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Regulatory Powers (Standardisation Reform) Bill 2016
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Schedule 9 Amendment of the Illegal » « Logging » Prohibition Act 2012

Part 1 Amendments

« Illegal » « Logging » Prohibition Act 2012

1  Section 6

Omit:

Part 4 provides for inspectors to exercise monitoring, investigation and enforcement powers for the purposes of this Act.

substitute:

Part 4 applies the Regulatory Powers Act to enable inspectors to exercise monitoring, investigation and enforcement powers for the purposes of this Act.

2  Section 7 (definition of civil penalty order )

Repeal the definition.

3  Section 7 (definition of civil penalty provision )

Repeal the definition, substitute:

civil penalty provision has the same meaning as in the Regulatory Powers Act.

4  Section 7

Repeal the following definitions:

                     (a)  definition of contravention ;

                     (b)  definition of damage ;

                     (c)  definition of evidential burden ;

                     (d)  definition of evidential material ;

                     (e)  definition of investigation powers ;

                      (f)  definition of investigation warrant ;

                     (g)  definition of issuing officer ;

                     (h)  definition of monitoring powers ;

                      (i)  definition of monitoring warrant ;

                      (j)  definition of occupier ;

                     (k)  definition of person assisting ;

                      (l)  definition of premises .

5  Section 7

Insert:

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014 .

6  Section 7 (definition of relevant court )

Repeal the definition.

7  Section 20

Repeal the section.

8  Divisions 2 to 6 of Part 4

Repeal the Divisions, substitute:

Division 2 Monitoring

21   Monitoring powers

Provisions subject to monitoring

             (1)  A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:

                     (a)  a provision of this Act; or

                     (b)  an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

Note:          Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.

Information subject to monitoring

             (2)  Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note:          Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Related provisions

             (3)  For the purposes of Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), there are no related provisions.

Authorised applicant and authorised person

             (4)  For the purposes of Part 2 of the Regulatory Powers Act, an inspector is both an authorised applicant and an authorised person in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).

Issuing officer

             (5)  For the purposes of Part 2 of the Regulatory Powers Act, each of the following persons is an issuing officer in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):

                     (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 this Act and that consent is in force—the Judge.

Relevant chief executive

             (6)  For the purposes of Part 2 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).

             (7)  The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary’s powers under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).

             (8)  A person exercising powers or functions under a delegation under subsection (6) must comply with any directions of the Secretary.

Relevant court

             (9)  For the purposes of Part 2 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Circuit Court of Australia.

Additional monitoring powers

           (10)  For the purposes of determining:

                     (a)  whether a provision mentioned in subsection (1) has been, or is being, complied with; or

                     (b)  the correctness of information mentioned in subsection (2);

the additional power mentioned in subsection (11) is taken to be included in the monitoring powers under Part 2 of the Regulatory Powers Act.

           (11)  The additional monitoring power is the power to sample any thing at any premises entered under section 18 of the Regulatory Powers Act, as that section applies in relation to the provisions mentioned in subsection (1) or the information mentioned in subsection (2).

Person assisting

           (12)  An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).

Does not extend to external Territories

           (13)  Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), does not extend to the external Territories.

Division 3 Investigation

22   Investigation powers

Provisions subject to investigation

             (1)  A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

                     (a)  an offence against this Act; or

                     (b)  a civil penalty provision of this Act; or

                     (c)  an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

Note:          Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

Related provisions

             (2)  For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1), there are no related provisions.

Authorised applicant and authorised person

             (3)  For the purposes of Part 3 of the Regulatory Powers Act, an inspector is both an authorised applicant and an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).

Issuing officer

             (4)  For the purposes of Part 3 of the Regulatory Powers Act, each of the following persons is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection (1):

                     (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 this Act and that consent is in force—the Judge.

Relevant chief executive

             (5)  For the purposes of Part 3 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1).

             (6)  The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary’s powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

             (7)  A person exercising powers or functions under a delegation under subsection (6) must comply with any directions of the Secretary.

Relevant court

             (8)  For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Circuit Court of Australia.

Additional investigation power

             (9)  The additional power mentioned in subsection (10) is taken to be included in the investigation powers under Part 3 of the Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1).

           (10)  The additional investigation power is the power to sample any thing on premises entered under section 48 of the Regulatory Powers Act as that section applies in relation to evidential material that relates to a provision mentioned in subsection (1).

Use of force in executing a warrant

           (11)  In executing an investigation warrant under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):

                     (a)  an authorised person may use such force against things as is necessary and reasonable in the circumstances; and

                     (b)  a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.

Person assisting

           (12)  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 in relation to evidential material that relates to a provision mentioned in subsection (1).

Does not extend to external Territories

           (13)  Part 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), does not extend to the external Territories.

Division 4 Civil penalties

23   Civil penalty provisions

Enforceable civil penalty provisions

             (1)  Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.

Note:          Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

             (2)  For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions of this Act.

Relevant court

             (3)  For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Circuit Court of Australia.

Does not extend to external Territories

             (4)  Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, does not extend to the external Territories.

Division 5 Infringement notices

24   Infringement notices

Provisions subject to an infringement notice

             (1)  The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:

                     (a)  a strict liability offence against this Act;

                     (b)  a civil penalty provision of this Act;

                     (c)  an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

Infringement officer

             (2)  For the purposes of Part 5 of the Regulatory Powers Act, an inspector is an infringement officer in relation the provisions mentioned in subsection (1).

Relevant chief executive

             (3)  For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1).

             (4)  The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary’s powers and functions as the relevant chief executive in relation to the provisions mentioned in subsection (1).

             (5)  A person exercising powers or functions under a delegation under subsection (4) must comply with any directions of the Secretary.

Does not extend to external Territories

             (6)  Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), does not extend to the external Territories.

Part 2 Application and saving provisions

9  Saving provision—identity cards

            Despite the repeal of section 20 of the « Illegal » « Logging » Prohibition Act 2012 made 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 that commencement.

10  Application and saving provision—monitoring and investigation

(1)       Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under Division 2 of Part 4 of the « Illegal » « Logging » Prohibition Act 2012 applies in relation to:

                     (a)  determining whether a provision mentioned in subsection 21(1) of the « Illegal » « Logging » Prohibition Act 2012 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 » Prohibition Act 2012 before, on or after the commencement of this Schedule is correct.

(2)       Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under Division 3 of Part 4 of the « Illegal » « Logging » Prohibition Act 2012 , applies in relation to evidential material that relates to a provision mentioned in subsection 22(1) of the « Illegal » « Logging » Prohibition Act 2012 , if the suspected contravention of the provision occurred before, on or after the commencement of this Schedule.

(3)       Divisions 2 to 4 of Part 4 of the « Illegal » « Logging » Prohibition Act 2012 , 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 before the commencement of this Schedule;

                     (b)  a warrant issued, or completed and signed, under the relevant Division 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 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 occupiers of the premises; or

                             (ii)  an entry onto premises before, on or after that commencement as a result of a warrant referred to in paragraph (b);

                     (d)  things secured or seized under the relevant Division before, on or after the commencement of this Schedule;

                     (e)  a requirement made under section 54 of that Act before, on or after the commencement of this Schedule.

11  Application and saving provision—civil penalties

(1)       Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under Division 4 of Part 4 of the « Illegal » « Logging » Prohibition Act 2012 , applies in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule.

(2)       Division 5 of Part 4 of the « Illegal » « Logging » Prohibition Act 2012 , 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.

12  Application and saving provision—infringement notices

(1)       Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under Division 5 of Part 4 of the « Illegal » « Logging » Prohibition Act 2012 , applies in relation to alleged contraventions of provisions mentioned in subsection 24(1) of the « Illegal » « Logging » Prohibition Act 2012 occurring on or after the commencement of this Schedule.

(2)       Division 6 of Part 4 of the « Illegal » « Logging Prohibition Act 2012 , as in force immediately before the commencement of this Schedule, continues to apply in relation to alleged contraventions of offence and civil penalty provisions in that Act, and alleged contraventions of provisions of the Crimes Act 1914 or the Criminal Code that relate to that Act, occurring before the commencement of this Schedule.