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Regulatory Powers (Standard Provisions) Bill 2013

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2010-2011-2012-2013

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

REGULATORY POWERS (STANDARD PROVISIONS) BILL 2012

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the

 

Attorney-General, the Hon Mark Dreyfus QC MP)

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF RECOMMENDATIONS MADE BY THE SENATE LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE

REPORT TABLED ON 18 MARCH 2013



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 proposed government amendment will ensure that the Bill’s provisions can only be triggered by an Act or amending Act and not by regulation or instrument.

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.



 

NOTES ON CLAUSES

Part 1—Preliminary

Clause 3:  Simplified outline

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

2.                   Amendment (1) will omit the words “by a regulation” at lines 16 and 17 and the words “The power to make a regulation triggering this Act must be found in another Act” at lines 18 and 19 of Clause 3.  The proposed amendment will ensure that the Bill’s provisions will only be triggered by an Act of Parliament.

 

Part 2—Monitoring

Division 1—Outline and operation of this Part

Clause 7:  Simplified outline

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

4.                   Amendments (3) and ((4) omit the words “or a regulation” at lines 13 and 21 so that only a triggering Act can make a provision or information subject to monitoring under this Part. 

Clause 9:  Provisions subject to monitoring

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

6.                   Amendment (5) omits the words “or a regulation” at line 21.

Clause 10:  Information subject to monitoring

7.                   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 provides so.

8.                   Amendment (6) omits the words “or a regulation” at line 26.

 

Clause 11:  Related provisions

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

10.               Amendments (7) and (8) omit the words “or a regulation” at lines 3 and 6.

Clause 12:  Authorised applicant

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

12.               Subclause 12(3) provides that a triggering Act 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.

13.               Amendments (9) and (10) omit the words “or a regulation” at lines 14 and 23.

Clause 13:  Authorised person

14.               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 provides that the person is an authorised person in relation to that provision.

15.               Subclause 13(3) provides that a triggering Act 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.

16.               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 .

17.               Amendments (11) and (12) omit the words “or a regulation” at lines 7 and 16.

Clause 15:  Issuing officer

18.               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 provides that the judicial officer is an issuing officer in relation to that provision.

19.               Subclause 15(3) provides that an Act 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.

20.               Amendments (13) and (14) omit the words “or a regulation” at lines 4 and 11.

Clause 16: Relevant chief executive

21.                    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 provides so.

22.               Subclause 16(3) provides that an Act 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.

23.               Amendments (15) and (16) omit the words “or a regulation” at lines 25 and 1.

Clause 17: Relevant court

24.                   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 provides so.

25.               Amendment (17) omits the words “or a regulation” at line 23.

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.

27.               Amendment (18) omits the words “or a regulation” at lines 26 to 29.

Division 2—Powers of authorised persons

Subdivision A—Monitoring powers

Clause 24:  Persons assisting authorised persons

28.               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.

29.               Amendment (19) omits the words “or a regulation” at line 22.



 

Part 3—Investigation

Division 1—Outline and operation of this Part

Clause 37:  Simplified outline

30.               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.

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

32.               Amendments (20) and (21) omit the words “or a regulation” at lines 9 and 19.

Clause 39: Provisions subject to investigation 

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

34.               Amendments (22) and (23) omit the words “or a regulation” at lines 12 and 15.

Clause 41: Related provisions

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

36.               Amendment (24) omits the words “or a regulation” at lines 2 and3.

Clause 42:  Authorised applicant

37.               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 provides so.

38.               Subclause 42(3) provides that a triggering Act 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.

39.               Amendments (25) and (26) omit the words “or a regulation” at lines 7, 8 and 16.

Clause 43:  Authorised person

40.               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 provides that the person is an authorised person in relation to that provision.

41.               Subclause 43(3) provides that a triggering Act 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.

42.               Amendments (27) and (28) omit the words “or a regulation” at lines 28, 29 and 7.

Clause 45: Issuing officer 

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

44.               Subclause 45(3) provides that a triggering Act 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.

45.               Amendments (29) and (30) omit the words “or a regulation” at lines 24 and 31.

Clause 46:  Relevant chief executive

46.               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 provides so.

47.               Subclause 46(3) provides that an Act 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.

48.               Amendments (31) and (32) omit the words “or a regulation” at lines 11 and 20.

Clause 47: Relevant court

49.               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 provides so.

50.               Amendment (33) omits the words “or a regulation” at line 6.

Clause 48: Matters provided for by legislative instrument 

51.               Clause 48 provided 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.

52.               Amendment (34) omits the clause.



 

Division 2—Powers of authorised persons

Subdivision A—Investigation powers

Clause 54: Persons assisting authorised persons

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

54.               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.

55.               Amendment (35) omits the words “or a regulation” at line 21.

 

Part 4—Civil Penalty Provisions

Division 1—Outline and operation of this Part

Clause 78:  Simplified outline

56.               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.

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

58.               Amendments (36) and (37) omit the words “or a regulation” at lines 7 and 12.

Clause 81:  Enforceable civil penalty provisions

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

60.               Amendment (38) omits the words “or a regulation” at lines 24 and 25.

Clause 82: Authorised applicant

61.               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 provides so.

62.               Subclause 82(3) provides that a triggering Act 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.

63.               Amendments (39) and (40) omit the words “or a regulation” at lines 30 and 7.

Clause 84:  Matters to be provided by legislative instrument

64.               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.

65.               Amendment (42) omits the words “or a regulation” at lines 22 to 25.

 

Part 5—Infringement notices

Division 1—Outline and operation of this Part

66.               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.

67.               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

68.               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.

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

70.               Amendment (43) omits the words “or a regulation” at line 10.

Clause 103:  Enforceable provisions

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

72.               Amendment (44) omits the words “or a regulation” at line 4.

Clause 104:  Infringement officer

73.               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.

74.               Subclause 104(3) provides that a triggering Act 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.

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

76.               Amendments (45) and (46) omit the words “or a regulation” at lines 10 and 18.

Clause 105: Relevant chief executive

77.               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 provides so.

78.               Subclause 105(3) provides that a triggering Act 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.

79.               Amendments (47) and (48) omit the words “or a regulation” at lines 30 and 7.

Clause 106: Matters provided for by legislative instrument

80.               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.

81.               Amendment (49) omits the clause.

 



 

Part 6—Enforceable Undertakings

Division 1—Outline and operation of this Part

Clause 113:  Simplified outline

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

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

84.               Amendment (50) omits the words “or a regulation” at line 8.

Clause 115: Enforceable provisions 

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

86.               Amendments (51) omits the words “or a regulation” at line 23.

Clause 116: Authorised person

87.               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 provides so.

88.               Subclause 116(3) provides that a triggering Act 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.

89.               Amendments (52) and (53) omit the words “or a regulation” at lines 3,4, and 12.

Clause 117: Relevant court

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

91.               Amendment (54) omits the words “or a regulation” at line 24.

Clause 118: Matters provided for by legislative instrument

92.               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.

93.               Amendment (55) omits the clause.

Part 7—Injunctions

Division 1—Outline and operation of this Part

Clause 121:  Simplified outline

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

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

96.               Amendment (56) omits the words “or a regulation” at line 8.

Clause 123: Enforceable provisions

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

98.               Amendment (57) omits the words “or a regulation” at line 20.

Clause 124:  Authorised person

99.               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 provides so.

100.           Subclause 124(3) provides that a triggering Act 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.

101.           Amendments (58) and (59) omit the words “or a regulation” at lines 25 and 9.

Clause 125:  Relevant court

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

103.           Amendment (60) omits the words “or a regulation” at line 21.

Clause 126:  Matters provided for by legislative instrument

104.           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.

105.           Amendment (61) omits the words “or a regulation” at lines 24 to 27.