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Defence Legislation Amendment (Instrument Making) Bill 2017

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2016- 2017

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

DEFENCE LEGISLATION AMENDMENT

(INSTRUMENT MAKING) BILL 2017

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Defence Personnel, the Honourable Dan Tehan MP )



DEFENCE LEGISLATION AMENDMENT

(INSTRUMENT MAKING) BILL 2017

 

 

GENERAL OUTLINE

 

1.                   The proposed Bill will amend instrument making powers in the Defence Act 1903 (‘Defence Act’) to ensure that, when re-making certain instruments made under the Defence Act in the future, the instruments can reflect modern policy requirements and approaches to drafting.

 

2.                   Several instruments made under the Defence Act are scheduled to sunset in April 2018, including the Defence (Inquiry) Regulations 1985 , the Defence (Areas Control) Regulations 1989 , and the Defence (Public Areas) By-Laws 1987 . These instruments deal with important subject matters, and it will be necessary to re-make them in some form before they sunset. Where possible, the intention is to improve the instruments by consolidating like provisions, improving consistency, and making some amendments to enhance their operation. The proposed amendments to the Defence Act will ensure that there is clear authority to re-make the content of the instruments as intended.

 

Defence inquiries

 

3.                   At present, the Defence (Inquiry) Regulations 1985 (‘Defence (Inquiry) Regulations’) establish a range of inquiries that can be undertaken in Defence, including General Courts of Inquiry, Boards of Inquiry, Combined Boards of Inquiry, Chief of the Defence Force Commissions of Inquiry, and Inquiry Officer inquiries. The power to make these regulations is at paragraph 124(1)(gc) of the Defence Act. This provides power to make regulations for ‘the appointment, procedures and powers of courts of inquiry, boards of inquiry, Chief of the Defence Force commissions of inquiry, inquiry officers and inquiry assistants’.

 

4.                   The different types of inquiries outlined in the Defence (Inquiry) Regulations all perform a similar function, which is to assist commanders in the Defence Force to obtain accurate and relevant information in a timely manner to inform their decisions and actions. Similar procedures and powers also apply to each type of inquiry. When re-making this instrument, the intention is to consolidate the different types of inquiries, instead articulating one form of inquiry that would be flexible and scalable to suit the relevant circumstances. To achieve this, the Bill will amend the regulation-making power in the Defence Act as it relates to inquiries. Instead of listing different types of inquiries, the new provision will simply enable the making of regulations relating to inquiries concerning the Defence Force.

 

Defence aviation areas

 

5.                   The Defence (Areas Control) Regulations 1989 (‘Defence (Areas Control) Regulations’) prescribe affected land, in which buildings and other objects hazardous to aviation can be regulated. The regulations include limits on building heights within prescribed areas, prohibitions on bringing hazardous objects within a prescribed area, power to require the removal or marking of hazardous objects within prescribed areas, and power to enter a prescribed area to remove or mark hazardous objects. The power to make these regulations is at paragraph 124(1)(na) of the Defence Act, which enables the making of regulations for ‘the regulation, control or prohibition of the construction or use of buildings, erections or installations, the use of apparatus, machines or vehicles, and the removal in whole or in part of buildings, erections, installations, apparatus, trees or other natural obstacles, within prescribed areas…’.

 

6.                   The scheme established in the Defence (Areas Control) Regulations is important to maintain safety for defence aviation, prescribing areas in the surroundings of 12 defence airfields. The Bill will repeal the regulation-making power in paragraph 124(1)(na), and insert new Part IXD relating to the establishment of defence aviation areas in which buildings and objects can be regulated for the purposes of removing and reducing hazards to defence aviation. Rather than being prescribed in the regulations, the Minister may declare an area to be a defence aviation area by legislative instrument. This will significantly reduce the length of the regulations, enable changes to maps of the areas to be incorporated in the instrument more quickly, and will be consistent with the approach taken to the declaration of defence areas under Part 11 of the Defence Regulation 2016. The Bill will also improve the clarity of the regulation-making power more generally in the new Part. 

 

7.                   In line with current drafting practice, the new Part will trigger the standard provisions in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (‘the Regulatory Powers Act’) for monitoring whether legislation is being complied with, or whether information given to the Commonwealth in compliance, or purported compliance, is correct.  

 

Defence public areas

 

8.                   The Defence (Public Areas) By-Laws 1987 (‘by-laws’) apply in public areas declared under Part IXB of the Defence Act. There are currently two existing public areas: the Beecroft public area in New South Wales, and the Garden Island public area in Western Australia. Each public area is a significant tract of Defence land, where there is a strong interest in enabling public entry for recreational purposes where this can be achieved consistently with defence requirements. The by-laws apply in the public areas, and regulate the public’s use of the areas. For example, they provide for offences relating to parking, camping and fishing in public areas. The by-laws are made under section 116ZD of the Defence Act, which provides for a range of matters that can be dealt with in the by-laws.

 

9.                   When re-making the by-laws, the intention is to enable some of the offences to be enforced through an infringement notice scheme. At present, paragraph 116ZD(2)(r) enables the by-laws to include this type of scheme for some offences. However, the by-laws do not currently include an infringement notice scheme.

 

10.               In line with current drafting practice, the preference is to establish infringement notice schemes by reference to standard provisions in the Regulatory Powers Act. Accordingly, this Bill will amend Part IXB of the Defence Act to incorporate the standard provisions relating to infringement notices, enabling the by-laws to specify strict liability offences against the by-laws as subject to an infringement notice under Part 5 of the Regulatory Powers Act.

 

 

Financial Impact statement

11.               The amendments in the Bill will have no additional financial impact on Commonwealth expenditure or revenue.

 



Statement of Compatibility with Human Rights

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

 

Defence Legislation Amendment (Instrument Making) Bill 2017

 

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

 

1.                   This Bill will amend instrument making powers in the Defence Act 1903

(‘Defence Act’) to ensure that, when re-making certain instruments made under the Defence Act in the future, the instruments can reflect modern policy requirements and approaches to drafting. The Bill amends the regulation-making powers in relation to Defence inquiries and defence aviation areas. It also amends powers relating to by-laws for public areas established under Part IXB of the Defence Act. The amendments will enable instruments made under these provisions, which are scheduled to sunset in April 2018, to be re-made and enhanced without any doubt as to the authority to make the instruments.

 

Part 1 - Defence inquiries

 

2.                   Part 1 of the Bill amends the regulation-making power as it relates to Defence inquiries. Instead of specifying a list of several different types of inquiries that can be the subject of regulations, the amended Act will simply provide for the making of regulations about inquiries into matters concerning the Defence Force.

 

Part 2 - Defence aviation areas

 

3.                   Part 2 of the Bill repeals the regulation-making power in paragraph 124(1)(na) of the Defence Act and inserts new Part IXA in the Defence Act relating to defence aviation areas. It enables the Minister to declare a defence aviation area by legislative instrument (as opposed to prescribing the areas in the regulations), and triggers the standard monitoring powers provisions in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (‘Regulatory Powers Act’).

 

Part 3 - Infringement notices for by-laws for public areas

 

4.                   Part 3 of the Bill incorporates the standard provisions relating to infringement notices from the Regulatory Powers Act, enabling the by-laws made under section 116ZD of the Defence Act to specify strict liability offences which are subject to an infringement notice. Previously, the instrument making power in paragraph 116ZD(2)(r) enabled an infringement notice scheme to be established in the by-laws, without reference to any of the protections inherent in the Regulatory Powers Act.



 

Human rights implications

Part 1 - Defence inquiries

 

5.                   Part 1 of the Bill, relating to Defence inquiries, does not engage any of the applicable rights or freedoms. The amendment will allow greater flexibility in naming inquiries in the regulations, but does not change the substance of the regulation-making power as it relates to human rights.

 

Part 2 - Defence aviation areas

 

6.                   Part 2 of the Bill, relating to defence aviation areas, does not engage any of the applicable rights or freedoms. The amendment will change how defence aviation areas are established, and clarify that powers that can be prescribed in relation to the areas, but does not change the substance of the regulation-making power as it relates to human rights.

 

Part 3 - Infringement notices for by-laws for public areas

 

7.                   Part 3 of the Bill engages the right to a fair and public hearing. Article 14 of the International Covenant on Civil and Political Rights (ICCPR) ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

 

8.                   The Bill replaces the power to establish an infringement notice regime in the by-laws with an infringement notice scheme incorporating the standard provisions from the Regulatory Powers Act. This will enable the issuing of an infringement notice by rangers appointed under section 116S of the Defence Act for contraventions of a strict liability offence specified in the by-laws made under section 116ZD.

 

9.                   The right of a person to a fair and public hearing by a competent, independent and impartial tribunal is preserved by the Bill, as the incorporated standard provisions allow a person to elect to have the matter heard by a court, rather than paying the amount specified in the infringement notice. Additionally, the standard provisions outline that this right must be stated in the infringement notice issued to a person, ensuring that they are aware of their right to have the matter heard by a court.

 

Conclusion

 

10.               This Bill is compatible with human rights because it promotes the protection of human rights.



 

DEFENCE LEGISLATION AMENDMENT

(INSTRUMENT MAKING) BILL 2017

 

 

Short title

 

1.   Clause 1 provides for the short title of the Act to be the Defence Legislation Amendment (Instrument Making) Act 2017 .

 

Commencement

2.         Clause 2 provides for the commencement provisions for the Act. Section 1 to 3 will commence the day after royal assent. Schedule 1, Parts 1 to 3, and Part 4 Division 1 will commence on a single day to be fixed by Proclamation. Schedule 1, Part 4, Division 2 will commence immediately after the commencement of item 1 of Schedule 5 to the Regulatory Powers (Standardisation Reform) Act 2017.

3.         The instruments that will be affected by the Bill will sunset on 1 April 2018, in accordance with the Legislation Act 2003 (‘Legislation Act’). Accordingly, the intention is that both the amendments to the Act and the new instruments to replace the sunsetting instruments will commence at the same time on 1 April 2018.

 

Schedules

4.         Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

SCHEDULE 1 - Amendments

 

Part 1 - Defence Force inquiries

 

5.         Part 1 amends the regulation-making powers in the Defence Act 1903 (‘Defence Act’) that relate to inquiries. The amendments change the power to make regulations for or relating to the appointment, procedures and powers of courts of inquiry, boards of inquiry, CDF commissions of inquiry and inquiry officers, to a more general power to make regulations relating to inquiries into matters concerning the Defence Force (including their appointment, procedures and powers).

Item 1

6.         This item amends paragraph 110ZB(1)(d), which lists the types of inquiries in the context of the functions of the Director of Defence Counsel Services. The list is replaced with the more general term ‘an inquiry’.

 

Item 2

7.         This item repeals and replaces paragraph 124(1)(gc) with a new paragraph. The new paragraph enables the making of regulations for and in relation to inquiries concerning the Defence Force. This includes the power to make regulations for the appointment, powers and procedures of those inquiries. The phrase ‘concerning the Defence Force’ reflects language currently used in the Defence (Inquiry) Regulations 1985 , which is common to all inquiry types outlined in those regulations. Inquiries conducted by the Defence Force Remuneration Tribunal, the Inspector-General ADF, and the Defence Honours and Awards Appeals Tribunal are excluded from this paragraph, as these inquiries are dealt with elsewhere in the Defence Act.

 

Items 3-5

8.         These items amend subsections 124(2A) and 124(2C), which list the types of inquiries in the context of clarifying the regulation-making power as it relates to compelling people to appear as witnesses and answer questions. In each case, the list is replaced with the more general term ‘an inquiry’. The Bill does not make any change to the ability to make regulations to compel a person to appear before and answer questions at an inquiry.

 

Part 2 - Defence aviation areas

 

9.         Part 2 repeals the regulation-making power in paragraph 124(1)(na) of the Defence Act and inserts new Part IXD relating to the establishment of defence aviation areas in which buildings and objects can be regulated for the purposes of removing and reducing hazards to defence aviation.

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Item 6

10.     This item inserts the definitions of ‘defence aviation area’ and ‘defence aviation area inspector’ as having the meanings given by subsections 117AC(1) and 117AG(1) respectively.

 

Item 7

11.     This item inserts new Part IXD - Defence aviation areas (sections 117AC to 117AH).

 

Section 117 AC - Defence aviation areas

12.     Previously, areas in which buildings and hazardous objects could be regulated were required to be prescribed in the regulations themselves. New subsection

117AC (1) provides that the Minister may, by legislative instrument, declare an area of land, sea or airspace in or adjacent to Australia to be a defence aviation area. Under subsection 117AC(2), the Minister must not declare an area unless the Minister is satisfied that it is necessary for the defence of Australia, and in particular, the matters are necessary for the purpose of preventing or reducing hazards to aircraft and aviation-related communications, navigation or surveillance.

13.      Subsection 117AC(3) provides that a declaration of an area may also specify height restrictions that apply in relation to buildings, structures and objects (including trees and other natural obstacles) within the area.

14.     Subsection 117AC(4) provides that a declaration of an area may apply, adopt or incorporate, with or without modification a map or a matter contained in a map, as in force or existing from time to time, or a matter contained in an instrument or other writing as in force or existing from time to time, to the extent that the matter relates to a map.

15.     Section 14 of the Legislation Act 2003 provides that unless the contrary intention appears, legislative instruments may not make provision in relation to matters by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. It is noted that the map of a declared defence aviation area will form part of the declaration as a legislative instrument under subsection 117AC(1). However, there may be circumstances where it is appropriate to apply, adopt or incorporate other map-related material as part of the declaration for the purpose of describing the area. For example, the Queensland Government advised that they prefer declarations of defence aviation areas not only include Defence maps, but also links to relevant maps on their website.

16.     The purpose of the provision is to allow some flexibility so that relevant map-related material can be incorporated into the declaration if required. In the event that this provision is relied on, there will be clear mechanisms for making the material publicly accessible and available at no or at a minimum cost, so that those affected by the provision can easily understand their rights and obligations at law. 

 

Section 117 AD - Regulations in relation to defence aviation areas

17.     In reviewing the regulation-making power in paragraph 124(1)(na) of the Defence Act and the Defence (Areas Control) Regulations 1989 (‘Defence (Areas Control) Regulations’), consideration was given to whether the scheme as a whole should be moved into the principal Act, rather than being established in delegated legislation. It was considered appropriate to continue the scheme in delegated legislation for several reasons.

a)       First, the nature of defence aviation, and the nature of hazards to aviation, is rapidly changing. It is important that the regulation of those hazards is flexible enough to address change as it happens. Addressing the regulation and prohibition of aviation hazards in delegated legislation, which can be more rapidly amended, is appropriate. This is also the approach that has been taken in relation to civil aviation, where the bulk of legislation dealing with these types of matters is in regulations and other delegated legislation.

b)       The approach being taken to defence aviation areas is very similar to that taken to defence areas in Part 11 of the Defence Regulation 2016 . To improve the accessibility and simplicity of legislation relating to Defence, it is desirable that these matters be dealt with as consistently as possible.

c)       While delegated legislation is not subject to the same level of parliamentary scrutiny, it will still be subject to significant scrutiny. It would be expected that both the Senate Standing Committee on Regulations and Ordinances and the Joint Committee on Human Rights would take interest in any regulations made under this regulation-making power. Further, the regulation-making power is limited by the purpose for which defence aviation areas can be declared - to prevent or reduce hazards to aircraft or aviation-related communications. 

18.     Without limiting section 124, this new section enables the making of regulations to do the following:

a)       Regulate or prohibit the construction or use of buildings, structures or objects within defence aviation areas. This clarifies the existing regulation-making power, ensuring that regulations can be made in relation to all types of hazards to aviation and aviation-related communications that might exist. This enables the regulations to include height restrictions on buildings and other structures, and to regulate the use of objects that could cause a hazard to aviation, such as construction cranes, or objects that emit or reflect light, or release plumes.

b)       Regulate or prohibit the bringing or having of objects within defence aviation areas. This clarifies the existing regulation-making power, ensuring that regulations can be made in relation to all types of hazards to aviation and aviation-related communications that might exist. This enables the regulations to regulate objects that could cause a hazard to aviation, such as construction cranes, or objects that emit or reflect light.

c)       Provide for the removal (in whole or in part), marking, lighting, screening, modification or relocation of buildings, structures or objects (including trees or other natural obstacles) within defence aviation areas. This clarifies the existing regulation-making power, ensuring that regulations can be made to take actions to remove or reduce existing hazards to aviation or aviation-related communications, no matter the nature of the hazard or the nature of the action required to remove or reduce it.

 

Section 117 AE - Monitoring powers

19.     This new section triggers the standard monitoring powers provisions in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (‘Regulatory Powers Act’).

20.     Subsection 117AE(1) provides that a provision of the regulations made for the purposes of section 117AD is subject to monitoring under Part 2 of the Regulatory Powers Act, if the regulations prescribe the provision for the purpose of this subsection.

21.     Subsection 117AE(2) provides that information given in compliance or purported compliance with a provision of the regulations made for the purposes of section 117AD is subject to monitoring under Part 2 of the Regulatory Powers Act, if the regulations prescribe the provision for the purposes of this subsection.

22.     For the purposes of Part 2 of the Regulatory Powers Act, as it applies in relation to a provision prescribed for the purposes of subsection 117AE(1) and the information mentioned in subsection 117AE(2), subsection 117AE(3) provides that:

a)       a defence aviation area inspector is an authorised applicant;

b)       a defence aviation area inspector is an authorised person;

c)       a magistrate is an issuing officer;

d)      the secretary and the chief of the Defence Force are relevant chief executives; and

e)       the Federal Court of Australia, the Federal Circuit Court of Australia, or a court of a State or Territory that has jurisdiction in relation to matters arising under the Act, is a relevant court.

23.     Under subsection 117AE(4), an authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to a provision prescribed for the purposes of subsection 117AE(1) and information mentioned in subsection 117AE(2).

 

Section 117 AF - Modifications of Part 2 of the Regulatory Powers Act

24.     This new section sets out limited modifications of Part 2 of the Regulatory Powers Act.

25.     The Defence (Areas Control) Regulations provides for authorised persons to enter land and premises for a range of purposes, including removing or marking hazardous objects. These powers will need to be re-made, as they are an important aspect of the scheme ensuring that there is a mechanism to deal with hazardous objects if people are unwilling to comply with requirements. There are some similarities between the powers currently available under the Defence (Areas Control) Regulations and the standard monitoring provisions in Part 2 of the Regulatory Powers Act. However, noting that the powers go beyond simply monitoring compliance with legislation, for example by including the important powers to remove or mark hazardous objects, it was considered necessary to apply some limited modification to Part 2 of the Regulatory Powers Act.

26.     Subsection 117AF(1) provides that Part 2 of the Regulatory Powers Act, subsections 117AE(3) and 117AE(4), and section 117AH also apply in relation to a provision prescribed for the purposes of subsection 117AE(1) (the monitored provision) as if:

a)       the powers under that Part may be exercised for the purpose of ensuring compliance with the monitored provision; and

b)       the monitoring powers in that Part included the taking of any action that is reasonably necessary to ensure compliance with the monitored provision.

27.     A warrant may be issued under subsection 32(2) of the Regulatory Powers Act, if the issuing officer is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised persons should have access to a premise for that purpose.

28.     Subsection 117AF(2) provides that the taking of action may include the removal (in whole or in part), destruction or modification of a building, structure or object.

29.     Subsection 117AF(3) provides that in executing a monitoring warrant for the purpose of paragraph 117AF(1)(a), an authorised person may use such force against persons and things as is  necessary and reasonable in the circumstances, and a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.

 

Section 117 AG - Appointment of inspectors for defence aviation areas

30.     This new section concerns the appointment of inspectors for defence aviation areas.

31.     Subsection 117AG(1) provides that the Secretary or the Chief of the Defence Force, may, in writing, appoint an APS employee in the Department or a member of the Defence Force as an inspector.

32.     Under subsection 117AG(2), a person must not be appointed as a defence aviation area inspector unless the appointer is satisfied that the person has the knowledge, training or experience necessary to properly exercise the powers of a defence aviation area inspector.

33.     A defence aviation area inspector must, in exercising powers as such, comply with any directions of the appointer (subsection 117AG(3)).

34.     Subsection 117AG(4) makes it clear that a direction given under subsection 117AG(3) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act. The purpose of the provision is to clarify, rather than seeking an exemption from the Legislation Act.

 

Section 117 AH - Delegation of powers of Secretary or Chief of the Defence Force

35.     New section 117AH allows the Secretary or the Chief of the Defence Force to delegate certain powers and functions to an SES employee in the Department, to a Navy officer of Commodore rank or higher, to an Army officer of Brigadier rank or higher, and to an Air Force officer of Air Commodore rank or higher.

36.     The powers and functions that may be delegated include

c)       the powers and functions of the relevant chief executive under Part 2 of the Regulatory Powers Act in relation to a provision prescribed for the purposes of subsection 117AE(1) and the information mentioned in subsection 117AE(2); and

d)      the powers and functions of the appointer under section 117AG.

37.     A person exercising powers or performing functions under a delegation must comply with any directions of the delegator (subsection 117AH(3)).

38.     The level of delegation is considered appropriate, given the delegates are at the SES level or Defence Force equivalent. No sub-delegation is allowed under the provision. The scope of the delegation is also considered as wide as necessary in the circumstances for the purpose of assisting the Secretary and the Chief of the Defence Force in managing the monitoring and compliance scheme in an efficient and effective manner.

 

Item 8

39.     This item repeals paragraph 124(1)(na). The regulation-making power in relation to defence aviation areas is in section 117AD.

 

Part 3 - Infringement notices for by-laws for public areas

 

40.     Part 3 amends Part IXB of the Defence Act to establish an infringement notice scheme for offences against the by-laws, which are made under section 116ZD. Paragraph 116ZD(2)(r) currently provides for the by-laws to include an infringement notice scheme for some offences. Instead of establishing the infringement notice scheme in the by-laws, this amendment will incorporate standard provisions relating to infringement notices from Part 5 of the Regulatory Powers Act in the Defence Act. The by-laws will then specify which offences are subject to infringement notices established in the Act.

 

Item 9

41.     This item inserts new section 116ZCA in the Defence Act. This provision incorporates the standard provisions in Part 5 of the Regulatory Powers Act.

42.     Subsection 116ZCA(1) provides that strict liability offences in the by-laws are subject to an infringement notice, if the by-laws specify the offence for the purposes of this subsection. It is appropriate that the offences that are subject to the infringement notice regime be specified in the by-laws (that is, in delegated legislation) rather than the principal Act. The offences in question are similar to offences in local government by-laws and ordinances. They apply only in public areas, which are limited geographical areas of Commonwealth land. The by-laws need to be adaptable to the requirements of particular public areas. Using by-laws, rather than principal legislation, to establish offences means that they can be varied between different public areas, or easily changed if a new public area is established, to take account of local requirements.

43.     Subsection 116ZCA(2) provides that a ranger is an infringement officer. Rangers are appointed by the Minister under section 116S. Members of the Australian Federal Police and Territory police forces are also rangers (section 116T). Rangers must be issued with identity cards (section 116U). Under the Act, rangers have a number of powers including powers to arrest people, to stop and search vehicles, and to require people to state their name and address. Infringement officers are persons tasked with issuing infringement notices under the Regulatory Powers Act. Assigning this task to rangers for public areas is consistent with their existing powers and with the way public areas are managed.

44.     Subsection 116ZCA(3) provides that the Secretary and the Chief of the Defence Force are relevant chief executives for the purposes of the Regulatory Powers Act. In Part 5 of the Regulatory Powers Act, the relevant chief executive has power to extend the time for paying the amount specified in an infringement notice, and to withdraw an infringement notice.

45.     Subsection 116ZCA(4) provides that the relevant executive may, in writing, delegate the powers of the relevant chief executive under Part 5 of the Regulatory Powers Act to an SES employee in the Department, to a Navy officer of Commodore rank or higher, to an Army officer of Brigadier rank or higher, and to an Air Force officer of Air Commodore rank or higher. A delegate must comply with any directions of the Secretary when exercising those powers (new subsection 116ZCA(5)).

46.     Subsection 116ZCA(6) provides that in addition to the matters included in subsection 104(1) of the Regulatory Powers Act, an infringement notice given in relation to an alleged contravention of an offence specified for the purposes of subsection 116ZCA(1) must also state who is the relevant chief executive in relation to the offence. This modification to the Regulatory Powers Act provided by subsection 116ZCA(6) is to inform the recipient of the infringement notice who to apply to for the purposes of sections 105 (extension of time to pay amount) and 106 (withdrawal of an infringement notice) of the Regulatory Powers Act.

 

Item 10

47.     This item repeals and replaces paragraph 116ZD(2)(r), which contains the existing mechanism for allowing the by-laws to provide for infringement notices. It enables the by-laws to specify strict liability offences against the by-laws for the purposes of subsection 116ZCA(1).

 

Item 11

48.     This item amends paragraph 116ZD(2)(za), changing the maximum penalty that can be specified in the by-laws for offences against the by-laws. The maximum penalty will change from 5 penalty units to 10 penalty units. This is an appropriate increase, as, under subsection 104(2) of the Regulatory Powers Act, penalties on infringement notices are for one fifth of the maximum penalty that could be imposed for an offence. This means that, if the by-laws provide that the maximum penalty for an offence is 5 penalty units, the associated infringement notice would be for 1 penalty unit. Similarly, an offence with a maximum penalty of 10 penalty units would have an associated infringement notice of 2 penalty units. A penalty unit is currently $210, so the highest possible penalty in an infringement notice would be $420. Given the nature of the offences that could be appropriate in a public area, this level of penalty may be necessary in some cases to adequately deter people from breaching the by-laws.

 

Part 4 - Contingent amendments

Division 1 - Inserting definition

 

Item 12

49.     This item inserts the definition of ‘Regulatory Powers Act’ as the Regulatory Powers (Standard Provisions) Act 2014.

 

Division 2 - Repealing definition

Item 13

50.     This item repeals the definition of Regulatory Powers Act inserted by item 1 of Schedule 5 to the Regulatory Powers (Standardisation Reform) Act 2017 .