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Part 7—Enforcement

Part 7 Enforcement

Division 1 Simplified outline of this Part

127   Simplified outline of this Part

The Executive Director and authorised inspectors have monitoring, inspection and enforcement powers under the Regulatory Powers Act to ensure this Act is being complied with.

The Regulatory Powers Act creates a framework for monitoring and investigating compliance with this Act, as well as providing for the enforcement of civil penalty provisions, and the use of infringement notices, enforceable undertakings and injunctions.

This Part provides for the application of the Regulatory Powers Act in relation to these matters.

Division 2 Monitoring and investigation powers

128   Monitoring powers

Provisions subject to monitoring

             (1)  The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:

                     (a)  the provisions of this Act;

                     (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, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

             (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):

                     (a)  there are no related provisions; and

                     (b)  the Executive Director and each authorised inspector is an authorised applicant; and

                     (c)  the Executive Director and each authorised inspector is an authorised person; and

                     (d)  an issuing officer (as defined in section 9 of this Act) is an issuing officer; and

                     (e)  the Executive Director is the relevant chief executive; and

                      (f)  each relevant court (as defined in section 9 of this Act) is a relevant court.

Additional monitoring powers

             (4)  For the purposes of Part 2 of the Regulatory Powers Act, the additional powers mentioned in subsection (5) are also taken to be monitoring powers 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).

             (5)  The additional monitoring powers are the powers to take and keep samples of any substance 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).

Persons assisting

             (6)  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).

Use of force in executing a warrant

             (7)  In executing a monitoring warrant:

                     (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.

129   Investigation powers

Provisions subject to investigation

             (1)  The following provisions are subject to investigation under Part 3 of the Regulatory Powers Act:

                     (a)  an 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.

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, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

             (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):

                     (a)  there are no related provisions; and

                     (b)  the Executive Director and each authorised inspector is an authorised applicant; and

                     (c)  the Executive Director and each authorised inspector is an authorised person; and

                     (d)  an issuing officer (as defined in section 9 of this Act) is an issuing officer; and

                     (e)  the Executive Director is the relevant chief executive; and

                      (f)  each relevant court (as defined in section 9 of this Act) is a relevant court.

Persons assisting

             (3)  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).

Use of force in executing a warrant

             (4)  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.

Division 3 Civil penalty provisions, infringement notices and injunctions

130   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 and relevant court

             (2)  For the purposes of Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act:

                     (a)  the Executive Director and each authorised inspector is an authorised applicant; and

                     (b)  each relevant court (as defined in section 9 of this Act) is a relevant court.

131   Infringement notices

Provisions subject to an infringement notice

             (1)  A strict liability offence against this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Note:          Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer and relevant chief executive

             (2)  For the purposes of Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1):

                     (a)  the Executive Director and each authorised inspector is an infringement officer; and

                     (b)  the Executive Director is the relevant chief executive.

132   Enforceable undertakings

Enforceable provisions

             (1)  The provisions of this Act are enforceable under Part 6 of the Regulatory Powers Act.

Note:          Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Authorised person and relevant court

             (2)  For the purposes of Part 6 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1):

                     (a)  the Executive Director and each authorised inspector is an authorised person; and

                     (b)  each relevant court (as defined in section 9 of this Act) is a relevant court.

Enforceable undertaking must be published on the AICIS website

             (3)  An authorised person in relation to a provision mentioned in subsection (1) must publish an undertaking given in relation to the provision on the AICIS website.

133   Injunctions

Enforceable provisions

             (1)  The following provisions are enforceable under Part 7 of the Regulatory Powers Act:

                     (a)  the provisions of this Act;

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

Note:          Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Authorised person and relevant court

             (2)  For the purposes of Part 7 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1):

                     (a)  the Executive Director and each authorised inspector is an authorised person; and

                     (b)  each relevant court (as defined in section 9 of this Act) is a relevant court.

Additional matters relevant to court’s power to grant injunctions

             (3)  The power of a relevant court under Part 7 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), to grant an injunction restraining a person from engaging in conduct may be exercised whether or not conduct of that kind constitutes a serious and immediate risk to human health or the environment.

             (4)  The power of a relevant court under Part 7 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), to grant an injunction requiring a person to do a thing may be exercised whether or not there is a serious and immediate risk to human health or the environment if the person refuses or fails to do that thing.

             (5)  Subsections (3) and (4) are in addition to, and do not limit, subsections 124(1) and (2) of the Regulatory Powers Act.

134   Extension to external Territories

                   A Part of the Regulatory Powers Act, as the Part applies in relation to a provision of this Act mentioned in this Part, extends to every external Territory to which the provision extends.

Division 4 Miscellaneous

135   Physical elements of offences

             (1)  This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision ) commits an offence.

             (2)  For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.

Note:          Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.

136   Contravening an offence provision or a civil penalty provision

             (1)  This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision ) commits an offence or is liable to a civil penalty.

             (2)  For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.

137   Appointment of authorised inspectors

             (1)  The Executive Director may, in writing, appoint an APS employee who holds or performs the duties of an Executive Level 1 position, or an equivalent or higher position, as an authorised inspector for the purposes of this Part.

             (2)  The Executive Director must not appoint a person as an authorised inspector unless the Executive Director is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an authorised inspector.

             (3)  An authorised inspector must, in exercising powers as such, comply with any directions of the Executive Director.

             (4)  If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

138   Delegations by relevant chief executive

             (1)  The Executive Director may, in writing, delegate all or any of the relevant chief executive powers and functions mentioned in subsection (2) to an authorised inspector.

             (2)  The powers and functions that may be delegated are:

                     (a)  powers under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection 128(1) and the information mentioned in subsection 128(2); and

                     (b)  powers under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection 129(1); and

                     (c)  powers under Part 5 of the Regulatory Powers Act in relation to the provisions mentioned in subsection 131(1); and

                     (d)  powers and functions under the Regulatory Powers Act that are incidental to the powers mentioned in paragraphs (a) to (c).

             (3)  A person exercising powers or performing functions under a delegation under subsection (1) must comply with any directions of the relevant chief executive.