of the TPP Act provides that subsection 32(1) of that Act does not apply to an individual who purchases the tobacco product for his or her personal use. Subsection 32(1) of the TPP Act states that a person contravenes that subsection if the person purchases a tobacco product and, at the time the product is purchased, the product has been packaged for retail sale, but that retail packaging does not comply with a tobacco product requirement. 1621. Subsection 32(7) of the TPP Act is no longer required as this Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act. As subsection 32(1) of the TPP Act is a civil penalty provision, section 96 of the Regulatory Powers Act will preserve the effect of subsection 32(7) of the TPP Act, which is repealed by this item. 1622. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. Item 12 - Subsections 33(5), 34(5) and 35(5) (notes) 1623. Item 12 omits 'section 98' from the notes to subsections 33(5), 34(5) and 35(5) of the TPP Act, and substitutes 'section 94 of the Regulatory Powers Act'. These amendments are 332
consequential to the amendments made by item 29 below, which repeals Parts 2 and 3 of Chapter 5 of the TPP Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. 1624. Current section 98 of the TPP Act provides that it is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, except in limited circumstances. Current section 98 of the TPP Act is no longer necessary, as this Schedule amends that Act to apply the standard provisions of the Regulatory Powers Act, and matters pertaining to state of mind are provided for in section 94 of the Regulatory Powers Act. 1625. Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act (note, section 95 of that Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). Item 13 - Subsection 35(6) 1626. Item 13 repeals subsection 35(6) of the TPP Act, which states that a person who wishes to rely on subsection 35(2) of that Act in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. Subsection 35(2) of the TPP Act provides that subsection 35(1) of that Act does not apply if the manufacturer took all reasonable steps to ensure that the retail packaging complied with the tobacco product requirements. Subsection 35(1) of the TPP Act states that a person contravenes that subsection if the person (the manufacturer) manufactures a tobacco product and enters into a contract or arrangement, or arrives at an understanding, for another person to package the tobacco product for retail sale, and that other person packages the tobacco product for retail sale, but that retail packaging does not comply with a tobacco product requirement. 1627. Subsection 35(6) of the TPP Act is no longer required as this Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act. As subsection 35(1) of the TPP Act is a civil penalty provision, section 96 of the Regulatory Powers Act will preserve the effect of subsection 35(6) of the TPP Act, which is repealed by this item. 1628. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. Item 14 - Subsections 36(6), 37(4) and 38(5) (notes) 1629. Item 14 omits 'section 98' from the notes to subsections 36(6), 37(4) and 38(5) of the TPP Act, and substitutes 'section 94 of the Regulatory Powers Act'. These amendments are consequential to the amendments made by item 29 below, which repeals Parts 2 and 3 of Chapter 5 of the TPP Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. 333
1630. Current section 98 of the TPP Act provides that it is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, except in limited circumstances. Current section 98 of the TPP Act is no longer necessary, as this Schedule amends that Act to apply the standard provisions of the Regulatory Powers Act, and matters pertaining to state of mind are provided for in section 94 of the Regulatory Powers Act. 1631. Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act (note, section 95 of that Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). Item 15 - Subsection 38(6) 1632. Item 15 repeals subsection 38(6) of the TPP Act, which states that a person who wishes to rely on subsection 38(2) of that Act in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. Subsection 38(2) of the TPP Act provides that subsection 38(1) of that Act does not apply to an individual who purchases the tobacco product for his or her personal use. Subsection 38(1) of the TPP Act states that a person contravenes that subsection if the person purchases a tobacco product and that product does not comply with a tobacco product requirement. 1633. Subsection 38(6) of the TPP Act is no longer required as this Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act. As subsection 38(1) of the TPP Act is a civil penalty provision, section 96 of the Regulatory Powers Act will preserve the effect of subsection 38(6) of the TPP Act, which is repealed by this item. 1634. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. Item 16 - Subsections 39(4), 40(5) and 41(6) (notes) 1635. Item 16 omits 'section 98' from the notes to subsections 39(4), 40(5) and 41(6) of the TPP Act, and substitutes 'section 94 of the Regulatory Powers Act'. These amendments are consequential to the amendments made by item 29 below, which repeals Parts 2 and 3 of Chapter 5 of the TPP Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. 1636. Current section 98 of the TPP Act provides that it is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, except in limited circumstances. Current section 98 of the TPP Act is no longer necessary, as this Schedule amends that Act to apply the standard provisions of the Regulatory Powers Act, and matters pertaining to state of mind are provided for in section 94 of the Regulatory Powers Act. 1637. Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) 334
of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act (note, section 95 of that Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). Item 17 - Subsection 41(7) 1638. Item 17 repeals subsection 41(7) of the TPP Act, which states that a person who wishes to rely on subsection 41(2) of that Act in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. Subsection 41(2) of the TPP Act provides that subsection 41(1) of that Act does not apply to an individual who purchases the tobacco product for his or her personal use. Subsection 41(1) of the TPP Act states that a person contravenes that subsection if the person purchases a tobacco product from another person who is a constitutional corporation and, at the time the product is purchased, the product has been packaged for retail sale, but that retail packaging does not comply with a tobacco product requirement. 1639. Subsection 41(7) of the TPP Act is no longer required as this Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act. As subsection 41(1) of the TPP Act is a civil penalty provision, section 96 of the Regulatory Powers Act will preserve the effect of subsection 41(7) of the TPP Act, which is repealed by this item. 1640. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. Item 18 - Subsections 42(5), 43(5), 44(5), 45(5), 46(6), 47(5) and 48(6) (notes) 1641. Item 18 omits 'section 98' from the notes to subsections 42(5), 43(5), 44(5), 45(5), 46(6), 47(5) and 48(6) of the TPP Act, and substitutes 'section 94 of the Regulatory Powers Act'. These amendments are consequential to the amendments made by item 29 below, which repeals Parts 2 and 3 of Chapter 5 of the TPP Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. 1642. Current section 98 of the TPP Act provides that it is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, except in limited circumstances. Current section 98 of the TPP Act is no longer necessary, as this Schedule amends that Act to apply the standard provisions of the Regulatory Powers Act, and matters pertaining to state of mind are provided for in section 94 of the Regulatory Powers Act. 1643. Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person's state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act (note, section 95 of that Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact). 335
Item 19 - Subsection 48(7) 1644. Item 19 repeals subsection 48(7) of the TPP Act, which states that a person who wishes to rely on subsection 48(2) of that Act in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. Subsection 48(2) of the TPP Act provides that subsection 48(1) of that Act does not apply to an individual who purchases the tobacco product for his or her personal use. Subsection 48(1) of the TPP Act states that a person contravenes that subsection if the person purchases a tobacco product from another person who is a constitutional corporation and that product does not comply with a tobacco product requirement. 1645. Subsection 48(7) of the TPP Act is no longer required as this Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act. As subsection 48(1) of the TPP Act is a civil penalty provision, section 96 of the Regulatory Powers Act will preserve the effect of subsection 48(7) of the TPP Act, which is repealed by this item. 1646. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. Item 20 - Subsection 49(1) 1647. Item 20 omits '(1) Subsection' from subsection 49(1) of the TPP Act and substitutes 'Subsection'. The subsection number '(1)' of subsection 49(1) of the TPP Act is no longer necessary due to the repeal of subsection 49(2) by item 21 below. Item 21 - Subsection 49(2) 1648. Item 21 repeals subsection 49(2) of the TPP Act, which states that a person who wishes to rely on subsection 49(1) of that Act in proceedings for a civil penalty order bears an evidential burden in relation to the matters in that subsection. Subsection 49(2) of the TPP Act provides that subsection (1) of any sections 31 to 48 of that Act (other than section 36 or 46 of that Act) does not apply if: a. a person (the relevant person): i. engages in the conduct to which that subsection applies in relation to a tobacco product, or ii. manufactures retail packaging, and a tobacco product is packaged for retail sale in the retail packaging by another person, and b. a contract or arrangement has been entered into, or an understanding has been arrived at, for the tobacco product to be exported (whether or not the relevant person is a party to that contract, arrangement or understanding), and c. if the relevant person supplies or purchases the tobacco product, or offers to supply the tobacco product: i. the supply is not a retail sale, or ii. the relevant person does not purchase the product in the course of retail sale, or 336
iii. the relevant person does not offer the product for retail sale (as the case requires). 1649. Subsection 49(2) of the TPP Act is no longer required as this Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act. As subsection 49(1) of the TPP Act relates to civil penalty provisions of that Act, section 96 of the Regulatory Powers Act will preserve the effect of subsection 49(2) of the TPP Act, which is repealed by this item. 1650. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision Item 22 - Section 51 1651. Item 22 repeals current section 51 of the TPP Act and substitutes new section 51 of that Act, which provides for a new 'Simplified outline' of Chapter 4 of the TPP Act. New section 51 of the TPP Act is consequential to the amendments made by item 23 below, which repeals Part 2 of Chapter 4 of the TPP Act and applies the standard provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act. Item 23 - Part 2 of Chapter 4 1652. Item 23 repeals Part 2 of Chapter 4 of the TPP Act, and substitutes new 'Part 2-- Investigation powers'. This item applies the provisions of Part 3 of the Regulatory Powers Act for the gathering of material that relates to a contravention of the offence or civil penalty provisions of the TPP Act, or an offence against the Crimes Act or the Criminal Code that relates to the TPP Act. Investigation powers 1653. Current Part 2 of Chapter 4 of the TPP Act provides for provisions in relation to investigation powers, and includes sections 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78 and 79 of that Act. These sections are no longer necessary, as this Schedule amends the TPP Act to apply the standard provisions pertaining to investigation powers in the Regulatory Powers Act. The comparison table provided at paragraph 1594 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the TPP Act that are repealed by this item. 1654. New Part 2 of Chapter 4 of the TPP Act directs the reader to Part 3 of the Regulatory Powers Act, which creates a framework for gathering material that relates to the contravention of offence and civil penalty provisions (see the note to new subsection 52(1) of the TPP Act). New section 52 of the TPP Act outlines matters in relation to related provisions, the authorised applicant, the authorised person, the issuing officer, the relevant chief executive, relevant courts, the power to take samples, use of force in executing a warrant, persons assisting, self-incrimination and the extension of matters to external Territories. 337
1655. New subsection 52(1) of the TPP Act states that a provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is: a. an offence against the TPP Act b. a civil penalty provision of the TPP Act, or c. an offence against the Crimes Act or the Criminal Code that relates to the TPP Act. 1656. New subsection 52(1) of the TPP Act ensures that Part 3 of the Regulatory Powers Act operates for the purposes of the provisions identified in that subsection. Item 23 also inserts a note at the end of new subsection 52(1) of the TPP Act, which directs the reader to Part 3 of the Regulatory Powers Act. 1657. New subsection 52(2) of the TPP Act states that there are no related provisions for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 52(1) of the TPP Act. This new subsection reflects existing arrangements under the TPP Act in relation to investigation powers. 1658. New subsection 52(3) of the TPP Act identifies an authorised officer (as defined in the TPP Act) as an authorised applicant and authorised person for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to evidential material that relates to a provision identified in new subsection 52(1) of the TPP Act. This will enable an authorised officer to apply to an issuing officer for an investigation warrant in relation to premises. If an investigation warrant is granted by an issuing officer, an authorised officer may enter any premises and exercise investigation powers where the authorised officer suspects on reasonable grounds that there may be material on the premises related to the contravention of a provision identified in new subsection 52(1) of the TPP Act. However, an authorised officer may not enter the premises unless the occupier has provided consent or the authorised officer is in possession of an investigation warrant. New subsection 52(3) of the TPP Act reflects existing arrangements under current section 81 of that Act in relation to authorised officers. 1659. New subsection 52(4) of the TPP Act provides that each of the following persons is an issuing officer for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions of the TPP Act identified in new subsection 52(1) of that Act: a. the person is: i. a Judge of a court created by the Parliament, or ii. a Deputy President of the Administrative Appeals Tribunal, or iii. a non-presidential member of the Administrative Appeals Tribunal who is enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, and has been enrolled for at least 5 years, and b. the person has consented to exercise powers conferred by Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in new subsection 52(1) of the TPP Act, and c. the Attorney-General has, by writing, nominated the person to exercise those powers. 338
1660. New subsection 52(4) of the TPP Act preserves the effect of the definition of issuing officer in subsection 4(1) of that Act, which is repealed by item 3 above, and subsections 79(1) and (2) of the TPP Act, which are repealed by this item. 1661. New subsection 52(5) of the TPP Act states that an issuing officer who is a Deputy President or non-presidential member of the Administrative Appeals Tribunal exercising a power conferred by Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in new subsection 52(1) of the TPP Act, has the same protection and immunity as a Justice of the High Court. Item 23 also inserts a note at the end of new subsection 52(5) of the TPP Act, which directs the reader to subsection 75(3) of the Regulatory Powers Act. 1662. Section 75 of the Regulatory Powers Act provides that a power conferred on an issuing officer by Part 3 of that Act is conferred on that person in a personal capacity, and not as a court or as a member of a court. However, subsection 75(3) of the Regulatory Powers Act provides that an issuing officer exercising power conferred by Part 3 of that Act has the same protections and immunities as if the issuing officer were exercising the power as the court of which the issuing officer is a member, or as a member of the court of which the issuing officer is a member. This section recognises that issuing a warrant is an executive function and not an exercise of judicial power. 1663. New subsection 52(5) of the TPP Act preserves the effect of current subsection 79(5) of that Act, which is repealed by this item. 1664. New subsection 52(6) of the TPP Act identifies the Secretary of the department that administers the TPP Act as the relevant chief executive for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions of the TPP Act identified in new subsection 52(6) of that Act. New subsection 52(6) of the TPP Act reflects existing arrangements under that Act (see current section 81 and current Division 5 of the TPP Act). 1665. New subsection 52(7) of the TPP Act provides that the Secretary, as the relevant chief executive under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions of the TPP Act identified in new subsection 52(1) of that Act, may, in writing, delegate his or her powers and functions to an SES employee or acting SES employee in the department that administers the TPP Act. New subsection 52(7) of the TPP Act reflects existing arrangements under that Act in relation to delegations (see subsection 107(1) of the TPP Act). 1666. New subsection 52(8) of the TPP Act provides that a delegate must comply with any directions of the Secretary, which reflects existing arrangements under that Act in relation to delegations (see subsection 107(2) of the TPP Act). 1667. New subsection 52(9) of the TPP Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 3 of the Regulatory Powers Act, as that Part applies to the provisions of the TPP Act identified in new subsection 52(1) of that Act. 1668. New subsection 52(9) of the TPP Act reflects existing arrangements under that Act in relation to courts, and preserves the effect of the definition of Federal Court in subsection 4(1) of that Act, which is repealed by item 3 above. Item 23 extends jurisdiction under that Act to the Federal Circuit Court of Australia. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is 339
appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 1669. New subsections 52(10) and (11) of the TPP Act modify the operation of Part 3 of the Regulatory Powers Act, and provide that, in executing an investigation warrant under that Part, as that Part applies to evidential material that relates to a provision identified in new subsection 52(1) of the TPP Act, the power to take samples of evidential material on any premises entered under section 48 of the Regulatory Powers Act is taken to be included in the investigation powers under Part 3 of that Act. New subsections 52(10) and (11) of the TPP Act preserve the effect of current paragraph 53(c) of that Act, which is repealed by this item. 1670. It is necessary to retain the power to take samples in the TPP Act, as this power is an essential element of an authorised person's investigation and enforcement powers under the current regulatory powers framework of that Act. The retention of the power allows for the testing of samples of tobacco products during the course of an investigation, which provides for more targeted investigations of businesses that are potentially breaching the TPP Act. The tests are, by necessity, destructive and cannot be carried out otherwise than by taking samples. 1671. New subsection 52(12) of the TPP Act modifies the operation of Part 3 of the Regulatory Powers Act, and provides that, in executing an investigation warrant under that Part, as that Part applies to evidential material that relates to a provision identified in new subsection 52(1) of the TPP Act, an authorised person or person assisting an authorised person may use such force against things as is necessary and reasonable in the circumstances. New subsection 52(12) of the TPP Act preserves the effect of current section 57 of that Act, which is repealed by this item. 1672. It is necessary to retain the power to use force against things in the TPP Act, as an authorised officer executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised officer reasonably suspects contain evidential material that would demonstrate that a provision identified in new subsection 52(1) of the TPP Act has been contravened. This power is important in the retail tobacco sector due to the retail display bans that are in place under State and Territory legislation, which prohibit the open display of tobacco products. 1673. Section 63 of the Regulatory Powers Act places an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 3 of the Regulatory Powers Act, for the purposes of executing an investigation warrant. Subsection 63(2) of the Regulatory Powers Act provides that failure to comply with section 63 of that Act is an offence, and carries a penalty of 30 penalty units. Despite this obligation, and its corresponding penalty for non-compliance, an occupier or other person may continue to refuse access to locked premises or objects. It is necessary to retain the power to use force against things to ensure that the execution of an investigation warrant is not frustrated, and to prevent concealment, loss, destruction, use or continuation of use of information or things in the course of contravening a provision identified in new subsection 52(1) of the TPP Act. 340
1674. New subsection 52(13) of the TPP Act provides that an authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions of the TPP Act identified in new subsection 52(1) of that Act. New subsection 52(13) of the TPP Act preserves the effect of current section 56 of that Act, which is repealed by this item. 1675. New subsections 52(14) and (15) of the TPP Act modify the operation of section 47 of the Regulatory Powers Act, and abrogate the privilege against self-incrimination. 1676. New subsection 52(14) of the TPP Act provides that, despite section 47 of the Regulatory Powers Act, a person is not excused from giving information, producing a document or answering a question under subsection 54(3) of the Regulatory Powers Act, as Part 3 of that Act applies in relation to the TPP Act, on the ground that the information, the production of the document, or answer to the question, might tend to incriminate the person or expose the person to a penalty. New subsection 52(14) of the TPP Act preserves the effect of current subsection 83(1) of that Act, which is repealed by item 27 below. 1677. It is necessary to retain the abrogation of the self-incrimination privilege in the TPP Act due to the difficulties in obtaining relevant evidence. Authorised officers are often not in a position to observe a transaction that would form the basis of a contravention of the TPP Act, as such evidence may only be obtained from an individual who is a party to a transaction. The type of information that may be requested from a tobacco company would not be obtainable other than from representatives of that company, or people who engage in dealings with that company. The full application of the privilege against self-incrimination would compromise investigation and enforcement activities, and would result in retailers of tobacco products unfairly bearing the burden of compliance with the requirements of the TPP Act, as retailers are the most readily accessible point for investigation and enforcement. Retaining the abrogation of the self-incrimination privilege ensures that evidence is available, which enables identification of persons who engage in contraventions at an earlier point in the supply chain. 1678. New subsection 52(15) of the TPP Act provides that, in the case of an individual, none of the following is admissible in evidence against the individual in criminal proceedings: a. the information given, the document produced or the answer given b. giving the information, producing the document or answering the question, or c. any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question. 1679. New subsection 52(15) of the TPP Act preserves the effect of current subsection 83(2) of that Act, which is repealed by item 27 below. The retention of the matters provided for in new subsection 52(15) of the TPP Act ensures that evidence obtained from an individual compelled to provide information, documents or answers may only be used in criminal proceedings against a person other than that individual. 1680. New subsection 52(16) of the TPP Act extends the application of Part 3 of the Regulatory Powers Act, as that Part applies to the offences mentioned in new subsection 52(1) of the TPP Act, to every external Territory. New subsection 52(16) of the TPP Act reflects existing arrangements under that Act (see section 8 of the TPP Act). 341
1681. Application of the standard provisions pertaining to investigation powers in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the TPP Act. Item 24 - Subsection 80(2) (note) 1682. Item 24 repeals the note to subsection 80(2) of the TPP Act, which directs the reader to current subsection 83 of that Act. The repeal of the note to subsection 80(2) of the TPP Act is consequential to the repeal of section 83 of that Act by item 27 below, the effect of which is preserved by new subsections 52(14) and (15) of the TPP Act inserted by item 23 above. Item 25 - At the end of Part 3 of Chapter 4 1683. Item 25 inserts new section 80A of the TPP Act at the end of Part 3 of Chapter 4 of that Act. 1684. New subsection 80A(1) of the TPP Act provides that a person is not excused from giving information, producing a document or answering a question under subsection 80(2) of that Act on the ground that the information, the production of the document, or answer to the question, might tend to incriminate the person or expose the person to a penalty. New subsection 80A(1) of the TPP Act preserves the effect of current subsection 83(1) of that Act, which is repealed by item 27 below. 1685. It is necessary to retain the abrogation of the self-incrimination privilege in the TPP Act due to the difficulties in obtaining relevant evidence. Authorised officers (as defined in the TPP Act) are often not in a position to observe a transaction that would form the basis of a contravention of the TPP Act, as such evidence may only be obtained from an individual who is a party to a transaction. The type of information that may be requested from a tobacco company would not be obtainable other than from representatives of that company, or people who engage in dealings with that company. The full application of the privilege against self- incrimination would compromise investigation and enforcement activities, and would result in retailers of tobacco products unfairly bearing the burden of compliance with the requirements of the TPP Act, as retailers are the most readily accessible point for investigation and enforcement. Retaining the abrogation of the self-incrimination privilege ensures that evidence is available, which enables identification of persons who engage in contraventions at an earlier point in the supply chain. 1686. New subsection 80A(2) of the TPP Act provides that, in the case of an individual, none of the following is admissible in evidence against the individual in criminal proceedings: a. the information given, the document produced or the answer given b. giving the information, producing the document or answering the question, or c. any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question. 1687. New subsection 80A(2) of the TPP Act preserves the effect of current subsection 83(2) of that Act, which is repealed by item 27 below. The retention of the matters provided for in new subsection 80A(2) of the TPP Act ensures that evidence obtained from 342
an individual compelled to provide information, documents or answers may only be used in criminal proceedings against a person other than that individual. Item 26 - Part 4 of Chapter 4 (heading) 1688. Item 26 repeals the heading to Part 4 of Chapter 4 of the TPP Act, and substitutes a new heading, 'Part 4--Authorised officers'. Part 4 of Chapter 4 of the TPP Act is currently entitled 'Part 4--Miscellaneous'. The repeal of the heading to Part 4 of Chapter 4 of the TPP Act is consequential to the repeal of sections 82 and 83 of that Act by item 27 below, which results in section 81 of the TPP Act as the sole remaining provision in Part 4 of Chapter 4 of that Act. 1689. Section 81 of the TPP Act outlines matters in relation to the appointment of authorised officers (as defined in the TPP Act), and provides that the Secretary of the department that administers the TPP Act may, in writing, appoint the following persons as authorised officers: a. a person who is appointed or engaged under the Public Service Act 1999, or b. a member or special member of the Australian Federal Police. 1690. Subsection 81(2) of the TPP Act states that the Secretary may appoint a person as an authorised officer only if the Secretary is satisfied that the person has suitable, qualifications, training or experience. Subsection 81(3) of the TPP Act provides that an authorised person is appointed for the period specified in the instrument of appointment. 1691. As amended Part 4 of Chapter 4 of the TPP Act will only concern matters relating to the appointment of authorised officers, the heading to this Part is updated accordingly. Item 27 - Sections 82 and 83 1692. Item 27 repeals sections 82 and 83 of the TPP Act, which provide for matters in relation to identity cards and self-incrimination, respectively. 1693. Section 82 of the TPP Act provides that the Secretary of the department that administers the TPP Act must issue an identity card to an authorised officer (as defined in the TPP Act). The identity card must be in the form approved by the Secretary, and contain a recent photograph of the authorised officer. Subsection 82(3) of the TPP Act requires an authorised officer to carry the identity card at all times when exercising powers and performing functions and duties as an authorised officer. Subsections 82(4) and (5) of the TPP Act provide that a person commits an offence of strict liability, which carries a penalty of one penalty unit, if that person ceases to be an authorised officer but does not return their identity card to the Secretary within 14 days after that cessation. Subsection 82(6) of the TPP Act provides an exception to subsections 82(4) and (5) of that Act where the identity card is lost or destroyed. 1694. Section 76 of the Regulatory Powers Act preserves the effect of section 82 of the TPP Act, which is repealed by this item. Section 76 of the Regulatory Powers Act is applied by item 23 above. 1695. Section 83 of the TPP Act states that a person is not excused from giving information, producing a document or answering a question under subsection 58(2) or 80(2) of that Act on the ground that the information, the production of the document, or answer to the question, 343
might tend to incriminate the person or expose the person to a penalty. However, subsection 83(2) of the TPP Act provides that, in the case of an individual, none of the following is admissible in evidence against the individual in criminal proceedings: a. the information given, the document produced or the answer given b. giving the information, producing the document or answering the question, or c. any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question. 1696. New subsections 52(14) and (15) and new section 80A of the TPP Act preserve the effect of current section 83 of that Act, which is repealed by this item. New subsections 52(14) and (15) of the TPP Act are inserted by item 23 above, and new section 80A of the TPP Act is inserted by item 25 above. 1697. The repeal of sections 82 and 83 of the TPP Act is consequential to the repeal of Part 2 of Chapter 4 of that Act by item 23 above, which applies the standard provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act. Item 28 - Section 84 1698. Item 28 repeals current section 84 of the TPP Act and substitutes new section 84 of that Act, which provides for a new 'Simplified outline' of Chapter 5 of the TPP Act. New section 84 of the TPP Act is consequential to the amendments made by item 29 below, which repeals Parts 2 and 3 of Chapter 5 of the TPP Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. Item 29 - Parts 2 and 3 of Chapter 5 1699. Item 29 repeals current Parts 2 and 3 of Chapter 5 of the TPP Act, and substitutes new 'Part 2--Civil penalties and infringement notices'. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce civil penalty provisions in the TPP Act, and Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to strict liability offences allegedly committed against the provisions in Chapter 3 of the TPP Act. Civil penalty provisions 1700. Current Part 2 of Chapter 5 of the TPP Act provides for provisions in relation to civil penalty orders, and includes sections 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98 and 99 of that Act. Those sections are no longer necessary, as this Schedule amends the TPP Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1594 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the TPP Act that are repealed by this item. 1701. New Part 2 of Chapter 5 of the TPP Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 85(1) of the TPP Act). New section 85 of the TPP Act outlines matters in relation to authorised applicants, relevant courts, the extension of matters to external Territories and liability of the Crown. 344
1702. New subsection 85(1) of the TPP Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the TPP Act. Item 29 also inserts a note at the end of new subsection 85(1) of the TPP Act, which directs the reader to Part 4 of the Regulatory Powers Act. 1703. New subsection 85(2) of the TPP Act identifies the Secretary of the department that administers the TPP Act as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the Secretary to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a 'civil penalty order'). New subsection 85(2) of the TPP Act preserves the effect of current subsection 85(1) of that Act, which is repealed by this item. 1704. New subsection 85(3) of the TPP Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 4 of the Regulatory Powers Act, as that Part applies to the provisions of the TPP Act identified in new subsection 82(1) of that Act. New subsection 85(3) of the TPP Act reflects existing arrangements under that Act in relation to courts, and preserves the effect of the definition of Federal Court in subsection 4(1) of that Act, which is repealed by item 3 above. Item 29 extends jurisdiction under that Act to the Federal Circuit Court of Australia. Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 1705. New subsection 85(4) of the TPP Act extends the application of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the TPP Act, to every external Territory. This new subsection reflects existing arrangements under the TPP Act (see section 8 of that Act). 1706. New subsection 85(5) of the TPP Act provides that Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the TPP Act, does not make the Crown liable to a pecuniary penalty. New subsection 85(5) of the TPP Act preserves the effect of current subsection 9(2) of that Act, which is repealed and substituted with a new subsection 9(2) of the TPP Act by item 8 above. 1707. Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the TPP Act. The comparison table provided at paragraph 1594 above identifies the provision of the Regulatory Powers Act that is gained through alignment with that Act, which does not currently exist in the TPP Act (see section 93 of the Regulatory Powers Act, which is discussed below). 1708. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the 345
contravention occurs, including the day the civil penalty order is made (or any later day). This provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. 1709. The comparison table provided at paragraph 1594 above also identifies another provision gained through alignment with the Regulatory Powers Act, which is not currently in the TPP Act, but is merely procedural in nature and sets out matters in relation to burden of proof (see section 96 of the Regulatory Powers Act, which is discussed below). 1710. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. 1711. Although section 96 of the Regulatory Powers Act is a new provision for the TPP Act, that section, in effect, preserves the effect of subsections 32(7), 35(6), 38(6), 41(7), 48(7) and 49(2) of the TPP Act, which are repealed by items 11, 13, 15, 17, 19 and 21 above. 1712. Alignment with the Regulatory Powers Act will also repeal current section 91 of the TPP Act, which provides that a contravention of a civil penalty provision is not an offence. This section is no longer necessary, as the provision does not add anything beyond the established common law principle, and its inclusion is no longer in line with current drafting standards. Infringement notices 1713. Current Part 3 of Chapter 5 of the TPP Act provides for provisions in relation to infringement notices, and includes sections 100, 101, 102, 103, 104 and 105 of that Act. Those sections are no longer necessary, as this Schedule amends the TPP Act to apply the standard provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1594 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the TPP Act that are repealed by this item. 1714. New Part 2 of Chapter 5 of the TPP Act directs the reader to Part 5 of the Regulatory Powers Act, which provides for provisions in relation to infringement notices (see the note to new subsection 86(1) of the TPP Act). New section 86 of the TPP Act outlines matters in relation to infringement officers, the relevant chief executive, the extension of matters to external Territories and liability of the Crown. 1715. New subsection 86(1) of the TPP Act states that a strict liability offence against Chapter 3 of that Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act. New subsection 86(1) of the TPP Act ensures that Part 5 of the Regulatory Powers Act operates for the purposes of the provisions identified in that subsection. Item 29 also inserts a note at the end of new subsection 86(1) of the TPP Act, which directs the reader to Part 5 of the Regulatory Powers Act. 1716. New subsection 86(2) of the TPP Act identifies an authorised officer (as defined in the TPP Act) as an infringement officer for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 86(1) of the TPP Act. This new subsection will enable the infringement officer to issue an infringement notice to a person if they reasonably believe the person has contravened a provision identified in new 346
subsection 86(1) of the TPP Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), the person may be prosecuted in court for the alleged contravention. New subsection 86(2) of the TPP Act reflects existing arrangements under current section 81 of that Act in relation to authorised officers. 1717. New subsection 86(3) of the TPP Act identifies the Secretary of the department that administers the TPP Act as the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 86(1) of the TPP Act. New subsection 86(3) of the TPP Act reflects existing arrangements under that Act (see section 81 of the TPP Act). 1718. New subsection 86(4) of the TPP Act provides that the Secretary, as the relevant chief executive under Part 5 of the Regulatory Powers Act, as that Part applies to the provisions of the TPP Act identified in new subsection 86(1) of that Act, may, in writing, delegate his or her powers and functions to an SES employee or acting SES employee in the department that administers the TPP Act. New subsection 86(4) of the TPP Act reflects existing arrangements under that Act in relation to delegations (see subsection 107(1) of the TPP Act). 1719. New subsection 86(5) of the TPP Act provides that a delegate must comply with any directions of the Secretary, which reflects existing arrangements under that Act in relation to delegations (see subsection 107(2) of the TPP Act). 1720. New subsection 86(6) of the TPP Act extends the application of Part 5 of the Regulatory Powers Act, as that Part applies to the offences mentioned in new subsection 86(1) of the TPP Act, to every external Territory. This new subsection reflects existing arrangements under the TPP Act (see section 8 of that Act). 1721. New subsection 86(7) of the TPP Act provides that Part 5 of the Regulatory Powers Act, as that Part applies to the offences mentioned in new subsection 86(1) of the TPP Act, does not make the Crown liable to a pecuniary penalty. New subsection 86(7) of the TPP Act preserves the effect of current subsection 9(2) of that Act, which is repealed and substituted with a new subsection 9(2) of the TPP Act by item 8 above. 1722. Application of the standard infringement notice provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the TPP Act. The comparison table provided at paragraph 1594 above identifies the provision of the Regulatory Powers Act that is expanded through alignment with that Act (compare current subsection 100(3) of the TPP Act with subsections 103(3) and (4) of the Regulatory Powers Act). 1723. Current subsection 100(3) of the TPP Act provides that an authorised officer may give a person an infringement notice if the authorised officer has reasonable grounds to believe that the person has contravened an offence of strict liability in Chapter 3 of that Act, however a single infringement notice must relate only to a single contravention of a single provision. 1724. Subsection 103(3) of the Regulatory Powers Act states that a single infringement notice must only relate to a single contravention of a single provision, unless the circumstances in subsection 103(4) of the Regulatory Powers Act apply. Subsection 103(4) of 347
the Regulatory Powers Act states that a single infringement notice may relate to multiple contraventions of a single provision if that provision requires the person to do a thing within a particular period or before a particular time, and the person fails or refuses to do that thing on more than one day after the period has expired or relevant time has passed (note, subsection 103(4) of the Regulatory Powers Act complements section 93 of that Act, which is discussed at paragraph 1708 above). Subsection 103(5) of the Regulatory states that, if a single provision can constitute both a civil penalty provision and an offence provision, the infringement notice must relate to the provision as an offence provision. PART 2--APPLICATION AND SAVING PROVISIONS Item 30 - Saving provision--identity cards 1725. Item 30 provides that, despite the repeal of current section 82 of the TPP Act by this Schedule, that section, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to a person who ceased to be an authorised officer (as defined in the TPP Act) before the commencement of this Schedule. 1726. This item preserves the effect of current section 82 of the TPP Act, which provides that a person commits an offence of strict liability if that person ceases to be an authorised officer but does not return their identity card to the Secretary of the department that administers the TPP Act within 14 days after that cessation. 1727. Where a person ceases to be an authorised person after the commencement of this Schedule, section 76 of the Regulatory Powers Act will apply. Item 31 - Application and saving provision--investigation 1728. Item 31 provides for the application of the amendments in this Schedule in relation to investigation powers, and makes it clear that Part 3 of the Regulatory Powers Act, as that Part applies under Part 2 of Chapter 4 of the TPP Act, applies in relation to evidential material that relates to a provision mentioned in new subsection 52(1) of the TPP Act, if the suspected contravention of the provision occurred before, on or after the commencement of this Schedule. 1729. This item provides clarity for an authorised person exercising investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 52(1) of the TPP Act, and ensures that an authorised person may exercise those powers from the time of the commencement of this Schedule, regardless of whether or not the suspected contravention occurred before, on or after that commencement. 1730. As this Schedule does not expand the existing regulatory framework of the TPP Act in relation to investigation powers, the retrospective application provided for by this item does not impact rights or impose liabilities on a person subject to investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies to the provisions identified in new subsection 52(1) of the TPP Act. 348
1731. Sub-item 31(2) provides that Chapter 4 of the TPP Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to the following: a. an application for a warrant made, but not decided, under current subsection 75(1) of the TPP Act before the commencement of this Schedule b. a warrant issued under current subsection 75(2) of the TPP Act, or completed and signed under current subsection 76(4) of that Act, before, on or after the commencement of this Schedule as a result of an application made before that commencement c. powers exercised, rights created and duties imposed, under current Part 2 of Chapter 4 of the TPP Act before, on or after the commencement of this Schedule in relation to: i. an entry onto premises before that commencement with the consent of the occupier or occupiers of the premises, or ii. an entry onto premises before, on or after that commencement as a result of a warrant issued under current subsection 75(2) of the TPP Act, or completed and signed under current subsection 76(4) of that Act, before, on or after the commencement of this Schedule as a result of an application made before that commencement, or iii. things secured or seized under current Division 1 or 3 of Part 2 of Chapter 4 of the TPP Act before the commencement of this Schedule, or iv. a requirement made under current subsection 58(2) of the TPP Act before the commencement of this Schedule. Item 32 - Application and saving provision--civil penalties 1732. Item 32 provides for the application of the amendments in this Schedule in relation to civil penalties, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule. 1733. This item also provides that Part 2 of Chapter 5 of the TPP Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule. Item 33 - Application and saving provision--infringement notices 1734. Item 33 provides for the application of the amendments in this Schedule in relation to infringement notices, and makes it clear that the amendments apply in relation to alleged contraventions of provisions referred to in new subsection 86(1) of the TPP Act occurring on or after the commencement of this Schedule. 1735. This item also provides that Part 3 of Chapter 5 of the TPP Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to alleged contraventions of strict liability offence provisions in that Act, occurring before the commencement of this Schedule. 349
Schedule 15 - Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 GENERAL OUTLINE 1736. The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (the 'WMD Act') prohibits the supply or export of goods that will or may be used, and the provision of services that will or may assist, in the development, production, acquisition or stockpiling of weapons capable of causing mass destruction, or missiles capable of delivering such weapons. The WMD Act regulates the supply of goods and the provision of services, in addition to the export of non-listed goods, where it is believed or suspected that they will or may be used in a weapons of mass destruction program. 1737. Current section 16 of the WMD Act deals with the use of injunctions to enforce provisions of that Act. Injunctions may be prohibitory, mandatory or interim in nature. 1738. This Schedule amends the WMD Act to apply the standard injunctions provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the WMD Act, and the provisions gained by alignment with the Regulatory Powers Act, which are not currently in the WMD Act, are merely procedural matters in relation to interim injunctions and the powers of a relevant court (see subsection 122(2) and section 125 of the Regulatory Powers Act, which are discussed at item 2 below). 1739. Part 7 of the Regulatory Powers Act creates a framework for the use of injunctions to enforce provisions of an Act. Subsection 117(2) of the Regulatory Powers Act states that, in order for Part 7 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 7 of the Regulatory Powers Act, it must identify an authorised person or persons and a relevant court or courts that may exercise powers under Part 7 of the Regulatory Powers Act (see sections 119 and 120 of the Regulatory Powers Act). A triggering Act must also express whether an authorised person or persons may delegate his or her powers and functions under Part 7 of the Regulatory Powers Act in relation to provisions subject to an injunction under the triggering Act (see subsection 119(3) of the Regulatory Powers Act). If provisions of the triggering Act are subject to an injunction and apply in external Territories or offshore areas, the triggering Act should identify whether Part 7 of the Regulatory Powers Act extends to any external Territories. COMPARISON OF PROVISIONS Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 1740. The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 2) for section 16 of the WMD Act, which is repealed by item 2. 350
Current provision in the WMD Act Provision Provision as Applicable amended by this provision Schedule (Regulatory Powers Act) Injunctions 16 Part 7-Injunctions Relevant courts 16(1) Retained N/A (see new subsection 16(4) of the WMD Act) Grant of injunctions 16(1) Retained 121 Interim injunctions 16(2) Retained 122(1) Discharging or varying injunctions 16(3) Retained 123 Certain limits on granting injunctions not to 16(4); Retained 124 apply 16(5) N/A (No undertakings as to damages) N/A Gained 122(2) N/A (Other powers of a relevant court N/A Gained 125 unaffected) PART 1--AMENDMENTS Item 1 - Section 3 1741. Item 1 amends current section 3 of the WMD Act to insert a definition of Regulatory Powers Act. That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014. Item 2 - Section 16 1742. Item 2 repeals current section 16 of the WMD Act and substitutes new section 16 of that Act. This item applies the provisions of Part 7 of the Regulatory Powers Act for the use of injunctions to enforce provisions of the WMD Act. Injunctions 1743. Current section 16 of the WMD Act is no longer necessary, as this Schedule amends that Act to apply the standard injunctions provisions of the Regulatory Powers Act. The comparison table provided at paragraph 1740 above identifies the corresponding provisions of the Regulatory Powers Act for section 16 of the WMD Act, which is repealed by this item. 1744. New section 16 of the WMD Act directs the reader to Part 7 of the Regulatory Powers Act, which provides for the use of injunctions to enforce provisions (see Note 2 to new subsection 16(1) of the WMD Act). This new section also outlines matters in relation to the authorised person, relevant courts and the extension of matters to external Territories. 1745. New subsection 16(1) of the WMD Act provides that the provisions of that Act are enforceable under Part 7 of the Regulatory Powers Act, which ensures that Part 7 of the Regulatory Powers Act operates for the purposes of all provisions of the WMD Act. 1746. Item 2 also inserts notes at the end of new subsection 16(1) of the WMD Act. New Note 1 to new subsection 16(1) of the WMD Act provides that the expression offence against this Act has an extended meaning, and directs the reader to section 3 of that Act. Section 3 of 351
the WMD Act defines offence against this Act to include an offence against section 6 of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal Code Act 1995 that relates to an offence against the WMD Act. New Note 2 to new subsection 16(1) of the WMD Act directs the reader to Part 7 of the Regulatory Powers Act, which creates a framework for the use of injunctions to enforce provisions of a triggering Act. 1747. New subsection 16(2) of the WMD Act identifies the Minister responsible for the department that administers the WMD Act as an authorised person in relation to the provisions of the WMD Act that are subject to injunctions. This new subsection reflects existing arrangements under the WMD Act and preserves the effect of current subsection 16(1) of that Act, which is repealed by this item. 1748. New subsection 16(3) of the WMD Act provides that the Minister, as the authorised person under Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of the WMD Act, may, by writing, delegate his or her powers and functions to an officer of the department that administers the WMD Act. New subsection 16(3) of the WMD Act reflects existing arrangements under that Act (see section 19 of the WMD Act). 1749. New subsection 16(4) of the WMD Act identifies the Federal Court of Australia as a relevant court for the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of the WMD Act. It is appropriate to restrict jurisdiction under the WMD Act to the Federal Court due to the sensitive nature of matters arising under that Act. New subsection 16(4) of the WMD Act reflects existing arrangements under that Act (see the use of the phrase 'court of competent jurisdiction' in current section 16 of the WMD Act). 1750. New subsection 16(5) of the WMD Act extends the application of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of the WMD Act, to every external Territory. New subsection 16(5) of the WMD Act reflects existing arrangements under that Act (see section 5 of the WMD Act). 1751. Application of the standard injunctions provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the WMD Act. The comparison table provided at paragraph 1740 above identifies provisions of the Regulatory Powers Act that are gained through alignment with that Act, which are not currently in the WMD Act, that are merely procedural in nature and set out matters in relation to interim injunctions and the powers of a relevant court (see subsection 122(2) and section 125 of the Regulatory Powers Act, which are discussed below). 1752. Subsection 122(2) of the Regulatory Powers Act provides that a relevant court must not require an applicant for an injunction under section 121 of that Act to give an undertaking as to damages as a condition of granting an interim injunction. This provision clarifies that a refusal to give an undertaking in respect of damages is not grounds for a court to refuse to issue an interim injunction. 1753. Section 125 of the Regulatory Powers Act provides that the powers conferred on a relevant court under Part 7 of that Act are in addition to, and not instead of, any other powers of the court, whether conferred by that Act or otherwise. Application of this provision to the WMD Act clarifies that the use of injunctions under Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of the WMD Act, are in addition to, not in replacement of, any other powers of the Federal Court of Australia, which is the relevant court identified in new subsection 16(4) of the WMD Act. 352
PART 2--APPLICATION AND SAVING PROVISION Item 3 - Application and saving provision--injunctions 1754. Item 3 provides for the application of the amendments in this Schedule in relation to injunctions, and makes it clear that the amendments apply in relation to contraventions occurring on or after the commencement of this Schedule. 1755. This item also provides that section 16 of the WMD Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions occurring before the commencement of this Schedule. 353
Schedule 16 - Contingent amendments GENERAL OUTLINE 1756. This Schedule makes amendments to the Paid Parental Leave Act 2010 (the 'PPL Act') contingent to the commencement of Schedule 2 to the Fairer Paid Parental Leave Bill 2015. AMENDMENTS Paid Parental Leave Act 2010 Item 1 - Paragraphs 159(1)(b) and (c) 1757. Item 1 repeals current paragraphs 159(1)(b) and (c) of the Paid Parental Leave Act 2010 (the 'PPL Act'). 1758. Current paragraph 159(1)(b) of the PPL Act provides that the Secretary of the department that administers the PPL Act may give a person an infringement notice if the Secretary reasonably believes that the person has contravened section 103 of that Act. 1759. Current paragraph 159(1)(c) of the PPL Act provides that the Secretary of the department that administers the PPL Act may give a person an infringement notice if the Secretary reasonably believes that the person has contravened subsection 105(3) of that Act. 1760. Schedule 2 to the Fairer Paid Parental Leave Bill seeks to repeal current paragraphs 159(1)(b) and (c) of the PPL Act. 1761. This item is contingent on the commencement of Schedule 2 to the Fairer Paid Parental Leave Bill, and ensures that the commencement of this Bill does not impact on the matters provided for in Schedule 2 to the Fairer Paid Parental Leave Bill. However, clause 2 to this Bill provides that this Schedule does not commence if Schedule 2 to the Fairer Paid Parental Leave Bill does not commence before this Bill. 354