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Regulatory Powers (Standard Provisions) Bill 2013

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2010 - 2011 - 2012

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

REGULATORY POWERS (STANDARD PROVISIONS) BILL 2012

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by the authority of the Attorney-General,

the Hon. Nicola Roxon MP)



REGULATORY POWERS (STANDARD PROVISIONS) BILL 2012

Outline

The Regulatory Powers (Standard Provisions) Bill 2012 provides for a framework of standard regulatory powers exercised by agencies across the Commonwealth. The Bill would only apply to regulatory schemes that trigger its provisions through amendment of existing legislation or the introduction of new legislation. The key features of the Bill include monitoring and investigation powers as well as enforcement provisions through use of civil penalty, infringement notices, enforceable undertakings and injunctions.

The monitoring powers in the Bill are based on standard powers that can already be found across Commonwealth laws. The Bill provides for monitoring whether legislation is being complied with, or that information given to the Commonwealth in compliance, or purported compliance, is correct.

The investigation powers contained in the Bill are also commonly found across the statute book. The powers allow investigation of suspected contraventions of offences and civil penalty provisions. Investigation powers provided in the Bill include powers to search and seize evidential material as well as inspect, examine, measure and test any thing on the premises. The Bill also provides for the use of civil penalty provisions, infringement notices and injunctions to enforce provisions, and the acceptance and enforcement of undertakings relating to compliance with provisions.

Once enacted the Act will be rolled out progressively.  Following passage of the Bill, new Acts or Regulations that require investigation or enforcement powers of the kind available under the Regulatory Powers Bill would be drafted to trigger the relevant provisions.

Overtime, where substantial amendment is required to existing investigation and enforcement regimes in current Acts and Regulations, those regimes will be reviewed and, if appropriate, amended to instead trigger the relevant provisions in the Regulatory Powers Bill.

For the regulatory provisions in the Bill to be activated, new or existing legislation would need to be amended to remove existing regulatory powers and incorporate the Regulatory Powers Bill’s provisions. This also will mean that future legislation incorporating provisions in this Bill will be subject to Parliamentary scrutiny.  This ensures that distinct assessments of human rights engagement and compatibility will be apparent in the drafting and scrutiny process.

In some cases the powers contained in this Bill will not be appropriate and/or sufficient for some regulatory agencies requirements.  For example, law enforcement agencies that deal with national security will still require their own specialised powers.  Similarly, some regulatory agencies may have specific requirements not met in this Bill and consequently may decide to not trigger the Bill’s provisions.  Alternatively, agencies may choose to only trigger certain provisions that are relevant to carrying out their regulatory functions. 



The provisions of the Bill deal with:

(a)     general introductory provisions (Part 1)

(b)    monitoring whether provisions of an Act have been, or are being complied with and monitoring whether information given in compliance, or purported compliance, with provisions of an Act is correct (Part 2)

(c)     gathering evidence that relates to offences and civil penalty provisions (Part 3)

(d)    the use of civil penalties to enforce provisions (Part 4)

(e)     the use of infringement notices to enforce provisions (Part 5)

(f)     the acceptance and enforcement of undertakings relating to compliance with provisions (Part 6)

(g)    the use of injunctions to enforce provisions (Part 7), and

(h)    general provisions relating to regulations (Part 8)

First Parliamentary Counsel has issued a Drafting Direction in respect of the Regulatory Powers (Standard Provisions) Bill 2012 to Parliamentary Drafters. It covers a wide range of topics related to drafting regulatory powers.  All drafters are required to comply with the drafting directions to ensure a consistent approach is taken to amendments.  It is recommended that the Bill be read in association with its Drafting Direction.

Commonwealth departments and agencies that make and administer laws with regulatory powers were consulted on the terms of this Bill in early July 2012. 

Financial Impact Statement

There is no financial impact associated with this Bill. However, this Bill will reduce drafting and scrutiny time for future Commonwealth laws.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

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

The Regulatory Powers (Standard Provisions) Bill 2012 (the Bill) provides a framework of standard regulatory powers which, when enacted, would be applied to Commonwealth Acts and regulations in a staged approach. To activate the Bill’s provisions, new or existing Commonwealth laws must expressly apply the relevant provisions and specify other requisite information such as persons who are authorised to exercise the applicable powers. 

This Bill arises out of the Australian Government’s Clearer Laws project, which aims to reduce complexity on Commonwealth legislation by reducing its volume and increasing the consistency and coherence of laws across the statute book.

The provisions of the Bill predominantly deal with monitoring and gathering evidence powers designed to determine compliance with provisions of a triggering Act or regulation. The Bill also provides for the use of civil penalties, infringement notices and injunctions to enforce provisions and the acceptance and enforcement of undertakings relating to compliance with provisions. 

Human rights implications

As a law of general application, the human rights implications of its provisions will need to be addressed on a case-by-case basis whenever the provisions are activated.

The Bill engages the following human rights:

  • The protection against arbitrary interference with privacy; and
  • The right to a fair trial.

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. This right may be subject to permissible limitations where those limitations are provided by law and non-arbitrary.  In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and are reasonable, necessary and proportionate to that objective.

The obligations placed on participants in Commonwealth regulatory schemes provided in the Bill relate to:

 

·          monitoring and investigation powers (including entry, search and seizure)

 

·          civil penalty provisions

 

·          infringement notices

 

·          enforceable undertakings

 

·          injunctions, and

 

·          general provisions relating to regulations. 

The Bill protects against arbitrary abuses of power as the entry, monitoring, search, seizure and information gathering powers provided in it are conditional upon consent being given by the occupier of the premises or prior judicial authorisation. 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.

The Bill specifies that an issuing officer of a warrant to enter premises for the purpose of monitoring or investigation must be a judicial officer. The Bill also provides limits on the issuing of a monitoring or investigation warrant. In the case 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 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.    

An authorised person cannot enter premises unless their identity card or a copy of the warrant under which they are entering is shown to the occupier of the premises. This provides for the transparent utilisation of the Bill’s powers and mitigates arbitrariness and risk of abuse.

These powers are reasonable, necessary and proportionate to achieve a legitimate objective. Adequate safeguards and limitations on the use of regulatory powers in the Bill ensures that such lawful interferences are not arbitrary or at risk of abuse.

The right to a fair and public hearing

Article 14 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.

The Bill engages the right to a fair and public hearing through the creation of an infringement notice scheme. An infringement notice can be issued by an infringement officer for contraventions of a strict liability offence provision or a civil penalty provision that is enforceable under the Bill. The Bill ensures against arbitrariness or abuses of power through limitations as to who can issue an infringement notice. The Bill limits this exercise of power to an infringement officer who must be an APS employee or an officer of a State or Territory.

The right of a person to a fair and public hearing by a competent, independent and impartial tribunal is preserved by the Bill as its provisions allow a person to elect to have the matter heard by a court rather than pay the amount specified in the notice. Additionally, the Bill outlines that this right must be stated in an infringement notice issued to a person, ensuring that a person issued with an infringement notice is aware of their right to have the matter heard by a court.  

These powers are reasonable, necessary and proportionate. The Bill ensures that relevant courts have sufficient oversight to ensure against arbitrariness or abuses of power. Regulatory functions and powers in the issuing of infringement notices are limited to government officers and a person can elect to have the matter heard by a court. 



Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Furthermore, as the Bill is a Bill of general application, it will not engage any limitations on human rights until the Bill’s provisions are activated. When this occurs, new or existing legislation will need to include its own assessment of its engagement with human rights to ensure its compatibility. This therefore provides additional protections to human rights and freedoms and ensures that those clauses that new or existing legislation trigger in the Bill are necessary, reasonable and proportionate for that agency to carry out its functions.  

 

 



NOTES ON CLAUSES

Part 1—Preliminary

Clause 1:  Short title

1.                   Clause 1 establishes the short title of the Act, the Regulatory Powers (Standard Provisions) Act 2012 .

Clause 2:  Commencement

2.                   Clause 2 sets the commencement dates for various sections of the Bill. 

Clause 3:  Simplified outline

3.                   Clause 3 provides an overview of the Bill, broadly outlining the objects of the Bill and the means by which they are achieved, as well as introducing the issues covered in each Part of the Bill.  Clause 3 also makes clear that the monitoring, investigation and enforcement powers outlined in the Bill do not stand alone and must be activated by another Act or regulation for the provisions in this Bill to apply.

Clause 4:  Dictionary

4.                   Clause 4 contains a dictionary to assist interpretation and implementation of the Bill by defining the meaning of certain terms used in the Bill. 

Clause 5:  Contravening offence and civil penalty provisions

5.                   Clause 5 clarifies that, for a triggering Act or regulation, a person is liable for criminal or civil penalties if the person contravenes the obligations set out in the triggering Act or regulation.

6.                   To remove any doubt, clause 5 provides that breaching these obligations constitutes a criminal offence or gives rise to civil liability.

Clause 6: Binding the Crown  

7.                   Clause 6 ensures that this Bill binds the Crown in its various capacities.

Part 2—Monitoring

Division 1—Outline and operation of this Part

Clause 7:  Simplified outline

8.                   Clause 7 provides an outline of Part 2 of the Bill, which provides the powers and processes by which compliance with the Bill may be investigated.

9.                   Part 2 provides also that a triggering Act or regulation must make a provision or information subject to monitoring under this Part for this Part to operate. 

Clause 8:  Purpose and operation of this Part

10.               Clause 8 outlines the purpose of this Part which is to create a framework for monitoring compliance of provisions of an Act or legislative instrument and whether information given in compliance, or purported compliance, with a provision of an Act or legislative instrument is correct.

11.               Subclause 8(2) clarifies that an Act or legislative instrument must either make a provision or information subject to monitoring under this Part for this Part to operate. 

Clause 9:  Provisions subject to monitoring

12.               Clause 9 clarifies that a provision of an Act or legislative instrument is subject to monitoring under this Part if a triggering Act or regulation provides so.

Clause 10:  Information subject to monitoring

13.               Clause 10 clarifies that information given in compliance, or purported compliance, with a provision of an Act or legislative instrument is subject to monitoring if a triggering Act or regulation provides so.

Clause 11:  Related provisions

14.               Clause 11 provides that a provision is related to an information or a monitored provision, if a triggering Act or regulation provides that the provision is so related.

Clause 12:  Authorised applicant

15.               Clause 12 provides that an applicant for the purpose of exercising powers or performing incidental functions or duties is authorised if a triggering Act or regulation provides that the person is an authorised applicant in relation to that provision.

16.               Subclause 12(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is an authorised applicant for the purposes of this Part.

Clause 13:  Authorised person

17.               Clause 13 clarifies that a person is an authorised person for the purpose of exercising various powers or performing incidental functions or duties under this Part if a triggering Act or regulation provides that the person is an authorised person in relation to that provision.

18.               Subclause 13(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is an authorised person for the purposes of this Part.

19.               The Drafting Direction further stipulates that a person should not be specified as an authorised person unless the person is an APS employee, statutory office holder, State or Territory officer, a member or employee of a prescribed Agency for the purposes of the Financial Management and Accountability Act 1997 or a Commonwealth authority for the purposes of the Commonwealth Authorities and Companies Act 1997 .

Clause 14: Identity card

20.               An authorised person must be able to identify themselves at all times when carrying out powers under this Bill (clause 36).  Clause 14 provides that an identity card is one issued to an authorised person under clause 36 by the relevant chief executive in relation to that provision or information.

Clause 15:  Issuing officer

21.               Clause 15 provides that a judicial officer is an issuing officer for the purposes of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides that the judicial officer is an issuing officer in relation to that provision.

22.               Subclause 15(3) provides that an Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is an issuing officer for the purposes of this Part.

Clause 16: Relevant chief executive

23.                    Clause 16 provides that a person is the relevant chief executive for the purpose of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides so.

24.               Subclause 16(3) provides that an Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is the relevant chief executive for the purposes of this Part.

Clause 17: Relevant court

25.                   Clause 17 provides that the relevant court is the court that is relevant in relation to matters arising under the exercise of these powers if the triggering Act or regulation provides so.

Clause 18:  Matters provided for by legislative instrument

26.               Clause 18 provides that, only if the power to do so is given under another Act, can a legislative instrument provide that a provision is enforceable under this Part or that a person is an authorised person or a relevant chief executive under this Part.

 

Division 2—Powers of authorised persons

Subdivision A—Monitoring powers

Clause 19:  Authorised person may enter premises by consent or under warrant

27.               In addition to inspection powers, Clause 19 provides that  authorised persons have additional monitoring powers that may be exercised with consent or under a monitoring warrant.  The occupier of premises (defined by clause 4)  is not required to give consent to an authorised person’s entry or exercise of monitoring powers.  If consent is granted, the occupier remains free to subsequently withdraw that consent at any time and an authorised person must leave the premises if consent is withdrawn, or otherwise ceases to have effect.

Clause 20:  Monitoring powers of authorised persons

28.               Clause 20 sets out the authorised person’s monitoring powers under a warrant or consent, which permit an authorised person to, among other things, search premises, bring equipment and materials onto the premises, measure or test any thing on the premises, photograph things or make copies of documents, or operate electronic equipment.

Clause 21:  Operating electronic equipment

29.               Clause 21 provides detail about an authorised person’s power to operate electronic equipment when entering premises with consent or under warrant. In this context, electronic equipment primarily refers to, but is not limited to, data storage equipment such as computers that may have information relevant to monitoring compliance with the Bill. This power is necessary to ensure an authorised person can obtain access to electronic records that may indicate whether the Act or regulation is being complied with or whether information provided under the Act or regulation is correct.

30.               An authorised person’s power to operate electronic equipment extends to copying data from the electronic equipment onto storage devices. However, an authorised person may only operate electronic equipment if he or she reasonably believes this can occur without damaging the equipment. Nothing in clause 21 affects any liability or indemnity a court may find for damage to electronic equipment.

Clause 22:  Securing electronic equipment to obtain expert assistance

31.               Clause 22 permits an authorised person to secure electronic equipment under a monitoring warrant for up to 24 hours to provide the authorised person time to engage expert assistance to operate electronic equipment.  As an authorised person may not be accompanied by an expert assistant when exercising monitoring powers, clause 22 permits an authorised person to secure equipment for up to 24 hours (longer on application - see subclause 22(5) in order to engage assistance.

32.               An authorised person may only secure equipment if the authorised person has reasonable grounds to believe relevant data on the equipment may be destroyed or altered if the equipment is not secured.  Subclause 22(5) provides for an extension of time in these circumstances.

33.               Clause 22(6) ensures that occupiers of premises, or their apparent representatives, are informed of an authorised person’s intention to apply for an extension in the securing of equipment. This provides a means by which an occupier can challenge an application for extension if they so choose.

Clause 23:  Securing evidence of the contravention of a related provision

34.               The powers of an authorised person under a monitoring warrant do not extend to seizing evidence. Monitoring powers are available for the purpose of determining whether an Act or regulation is being complied with, whereas seizing evidence is a more coercive power and should be exercisable only where a issuing officer is satisfied that an authorised person has in fact located evidence of a breach of the Act or regulation.

35.               However, to ensure that evidence located during an inspection is not disposed of before an authorised person has the opportunity to authorise seizure, clause 23 grants an authorised person the power to secure any thing she or he reasonably believes provides evidence of a contravention of an Act or regulation for up to 24 hours. An issuing officer may extend the period beyond 24 hours (see subclause 23(2).

Clause 24:  Persons assisting authorised persons

36.               Authorised persons may require assistance when carrying out their functions and clause 24 establishes clear legislative basis for such assistance. A person assisting an authorised person has the power to enter premises and assist an authorised person with any duties or powers to determine whether the Act is complied with. Any action validly taken in respect of this power is taken under clause 24 to be done by the authorised person.

Subdivision B—Powers of authorised persons to ask questions and seek production of documents

Clause 25:  Authorised persons may ask questions and seek production of documents

37.               Clause 25 provides that when an authorised person enters premises with the consent of the occupier, an authorised person may ask the occupier to answer any questions or produce documents relating to the operation of the provision or the information.

38.               If entry is by way of a monitoring warrant, subclause 25(3) provides that an authorised person may require any person on the premises to answer any questions or produce documents relating to the operation of the provision or the information.

39.               Subclause 25(4) provides a defence of non-possession of the documents or the occupier having taken reasonable steps to locate the required documents without success.

40.               Subclause 25(5) clarifies that failure to comply with a requirement under subclause 25(3) carries a penalty of 30 penalty units. This clause is not intended as an abrogation of the privilege against self-incrimination. 

Division 3—Obligations and incidental powers of authorised persons

Clause 26:  Consent

41.               Entry into premises to exercise various powers under Part 2 Division 2 may be exercised with the consent of the occupier. Clause 26 sets out the parameters for valid consent, noting that consent must be informed and voluntary and that an occupier remains free to withdraw consent at any time or to consent to entry only during a certain time period.

42.               Clause 26(6) provides that, while it is preferable that an authorised person show their identity card before entering premises, an identity card must be presented to the occupier of the premises upon entry, or as soon as is reasonably practical, after entering the premises.

Clause 27:  Announcement before entry under warrant

43.               While certain powers to inspect public premises may be exercised without announcement or identification, clause 27 requires an authorised person to identify him or herself in most circumstances and announce the purpose of the visit before entering under a warrant if the occupier of the premises or that person’s apparent representative is present. This ensures that an occupier of premises who is present is made aware before an authorised person exercises monitoring or investigation powers under warrant.

Clause 28:  Authorised person to be in possession of warrant

44.               Clause 28 requires an authorised person to be in possession of the warrant or a copy of the warrant whilst executing a monitoring warrant.

Clause 29:  Details of the warrant etc. to be given to the occupier

45.               Clause 29 requires an authorised person to provide a copy of a warrant to the occupier of premises entered under warrant, or an occupier’s apparent representative, if either are present, and to inform the person of their rights and obligations in relation to a warrant. This obligation ensures that occupiers and representatives that are present when a warrant is executed are granted an opportunity to examine the warrant and are explicitly informed about their rights and obligations (see clauses 31 and 32 for rights and obligations).



Clause 30:  Compensation for damage to electronic equipment

46.               Clause 30 provides that a person is entitled to compensation for damage to electronic equipment operated during the course of an inspection. It recognises the fact that powers to operate electronic equipment do not excuse damage caused by a lack of care.

Division 4—Occupier’s rights and responsibilities

Clause 31:  Right to observe execution of warrant

47.               Clause 31 provides the right for occupiers of premises and their apparent representatives, who are present when a warrant is executed, to observe the execution of any warrant on their premises. This right does not limit how the warrant may be executed or require an occupier to witness all of an authorised person’s activities, but it does recognise that a person should not be excluded during the execution of a warrant unless they attempt to obstruct the inspection.

48.               Occupiers and representatives that are present when a warrant is executed must be made aware of their rights under clause 31.

Clause 32:  Responsibility to provide facilities and assistance

49.               Clause 32 imposes an obligation on occupiers of premises, and their apparent representatives, to provide reasonable facilities and assistance required to effectively carry out warrant powers. This obligation recognises that monitoring and investigation powers are authorised by issuing officers for the purpose of determining whether laws are being complied with and should not be obstructed. Failure to provide reasonable assistance and facilities when requested carries a penalty of 30 penalty units.

50.               Occupiers and representatives that are present when a warrant is executed must be made aware of their obligations under clause 31.

Division 5—Monitoring warrants

Clause 33:  Monitoring warrants

51.               An authorised applicant’s monitoring powers are exercisable with consent or under a monitoring warrant obtainable under clause 33.

52.               To ensure warrants are issued and exercised only in appropriate situations, clause 33 details the procedure by which an authorised applicant may obtain a warrant from an issuing officer. Subclause 33(4) also sets out the mandatory content of a monitoring warrant.



Division 6—Extension of periods in which things secured

Clause 34: Extension of periods in which things secured

53.               Clause 34 outlines the situations in which an issuing officer may grant an extension to the 24 hour period in which things can be secured by authorised persons. An extension of the period may, by order, be granted if further information is provided to the issuing officer demonstrating that an extension is necessary to avoid a thing being destroyed, altered, lost, concealed, altered or interfered with.

54.               Clause 34(4) outlines what must be included in an order extending the period in which a thing is secured. 

Division 7 - Powers of issuing officers

Clause 35:  Powers of issuing officers

55.               Clause 35 provides that the power to issue warrants or exercise other powers under the Ac is conferred on an issuing officer who exercises the power in their personal capacity and not as a representative of the court. However, issuing officers are granted immunities of the court and members of the court when exercising these powers. This recognises that issuing a warrant is an executive function and not an exercise of judicial power.

Division 8 - Identity cards

Clause 36:  Identity Cards

56.               Authorised persons are required to return identity cards when they cease their role as authorised persons. Clause 36 requires the relevant chief executive to issue all authorised persons with photo identity cards an identity card to an authorised person in the form provided under subclause 36(2).    The identity cards must be carried by authorised persons at all times they are acting in that official capacity (subclause 36(6)).

57.               Clause 36(3) requires authorised persons to return identity cards when they cease their role as authorised persons.  This obligation is supported by an offence of strict liability punishable by one penalty unit for authorised persons who fail to return identity cards within 14 days after ceasing that role unless the identity card is lost or destroyed.



Part 3—Investigation

Division 1—Outline and operation of this Part

Clause 37:  Simplified outline

58.               Clause 37 provides a simplified outline of Part 3 which creates a framework for gathering material relating to the contravention of offences and civil penalty provisions and addresses investigation and entry into premises.

59.               This clause also requires that a triggering Act or regulation must make an offence or civil penalty provision subject to investigation under this Part for this Part to operate.

Clause 38:  Purpose and operation of this Part

60.               Clause 38 outlines the purpose of this Part which is to create a framework for gathering material relating to the contravention of offences and civil penalty provisions.

61.               Subclause 38(2) requires that an offence or civil penalty provision must be made subject to investigation under this Part for this Part to operate.

Clause 39: Provisions subject to investigation 

62.               Clause 39 provides that an offence or civil penalty provision under a triggering Act or regulation is subject to investigation under this Part if the triggering Act or regulation provides so.

Clause 40: Evidential material 

63.               Clause 40 clarifies what constitutes evidential material. This removes doubt about the nature of evidential material that may be searched for or seized when authorised persons enter premises.     

Clause 41: Related provisions

64.               Clause 41 provides that, for the purposes of this Part, a provision is related to evidential material if a triggering Act or regulation provides so.

Clause 42:  Authorised applicant

65.               Clause 42 clarifies that a person is an authorised applicant for the purpose of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides so.

66.               Subclause 42(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is an authorised applicant for the purposes of this Part.

Clause 43:  Authorised person

67.               Clause 43 clarifies that a person is an authorised person for the purpose of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides that the person is an authorised person in relation to that provision.

68.               Subclause 43(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is an authorised person for the purposes of this Part.

Clause 44: Identity card

69.               An authorised person must be able to identify themselves at all times when carrying out powers under this Bill (clause 36).  Clause 44 provides that an identity card is one issued to an authorised person under clause 36 by the relevant chief executive in relation to that evidential material.

Clause 45: Issuing officer 

70.               Clause 45 clarifies that a person is an issuing officer for the purpose of exercising various powers under this Part if a triggering Act or regulation provides so.

71.               Subclause 45(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is an issuing officer for the purposes of this Part.

Clause 46:  Relevant chief executive

72.               Clause 46 clarifies that a person is the relevant chief executive for the purpose of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides so.

73.               Subclause 46(3) provides that an Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is the relevant chief executive for the purposes of this Part.

Clause 47: Relevant court

74.               Clause 47 provides that the relevant court is the court that is relevant in relation to matters arising under the exercise of these powers provided that a triggering Act or regulation provides so.

Clause 48: Matters provided for by legislative instrument 

75.               Clause 48 provides that, only if the power to do so is given under another Act, can a legislative instrument provide that a provision is enforceable under this Part or that a person is an authorised person, a relevant chief executive or issuing officer under this Part.

Division 2—Powers of authorised persons

Subdivision A—Investigation powers

Clause 49: Entering premises by consent or under a warrant

76.               Similarly to monitoring powers, an authorised person may enter premises to exercise investigation powers by consent or under a warrant. However, an authorised person may only enter premises to exercise investigation powers if the authorised person has reasonable grounds to suspect the premises contain evidence of a contravention of the triggering Act or legislative material (evidential material), even if the occupier of the premises consents to entry. An authorised person must identify herself or himself to the occupier of the premises before entering premises under warrant.

Clause 50: General investigation powers 

77.               If an authorised person enters premises by way of an occupier’s consent, clause 50 permits the authorised person to search the premises for the evidential material the authorised person suspects is on the premises.

78.               If an authorised person enters premises under an investigation warrant, investigation powers extend to seizing evidential material; inspecting, testing and copying evidential material; and the power to take equipment necessary to exercise investigation powers onto the premises, or operate electronic equipment found of the premises. It is appropriate to limit the extended range of investigation powers to cases where a warrant is issued to ensure the judiciary maintains oversight of these investigation powers.

Clause 51: Operating electronic equipment

79.               To ensure an authorised person is able to obtain access to electronic records that may contain evidential material, clause 51 empowers an authorised person to operate any electronic equipment on premises that the authorised person suspects contains evidential material, including computers and other electronic storage devices. These powers are available whether the authorised person enters under consent or an investigation warrant.

80.               In addition to the power to operate electronic equipment, clause 51 grants an authorised person the power to put the evidential material in documentary form (i.e. print the material) and to make electronic copies of the evidential material, and the power to remove the documents or copies from the premises. These powers are available whether the authorised person enters under consent or an investigation warrant. If an authorised person enters the premises under a warrant, he or she may also seize electronic equipment and storage devices that are found to contain evidential material, but only if it is not practical to make electronic copies or put the evidence in documentary or if possessing the electronic equipment or storage device would constitute an offence by the occupier of premises.

81.               Electronic equipment and storage devices may only be operated if the authorised person reasonably believes this can be done without damaging the equipment or device.

Clause 52: Securing electronic equipment to obtain expert assistance

82.               Clause 52 permits an authorised person to secure electronic equipment for up to 24 hours to provide the authorised person time to engage expert assistance to operate electronic equipment.

83.               Clause 52 supports an authorised person’s powers to operate electronic equipment by permitting an authorised person to secure electronic equipment in order to engage expert assistance to operate the electronic equipment - where she or he believes that expert assistance is required.  As an authorised person may not be accompanied by an expert assistant when exercising monitoring powers, clause 52 permits an authorised person to secure equipment for up to 24 hours (longer on application - see subclause 52(5) in order to engage assistance.

84.               An authorised person may only secure equipment if the authorised person has reasonable grounds to believe relevant data on the equipment may be destroyed or altered if the equipment is not secured. Subclause 52(5) provides for an extension of time in these circumstances.

85.               Clause 52(6) ensures that occupiers of premises, or their apparent representatives, are informed of an authorised person’s intention to apply for an extension in the securing of equipment. This provides a means by which an occupier can challenge an application for extension if they so choose.

Clause 53: Seizing evidence of related provisions

86.                Investigation warrants must specify the evidential material the authorised person reasonably suspects is located on premises. This is appropriate to ensure seizure powers are used in a targeted and considered manner.

87.               However, clause 53 permits an authorised person to seize evidential material, when entering premises under an investigation warrant, of a kind not specified in the warrant if it is found during a search and it provides evidence of a contravention of the triggering Act or legislative instrument. This is to ensure that the appropriate requirement to target search and seizure warrants does not unduly prevent the gathering of evidence of related offences that were not anticipated when the warrant was issued. Warrants should only be available where there are reasonable grounds to suspect an offence has been or will be committed but this requirement does not exclude evidence of other offences that is discovered during a search.

Clause 54: Persons assisting authorised persons

88.               Clause 54 provides that an authorised person can exercise investigation powers with an assistant.

89.               Subclause 54(5) states that a direction under paragraph 54(2)(c) is not a legislative instrument. This is to assist readers to understand the status of directions under paragraph 54(2)(c), which do not meet the meaning of legislative instrument under section 5 of the Legislative Instruments Act 2003 , and is not intended as an exemption from that Act.

Subdivision B—Powers to ask questions and seek production of documents

Clause 55:  Asking questions and seeking production of documents

90.               Clause 55 provides an authorised person with powers, additional to those previously described as monitoring or investigation powers, to request information or documents relevant to the authorised person’s entry to the premises to search for evidential material.

91.               An authorised person who enters premises with the consent of the occupier is entitled to request information or documents from the occupier, although there is no obligation for the occupier to grant the request.

92.               An authorised person who enters premises under a warrant may require any person on the premises to provide information or documents. Failure to comply with a requirement to provide information or documents without reasonable excuse (e.g. requested information or documents are not in the person‘s possession, or would tend to incriminate the person) is an offence that carries a penalty of 30 penalty units. Clause 55 does not impinge on the privilege against self-incrimination and a person is not required to answer questions or produce documents if the material would tend to incriminate them.

Division 3—Obligations and incidental powers of authorised persons

Clause 56:  Consent

93.               Entry into premises to exercise investigation powers may be exercised with the consent of the occupier. Clause 56 sets out the parameters for valid consent, noting that consent must be informed and voluntary and that an occupier remains free to withdraw consent at any time or to consent to entry only during a certain time period.

Clause 57:  Announcement before entry under warrant

94.               While certain powers to inspect public premises may be exercised without announcement or identification, clause 57 requires an authorised person to identify him or herself in most circumstances and announce the purpose of the visit before entering under a warrant if the occupier of the premises or that person’s apparent representative is present. This ensures that an occupier of premises who is present is made aware before an authorised person exercises investigation powers under warrant.

95.               In some situations, the requirement to identify and announce the purpose of the visit could result in serious detriment. Clause 57 therefore permits an authorised person to enter without identifying himself or herself or announcing their purpose in specific circumstances where immediate entry is necessary to ensure human safety or effective execution of the warrant. This allows flexibility in serious situations but does not undermine the importance of identification and the authorised person still is obliged to provide identification as soon as practicable after entry, if an occupier or their representative is present.

Clause 58: Authorised person to be in possession of warrant

96.               Clause 58 requires an authorised person to possess the warrant issued by the issuing officer, or the form of the warrant completed by the authorised person, permitting entry to premises. An authorised person who does not possess a warrant or copy of the warrant is not permitted to enter premises as authorised by the warrant, and is not permitted to exercise warrant powers.

Clause 59: Details of warrant etc. to be given to occupier 

97.               Clause 59 requires an authorised person to provide a copy of a warrant to the occupier of premises entered under warrant, or an occupier’s apparent representative, if either is present, and to inform the person about their rights and obligations in relation to a warrant. This obligation ensures that occupiers and representatives that are present when a warrant is executed are granted an opportunity to examine the warrant and are explicitly informed about their rights and obligations.

Clause 60  Completing execution after temporary cessation

98.               An investigation warrant usually will cease to have effect if the authorised person and all persons assisting the execution of the warrant cease the execution and leave the premises. This ensures that a search is conducted in a timely fashion and that a warrant does not authorise an authorised person to search a premises on multiple occasions from time to time.

99.               However, some flexibility is required to ensure that an authorised person can leave the premises if required, for example to fetch necessary equipment or avoid a dangerous situation. Clause 60 therefore provides that an investigation warrant, which is still in force according to the terms of the warrant, does not cease to have effect if the authorised person and all persons assisting are absent from the premises for:

a.        one hour or less in any situation other than an emergency

b.       for twelve hours in an emergency situation

c.        for longer than 12 hours where the occupier consents in writing; or

d.       where an issuing officer considers there are exceptional circumstances that justify authorising a longer period than 12 hours (e.g. the emergency preventing the execution of the warrant continues for more than 12 hours).



Clause 61:  Completing execution of warrant stopped by court order

100.           Clause 61 provides that a warrant that is stopped by court order and if later revoked or reversed may be executed without a new warrant needing to be issued if still in force,.

Clause 62: Compensation for damage to electronic equipment 

101.           Clause 62 clarifies that a person is entitled to compensation for damage to electronic equipment operated during the course of an inspection. It recognises the fact that powers to operate electronic equipment under Division 3 do not excuse damage caused by a lack of care.

Division 4—Occupier’s rights and responsibilities

Clause 63:  Right to observe execution of warrant

102.           Clause 63 clarifies the right for occupiers of premises and their apparent representatives, who are present when a warrant is executed, to observe the execution of any warrant on their premises. This right does not limit how the warrant may be executed or require an occupier to witness all of an authorised person’s activities, but does recognise that a person should not be excluded during the execution of a warrant unless they attempt to obstruct the inspection.

103.           Occupiers and representatives that are present when a warrant is executed must be made aware of their rights under clause 59.

Clause 64: Responsibility to provide facilities and assistance

104.           Clause 64 imposes an obligation on occupiers of premises, and their apparent representatives, to provide reasonable facilities and assistance required to effectively carry out warrant powers. This obligation recognises that investigation powers are authorised by issuing officers for the purpose of determining whether laws are being complied with and should not be obstructed. Failure to provide reasonable assistance and facilities when requested carries a penalty of 30 penalty units.

105.           Occupiers and representatives that are present when a warrant is executed must be made aware of their obligations under clause 59).

Division 5—General provisions relating to seizure

Clause 65: Copies of seized things to be provided

106.           If an authorised person seizes a storage device, document or other thing that can be readily copied while exercising investigation powers, clause 65 permits the occupier of premises, or a person who represents the occupier, to request a copy of the seized thing. Clause 65 ensures that a person can, for example, retain a copy of seized material for their own records or use.

Clause 66:  Receipts for seized things

107.           To ensure a record of seizure is maintained and available to the person from whom material is seized, clause 66 requires an authorised person to give a receipt for any thing that is seized when exercising investigation powers.

Clause 67: Return of seized things

108.           The Bill authorises seizure of material only for specific reasons and does not permit material to be retained indefinitely. Clause 67 therefore requires the relevant chief executive to take reasonable steps to return to the owner, or the person from whom it was seized, any thing seized under the Bill. The relevant chief executive must act on this obligation within 60 days, or before 60 days if the seized thing is not required for evidence or the reason the thing was seized is no longer relevant.

109.           The obligation to return seized material may at times conflict with other priorities, so clause 67 clarifies that the requirement to return seized material does not apply in certain circumstances including where a court has ruled to the contrary, where seized material is subject to forfeiture or a dispute over ownership, or where the material is being used as evidence in unfinished legal proceedings.

Clause 68: Issuing officer may permit a thing to be retained

110.           To ensure the sixty-day limit for retaining seized material does not prejudice ongoing investigations or legal proceedings, clause 68 permits an issuing officer to issue an order extending the period a thing may be retained, up to a maximum period of three years. Clause 68 requires the relevant chief executive to make reasonable attempts to identify all persons with an interest in the items that may be retained, and notify them of the application wherever practicable, to ensure that persons with an interest in seized material have an opportunity to respond to the proposal to retain the item(s) for more than 60 days.

Clause 69:  Disposal of things

111.           If the relevant chief executive is unable to return seized material as required by clause 67 because return is refused or the person to whom the item should be returned cannot be located, clause 69 permits the relevant chief executive to dispose of the seized material.

Clause 70: Compensation for acquisition of property

112.           To ensure constitutional validity of acquisition powers, and to protect people against unjust acquisitions under this Part, clause 70 requires the Commonwealth to pay reasonable compensation if the operation of the Part would result in an acquisition of property otherwise than on just terms. Where the Commonwealth and a person disagree over the amount of the compensation, the person may take the matter to the Federal Court, or another court of competent jurisdiction, to determine reasonable compensation.

Division 6—Investigation warrants

Clause 71: Investigation warrants

113.           While monitoring powers under Part 1 are available to determine whether the Bill is being complied with, investigation powers are available where an authorised person has reasonable grounds to suspect that premises contain evidence of contravention of the Bill. Clause 71 sets out the procedure for obtaining an investigation warrant and the mandatory content of such warrants.

Clause 72:  Investigation warrants by telephone, fax etc.

114.           In some circumstances an authorised person may urgently require an investigation warrant, for example, where the authorised person has secured material for 24 hours under this Bill or where the time taken to obtain a warrant may result in evidential material being altered or disposed of. Clause 72 therefore sets out the procedures by which an investigation warrant may be obtained from an issuing officer by means of electronic communication and a number of controls to ensure this form of warrant is valid and not misused.

Clause 73: Authority of warrant

115.           The copy of a warrant made in accordance with clause 71 is not physically the warrant made by an issuing officer. Clause 73 ensures that the form of warrant completed by an authorised person has the same authority as a warrant completed by the issuing officer (if all legal requirements are complied with). This is to prevent any argument over the validity of a form of warrant completed and presented by an authorised person. Also to prevent arguments over validity, clause 73 directs a court to assume that a warrant completed by an authorised person is not authorised if the counterpart warrant signed by the issuing officer cannot be produced in legal proceedings.

Clause 74: Offence relating to warrants by telephone, fax etc.

116.           To discourage and punish any misuse of warrants obtained by electronic communication, clause 74 establishes an offence punishable by two years’ imprisonment for a range of conduct by an authorised applicant in respect of investigation warrants.

Division 7—Extension of periods in which things secured

Clause 75: Extension of periods in which things secured

117.           Clause 75 provides the situations in which an issuing officer may grant an extension to the 24 hour period in which a thing can be secured by authorised persons. An extension of the period may be ordered if further information is provided to the issuing officer demonstrating that the extension is necessary to prevent evidential material being destroyed, altered or interfered with.

118.           Clause 75(4) outlines what must be included in an order for extending the period in which a thing is secured. 

Division 8 - Powers of issuing officers

Clause 76: Powers of issuing officers

119.           Clause 76 provides that the officers empowered to issue warrants or exercise other powers under the Bill, defined as ‘issuing officers’ in clause 4, act in their personal capacity and do not represent the court when deciding applications under the Bill. Issuing officers are granted the protection and immunities of the court and members of the court when exercising these powers. This recognises that issuing a warrant is an executive function and not an exercise of judicial power.

Division 9 - Identity Cards

Clause 77: Identity Cards

120.           Authorised persons are required to return identity cards when they cease their role as authorised persons. Clause 77 requires the relevant chief executive to issue all authorised persons with photo identity cards an identity card to an authorised person in the form provided under subclause 77(2).    The identity cards must be carried by authorised persons at all times they are acting in that official capacity (subclause 77(6)).

121.           Clause 77(3) requires authorised persons to return identity cards when they cease their role as authorised persons.  This obligation is supported by an offence of strict liability punishable by one penalty unit for authorised persons who fail to return identity cards within 14 days after ceasing that role unless the identity card is lost or destroyed.

Part 4—Civil Penalty Provisions

Division 1—Outline and operation of this Part

Clause 78:  Simplified outline

122.           Clause 78 provides that Part 4 defines civil penalty provision, some rules of general application in relation to civil penalty provision and a framework for their use in enforcing civil penalty provisions. Civil penalty orders may be sought from a court in relation to contraventions of civil penalty provisions.

123.           Part 4 provides that a triggering Act or regulation must make this Part enforceable in order for the Part to operate.



Clause 79:  Purpose and operation of this Part

124.           Clause 79 provides a simplified outline of Part 8 of the Bill, which governs enforcement of the Bill by way of civil and criminal proceedings, infringement notices, publicising contraventions, enforceable undertakings, and injunctions.­

125.           Subclause 79(2) clarifies that a civil penalty provision must be made enforceable under this Part for this Part to operate.

Clause 80:  Civil penalty provisions

126.           Clause 80 describes which clauses of a triggering Act or regulation are civil penalty provisions. These are enforceable by civil penalty orders and certain other remedies under the Act.

Clause 81:  Enforceable civil penalty provisions

127.           Clause 81 provides the basis for enforcing civil penalty provisions under this Part if a triggering Act or regulation provides so.

Clause 82: Authorised applicant

128.           Clause 82 provides that a person is an authorised applicant for the purpose of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides so.

129.           Subclause 82(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is an authorised applicant for the purposes of this Part.

Clause 83: Relevant court

130.           Clause 83 clarifies that a court is a relevant court for the purposes of exercising powers under this Part only if a triggering Act or a regulation provides so.

Clause 84:  Matters to be provided by legislative instrument

131.           Clause 84 outlines that a legislative instrument may provide that a civil penalty provision is enforceable under this Part or that a person is an authorised applicant or a relevant chief executive under this Part only if the power to do so is given under another Act.

Division 2—Obtaining a civil penalty order

Clause 85: Civil penalty orders

132.           Clause 85 provides for a n authorised applicant to apply for a civil penalty order to remedy an alleged breach in a triggering Act or regulation’s civil penalty provisions, and sets out the procedures for the authorised applicant applying for, and the court issuing, civil penalty orders.

Clause 86: Civil enforcement of penalty

133.           Clause 86 provides that a civil penalty order is a debt owed to the Commonwealth, enforceable through civil debt proceedings and can be a judgment debt. Where a person fails to pay the amount specified in the order, the agency may commence legal proceedings against the person named in the order to recover the amount owed.

Clause 87: Conduct contravening more than one civil penalty provisions

134.           Clause 87 clarifies that a person’s conduct may contravene more than one provision under the triggering Act or regulation. An authorised applicant may institute proceedings relating to any or all provisions allegedly contravened by a person‘s conduct, although a person may only be held liable for one pecuniary penalty for the same conduct.

Clause 88:  Multiple contraventions

135.           Clause 88 clarifies that a relevant court may issue a single penalty for multiple contraventions of the civil penalty provisions of the Bill and is not required to issue separate penalty instruments. This provision is intended to minimise court administration and consolidate legal proceedings.

136.           Clause 88 provides that a relevant court will be specified in the triggering Act or regulation.

Clause 89:  Proceedings may be heard together

137.           Clause 89 clarifies that a court may hear two or more proceedings for civil penalty orders simultaneously. This will streamline the process for civil proceedings, remove the need for a person to be subject to multiple proceedings, and thereby reduce legal costs for the person and the Commonwealth.

Clause 90:  Civil evidence and procedure rules for civil penalty orders 

138.           Clause 90 clarifies that civil rules of evidence and procedure apply when hearing proceedings for civil penalty orders. This clause ensures that criminal rules of evidence and procedure are not applied during proceedings for civil penalty orders.

Division 3—Civil proceedings and criminal proceedings

Clause 91: Civil proceedings after criminal proceedings

139.           Clause 91 provides that a court cannot issue a civil penalty order against a person who has previously been convicted of a criminal offence for the same conduct.

Clause 92: Criminal proceedings during civil proceedings

140.           Clause 92 stays civil proceedings if criminal proceedings exist and relate to the same conduct, to prevent any information that arises during criminal proceedings prejudicing civil proceedings. If the criminal proceedings result in a conviction, clause 92 will ensure that civil proceedings related to the same conduct are dismissed and costs for the civil proceedings are not awarded.

Clause 93: Criminal proceedings after civil proceedings

141.           Clause 93 clarifies that criminal proceedings may commence after civil proceedings, even in the event the civil proceedings result in a civil penalty order. This recognises the importance of criminal proceedings and criminal penalties in dissuading and sanctioning contraventions of the triggering Act or regulation and ensures that criminal remedies are not precluded by earlier civil action.

Clause 94:  Evidence given in civil proceedings not admissible in criminal proceedings

142.           Clause 94 provides that evidence given by an individual during proceedings for a civil penalty order cannot be used in any criminal proceedings, against the same individual relating to the same conduct. This ensures that information or documents produced during civil proceedings are not relied upon to support subsequent criminal proceedings, unless they are criminal proceedings relating to falsifying evidence in civil proceedings. While it is appropriate to allow criminal proceedings after civil proceedings have ended, given the overriding importance of the criminal justice system, criminal proceedings not related to falsifying evidence must rely upon evidence gathered during independent investigations, not evidence from prior civil proceedings.

Division 4—Miscellaneous

Clause 95: Ancillary contravention of civil penalty provisions

143.           Clause 95 supports the enforcement regime by ensuring that conduct ancillary to the contravention of a civil penalty provision is considered to be contravention of the provision itself. Ancillary conduct includes any attempt to contravene a provision that does not succeed, aiding or inducing a contravention of a civil penalty provision, and any conspiracy to contravene a civil penalty provision.

Clause 96: Continuing contraventions of civil penalty provisions

144.           Clause 97 clarifies that certain actions are considered to be repeated contraventions of the Bill. The clause ensures that a civil obligation under the Bill to do something by a certain deadline continues until it is done, and is not discharged by failing to meet the deadline. The clause also provides that a separate contravention of the civil penalty provisions is incurred for every day the obligation is not met. This is necessary to ensure that failure to comply with obligations under the Bill does not excuse a person from meeting those obligations.



Clause 97:  State of mind

145.           Clause 97 provides that it is not necessary to prove a person's intention, knowledge or other fault elements in civil penalty proceedings under this Bill. This principle applies only to proceedings for contravention of civil penalty provisions, not for ancillary contravention of civil penalty provisions.

Clause 98: Mistake of fact

146.           Clause 98 provides that a person cannot be held liable for a civil penalty order if their actions arose from a legitimate mistake of fact. This clause is significant because of clause 97 stating that, in these types of proceedings, it is unnecessary to prove intention, knowledge or other fault elements.  This has an effect on civil proceedings similar to the effect strict liability has on criminal proceedings. To ensure that clause 97 does not result in liability for simple errors of fact, clause 93 provides a ‘defence’ to civil penalty proceedings on the grounds that a person‘s conduct was the result of a considered but reasonable error of fact.

147.           The person who asserts that a particular course of action resulted from a mistake of fact has the burden of proving the matter.

Clause 99: Exceptions etc. to civil penalty provisions - burden of proof

148.           Clause 99 provides if a person wishes to rely on a defence, that person bears the evidential burden of proving the defence.

Clause 100: Civil penalty provisions contravened by employees, agents or officers

149.           Clause 100 provides that a body corporate is responsible for the actions of an employee, agent or officer of a body corporate, acting in the legitimate scope of their employment.

Part 5—Infringement notices

Division 1—Outline and operation of this Part

150.           An infringement notice is a notice of a pecuniary penalty imposed on a person by statute setting out particulars of an alleged offence. It gives the person to whom the notice is issued the option of either paying the penalty set out in the notice to expiate the offence or electing to have the matter dealt with by a court. The notice also specifies the time and method for payment and the consequences if the person to whom the notice is issued fails to respond to the notice either by making payment or electing to contest the alleged offence.

151.           Infringement notices are administrative methods for dealing with certain breaches of the law and are typically used for low-level offences and where a high volume of uncontested contraventions is likely. Offences subject to infringement notices are generally of strict or absolute liability and with a clear physical element. Infringement notices are often used as a low cost and efficient means by which regulators can deal with minor offences and for wrongdoers to discharge their obligation without appearing before a court.

Clause 101:  Simplified outline

152.           Clause 101 provides a framework for the use of infringement notices in the enforcement of provisions. Infringement notices can be issued in relation to a breach of an offence provision or a civil penalty provision and a person who is given an infringement notice can choose to pay a specified amount. If the person chooses otherwise, proceedings can be brought against the person in relation to the contravention.

153.           Part 5 provides that a triggering Act or regulation must make this Part enforceable in order for the Part to operate.

Clause 102:  Purpose and operation of this Part

154.           Clause 102 outlines the purpose of this Part which is to create a framework for the use of infringement notices.

155.           Subclause 102(2) provides that a triggering Act or regulation must be made enforceable under this Part for this Part to operate.

Clause 103:  Enforceable provisions

156.           Clause 103 provides the basis for enforcing offence provisions and civil penalty provisions with infringement notices if a triggering Act or regulation provides so.

Clause 104:  Infringement officer

157.           Clause 104 provides that a person is an infringement officer for the purpose of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides that the person is an infringement officer in relation to that provision.

158.           Subclause 104(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another authorised person to specify that an officer or specific class, is an infringement officer for the purposes of this Part.

159.           The Drafting Direction provides that an authorised person means an APS employee or an officer of a State or Territory.

Clause 105: Relevant chief executive

160.           Clause 105 provides that a person is the relevant chief executive for the purpose of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides so.

161.           Subclause 105(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is the relevant chief executive for the purposes of this Part.

Clause 106: Matters provided for by legislative instrument

162.           Clause 106 provides that, only if the power to do so is given under another Act, can a legislative instrument provide that a provision is enforceable under this Part or that a person is an authorised person or a relevant chief executive under this Part.

Division 2—Infringement notices

Clause 107:  When an infringement notice may be given

163.           Subclause 107(1) empowers an infringement officer to issue an infringement notice where the infringement officer has reasonable grounds to believe a person has contravened a civil penalty provision under the Bill. Infringement notices provide a simpler and faster remedy to suspected contravention of the Bill than formal civil or criminal proceedings.

164.           An infringement notice must be issued within 12 months of an alleged contravention being committed. An infringement issued later than this is invalid and cannot be enforced.

165.           To ensure the reasons for each notice are clear, a separate infringement notice must be issued for each alleged contravention of the Bill, unless the contravention relates to an action that should have been completed before a particular time and the ongoing failure to complete the action constitutes multiple contraventions (see subsection 4K(2) of the Crimes Act 1914 for continuing offices and clause 96 of this Bill for continuing contraventions of civil penalty provisions).

166.           Subclause 107(5) clarifies that an infringement notice must relate as an offence provision where it can constitute both a civil penalty provision and an offence provision.

Clause 108:  Matters to be included in an infringement notice

167.           Clause 108 specifies a range of matters that must be included in each infringement notice. This includes a statement that if the infringement notice is paid within 28 days of it being issued, this does not constitute an admission of guilt but does preclude any further liability or proceedings related to the alleged contravention (unless the notice is subsequently withdrawn).

168.           Subclause 108(2) limits the amount payable under an infringement notice to one-fifth of the penalty that a court could impose in relation to the alleged contravention. This ensures that infringement notices, which do not reflect a court sanction or constitute an admission of guilt, remain a lesser remedy to alleged contraventions of the Bill.



Clause 109:  Extension of time to pay amount

169.           To ensure that person who wishes to pay an infringement notice is not prevented from doing so by financial hardship or other difficulties, clause 109 allows a person who has received an infringement notice to apply to the relevant chief executive for an extension of time to pay the infringement notice.

Clause 110:  Withdrawal of an infringement notice

170.           A person who receives an infringement notice may elect to challenge the notice rather than pay it. Clause 110 therefore sets out processes for withdrawing infringement notices and provides guidance as to what information the relevant chief executive must and may take into account in considering whether to withdraw an infringement notice.

171.           A person may apply for a notice to be withdrawn even if they have already paid the amount specified in the infringement notice. If the notice is withdrawn the amount paid must be refunded.

Clause 111: Effect of payment of amount

172.           Clause 111 ensures that paying an infringement notice discharges all liability for the alleged contravention, without constituting an admission of fault. This is appropriate for an administrative remedy that may be discharged without legal advice or adjudication by the courts. However, payment does not discharge liability if the notice is subsequently withdrawn and the amount refunded. In this sense, withdrawing a notice acts as if the notice was never issued.

Clause 112: Effect of this part

173.           Clause 112 clarifies that Division 2, Part 5 of the Bill, dealing with infringement notices, does not make infringement notices a mandatory response to a suspected contravention - they remain a discretionary remedy. Division 2 Part 5 also does not limit the option to take enforcement action in other ways, limit liability in any way unless an infringement notice is paid, and does not limit a court’s ability to determine the amount of a penalty if a person is found to have contravened a civil penalty provision enforceable under Division 2 (except when an infringement has been paid).

Part 6—Enforceable Undertakings

Division 1—Outline and operation of this Part

Clause 113:  Simplified outline

174.         Clause 113 permits offence provisions and civil penalty provisions to be enforced by way of undertakings under Division 4, Part 8 of the Bill.  This contrasts with infringement notices, which only may be used to enforce civil penalty provisions.

175.           Part 6 provides that a triggering Act or regulation must make this Part enforceable in order for the Part to operate.

Clause 114:  Purpose and operation of this Part

176.           Clause 114 outlines the purpose of this Part which is to create a framework for the acceptance and enforcement of undertakings.

177.           Subclause 114(2) provides that a triggering Act or regulation must be made enforceable under this Part for this Part to operate.

Clause 115: Enforceable provisions 

178.           Clause 115 provides the basis for enforcing a provision with undertakings if a triggering Act or regulation provides that the provision is enforceable.

Clause 116: Authorised person

179.           Clause 116 clarifies that a person is an authorised person for the purpose of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides so.

180.           Subclause 116(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is an authorised person for the purposes of this Part.

Clause 117: Relevant court

181.           Clause 117 clarifies that a court is a relevant court for the purposes of exercising powers under this Part if a triggering Act or a regulation provides so.

Clause 118: Matters provided for by legislative instrument

182.           Clause 118 provides that, only if the power to do so is given under another Act, can a legislative instrument provide that a provision is enforceable under this Part or that a person is an authorised person or a relevant chief executive under this Part.

Division 2—Accepting and enforcing undertakings

Clause 119:  Acceptance of undertakings

183.           Clause 119 enables an authorised person to accept written undertakings committing a person to particular action (or inaction) in order to prevent or respond to a breach of an enforceable provision. Undertakings are enforceable in their own right (see clause 115) and they may be entered into instead of, or in addition to, the authorised person taking other disciplinary action.

184.           Undertakings provide a remedy other than financial sanctions to past or prospective breaches of the Bill.

185.           Under clause 119(3), the person giving the undertaking may vary or withdraw it at any time, if the authorised person gives written consent to the variation or withdrawal. The authorised person’s consent to vary or withdraw an undertaking may be cancelled by the authorised person at any time, with written notice to the person.

186.           Subclause 119(4) states that consent given under clause 119 is not a legislative instrument. This is to assist readers to understand the status of consent given under clause 119; it does not meet the meaning of legislative instrument under section 5 of the Legislative Instruments Act 2003 , and is not intended as an exemption from that Act.

Clause 120:  Enforcement of undertakings

187.           Clause 120 enables the authorised person to apply to have undertakings given under clause 119 enforced in courts. Clause 120 also lists the orders a court can impose to remedy a breach of an undertaking, including orders to comply with the undertaking, to pay a pecuniary penalty to the Commonwealth, to compensate other people, or any other order the court sees fit.

Part 7—Injunctions

Division 1—Outline and operation of this Part

Clause 121:  Simplified outline

188.           Clause 121 provides that both offence provisions and civil penalty provisions in Parts 3 and 5 of the Bill are enforceable by way of injunctions.

189.           Part 7 provides that a triggering Act or regulation must make this Part enforceable in order for the Part to operate.

Clause 122:  Purpose and operation of this Part

190.           Clause 122 provides that the purpose of this Part is to create a framework for the use of injunctions.

191.           Subclause 122(2) clarifies that a triggering Act or regulation must be made enforceable under this Part for this Part to operate.

Clause 123: Enforceable provisions

192.           Clause 123 provides the basis for enforcing a provision with injunctions if a triggering Act or regulation provides that the provision is enforceable.



Clause 124:  Authorised person

193.           Clause 124 explains that a person is an authorised person for the purpose of exercising various powers, performing incidental functions or duties under this Part if a triggering Act or regulation provides so.

194.           Subclause 124(3) provides that a triggering Act or regulation may nominate a specified class, or provide authority to another person to specify that a person or specific class, is an authorised person for the purposes of this Part.

Clause 125:  Relevant court

195.           Clause 125 provides that a court is a relevant court for the purposes of exercising powers under this Part if a triggering Act or a regulation provides so.

Clause 126:  Matters provided for by legislative instrument

196.           Clause 126 provides that, only if the power to do so is given under another Act, can a legislative instrument provide that a provision is enforceable under this Part or that a person is an authorised person or a relevant chief executive under this Part.

Division 2—Injunctions

Clause 127:  Grant of injunctions

197.           Clause 127 empowers the court to grant injunctions on application by an authorised person. A court can issue injunctions to prevent a person engaging in particular conduct and injunctions to compel a person to engage in particular conduct if the court is satisfied an injunction is necessary or desirable to respond to, or prevent, a contravention of an enforceable provision.

Clause 128:  Interim injunctions

198.           In some cases, an interim injunction may be required to prevent or require certain action while injunction proceedings are carried out. Clause 128 therefore enables the court to grant an interim injunction while it is considering an application for an injunction under Clause 127. A court cannot require the applicant to give an undertaking as to damages as a condition of the interim injunction and refusing to give an undertaking in respect of damages is not grounds for refusing to grant an interim injunction.

Clause 129: Discharging or varying injunctions

199.           Clause 129 provides that injunctions can be varied or discharged by a relevant court.

Clause 130: Certain limits on granting injunctions not to apply

200.           Clause 130 provides that a court can issue an injunction to prevent conduct or require a person to engage in specified conduct whether or not the specific conduct is occurring, has occurred in the past, or is likely to give rise to damages. This ensures a court can prevent or require conduct to uphold the purposes of the Bill without having to wait for countervailing conduct to occur.

Clause 131: Other powers of a relevant court unaffected

201.           Clause 131 clarifies that injunction powers under Division 2 Part 7 of the Bill are additional to, not in replacement of, any other powers of the court.

Part 8—General provisions

Clause 132:  Regulations

202.           Clause 132 provides a general regulation making power that will permit the Governor-General to make regulations required or permitted by the Bill, or necessary or convenient to give effect to the Bill.