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Regulatory Powers (Standardisation Reform) Bill 2016

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2016

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

Regulatory powers (STANDARDISATION REFORM) Bill 2016

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)

                                                                                                        



 

regulatory powers (STANDARDISATION REFORM) Bill 2016

general Outline

1.                 This Bill makes amendments to 15 Commonwealth Acts in order to implement the Regulatory Powers Act (Standard Provisions) Act 2014 (the ‘Regulatory Powers Act’). The Regulatory Powers Act provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions.

2.                 The Regulatory Powers Act received Royal Assent on 21 July 2014 and commenced on 1 October 2014. The Regulatory Powers Act only has effect where Commonwealth Acts are drafted or amended to trigger its provisions.

3.                 The Bill amends the following Commonwealth Acts to repeal current provisions providing for regulatory regimes in those Acts, and instead trigger the standard provisions of the Regulatory Powers Act:

·          the Australian Sports Anti-Doping Authority Act 2006 (the ‘ASADA Act’)

·          the Building Energy Efficiency Disclosure Act 2010 (the ‘BEED Act’)

·          the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the ‘Administration Act’)

·          the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (the ‘Payroll Levy Collection Act’)

·          the Defence Act 1903

·          the Defence Reserve Service (Protection) Act 2001

·          the Greenhouse and Energy Minimum Standards Act 2012 (the ‘GEMS Act’)

·          the Horse Disease Response Levy Collection Act 2011 (the ‘Horse Disease Act’)

·          the Illegal Logging Prohibition Act 2012 (the ‘Illegal Logging Act’)

·          the Industrial Chemicals (Notification and Assessment) Act 1989 (the ‘ICNA Act’)

·          the Paid Parental Leave Act 2010 (the ‘PPL Act’)

·          the Personal Property Securities Act 2009 (the ‘PPS Act’)

·          the Privacy Act 1988

·          the Tobacco Plain Packaging Act 2011 (the ‘TPP Act’), and

·          the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (the ‘WMD Act’) .

4.                 Implementing the Regulating Powers Act will support the government’s regulatory reform agenda as that Act intends to simplify and streamline Commonwealth regulatory powers across the statute book. This will provide regulatory agencies with the opportunity to use more uniform powers, and increase legal certainty for businesses and individuals who are subject to those powers.

5.                 The Bill also makes minor amendments to the Regulatory Powers Act to clarify the operation of certain provisions and remove unreasonable administrative burdens on agencies exercising regulatory powers under the Regulatory Powers Act. The amendments concern the ability to secure evidence of a contravention when exercising monitoring powers, the age of photographs for identity cards, the time period for the making of a civil penalty order and the cap on the amount to be stated in an infringement notice.

6.                 The Bill seeks to align the 15 Commonwealth Acts with the standard provisions of the Regulatory Powers Act. Accordingly, there are minor changes to those Acts. In most instances, the changes are minor, technical changes that modernise drafting terminology. In some circumstances, the changes result in a minor expansion to existing regulatory powers of those Acts. Where necessary, the Bill modifies the operation of the standard provisions of the Regulatory Powers Act to retain existing powers in those Acts.

FINANCIAL IMPACT

7.                 This Bill will have a nil or insignificant financial impact on government departments and agencies, as the amendments generally do not alter the effect of the law.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Regulatory Powers (Deregulation) Bill 2016

8.                 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

9.                 This Bill makes amendments to 15 Commonwealth Acts in order to implement the Regulatory Powers Act. The Regulatory Powers Act received Royal Assent on 21 July 2014 and commenced on 1 October 2014. The Regulatory Powers Act only has effect where Commonwealth Acts are drafted or amended to trigger its provisions.

10.             The purpose of this Bill is to amend various Commonwealth Acts to repeal current provisions providing for regulatory regimes in those Acts, and instead trigger the standard provisions of the Regulatory Powers Act. The purpose of this standardisation is to simplify and streamline Commonwealth regulatory powers across the statute book.

11.             The Bill also makes minor amendments to the Regulatory Powers Act.

12.             As noted by the Parliamentary Joint Committee on Human Rights in its consideration of the Regulatory Powers (Standard Provisions) Bill 2014, it is necessary to consider the human rights impact in the specific context of each legislative regime that triggers the Regulatory Powers Act. Accordingly, the human rights impact is considered separately for each of the Acts to be amended by this Bill.

Overview of Schedule 1 - Regulatory Powers (Standard Provisions) Act

13.             The Regulatory Powers Act provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions. Schedule 1 to this Bill amends the Regulatory Powers Act to clarify the operation of certain provisions and to also remove unreasonable administrative burdens on agencies exercising regulatory powers under the Regulatory Powers Act.

Human rights implications

Right to privacy

14.             Schedule 1 to this Bill amends section 22 of the Regulatory Powers Act, which relates to securing evidence of a contravention in the context of exercising monitoring powers. Current paragraph 22(1)(a) of the Regulatory Powers Act provides that the monitoring powers provided by Part 2 of that Act include the power to secure a thing for a period not exceeding 24 hours if the thing is found during the exercise of monitoring powers on the premises. However, the effect of current paragraph 22(1)(b) of the Regulatory Powers Act is that an authorised person may only secure things that would demonstrate that a related provision has been, is being or will be contravened. Under section 10 of the Regulatory Powers Act, in the monitoring context, related provisions are provisions which triggering Acts declare to be related to provisions subject to monitoring or information or subject to monitoring.

15.             Section 22 of the Regulatory Powers Act does not currently apply to the core provision or provisions in relation to which monitoring powers are being exercised . That section is amended to correct this drafting error by making it clear that the power to secure things applies to both the core provisions in relation to which monitoring powers are being exercised, as well as any related provisions. This would ensure that the power can be exercised in all appropriate circumstances. This is necessary for the purposes of an effective monitoring scheme.

16.             New paragraph 22(1)(b) of the Regulatory Powers Act provides that an authorised person may secure a thing where they believe on reasonable grounds that:

·           a provision subject to monitoring, or a related provisions, has been contravened with respect to the thing, or

·          the thing is evidence of a contravention of a provision subject to monitoring or a related provision, or

·          the thing is intended to be used to contravene a provision subject to monitoring or a related provision, or

·          the thing affords evidence that information subject to monitoring is not correct.

17.             New section 22 of the Regulatory Powers Act engages the protection against arbitrary or unlawful interference with privacy. Article 17 of the International Covenant on Civil and Political Rights (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. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances.

18.             To the extent that the power to secure things under section 22 of the Regulatory Powers Act may limit the right to privacy, this limitation is provided by law. The power to secure things in the exercise of monitoring powers is necessary to enable collection of evidence of contraventions or intended contraventions. This is necessary for the effective monitoring of compliance with provisions and the correctness of information subject to monitoring under triggering Acts. The exercise of the power is constrained in various ways as set out below, ensuring that its use is not arbitrary.

19.             The power cannot be exercised without consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. Where entry is based on the consent of the occupier, consent must be informed and voluntary and the occupier of premises can restrict entry 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.

20.             The Regulatory Powers Act also provides constraints on the issuing of a monitoring warrant. For example, an issuing officer may issue a monitoring warrant only when satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised persons have access to the premises for the purpose of determining whether a provision subject to monitoring has been complied with, or information subject to monitoring is correct. An issuing officer must not issue a warrant unless they have been provided, either orally or by affidavit, with such further information as they require (if any) 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.

21.             In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse.

22.             Further, the power to secure things can only be exercised for 24 hours in specific circumstances set out in section 22 of the Regulatory Powers Act. In addition to the restrictions above, the person must believe on reasonable grounds that it is necessary to secure the thing to prevent it from being concealed, lost or destroyed before a warrant to seize can be obtained, and that the circumstances are so serious and urgent that it is necessary to secure the thing without a warrant.

23.             These restrictions on the exercise of the power ensure its use is reasonable, necessary and proportionate to the objectives of the triggering Acts, and also limit its susceptibility to arbitrary use or abuse. Any further human rights implications will need to be assessed in the particular context of triggering Acts.

Civil penalties

24.             Schedule 1 to this Bill amends section 104 of the Regulatory Powers Act, which provides for matters to be specified in infringement notices, and makes it clear how this section operates when the notice relates to more than one alleged contravention. These amendments complement subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time.

25.             Subsection 104(2) of the Regulatory Powers Act, which relates to maximum penalty amounts, is repealed and replaced with new subsection 104(2) of that Act. New subsection 104(2) of the Regulatory Powers Act specifies the maximum penalty where the infringement notice relates to only one alleged contravention. New subsection 104(2) of the Regulatory Powers Act provides that, if the notice relates to only one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act is the lesser of:

a.        one-fifth of the maximum penalty that a court could impose on the person for that contravention, and

b.       12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate.

26.             This amendment does not alter the current calculation in the Regulatory Powers Act for the maximum penalty for a single contravention, but it makes it clear that the formula only relates to a single contravention.

27.             New subsection 104(3) of the Regulatory Powers Act provides a formula for calculating the maximum penalty where more than one alleged contravention is listed in an infringement notice. It provides that the amount to be stated in the notice is the lesser of:

a.        one-fifth of the amount worked out by adding together the maximum penalty that a court could impose on the person for each alleged contravention, and

b.       either:

                                                              i.       if the person is an individual—the number of penalty units worked out by multiplying the number of alleged contraventions by 12, or

                                                            ii.       if the person is a body corporate—the number of penalty units worked out by multiplying the number of alleged contraventions by 60.

28.             New subsection 104(4) of the Regulatory Powers Act provides that new subsections 104(2) and (3) of that Act do not apply if another Act expressly provides otherwise. Accordingly, these maximum penalty amounts are default amounts that may be displaced by triggering Acts.

29.             These amendments to section 104 of the Regulatory Powers Act clarify the maximum penalty amounts and the cap on the maximum penalty for multiple contraventions within a single infringement notice. They do not increase the penalty amounts that can be imposed under the current Regulatory Powers Act. The specific penalties that will apply in a particular regulatory context will depend on the triggering Act. Accordingly, the human rights implications will need to be assessed when triggering Acts are amended to trigger the amended provisions of the Regulatory Powers Act.

Conclusion

30.             The amendments to the Regulatory Powers Act in Schedule 1 to this Bill are compatible with human rights because, to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.

Overview of Schedule 2 - Australian Sports Anti-Doping Authority Act 2006

31.             The Australian Sports Anti-Doping Authority Act 2006 (the ‘ASADA Act’) establishes the Australian Sports Anti-Doping Authority (‘ASADA’), and gives effect to Australia’s international anti-doping obligations under the United Nations Educational, Scientific and Cultural Organisation (UNESCO) International Convention against Doping in Sport. Giving effect to these obligations is the legitimate objective of the ASADA Act. Under the Convention, States Parties are required to implement anti-doping arrangements that are consistent with the principles in the World Anti-Doping Code (the ‘Code’). The Code is an international agreement that provides the framework for harmonised anti-doping policies, rules and regulations within sporting organisations and governments around the world.

32.             ASADA is the Australian Government agency responsible for efforts to eliminate doping in Australian sport, thereby protecting the integrity of sport and the health of those who participate. ASADA implements Code-compliant programmes and activities that encompass engagement (building better relations with stakeholders), deterrence (education and awareness), detection (testing and investigations) and enforcement (management of cases involving possible anti-doping rule violations).

33.             Schedule 2 to this Bill amends the ASADA Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the ASADA Act are enforceable under that Part of the Regulatory Powers Act.

34.             Under these amendments, the Chief Executive Officer of the ASADA is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the disclosure notice provisions in the ASADA Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined.

35.             The ASADA Act is also amended to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable the CEO of the ASADA, or a person authorised by the CEO, to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a civil penalty provision of the ASADA Act has been contravened.

36.             An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court.

Human rights implications

Civil penalties and Article 14

37.             The ASADA Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 2 to this Bill. However, the amendments in Schedule 2 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the ASADA Act.

38.             Triggering the civil penalty provisions of the Regulatory Powers Act could engage criminal process rights if the imposition of civil penalties is classified as ‘criminal’ under international human rights law. Article 14 of the ICCPR requires that, in the determination of criminal charges, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Various other rights are provided for persons charged with criminal offences.

39.             Determining whether penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

40.             The penalty provisions of the ASADA Act expressly classify the penalties as civil penalties. Those provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with notices issued under the ASADA Act requiring a person to attend an interview to answer questions, give information or produce documents (‘disclosure notices’). The civil penalty provisions of the ASADA Act do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to those who do not fulfil their obligations under a disclosure notice issued under the ASADA Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. 

41.             The amendments in Schedule 2 do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the ASADA Act, which are 30 penalty units for individuals and 150 penalty units for bodies corporate under subsection 82(5) of the Regulatory Powers Act, as applied to the ASADA Act by Schedule 2. Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. The application of this subsection preserves the effect of current subsection 73B(5) of the ASADA Act. The provisions do not carry the possibility of imprisonment.

42.             The amendments in Schedule 2 will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment. As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia’s human rights obligations.

43.             These factors all suggest that the civil penalties imposed by the ASADA Act are civil rather than criminal in nature. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 2.

44.             Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the ASADA Act. However, the time period for the making of an application for a civil penalty order will be increased from within 4 years to within 6 years of the alleged contravention, due to the operation of subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill). The change to the time period is a result of alignment with the standard provisions of the Regulatory Powers Act. As the criminal process rights in Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders, the right to be tried without undue delay provided by paragraph 14(3)(c) is not engaged. There are no additional human rights implications beyond those discussed above.

Fair hearing rights

45.             The amendments relating to civil penalty provisions in Schedule 2 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. The hearing must be by a competent, independent and impartial tribunal established by law. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited.

46.             Under the amendments in Schedule 2, infringement notices can also be issued under the Regulatory Powers Act in relation to contraventions of civil penalty provisions of the ASADA Act. This infringement notice mechanism does not apply to offences against the ASADA Act. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged. There are no criminal consequences associated with infringement notice for civil penalty provisions. For example, they do not carry the possibility of imprisonment if the person does not pay the penalty or attend court.

47.             Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty order may be brought against them in a court. Accordingly, the person must always be advised of the consequences of not paying the penalty, and of their right to have the matter dealt with by a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is engaged but not limited.

Conclusion

48.             Schedule 2 to this Bill is compatible with human rights because where it engages human rights, it does not limit those rights. 

Overview of Schedule 3 - Building and Energy Efficiency Disclosure Act 2010

49.             The Building Energy Efficiency Disclosure Act 2010 (the ‘BEED Act’) established the Commercial Building Disclosure Scheme, which requires disclosure of certain energy efficiency information relating to commercial office buildings in the context of sales and lease transactions. Establishing this national scheme is the legitimate objective of the BEED Act.

50.             Schedule 3 to this Bill amends the BEED Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the BEED Act are enforceable under that Part of the Regulatory Powers Act.

51.             Under these amendments, the Secretary of the department that administers the BEED Act is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the BEED Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined.

52.             The BEED Act is also amended to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable the Secretary to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a civil penalty provision of the BEED Act has been contravened.

53.             An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court.

Human rights implications

Civil penalties and Article 14

54.             The BEED Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 3 to this Bill. However, the amendments in Schedule 3 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act instead of by the BEED Act.

55.             Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as ‘criminal’ under international human rights law. As set out above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

56.             The penalty provisions of the BEED Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the energy efficiency rating and certificate regime of the BEED Act. The civil penalty provisions of the BEED Act do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the BEED Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the BEED Act are civil rather than criminal in nature.

57.             The amendments in Schedule 3 also substitute a new subsection 18(7) of the BEED Act. Current paragraph 18(7)(b) of the BEED Act provides for where a person fails to do an act at a particular time. However, section 93 of the Regulatory Powers Act provides for where a person fails to comply with an obligation within a particular period or before a particular time (even if the period has expired or the time has passed). Consequently, section 93 of the Regulatory Powers Act is unable to deal with matters provided for in current paragraph 18(7)(b) of the BEED Act. The amendments make it clear that, where a person or body corporate fails to give access at a day and time required under the notice issued under section 18 of the BEED Act, that person or body corporate will continue to commit a separate contravention of subsection 18(6) of the BEED Act each day after the required day until that person or body corporate complies with the access request.

58.             Under section 93 of the Regulatory Powers Act, if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. Section 93 of the Regulatory Powers Act further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation.

59.             The amendments in Schedule 3 do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the BEED Act, which are 1000 penalty units where the contravention is of a requirement under current sections 11 or 15 of the BEED Act, or 200 penalty units for an individual and 500 penalty units for a body corporate where the contravention is of a requirement under current section 18 of the BEED Act (see new subsection 51(6) and new section 52 of the BEED Act). The amendments in Schedule 3 also preserve the penalties for continuing contraventions of sections 11, 15 and 18 of the BEED Act. New section 52 of the BEED Act provides that the penalties must not exceed 100 penalty units per day for continuing contraventions of sections 11 and 15 of the BEED Act. The penalty units for continuing contraventions of section 18 of the BEED Act must not exceed 20 penalty units per day for individuals and 50 penalty units per day for bodies corporate. This preserves the effect of existing subsections 53(5A) to 53(5D) of the BEED Act.

60.             Subsection 85(2) of the Regulatory Powers Act provides that for such continuing contraventions the penalty imposed must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each contravention. This preserves the effect of current subsection 53(6) of the BEED Act. The maximum penalties are designed to take into account the cost of complying with the relevant obligations under the BEED Act and to encourage compliance. It is open to a court to exercise its discretion to impose lower penalties. This discretion would be informed by reference to subsection 82(6) of the Regulatory Powers Act, which provides that a court must take into account all relevant matters in determining a pecuniary penalty, including the nature and extent of the contraventions, the loss or damage suffered, the circumstances in which the contraventions took place and whether a court has previously found the person to have engaged in similar conduct. This preserves the effect of section 53(4) of the BEED Act. That subsection also refers to taking into account the extent to which the person has cooperated with authorities. As subsection 82(6) of the Regulatory Powers Act requires a court to take into account all relevant matters, that additional factor could also be considered.

61.             The civil penalty provisions of the BEED Act do not carry the consequences of offences under the BEED Act, which would involve a criminal record and imprisonment in some cases.

62.             The amendments in Schedule 3 modify the operation of subsection 82(5) of the Regulatory Powers Act, which provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. As noted above, the amendments do not increase the maximum penalties that may be imposed.

63.             These civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia’s human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 3.

64.             The amendments relating to civil penalty provisions in Schedule 3 engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. The hearing must be by a competent, independent and impartial tribunal established by law. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited.

65.             Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the BEED Act. However, alignment with Regulatory Powers Act will apply additional provisions, which are not currently in the BEED Act, that are merely procedural in nature and set out matters in relation to civil proceedings and criminal proceedings, state of mind, burden of proof and vicarious liability. These are sections 88, 89, 90, 91, 94, 96 and 97 of the Regulatory Powers Act.

66.             Sections 88, 89, 94 and 97 of the Regulatory Powers Act relate to the limitations on civil proceedings after criminal proceedings, the stay of civil during criminal proceedings, the relevance of a person’s state of mind, and vicarious liability of employees, agents or officers of a body corporate, respectively. These provisions do not do not impact upon criminal proceedings and do not engage the criminal process rights in Article 14 of the ICCPR.

67.             Section 90 of the Regulatory Powers Act clarifies that criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against the person in relation to the contravention. This section recognises the importance of criminal proceedings and criminal penalties in dissuading and sanctioning contraventions of the triggering Act, and ensures that criminal remedies are not precluded by earlier civil action.

68.             Section 90 of the Regulatory Powers Act engages the process rights in Article 14 of the ICCPR, but does not limit those rights. Article 14(7) of the ICCPR provides that ‘no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’. This prohibition on double jeopardy is a fundamental safeguard in the common law. It means that a person who has been convicted or acquitted of a criminal charge is not to be re-tried for the same or substantially the same offence.

69.             As section 90 of the Regulatory Powers Act permits both civil and criminal proceedings, but not multiple criminal proceedings for the same conduct, Article 14(7) of the ICCPR is not infringed. Further, section 88 of the Regulatory Powers Act provides that a court cannot make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

70.             Section 91 of the Regulatory Powers Act provides that evidence of information given, or evidence of the production of documents, by an individual is not admissible in criminal proceedings against the individual if:

·          the individual previously gave the information or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made), and

·          the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

71.             Section 91 of the Regulatory Powers Act ensures that information or documents produced during civil proceedings are not relied upon to support subsequent criminal proceedings, unless those proceedings are criminal proceedings relating to falsifying evidence in civil proceedings. Accordingly, that section engages, but does not limit, the criminal process rights in Article 14 of the ICCPR.

72.             Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged.

Infringement notices and Article 14

73.             Under the amendments in Schedule 3 to this Bill, infringement notices can be issued under the Regulatory Powers Act in relation to contraventions of civil penalty provisions of the BEED Act. This infringement notice mechanism does not apply to offences against the BEED Act. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged. There are no criminal consequences associated with infringement notice for civil penalty provisions. For example, they do not carry the possibility of imprisonment if the person does not pay the penalty or attend court.

74.             Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty order may be brought against them in a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is engaged but not limited.

75.             Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the BEED Act. However, alignment with the Regulatory Powers Act will result in a narrowing of the scope of current subsection 58(3) of the BEED Act, which allows a single infringement notice to relate to contraventions of two or more civil penalty provisions. Section 103 of the Regulatory Powers Act provides that a single infringement notice must only relate to a single contravention of a single provision, unless a person has committed continuing contraventions of a single provision. In the latter circumstances, a single infringement notice may relate to multiple contraventions of a single provision. The difference between current subsection 58(3) of the BEED Act and section 103 of the Regulatory Powers Act is a minor procedural difference, and does not engage any human rights. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment.

76.             New subsection 53(6) of the BEED Act modifies the operation of subsection 103(3) of the Regulatory Powers Act, and provides that an infringement officer may give a person a single infringement notice relating to multiple contraventions of subsection 18(6) of the BEED Act, which are alleged to have occurred because the person failed to give access to a place at a particular day and time specified in a notice issued under subsection 18(4) of the BEED Act, and continued to fail to do so after that day and time. New subsection 53(6) of the BEED Act complements the amendments made to subsection 18(7) of that Act by Schedule 3.

77.             The amendments in Schedule 3 also modify the operation of subsections 104(2) and 104(3) of the Regulatory Powers Act, which provide the maximum amount payable under an infringement notice. New subsection 53(7) of the BEED Act provides that for a single contravention, the maximum penalty is one-tenth of the maximum penalty that a court could impose, and for multiple contraventions, one-tenth of the amount worked out by adding together the maximum penalties a court could impose for each contravention. These amendments complement the inclusion of new section 52 of the BEED Act.

78.             These modifications preserve the existing maximum penalty for infringement notices under subsection 59(2) of the BEED Act and do not engage human rights.

79.             Schedule 3 also preserves the effect of current subsection 61(1) of the BEED Act, which imposes a 28-day time limit for representation to be made for the withdrawal of an infringement notice (see new subsection 53(7) of the BEED Act). This provision does not engage any human rights.

Conclusion

80.             Schedule 3 to this Bill is compatible with human rights because where it engages human rights, it does not limit those rights.

Overview of Schedule 4 - Coal Mining Industry (Long Service Leave) Legislation

81.             The Coal Mining Industry (Long Service Leave) Legislation consists of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the ‘Administration Act’) and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (the ‘Payroll Levy Collection Act’). The Administration Act and the Payroll Levy Collection Act collectively provide for a portable long service leave scheme where coal mining industry employers are required to financially contribute to a fund, which contributes to the long service leave entitlements of eligible coal mining industry employees. This primarily occurs through collection of a levy from coal mining industry employers, which is then administered by the Coal Mining Industry (Long Service Leave) Corporation (‘the Corporation’). Providing for this scheme is the legitimate objective of the Administration Act and the Payroll Levy Collection Acts.

82.             Schedule 4 to this Bill amends the Administration Act and the Payroll Levy Collection Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of both the Administration Act and the Payroll Levy Collection Act are enforceable under that Part of the Regulatory Powers Act.

83.             Under these amendments, the Corporation is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the Administration Act or the Payroll Levy Collection Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined.

Human rights implications

Civil penalties and Article 14

84.             The Administration Act and the Payroll Levy Collection Act create civil penalties for contraventions of those Acts by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 4 to this Bill. However, the amendments in Schedule 4 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the Administration Act (note, the regulatory framework for the Payroll Levy Collection Act is currently provided by the Administration Act).

85.             Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as ‘criminal’ under international human rights law. Determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

86.             The penalty provisions of the Administration Act (note, pecuniary penalties for contraventions of civil penalty provisions of the Payroll Levy Collection Act are currently provided by the Administration Act) expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the levy regime provided by the Administration Act and the Payroll Levy Collection Act. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the Administration Act and the Payroll Levy Collection Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the Administration Act and the Payroll Levy Collection Act are civil rather than criminal in nature.

87.             The amendments in Schedule 4 do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the Administration Act, which are 60 penalty units for individuals and 300 penalty units for bodies corporate, or the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the Payroll Levy Collection Act, which are 40 penalty units for individuals and 200 penalty units for bodies corporate (see subsection 82(5) of the Regulatory Powers Act, as applied to the Administration Act and Payroll Levy Collection Act by Schedule 4). The civil penalty provisions do not carry the possibility of imprisonment.

88.             The amendments in Schedule 4 will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment.

89.             As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia’s human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 4.

90.             The amendments relating to civil penalty provisions in Schedule 4 engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited.

91.             The amendments in Schedule 4 modify the operation of subsection 82(6) of the Regulatory Powers Act, and provide that, where the person who contravened the civil penalty provision is a body corporate, the relevant court must take into account further matters when determining the applicable pecuniary penalty. These amendments preserve the effect of current subsection 49A(7) of the Administration Act (which also applies to the Payroll Levy Collection Act), and do not engage any human rights.

92.             The amendments in Schedule 4 also modify the operation of Part 4 of the Regulatory Powers Act in order to preserve existing arrangements under current sections 49CE and 49CF of the Administration Act (which also apply to the Payroll Levy Collection Act) in relation to contraventions by executive officers. These amendments do not engage any human rights.

93.             Alignment with Regulatory Powers Act will also apply section 96 of that Act, which is not currently in the Administration Act and the Payroll Levy Collection Act. This section is merely procedural in nature and sets out matters in relation to the burden of proof. As section 96 only relates to proceedings for civil penalty orders, and not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged.

Conclusion

94.             Schedule 4 to this Bill is compatible with human rights because where it engages human right, it does not limit those rights.

Overview of Schedule 5 - Defence Act 1903

95.             The Defence Act 1903 provides for the naval and military defence and protection of the Commonwealth and the States and Territories. This is the legitimate objective of the Defence Act. Section 72TP of the Defence Act enables the Minister to make Woomera Prohibited Area Rules. Part VIB of the Defence Act establishes a regulatory framework to allow non-defence users to access to the Woomera Prohibited Area (‘WPA’) on a conditional basis. The framework includes a permit system for accessing the WPA, and offence and penalty provisions for entering the WPA without permission or for failing to comply with a condition of a permit. The offence and penalty provisions are supported by an infringement notice scheme and demerit point system. The amendments in Schedule 5 relate only to offences under subsection 72TG(1) of the Defence Act.

96.             Schedule 5 to this Bill amends the Defence Act to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable a person who is appointed by the Secretary of the department that administers the Defence Act, and who is either a member of the Defence Force (as defined by the Defence Act) or an Australian Public Service employee of the department that administers the Defence Act, to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a strict liability offence against subsection 72TG(1) of the Defence Act has been committed.

97.             An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court.

Human rights implications

Fair hearing rights

98.             Under the amendments in Schedule 5 to this Bill, infringement notices can be issued under the Regulatory Powers Act in relation to strict liability offences against subsection 72TG(1) of the Defence Act. If the person chooses not to pay the penalty amount in the infringement notice, they may be prosecuted for the offence against subsection 72TG(1) of the Defence Act. The right to a fair and public hearing provided for by Article 14(1) of the ICCPR is engaged.

99.             Section 104 of the Regulatory Powers Act (applied to the Defence Act by Schedule 5) provides that an infringement notice is required to state that the person may choose not to pay the penalty, and notify them that, if they do so, that person may be prosecuted in a court for the alleged offence. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited.

100.         Article 14 of the ICCPR also provides for other criminal process rights, such as the right to be presumed innocent. It sets out the minimum guarantees in criminal proceedings, such as the right to be informed promptly of the charge, the right to freedom from self-incrimination and the right to be tried in person. These rights are not limited by the amendments in Schedule 5. The minimum guarantees and the right to be presumed innocent apply to proceedings relating to contraventions of subsection 72TG(1) of the Defence Act.

101.         Schedule 5 also modifies the operation of Part 5 of the Regulatory Powers Act in order to preserve existing arrangements under the Defence Act. Those arrangements are:

·          an infringement notice must specify that demerit points may be incurred if the amount payable under an infringement notice is paid, or the person is convicted or found guilty of the alleged contravention

·          when deciding whether to withdraw an infringement notice, the Secretary of the department that administers the Defence Act may take into account whether a court has previously imposed a penalty on the person for a contravention of section 72TC, 72TG or 72TJ of the Defence Act, and

·          that, if the amount stated in the infringement notice is paid before the end of the 28-day period, demerit points may be incurred in accordance with Part 7 of the Woomera Prohibited Area Rule 2014.

102.         These modifications do not engage any other human rights.

Conclusion

103.         Schedule 5 to this Bill is compatible with human rights because, where it engages the right to a fair and public hearing and the criminal process rights provided for by Article 14 of the ICCPR, it does not limit those rights.

Overview of Schedule 6 - Defence Reserve Service (Protection) Act 2001

104.         The Defence Reserve Service (Protection) Act 2001 protects members of the Reserves in their employment and education to facilitate their return to civilian life. The Act sets out the entitlements of those Reserve members who undertake certain Reserve service, and prohibits their employers and various organisations from restricting this Reserve service. The Defence Reserve Service (Protection) Act also provides penalties for those employers who hinder a Reserve member from undertaking Reserve service. Providing this scheme is the legitimate objective of the Defence Reserve Service (Protection) Act.

105.         Schedule 6 to this Bill amends the Defence Reserve Service (Protection) Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable an interested person, or a prescribed person acting on behalf of an interested person, to apply to a relevant court for an injunction to restrain a person from engaging in conduct or requiring that person to do a thing. Further, an interested person, or a prescribed person acting on behalf of an interested person, may apply to a relevant court for an interim injunction.

Human rights implications

Injunctions and Article 14

106.         Under the amendments in Schedule 6 to this Bill, an injunction can be granted under the Regulatory Powers Act in relation to contraventions of the offence and civil penalty provisions of the Defence Reserve Service (Protection) Act. As the injunctions framework applies to the offence provisions of the Defence Reserve Service (Protection) Act, the right to a fair and public hearing and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR are engaged.

107.         Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Further, a court may only grant an injunction where a person has engaged, is engaging or is proposing to engage, in conduct that contravenes a provision of the Defence Reserve Service (Protection) Act, or where a person has refused or failed, or is refusing or failing, or proposing to refuse or fail, to do a thing and that refusal or failure was, is or would be a contravention of a provision of the Defence Reserve Service (Protection) Act. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited.

108.         The other criminal process rights and minimum guarantees in Article 14 of the ICCPR are not limited by the amendments in Schedule 6.

Conclusion

109.         Schedule 6 to this Bill is compatible with human rights because, where it engages the right to a fair and public hearing and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR, it does not limit those rights.

Overview of Schedule 7 - Greenhouse and Energy Minimum Standards Act 2012

110.         The Greenhouse and Energy Minimum Standards Act 2012 (the ‘GEMS Act’) and associated legislation establishes a national scheme to govern Australia’s Equipment Energy Efficiency (‘E3’) Program, as well as allowing expansion of energy efficiency regulation to cover a wider range of products. This legislation creates a national framework to regulate energy efficiency and labelling standards.

111.         Schedule 7 to this Bill amends the GEMS Act to trigger the provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act. This will enable a GEMS inspector (as defined in the GEMS Act) to enter any premises and exercise monitoring powers for the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or determining whether information subject to monitoring is correct. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of a monitoring warrant.

112.         New subsection 87(1) of the GEMS Act provides that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is a provision of the GEMS Act, or an offence against the Crimes Act 1914 or the Criminal Code Act 1995 that relates to the GEMS Act. New subsection 87(2) of the GEMS Act states that information given in compliance or purported compliance with a provision of that Act is subject to monitoring under Part 2 of the Regulatory Powers Act.

113.         A monitoring warrant may only be issued by a magistrate or a Judge of certain specified courts. The general monitoring powers of an authorised person set out in Part 2 of the Regulatory Powers Act include the power to:

·          search premises and any thing on the premises

·          examine or observe activities on the premises

·          inspect documents on the premises

·          ask persons on the premises questions and request the production of documents

·          bring equipment and materials onto the premises

·          inspect, examine, take measurements of or conduct tests on any thing on the premises

·          take images of things or make copies of documents

·          operate electronic equipment, and

·          secure evidence of contraventions for up to 24 hours.

114.         Further, if entry is under a monitoring warrant, the authorised person may:

·          require persons on the premises to answer questions or produce documents relating to the provisions or information that are subject to monitoring, and

·          secure electronic equipment for the purposes of obtaining expert assistance.

115.         Schedule 7 also amends the GEMS Act to trigger the provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act, which will enable a GEMS inspector to enter any premises and exercise investigation powers where the inspector suspects on reasonable grounds that there may be material on the premises related to the contravention of an offence provision or a civil penalty provision subject to investigation under Part 3 of the Regulatory Powers Act. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of an investigation warrant.

116.         New subsection 88(1) of the GEMS Act states that each compliance obligation of the GEMS Act is subject to investigation under Part 3 of the Regulatory Powers Act.

117.         An investigation warrant may only be issued by a magistrate or a Judge of certain specified courts. The general investigation powers of an authorised person set out in Part 3 of the Regulatory Powers Act include the power to:

·          search the premises and any thing on the premises

·          inspect, examine, take measurements of or conduct tests on evidential material

·          ask persons on the premises questions and request the production of documents

·          bring equipment and materials onto the premises

·          take images of things, and

·          operate electronic equipment.

118.         Further, if entry is under an investigation warrant, the authorised person may:

·          seize a disk, tape or other storage device on the premises if

o    it is not practicable to put the evidential material into documentary form or transfer it to a separate disk, tape or other storage device brought onto the premises for the exercise of investigation powers, or

o    possession of the equipment or disk, tape or other storage device by the occupier could constitute an offence

·          seize evidential material that is not of the kind specified in the warrant if:

o    the authorised person finds the thing in the course of searching for material of the kind specified in the warrant, and

o    the authorised person believes on reasonable grounds that

·           the thing is evidential material of another kind, or

·          a related provision has been contravened with respect to the thing, or

·         the thing is evidence of a contravention of a related provision, or

·          the thing is intended to be used to contravene a related provision, and

o    the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction, and

·          require persons on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant.

Right to privacy

119.         Schedule 7 to this Bill engages the protection against arbitrary or unlawful interference with privacy. 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. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances.

120.         The GEMS Act pursues the legitimate objective of giving effect to commitments under the United Nations Framework Convention on Climate Change to adopt national policies and measures to mitigate climate change, limit Australia’s emissions of greenhouse gases, and promote the development and application of technologies and practices that control emissions of greenhouse gases. The Act pursues this objective by establishing a national framework for regulating the energy efficiency of products supplied or used within Australia.

121.         The entry, monitoring, search, seizure and information gathering powers in the triggered provisions of the Regulatory Powers Act are provided by law. The monitoring and investigation powers are necessary to enable the monitoring of compliance with the GEMS Act and collection of evidential material relating to contraventions of that Act. They are constrained in various ways as set out below, ensuring that their use is not arbitrary.

122.         The powers cannot be exercised without consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. 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.

123.         The Regulatory Powers Act also provides constraints on the issuing of a monitoring or investigation warrant. For example, in the case of an investigation warrant, 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 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.

124.         In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse.

125.         Further, the powers can only be exercised in specific circumstances set out in the triggered provisions. For example, under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised in limited circumstances set out at paragraph 118 above. These constraints on the exercise of the powers also limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances.

126.         Accordingly, the monitoring and investigating powers are necessary, proportionate and reasonable in the pursuance of the legitimate objectives of the GEMS Act.

127.         Schedule 7 also extends the operation of subsection 104(1) of the Regulatory Powers Act, by providing that an infringement notice given in relation to an alleged contravention of a civil penalty provision of the GEMS Act must also state that the giving of the notice and the payment of the amount payable under the notice may be publicised under section 162 of the GEMS Act (see new subsection 130(7) of the GEMS Act). Section 162 of the GEMS Act, as amended by Schedule 7, provides that, amongst other things, the GEMS Regulator may publicise the giving of an infringement notice, on the basis that such matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. The insertion of subsection 130(7) of the GEMS Act ensures that a recipient of an infringement notice is aware of the operation of section 162 of that Act. New subsection 130(7) of the GEMS Act preserves the effect of current paragraph 147(1)(i) of the GEMS Act, which is repealed by Schedule 7.

128.         New subsection 130(7) of the GEMS Act engages the protection against arbitrary or unlawful interference with privacy. The limitation of the right to privacy is provided for by law. Giving the GEMS Regulator the power to publicise various matters about an individual assists in deterring persons from failing to comply with their obligations under the GEMS Act. Making information about decisions and enforcement actions publicly available is important for transparency in the work of the Regulator. Additionally, these matters have important implications for consumers and persons who may incur rights and responsibilities under the E3 Program. The exercise of the power under new subsection 130(7) of the GEMS Act is constrained, as it can only be exercised by the GEMS Regulator. Section 162 of the GEMS Act, as amended by Schedule 7, specifies in detail the matters that the Regulator may publicise. These constraints protect against arbitrary use of the power. Accordingly, new subsection 130(7) of the GEMS Act is necessary, reasonable and proportionate to pursuance of the legitimate objective of the GEMS Act. The provisions are compatible with the protection from arbitrary or unlawful interference with privacy.

Right to security of person and right to life

129.         Schedule 7 to this Bill also modifies the operation of Parts 2 and 3 of the Regulatory Powers Act, and permits an authorised person to use force against things when exercising a monitoring or an investigation warrant. These amendments preserve current arrangements under the GEMS Act, which are repealed by Schedule 7.

130.         In executing a monitoring or an investigation warrant, an authorised person is permitted to use such force against things as is necessary and reasonable in the circumstances. It is necessary to include this power, as an authorised person executing a monitoring warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain things or information that would provide evidence that provisions subject to monitoring have not been, or are not being, complied with, or that information subject to monitoring is incorrect. Similarly, an authorised person executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain evidential material that would demonstrate that a compliance obligation of the GEMS Act has been contravened.

131.         As this power does not extend to the use of force against persons, it does not engage the right to security of person in Article 9 of the ICCPR or the right to life in Article 6 of the ICCPR.

132.         The power can only be exercised under a monitoring or investigation warrant, which must be issued by a judicial officer. Further, the power may only be used as is necessary and reasonable in the circumstances. The power is compatible with human rights.

Criminal process rights

133.         Triggering the provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act causes offences in that Act to apply in relation to monitoring and investigating. The fair trial rights, minimum guarantees in the determination of a criminal charge and other criminal process rights contained in Article 14 of the ICCPR are engaged. Parts 2 (monitoring) and 3 (investigation) of the Regulatory Powers Act provide questioning powers to authorised persons. Under subsection 24(3) of the Regulatory Powers Act, where entry is authorised by a monitoring warrant, the authorised person may require any person on the premises to answer questions or produce documents relating to information or provisions subject to monitoring. If the person fails to do so, this is an offence under subsection 24(5) of the Regulatory Powers Act. The penalty is 30 penalty units. Similarly, under section 54(3) of the Regulatory Powers Act an authorised person who enters premises under an investigation warrant may require persons on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant. If the person fails to do so, this is an offence under subsection 54(5) of the Regulatory Powers Act. The penalty is 30 penalty units.

134.         These offence provisions do not limit the person’s access to a fair trial or limit the other criminal process rights in any way. Sections 17 and 47 of the Regulatory Powers Act make it clear that the privileges against self-incrimination and legal professional privilege have not been abrogated by the monitoring and investigation powers provisions, including the offence provisions. These protections guarantee the criminal process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR. The usual guarantees and criminal process rights will apply to these offences and are not abrogated by any provisions in the Bill or triggered provisions of the Regulatory Powers Act. Accordingly, sections 24 and 54 of the Regulatory Powers Act, as applied to the GEMS Act by Schedule 7, are compatible with human rights.

Civil penalties and Article 14

135.         The GEMS Act is also amended to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the GEMS Act are enforceable under that Part of the Regulatory Powers Act.

136.         Under these amendments, the GEMS Regulator (as defined in the GEMS Act) is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the GEMS Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined.

137.         The GEMS Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 7 to this Bill. However, the amendments in Schedule 7 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the GEMS Act.

138.         Triggering the civil penalty provisions of the Regulatory Powers Act could engage criminal process rights if the imposition of civil penalties is classified as ‘criminal’ under international human rights law. As set out above, Article 14 of the ICCPR provides that, in determination of criminal charges, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Various other rights are provided for persons charged with criminal offences.

139.         Determining whether these penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

140.         The penalty provisions of the GEMS Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the requirements for registration, supply and use of GEMS products under the GEMS Act. The civil penalty provisions of the GEMS Act do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the GEMS Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the GEMS Act are civil rather than criminal in nature.

141.         The amendments in Schedule 7 do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the GEMS Act. Under the GEMS Act, the maximum pecuniary penalties that may be imposed in civil penalty orders are 60 penalty units for some provisions and 120 penalty units for others. Where the penalties are higher, this reflects the more serious implications or results of the contravention. Under subsection 82(5) of the Regulatory Powers Act, as applied to the GEMS Act by Schedule 7, the maximum penalties which apply to individuals are the same as those specified in the civil penalty provisions of the GEMS Act. For bodies corporate, the penalties will be no more than five times higher than the penalties specified in the civil penalty provisions, that is, 300 or 600 penalty units. This preserves the effect of current subsection 130(5) of the GEMS Act. The penalties do not carry the consequences of offences under the GEMS Act, which would involve a criminal record and can result in imprisonment for contravention of some provisions.

142.         These penalties are not so severe that they could be considered criminal in nature.

143.         Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 7.

144.         The amendments relating to civil penalty provisions in Schedule 7 engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited.

145.         Schedule 7 also modifies the operation of section 96 of the Regulatory Powers Act, and reverses the burden of proof for certain civil penalty provisions. This amendment preserves current arrangements under the GEMS Act, which are repealed by Schedule 7. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision.

146.         New subsection 129(4) of the GEMS Act modifies the operation of section 96 of the Regulatory Powers Act, and provides that that section does not apply in relation to proceedings for a civil penalty order for a contravention of a civil penalty provision under Part 3 of the GEMS Act. This modification is necessary, as the civil penalty provisions in Part 3 of the GEMS Act provide that the person wishing to rely on certain exceptions or exemptions has the burden of proof for those matters, while the person seeking the civil penalty order has the burden in relation to other matters. The matters for which the person seeking to rely on the exceptions or exemptions has the burden of proof are primarily matters that are solely within the knowledge of that person (for example, where the matter relates to second-hand products). Turning off section 96 of the Regulatory Powers Act preserves the effect of these burden provisions in the GEMS Act. As new subsection 129(4) of the GEMS Act only relates to proceedings for a civil penalty order, and the civil penalty provisions are not criminal in nature, the right to be presumed innocent is not engaged. 

147.         Alignment with the Regulatory Powers Act will also apply an additional civil penalty provision that does not currently have equivalent in the GEMS Act, as in force immediately before the commencement of Schedule 7. Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. This provision does not create any further human rights implications.

Infringement notices and Article 14

148.         Schedule 7 to this Bill also amends the GEMS Act to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act. These provisions enable the GEMS inspector to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a civil penalty provision of the GEMS Act has been contravened.

149.         An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court. As the amendments only trigger the infringement notice regime for civil penalty provisions of the GEMS Act, the criminal process rights in Article 14 of the ICCPR are not engaged. There are no criminal consequences associated with infringement notices for civil penalty provisions. For example, they do not carry the possibility of imprisonment if the person does not pay the penalty or attend court.

150.         Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty order may be brought against them in a court. Accordingly, the person must always be advised of the consequences of not paying the penalty, and of their right to have the matter dealt with by a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is not limited.

151.         Accordingly, the infringement notice provisions applied by Schedule 7 are consistent with human rights.

Enforceable undertakings and Article 14

152.         The GEMS Act is also amended to trigger the enforceable undertakings provisions in Part 6 of the Regulatory Powers Act, which will enable the GEMS Regulator to accept and enforce undertakings relating to compliance with offence and civil penalty provisions of the GEMS Act. Further, if the GEMS Regulator is satisfied that the person has breached the undertaking, he or she may apply to a relevant court for an order relating to the undertaking.

153.         Triggering the enforceable undertakings provisions of the Regulatory Powers Act in relation to offences under the GEMS Act engages the right to a fair and public hearing and other criminal process rights and minimum guarantees in Article 14 of the ICCPR. Article 14(1) of the ICCPR provides ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Under Part 6 of the Regulatory Powers Act, an order enforcing the undertaking can only be made by a court. Accordingly, the right to a fair and public hearing is not limited.

154.         The amendments in Schedule 7 to this Bill also do not limit the minimum guarantees and other criminal process rights in Article 14 of the ICCPR. The minimum guarantees and process rights will apply to criminal proceedings.

155.         Schedule 7 also extends the operation of subsection 114(1) of the Regulatory Powers Act, and provides that the GEMS Regulator may accept a written undertaking given by a person that the person will, in order to provide compensation for loss or damage suffered as a result of a contravention by the person of an offence or civil penalty provision subject to enforceable undertakings, pay another person an amount worked out in accordance with the undertaking. The additional power in new subsection 131(4) of the GEMS Act allows third parties such as purchasers of energy services to be compensated for loss or damage resulting from a contravention. This power does not engage human rights.

156.         Article 14(1) of the ICCPR also provides a right to a fair and public hearing in civil matters. As orders to enforce an undertaking can only be made by a relevant court under section 115 of the Regulatory Powers Act, the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is not limited.

157.         Accordingly, both the amendments relating to enforceable undertakings in Schedule 7, and the enforceable undertaking provisions triggered by Schedule 7, are compatible with human rights.

Injunctions and Article 14

158.         Schedule 7 to this Bill also amends the GEMS Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the GEMS Regulator to apply to a relevant court for an injunction to restrain the person from engaging in conduct or requiring the person to do a thing. Further, the GEMS Regulator may apply to a relevant court for an interim injunction. The injunctions powers are triggered in relation to offences against Parts 3 or 5 of the GEMS Act, or civil penalty provisions of those parts.

159.         Triggering the injunction provisions of the Regulatory Powers Act in relation to offences engages the rights to a fair and public hearing in both civil and criminal proceedings. Article 14(1) 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. Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited. The amendments in Schedule 7 relating to injunctions and the triggered injunctions provisions do not limit any of the other criminal process rights or minimum guarantees in Article 14 of the ICCPR.

160.         New subsection 132(4) of the GEMS Act also extends the operation of Part 7 of the Regulatory Powers Act, and provides that a relevant court may grant an injunction under that Part by consent of all the parties. New subsection 132(4) of the GEMS Act preserves the effect of current subsection 157(3) of the GEMS Act.  This provision does not engage any human rights.

161.         Accordingly, the amendments relating to injunctions in Schedule 7 and the triggered injunctions provisions are compatible with human rights.

Conclusion

162.         Schedule 7 to this Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Overview of Schedule 8 - Horse Disease Response Levy Collection Act 2011

163.         The Horse Disease Response Levy Collection Act 2011 (the ‘Horse Disease Act’) gives the Commonwealth the authority to collect and administer levies on manufactured horse feed and worm treatments for horses. A companion Act, the Horse Disease Response Levy Act 2011 (the ‘Levy Act’), imposes the levies. The purpose of the levy is to enable the horse industry to repay the Commonwealth for any monies expended on its behalf in a response to an emergency animal disease outbreak affecting horses. The Horse Disease Act provides for funds raised through the levies to initially flow to the Commonwealth’s Consolidated Revenue Fund, to be subsequently appropriated to Animal Health Australia, which will manage the funds on behalf of the horse industry. The Horse Disease Act also includes provisions that impose penalties for unpaid levies, allow the Commonwealth to recover levies that are due, and provide refunds when necessary.

164.         Schedule 8 to this Bill amends the Horse Disease Act to trigger the provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act, which will enable an authorised person (as defined in the Horse Disease Act) to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or the purpose of determining whether information subject to monitoring is correct. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of a monitoring warrant.  New subsection 13(1) of the Horse Disease Act provides that the levy law is subject to monitoring under Part 2 of the Regulatory Powers Act. New subsection 13(2) of the Horse Disease Act states that information given in compliance or purported compliance with the levy law or Division 1 of Part 3 of the Horse Disease Act is subject to monitoring under Part 2 of the Regulatory Powers Act.

165.         A monitoring warrant may only be issued by a magistrate or a Judge of certain specified courts. The general monitoring powers of an authorised person are set out in Part 2 of the Regulatory Powers Act, and are described above in relation the GEMS Act. 

Human rights implications

Right to privacy

166.         Schedule 8 to this Bill engages 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. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances.

167.         To the extent that the measures in the Bill limit the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to the achievement of a legitimate objective. The Horse Disease Act pursues the legitimate objective of ensuring that the horse industry reimburses the Commonwealth for emergency action taken in response to health issues in that industry. The Horse Disease Act pursues this objective by establishing a framework for the collection and administration of the levy.

168.         The monitoring powers in the triggered provisions of the Regulatory Powers Act are provided by law. They are necessary to enable the monitoring of compliance with the levy regime and collection of evidential material relating to contraventions. The exercise of these powers is constrained in various ways as set out below, ensuring that their use is not arbitrary.

169.         The regime under the Regulatory Powers Act protects against arbitrary interference with privacy, as the monitoring powers cannot be exercised without consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. 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.

170.         The Regulatory Powers Act also provides limits on the issuing of a monitoring warrant. An issuing officer may only issue a warrant if they are satisfied that it is reasonably necessary that a person have access to the premises for the purposes of determining whether a provision subject to monitoring has been or is being complied with, or whether information subject to monitoring is correct. 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.

171.         In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse.

172.         Further, the powers can only be exercised in specific circumstances set out in the triggered provisions. For example, the power to secure a thing may only be exercised where:

·          the thing is found during the exercise of monitoring powers on the premises, and

·          the person believes on reasonable grounds that:

o      a related provision has been contravened with respect to the thing, or

o      the thing affords evidence of a contravention, or

o      the thing is intended to be used for the purposes of a contravention, and

·          the authorised person believes on reasonable grounds that:

o      it is necessary to secure the thing to prevent it from being concealed, lost or destroyed before a warrant to seize a thing is obtained, and

o      it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.

173.         These constraints on the exercise of the powers limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances.

174.         Schedule 8 also modifies the operation of Part 2 of the Regulatory Powers Act, and permits an authorised person to seize any thing at any premises entered for the purposes of exercising monitoring powers under section 18 of the Regulatory Powers Act, as that section applies in relation to the levy law or Division 1 of Part 3 of the Horse Disease Act (see new subsection 13(13) of the Horse Disease Act). This amendment preserves current arrangements in current paragraph 14(f) of the Horse Disease Act, which is repealed by Schedule 8, including the power to seize things where entry to premises is by consent.

175.         New subsection 13(13) of the Horse Disease Act extends the standard monitoring powers in Part 2 of the Regulatory Powers Act, as seizure is restricted to investigation powers exercised under an investigation warrant (see sections 49, 50 and 52 of the Regulatory Powers Act). This new subsection engages the protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR. The power to seize is provided by law. It is necessary to ensure compliance with levy collection requirements. The power to take possession of records (or other things) relating to the administration or payment of levies enables authorised persons to remove documents where examination of material on-site is not possible, for example, due to the volume or complexity of the material. It is necessary to retain the power to seize in order to prevent evidence, such as documents, from being concealed, lost or destroyed. This evidence can be used to calculate the levies payable. This is necessary to ensure that emergency responses in the horse industry are fully funded. Accordingly, the power is necessary, proportionate and reasonable to the legitimate objective of the Horse Disease Act.

176.         The power to seize is also consistent with the equivalent power in section 19 of the Primary Industry Levies and Charges Collection Act 1991 (the ‘PILCC Act’), which governs the collection of Emergency Animal Disease Response levies for other livestock, including pigs, cattle and chickens. The inclusion of the power to seize in the Horse Disease Act ensures that all industries with an emergency response levy in place are treated equally. The department that administers the PILCC Act, the Horse Disease Act and the Levy Act is scheduled to undertake a review of the regulatory powers of these Acts in the next 12 months.

177.         The exercise of the power to seize is constrained in various ways, which ensure that its use is reasonable and proportionate in the circumstances and that it is not exercised arbitrarily. Section 18 of the Regulatory Powers Act provides that the power may only be exercised where entry to the premises is under a warrant or with consent of the occupier. Further, the power may only be exercised for the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or the purpose of determining whether information subject to monitoring is correct. New section 14 of the Horse Disease Act also provides that the authorised person must give the occupier a copy of the seized thing on request if the thing is something that can be readily copied, such as a document or computer file. Under new section 15 of the Horse Disease Act, the occupier must be given a receipt. Section 16 of the Horse Disease Act requires the Secretary of the department that administers the Horse Disease Act to take reasonable steps to return a seized thing within 60 days, or earlier if the reason for its seizure no longer exists or it is not going to be used in evidence. Under new section 17 of the Horse Disease Act, a magistrate may extend this period in restricted circumstances. Finally, new section 18 of the Horse Disease Act states that a seized thing can only be disposed of in restricted circumstances and new section 19 of that Act provides that, if such a disposal results in acquisition of property, the Commonwealth is liable to pay reasonable compensation. These restrictions reflect the standard restrictions on the power to seize, which are provided for in Part 3 of the Regulatory Powers Act.

178.         New subsection 13(13) of the Horse Disease Act is necessary, reasonable and proportionate, and is also appropriately constrained by new sections 14, 15, 16, 17, 18 and 19 of that Act. Accordingly, the monitoring provisions are compatible with the protection from arbitrary or unlawful interference with privacy.

179.         Alignment with the Regulatory Powers Act will also apply an additional provision pertaining to monitoring powers that does not currently have equivalent in the Horse Disease Act. Section 33 of the Regulatory Powers Act sets out the process for extending a period in which a thing is secured, and applies where an authorised person applies to an issuing officer under subsection 21(5) or 22(2) of that Act for an extension of the period during which a thing may be secured. This provision does not engage any human rights.

Conclusion

180.         Schedule 8 to this Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Overview of Schedule 9 - Illegal Logging Prohibition Act 2012

181.         The Illegal Logging Prohibition Act 2012 (the ‘Illegal Logging Act’) aims to reduce the harmful environmental, social and economic impacts of illegal logging by restricting the importation and sale of illegally logged timber products in Australia. The Illegal Logging Act prohibits the importation of illegally logged timber and the processing of illegally logged raw logs. It also requires importers of regulated timber products and processors of raw logs to conduct due diligence in order to reduce the risk that illegally logged timber is imported or processed. The Illegal Logging Act allows inspectors to exercise monitoring, investigation and enforcement powers for the purposes of the Act.

182.         Schedule 9 to this Bill amends the Illegal Logging Act to trigger the provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act, which will enable an inspector (as defined in the Illegal Logging Act) to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or the purpose of determining whether information subject to monitoring is correct. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of a monitoring warrant. New subsection 21(1) of the Illegal Logging Act provides that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is a provision of the Illegal Logging Act, or an offence against the Crimes Act 1914 or the Criminal Code Act 1995 that relates to the Illegal Logging Act. New subsection 21(2) of the Illegal Logging Act states that information given in compliance or purported compliance with a provision of that Act is subject to monitoring under Part 2 of the Regulatory Powers Act.

183.         A monitoring warrant may only be issued by a magistrate or a Judge of certain specified courts. The general monitoring powers of an authorised person are set out in Part 2 of the Regulatory Powers Act, and are discussed above in relation to the GEMS Act.

184.         Schedule 9 also amends the Illegal Logging Act to trigger the provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act, which will enable an inspector to enter any premises and exercise investigation powers where the inspector suspects on reasonable grounds that there may be material on the premises related to the contravention of an offence provision or a civil penalty provision subject to investigation under Part 3 of the Regulatory Powers Act. However, an authorised person may not enter the premises unless the occupier has provided consent or the authorised person is in possession of an investigation warrant.

185.         New subsection 22(1) of the Illegal Logging Act states that a provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

·          an offence against the Illegal Logging Act

·          a civil penalty provision of the Illegal Logging Act, or

·          an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act.

186.         An investigation warrant may only be issued by a magistrate or a Judge of certain specified courts. The general investigation powers of an authorised person are set out in Part 3 of the Regulatory Powers Act, and are discussed above in relation to the GEMS Act.

Human rights implications

Right to privacy

187.         Schedule 9 to this Bill engages the protection against arbitrary or unlawful interference with privacy. 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. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. To the extent that the measures in the Bill limit the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to the achievement of a legitimate objective. The Illegal Logging Act pursues the legitimate objective of reducing the harmful environmental, social and economic impacts of illegal logging by restricting the importation and sale of illegally logged timber products in Australia. The Act pursues this objective by regulating the import and processing of timber products.

188.         The monitoring and investigation powers in the triggered provisions of the Regulatory Powers Act are provided by law. They necessary to enable the monitoring of compliance with the levy regime and the collection of evidential material relating to contraventions. The exercise of these powers is constrained in various ways as set out below, ensuring that their use is not arbitrary.

189.         The regime under the Regulatory Powers Act protects against arbitrary interference with privacy, as the monitoring and investigation powers cannot be exercised without consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. 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.

190.         The Regulatory Powers Act also provides restrictions on the issuing of a monitoring or investigation warrant. For example, in the case of an investigation warrant, 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 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.

191.         In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse.

192.         The monitoring and investigation powers may only be exercised in certain circumstances set out in the Regulatory Powers Act. For example, under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised where:

·          the authorised person finds the thing in the course of searching for material of the kind specified in an investigation warrant, and

·          the authorised person believes on reasonable grounds that

o       the thing is evidential material of another kind, or

o      a related provision has been contravened with respect to the thing, or

o      the thing is evidence of a contravention of a related provision, or

o       the thing is intended to be used to contravene a related provision, and

·          the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction.

193.         These constraints on the exercise of the powers limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances. Accordingly, the monitoring and investigation powers are necessary, proportionate and reasonable in the pursuance of the legitimate objectives of the Illegal Logging Act.

194.         New subsections 21(11) and 22(10) of the Illegal Logging Act modify the operation of Parts 2 and 3 of the Regulatory Powers Act, and provide an authorised person with the power to take samples of any thing at any premises entered under section 18 or 48 of the Regulatory Powers Act for the purposes of exercising monitoring or investigation powers. It is necessary to retain the power to take samples in the Illegal Logging Act, as this power is an essential element of an inspector’s monitoring and investigation powers under the current regulatory powers framework of that Act. Obtaining a sample of a product is necessary in order for an inspector to verify particular characteristics of the timber included in a product, such as its genus, species and country or region of harvest. Information gathered through this process can be used to confirm whether the product is what the importer or processor claims it to be, and whether any supporting paperwork or certification is relevant to that product (that is, whether information given in compliance, or purported compliance, is correct). New subsections 21(11) and 22(10) of the Illegal Logging Act preserve the effect of current arrangements under that Act, which are repealed by Schedule 9 to this Bill.

195.         The power to sample any thing on any premises entered under section 18 or 48 of the Regulatory Powers Act for the purposes of exercising monitoring or investigation powers may not be exercised without a monitoring or investigation warrant, or the occupier’s consent to enter the premises. Accordingly, the exercise of the power is constrained, and these constraints ensure its use is reasonable, necessary and proportionate to the objectives of the Illegal Logging Act.

Right to security of person and right to life

196.         New subsection 22(11) of the Illegal Logging Act provides that, in executing an investigation warrant, an authorised person is permitted to use such force against things as is necessary and reasonable in the circumstances. This extends the standard investigation powers provided under the Regulatory Powers Act, but preserves the effect of current arrangements under the Illegal Logging Act, which are repealed by Schedule 9 to this Bill. It is necessary to preserve this power, as an authorised person executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain evidential material that would demonstrate that a provision of the Illegal Logging Act subject to investigation has been contravened.

197.         The power can only be exercised under an investigation warrant, which must be issued by a judicial officer. Further, the power may only be used as is necessary and reasonable in the circumstances.

198.         As this power does not extend to the use of force against persons, it does not engage the right to security of person in Article 9 of the ICCPR or the right to life in Article 6 of the ICCPR.

199.         Accordingly, the exercise of the power is constrained, and these constraints ensure its use is reasonable, necessary and proportionate to the objectives of the Illegal Logging Act.

Criminal process rights

200.         Triggering the provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act causes offences in that Act to apply in relation to monitoring and investigating. The fair trial rights, minimum guarantees in the determination of a criminal charge and other criminal process rights contained in Article 14 of the ICCPR are engaged. Parts 2 (monitoring) and 3 (investigation) of the Regulatory Powers Act provide questioning powers to authorised persons. Under subsection 24(3) of the Regulatory Powers Act, where entry is authorised by a monitoring warrant, the authorised person may require any person on the premises to answer questions or produce documents relating to information or provisions subject to monitoring. If the person fails to do so, this is an offence under subsection 24(5) of the Regulatory Powers Act. The penalty is 30 penalty units. Similarly, under section 54(3) of the Regulatory Powers Act an authorised person who enters premises under an investigation warrant may require persons on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant. If the person fails to do so, this is an offence under subsection 54(5) of the Regulatory Powers Act. The penalty is 30 penalty units.

201.         These offence provisions do not limit the person’s access to a fair trial or limit the other criminal process rights in any way. Sections 17 and 47 of the Regulatory Powers Act make it clear that the privileges against self-incrimination and legal professional privilege have not been abrogated by the monitoring and investigation powers provisions, including the offence provisions. These protections guarantee the criminal process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR. The usual guarantees and criminal process rights will apply to these offences and are not abrogated by any provisions in the Bill or triggered provisions of the Regulatory Powers Act. Accordingly, sections 24 and 54 of the Regulatory Powers Act, as applied to the Illegal Logging Act by Schedule 9 to this Bill, are compatible with human rights.

202.         Schedule 9 to this Bill also amends the Illegal Logging Act to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable an inspector to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a provision identified in new subsection 24(1) of the Illegal Logging Act has been contravened.

203.         New subsection 24(1) of the Illegal Logging Act states that the following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:

·          a strict liability offence against the Illegal Logging Act,

·          a civil penalty provision of the Illegal Logging Act, or

·          an offence against the Crimes Act or the Criminal Code that relates to the Illegal Logging Act.

204.         An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court. If the person does not pay the amount in the notice, they may be prosecuted if the notice relates to an offence provision, or proceedings for a civil penalty order may be brought against them if the notice relates to a civil penalty provision. This engages the right to a fair and public hearing and the other criminal process rights and minimum guarantees in Article 14 of the ICCPR. As the person may elect to have the matter heard by a court, rather than pay the penalty, the rights to a fair and public hearing, in both civil and criminal matters, are not limited. The provisions of Schedule 9 to this Bill do not limit the minimum guarantees in criminal proceedings or other process rights provided for by Article 14 of the ICCPR in any way.

205.         Accordingly, the infringement notice provisions under Schedule 9 to this Bill are compatible with the right to a fair and public trial.

Civil penalties and Article 14

206.         The Illegal Logging Act is also amended to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the Illegal Logging Act are enforceable under that Part of the Regulatory Powers Act.

207.         Under these amendments, the Secretary of the department that administers the Illegal Logging Act is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the Illegal Logging Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined.

208.         The Illegal Logging Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 9 to this Bill. However, the amendments in Schedule 9 to this Bill mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the Illegal Logging Act.

209.         Triggering the civil penalty provisions of the Regulatory Powers Act could engage criminal process rights if the imposition of civil penalties is classified as ‘criminal’ under international human rights law. Article 14 of the ICCPR provides that, in determination of criminal charges, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Various other rights are provided for persons charged with criminal offences.

210.         Determining whether these penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

211.         The penalty provisions of the Illegal Logging Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the regulatory regime under the Illegal Logging Act. The civil penalty provisions of the Illegal Logging Act do not impose criminal liability and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the Illegal Logging Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the Illegal Logging Act are civil rather than criminal in nature.

212.         The amendments in Schedule 9 to this Bill do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the Illegal Logging Act. Under the Illegal Logging Prohibition Regulation 2012 , the civil penalty for contravention of civil penalty provisions (as defined in the Illegal Logging Act) is 100 penalty units. Under subsection 82(5) of the Regulatory Powers Act, as applied to the Illegal Logging Act by Schedule 9 to this Bill, the maximum penalty for individuals remains 100 penalty units, and for bodies corporate the penalty is no more than 500 penalty units. This preserves the effect of subsection 60(5) of the current Illegal Logging Act. The civil penalty provisions do not carry the possibility of imprisonment.

213.         These penalties are not so severe that they could be considered criminal in nature. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 9 to this Bill.

214.         The amendments relating to civil penalty provisions in Schedule 9 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) to this Bill. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited.

215.         Alignment with the Regulatory Powers Act will also apply additional civil penalty provisions that do not currently have equivalents in the Illegal Logging Act, as in force immediately before the commencement of Schedule 9 to this Bill.

216.         Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged.

217.         Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority. This provision does not have any human rights implications.

Additional monitoring and investigation powers without human rights impact

218.         Alignment with the Regulatory Powers Act will also apply additional provisions pertaining to monitoring and investigation powers that do not currently have equivalents in the Illegal Logging Act, as in force immediately before the commencement of Schedule 9 to this Bill. These provisions are sections 33 and 74, and subsection 67(3) of the Regulatory Powers Act.

219.         Sections 33 and 74 of the Regulatory Powers Act set out processes for extending the period for which a thing is secured. They do not engage human rights.

220.         Subsection 67(3) of the Regulatory Powers Act provides that a person notified under paragraph 67(2)(b) of that Act is entitled to be heard in relation to an application for an order permitting the further retention of a thing seized under Part 3 of that Act. As this does not relate to the determination of a criminal charge, this provision does not engage any human rights.

Conclusion

221.         Schedule 9 to this Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Overview of Schedule 10 - Industrial Chemicals (Notification and Assessment) Act 1989

222.         The Industrial Chemicals (Notification and Assessment) Act 1989 (the ‘ICNA Act’) establishes the National Industrial Chemicals Notification and Assessment Scheme (‘NICNAS’) as a national system of notification and assessment of industrial chemicals for the protection of human health and the environment.

223.         Schedule 10 to this Bill amends the ICNA Act to trigger the provisions pertaining to monitoring powers in Part 2 of the Regulatory Powers Act, which will enable an inspector (as defined in the ICNA Act) to enter any premises and exercise monitoring powers for either the purpose of determining whether provisions subject to monitoring have been, or are being, complied with, or for the purpose of determining whether information subject to monitoring is correct. An inspector may not enter the premises unless the occupier has provided consent or the inspector is in possession of a monitoring warrant.

224.         New subsection 85(1) of the ICNA Act provides that a provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is a provision of the ICNA Act or the regulations made under that Act, or an offence against the Crimes Act 1914 or the Criminal Code Act 1995 that relates to the ICNA Act or the regulations made under that Act. New subsection 85(2) of the ICNA Act states that information given in compliance or purported compliance with a provision of that Act or the regulations made under that Act is subject to monitoring under Part 2 of the Regulatory Powers Act.

225.         The ability to monitor the correctness of information given in compliance, or purported compliance, with a provision of the ICNA Act or the regulations made under that Act complements the existing monitoring powers framework of the ICNA Act. There is currently no equivalent to this provision in the ICNA Act.

226.         Schedule 10 to this Bill amends the ICNA Act to trigger the provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act, which will enable an inspector (as defined in the ICNA Act) to enter premises and exercise investigation powers where the inspector suspects on reasonable grounds that there may be material on the premises related to the contravention of a provision of the ICNA Act or the regulations made under that Act, or an offence against the Crimes Act or Criminal Code Act that relates to the ICNA Act or the regulations made under that Act. An inspector may not enter the premises unless the occupier has provided consent or the inspector is in possession of an investigation warrant.

227.         The ICNA Act is also amended to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the Minister responsible for the department that administers the ICNA Act, or any other person, to apply to a relevant court for an injunction to restrain the person from engaging in conduct or requiring the person to do a thing. Further, the Minister responsible for the department that administers the ICNA Act, or any other person, may apply to a relevant court for an interim injunction.

Human rights implications

Right to privacy

228.         Schedule 10 to this Bill engages the protection against arbitrary or unlawful interference with privacy. 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. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances.

229.         The legitimate object of the ICNA Act is to provide a national system of notification and assessment of industrial chemicals to give effect to Australia’s obligations under international agreements relating to the regulation of chemicals, and aid in the protection of the Australian people and the environment by finding out the risks to occupational health and safety, to public health and to the environment that could be associated with the importation, manufacture or use of the chemicals. Schedule 10 to this Bill supports this objective by triggering the standard provisions pertaining to monitoring and investigation in Parts 2 and 3 of the Regulatory Powers Act, which will replace the existing monitoring and investigation regime of the ICNA Act. Application of the standard provisions pertaining to monitoring and investigation in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the ICNA Act.

230.         The entry, monitoring, search, seizure and information gathering powers in the triggered provisions of the Regulatory Powers Act are provided by law. The monitoring and investigation powers are necessary to enable the monitoring of compliance with the ICNA Act and collection of evidential material relating to contraventions of that Act. They are constrained in various ways as set out below, ensuring that their use is not arbitrary.

231.         The application of monitoring powers to information given in compliance or purported compliance with a provision of an Act is important for the purposes of an effective monitoring scheme. It is necessary to extend current monitoring powers of the ICNA Act to information, as information is necessary for various provisions of that Act, and monitoring the correctness of that information upholds the objects of the ICNA Act.

232.         The regime under the Regulatory Powers Act protects against arbitrary interference with privacy, as the monitoring and investigating powers cannot be exercised without consent being given to the entry into the premises, or prior judicial authorisation in the form of a warrant. 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.

233.         The Regulatory Powers Act also provides restrictions on the issuing of a monitoring or investigation warrant. For example, in the case of an investigation warrant, 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 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.

234.         In addition, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers and mitigates arbitrariness and risk of abuse.

235.         Further, the powers can only be exercised in specific circumstances set out in the triggered provisions. For example, under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised where:

·          the authorised person finds the thing in the course of searching for material of the kind specified in an investigation warrant, and

·          the authorised person believes on reasonable grounds that

o      the thing is evidential material of another kind, or

o      a related provision has been contravened with respect to the thing, or

o      the thing is evidence of a contravention of a related provision, or

o       the thing is intended to be used to contravene a related provision, and

·          the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction.

236.         These constraints on the exercise of the powers limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances.

237.         Schedule 10 to this Bill modifies the operation of Parts 2 and 3 of the Regulatory Powers Act to permit an authorised person to take and keep samples of any thing at any premises entered for the purposes of exercising monitoring powers, and enables an authorised person to use force against things when exercising a monitoring or investigation warrant. These amendments preserve current arrangements under the ICNA Act, which are repealed by Schedule 10 to this Bill.

238.         New subsection 85(13) of the ICNA Act modifies the operation of Part 2 of the Regulatory Powers Act, and provides an authorised person with the power to take and keep samples of any thing at any premises entered under section 18 of the Regulatory Powers Act for the purposes of exercising monitoring powers. It is necessary to retain the power to take and keep samples in the ICNA Act, as substances introduced contrary to the provisions of the ICNA Act have the potential to cause harm to human and environmental health and safety. It is necessary to take samples to determine the chemical identity of substances found during a monitoring inspection, which an authorised person reasonably suspects were not lawfully introduced under the ICNA Act. The seizure of samples allows necessary tests to be conducted on items and substances in order to determine compliance with the ICNA Act. New subsection 85(13) of the ICNA Act preserves the effect of current paragraph 86(1)(c) of that Act, which is repealed by Schedule 10 to this Bill.

239.         The power to sample any thing on any premises entered under section 18 of the Regulatory Powers Act for the purposes of exercising monitoring powers may not be exercised without a monitoring warrant, or the occupier’s consent to enter the premises. Accordingly, the exercise of the power is restricted, and these restrictions ensure its use is reasonable, necessary and proportionate to the objectives of the ICNA Act.

240.         New subsections 85(11) and 86(10) of the ICNA Act provide that, in executing a monitoring or investigation warrant, an authorised person is permitted to use such force against things as is necessary and reasonable in the circumstances. It is necessary to include this power, as an authorised person executing a monitoring or investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain things or information that would provide evidence that provisions subject to monitoring or investigation have been contravened (for example, chemical supplies that were introduced contrary to the ICNA Act). New subsections 85(11) and 86(10) of the ICNA Act preserves the effect of current arrangements under that Act, which are repealed by Schedule 10 to this Bill.

241.         This new subsection engages the protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR. The exercise of the power is restricted under the amendments in Schedule 10 to this Bill. It can only be exercised under a monitoring or investigation warrant, which must be issued by a judicial officer. Further, the power may only be used as is necessary and reasonable in the circumstances. Accordingly, the exercise of the power is restricted and these restrictions ensure its use is reasonable, necessary and proportionate to the objectives of the ICNA Act.

242.         Further, Schedule 10 to this Bill also repeals current section 89 of the ICNA Act, and substitutes a new section that provides that, if an inspector enters premises under Part 2 or 3 of the Regulatory Powers Act, as those Parts apply in relation to the ICNA Act, and the inspector asks the occupier of the premises, or requires any person on the premises, to answer any question or produce any document, the occupier or person may apply to the Director of NICNAS for certain information to be treated as exempt information under section 75 of the ICNA Act. This modifies the operation of the standard provisions of the Regulatory Powers Act. Before making an application, the occupier or person may inform the inspector of their intention to make such an application, and the information (the prospective information ) to be specified in that application. Under new subsection 89(3) of the ICNA Act, if the occupier or person so informs the inspector, the prospective information is taken to be exempt information for the purposes of the ICNA Act until the occupier or person makes the application, or at the end of the period of 7 days beginning on the day the inspector was so informed (whichever occurs first).

243.         Information treated as exempt information under section 75 of the ICNA Act can only be disclosed by the Director of NICNAS in limited circumstances. This mechanism allows information to be protected where its publication could substantially prejudice the commercial interests of the applicant, and that prejudice outweighs the public interest in the publication of the information. New section 89 of the ICNA Act provides an additional level of privacy protection beyond that afforded by the standard provisions of the Regulatory Powers Act. Accordingly, it is compatible with the protection against arbitrary or unlawful interference with privacy.

Expansion of monitoring powers

244.         Application of the standard monitoring and investigation powers in the Regulatory Powers Act results in a minor expansion of the current regulatory powers framework under the ICNA Act. In relation to monitoring powers, the relevant provisions are sections 19, 20 and 21 of the Regulatory Powers Act.

245.         Current subsection 86(1) of the ICNA Act provides that an inspector may, to the extent that it is reasonably necessary for the purpose of ascertaining whether the ICNA Act or the regulations have been complied with, enter any premises with the consent of their occupier, being premises that the inspector has reasonable cause to believe are premises to which this section applies, and:

·          search the premises, or

·          take photographs, or make sketches, of the premises or any substance or thing at the premises, or

·          take and keep samples of any substance at the premises, or

·          inspect any record or document kept at the premises, or

·          remove, or make copies of, any such record or document.

246.         Section 19 of the Regulatory Powers Act provides a broader set of monitoring powers that an authorised person may exercise. The additional powers are power to:

·          search anything on the premises

·          examine or observe any activity conducted on the premises

·          to inspect, examine, take measurements of or conduct tests on any thing on the premises,

·          to make any still or moving image or any recording of the premises or anything on the premises

·          to take onto the premises equipment and materials for the purposes of exercising monitoring powers, and

·          the powers in sections 20, 21 and 22 of the Regulatory Powers Act.

247.         Sections 20 and 21 of the Regulatory Powers Act relate to operating and securing electronic equipment and securing things. Section 20 of the Regulatory Powers Act provides an authorised person, for the purposes of Part 2 of the Regulatory Powers Act (monitoring), with the power to operate electronic equipment on the premises, and to use a disk, tape or other storage device that is on the premises and can be used with the electronic equipment or is associated with it. If relevant data is found in the exercise of these powers, subsection 20(4) of the Regulatory Powers Act provides the authorised person with the following powers:

·          the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises, and

·          the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that is brought to the premises for the exercise of the power, or is on the premises, and the use of which for that purpose has been agreed to in writing by the occupier of the premises, in order to remove the disk, tape or other storage device from the premises.

248.         Section 21 of the Regulatory Powers Act allows an authorised person exercising a monitoring warrant to secure electronic equipment for up to 24 hours to provide sufficient time to engage expert assistance to operate the equipment.

249.         Section 22 of the Regulatory Powers Act gives an authorised person the power to secure a thing, for a period not exceeding 24 hours, if he or she believes on reasonable grounds that:

·          a provision subject to monitoring, or a related provision, has been contravened with respect to the thing, or

·          the thing affords evidence of the contravention, or

·          the thing is intended to be used for the purpose of contravening a provision subject to monitoring or a related provision, or

·          the thing affords evidence that information subject to monitoring is not correct.

250.         The current powers are only expanded in order to align with the standard provisions in the Regulatory Powers Act, which promotes consistency of regulatory powers across the Commonwealth. The standard provisions also include modern drafting standards.

251.         These additional powers may engage the protection against arbitrary or unlawful interference with privacy. To the extent that they limit this right, the limitations are provided for by law. They are also necessary to pursue the legitimate objective of the ICNA Act. For example, section 20 of the Regulatory Powers Act is necessary to ensure that an authorised person can obtain access to electronic records that may indicate whether a provision of an Act or legislative instrument, subject to Part 2 of the Regulatory Powers Act, has been, or is being, complied with, or that information subject to monitoring under that Part is correct. Section 21 of the Regulatory Powers Act is necessary as an authorised person may not be accompanied by an expert assistant when exercising monitoring powers, but expert or specialised assistance may be required to operate electronic equipment to access relevant information. Section 22 of the Regulatory Powers Act is necessary to allow an authorised person to secure things that may provide evidence where there is a serious or urgent need to do so without a warrant.

252.         The exercise of these powers is restricted to circumstances set out in the provisions. They may only be exercised where the authorised person has entered the premises with the consent of the occupier or under a warrant. They may only be exercised for the purposes of determining whether the provisions subject to monitoring are being complied with or whether information subject to monitoring is correct. Further, subsection 20(5) of the Regulatory Powers Act provides that an authorised person may only operate electronic equipment under section 20 of that Act if they believe on reasonable grounds that such operation can be carried out without damage to the equipment. Subsection 21(3) of the Regulatory Powers Act provides that an authorised person must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the authorised person’s intention to secure the equipment, and the fact that the equipment may be secured for up to 24 hours. An authorised person may only secure equipment if the authorised person suspects on reasonable grounds that:

·          there is relevant data on the premises, and

·          the relevant data may be accessible by operating the equipment, and

·          expert assistance is required to operate the equipment, and

·          the relevant data may be destroyed, altered or otherwise interfered with, if the authorised person does not take action under section 21 of the Regulatory Powers Act.

253.         The power in section 22 of the Regulatory Powers Act may only be exercised where the authorised person believes on reasonable grounds that: it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained, and it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.

254.         These restrictions ensure that the use of these powers is necessary and is reasonable and proportionate to the legitimate objective of the ICNA Act.

Expansion of investigation powers

255.         Alignment with the standard investigation provisions of the Regulatory Powers Act also results in a minor expansion of the general investigation powers that an authorised person may exercise in relation to premises (compare current subsection 87(1) of the ICNA Act with section 49 of the Regulatory Powers Act).

256.         Current subsection 87(1) of the ICNA Act provides that, where an inspector has reasonable grounds for suspecting that there may be on any premises a particular thing that may afford evidence as to the commission of an offence against that Act, the inspector may:

·          search the premises for the thing, and

·          if the inspector finds the thing on or in the premises—seize the thing.

257.         Section 49 of the Regulatory Powers Act provides the following investigation powers that an authorised person may exercise in relation to premises under section 48 of that Act:

·          if entry to the premises is with the occupier’s consent—the power to search the premises and any thing on the premises for the evidential material the authorised person suspects on reasonable grounds may be on the premises

·          if entry to the premises is under an investigation warrant:

o      the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant, and

o      the power to seize evidential material of that kind if the authorised person finds it on the premises

·          the power to inspect, examine, take measurements of or conduct tests on evidential material found on the premises due to consent of the occupier or under an investigation warrant

·          the power to make any still or moving image or any recording of the premises or evidential material found on the premises due to consent of the occupier or under an investigation warrant

·          the power to take onto the premises such equipment and materials as the authorised person requires for the purpose of exercising powers in relation to the premises, and

·          the powers set out in subsection 50(1) and (2), subsection 51(2) and section 52 of the Regulatory Powers Act.

258.         Sections 50 and 51 of the Regulatory Powers Act relate to operating, securing and seizing electronic equipment in the exercise of investigation powers. Section 50 of the Regulatory Powers Act provides an authorised person, for the purposes of investigation, with the power to operate electronic equipment on the premises, and the power to use a disk, tape or other storage device that is on the premises and can be used with the electronic equipment or is associated with it, if the authorised person suspects on reasonable grounds that the electronic equipment, disk, tape or other storage device is or contains evidential material. If evidential material is found in the exercise of these powers, subsection 50(2) of the Regulatory Powers Act provides the authorised person with the following powers:

·          if entry to the premises is under an investigation warrant—the power to seize the equipment and the disk, tape or other storage device referred to in subsection 50(1) of the Regulatory Powers Act

·          the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises, and

·          the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that is brought to the premises for the exercise of the power, or is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises, in order to remove the disk, tape or other storage device from the premises.

259.         Section 51 of the Regulatory Powers Act applies if an authorised person enters premises under an investigation warrant. This section allows an authorised person to secure electronic equipment under an investigation warrant for up to 24 hours to provide the authorised person with sufficient time to engage expert assistance to operate electronic equipment.

260.         Section 52 of the Regulatory Powers Act provides power, where an authorised person has entered premises under an investigation warrant to search for evidential material, to seize evidence of a kind not specified in a warrant.

261.         The current powers are only expanded in order to align with the standard provisions in the Regulatory Powers Act, which promotes consistency of regulatory powers across the Commonwealth. These additional powers may also engage the protection against arbitrary or unlawful interference with privacy. To the extent that they limit this right, the limitations are provided for by law. They are also necessary to pursue the legitimate objective of the ICNA Act. For example, section 50 of the Regulatory Powers Act is necessary to ensure that an authorised person can obtain access to electronic records that may contain evidential material. Section 51 of the Regulatory Powers Act is necessary, as an authorised person may not be accompanied by an expert assistant when exercising investigation powers, but expert or specialised assistance may be required to operate electronic equipment to access evidential material. Section 52 is necessary to allow an authorised person to seize evidence not specified in the warrant where there are reasonable grounds to believe this evidence is likely to be concealed, lost or destroyed if it is not seized.

262.         These additional provisions pertaining to investigation powers can only be exercised under an investigation warrant, or with the consent of the occupier of the premises. The exercise of these powers is restricted to circumstances set out in the provisions. Under section 49 of the Regulatory Powers Act, the investigation powers may only be exercised where the authorised person suspects on reasonable grounds that there may be evidential material on the premises. Subsection 50(1) of the Regulatory Powers Act provides that an authorised person may only operate electronic equipment under section 50 of that Act if they suspect on reasonable grounds that the electronic equipment, disk, tape or other storage device is or contains evidential material. The power to secure electronic equipment under section 51 of the Regulatory Powers Act may only be exercised under an investigation warrant, which must be issued by a judicial officer. Further, subsection 51(3) of the Regulatory Powers Act provides that an authorised person may only secure equipment if they suspect on reasonable grounds that:

·          there is evidential material of the kind specified in the warrant on the premises, and

·          the evidential material may be accessible by operating the equipment, and

·          expert assistance is required to operate the equipment, and

·          the evidential material may be destroyed, altered or otherwise interfered with, if the authorised person does not take action under section 51 of the Regulatory Powers Act.

263.         Under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised where:

·          the authorised person finds the thing in the course of searching for material of the kind specified in the warrant, and

·          the authorised person believes on reasonable grounds that

o       the thing is evidential material of another kind, or

o      a related provision has been contravened with respect to the thing, or

o      the thing is evidence of a contravention of a related provision, or

o       the thing is intended to be used to contravene a related provision, and

·          the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction.

264.         Accordingly, the exercise of the additional investigation powers is constrained, and these constraints ensure that use of the powers is reasonable, necessary and proportionate to the legitimate objective of the ICNA Act.

Right to security of person and right to life

265.         As noted above, new subsections 85(11) and 86(10) of the ICNA Act preserve the effect of the powers under the current ICNA Act to use force against things in executing a monitoring or investigation warrant. As these powers do not extend to the use of force against persons, they do not engage the right to security of person in Article 9 of the ICCPR or the right to life in Article 6 of the ICCPR.

266.         The power is compatible with human rights.

Criminal process rights

267.         Triggering the provisions pertaining to monitoring and investigation powers in the Regulatory Powers Act causes offences in that Act to apply in relation to monitoring and investigating under the ICNA Act. Parts 2 (monitoring) and 3 (investigation) of the Regulatory Powers Act provide questioning powers to authorised persons. Under subsection 24(3) of the Regulatory Powers Act, where entry is authorised by a monitoring warrant, the authorised person may require any person on the premises to answer questions or produce documents relating to information or provisions subject to monitoring. If the person fails to do so, this is an offence under subsection 24(5) of the Regulatory Powers Act. The penalty is 30 penalty units. Similarly, under section 54(3) of the Regulatory Powers Act an authorised person who enters premises under an investigation warrant may require persons on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant. If the person fails to do so, this is an offence under subsection 54(5) of the Regulatory Powers Act. The penalty is 30 penalty units.

268.         Section 31 of the Regulatory Powers Act imposes an obligation on the occupier of premises, or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person, and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 2 of the Regulatory Powers Act, for the purposes of executing a monitoring warrant. Subsection 31(2) of the Regulatory Powers Act provides that failure to comply with section 31 of that Act is an offence, and carries a penalty of 30 penalty units.

269.         Section 63 of the Regulatory Powers Act imposes an obligation on the occupier of premises or another person who apparently represents the occupier, to provide reasonable facilities and assistance to the authorised person and any person assisting, which is necessary for the authorised person to effectively exercise their powers under Part 3 of the Regulatory Powers Act, for the purposes of executing an investigation warrant. Subsection 63(2) of the Regulatory Powers Act provides that failure to comply with section 63 of that Act is an offence, and carries a penalty of 30 penalty units

270.         Section 73 of the Regulatory Powers Act establishes an offence punishable by two years’ imprisonment for a range of conduct by an authorised applicant in respect of an investigation warrant issued under section 71 of that Act. Section 71 of the Regulatory Powers Act sets out the procedure by which an investigation warrant may be obtained from an issuing officer by electronic means where the warrant is urgently required, or delay would frustrate the effective execution of the warrant. Subsection 71(6) of the Regulatory Powers Act places an obligation on the authorised application to complete a form of warrant in the same terms as the warrant completed and signed by the issuing officer under subsection 71(4) of that Act.

271.         The application of these offences under the Regulatory Powers Act in the ICNA context under Schedule 10 to this Bill engages the fair trial rights, minimum guarantees in the determination of a criminal charge and other criminal process rights contained in Article 14 of the ICCPR. These offence provisions do not limit the person’s access to a fair trial or limit the other criminal process rights in any way. Sections 17 and 47 of the Regulatory Powers Act make it clear that the privileges against self-incrimination and legal professional privilege have not been abrogated by the monitoring and investigation powers provisions, including the offence provisions. These protections guarantee the criminal process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR. The usual guarantees and criminal process rights will apply to these offences and are not abrogated by any provisions in the Bill or triggered provisions of the Regulatory Powers Act.

272.         Accordingly, sections 24, 31, 54, 63 and 73 of the Regulatory Powers Act, as applied to the ICNA Act by Schedule 10 to this Bill, are compatible with human rights.

Injunctions and Article 14

273.         Schedule 10 to this Bill also amends the ICNA Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the Minister or any other person to apply to a relevant court for an injunction to restrain a person from engaging in conduct or requiring that person to do a thing. Further, the Minister or other person may apply to a relevant court for an interim injunction. The injunctions provisions are triggered in relation to offences against the ICNA Act or the regulations made under that Act, or offences against the Crimes Act or the Criminal Code Act that relate to the ICNA Act or the regulations made under that Act.

274.         Triggering the injunction provisions of the Regulatory Powers Act engages the right to a fair and public hearing and the other criminal process rights in Article 14 of the ICCPR. Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited.

275.         New subsections 83(4) and (5) of the ICNA Act also modify the operation of Part 7 of the Regulatory Powers Act by setting out additional matters relevant to a court’s power to grant injunctions. They provide that a relevant court may grant an injunction restraining a person from engaging in conduct, or requiring a person to do a thing, regardless of whether or not conduct of that kind constitutes a serious or immediate risk of adverse health effects or adverse environmental effects, or there is a serious or immediate risk of adverse health effects or adverse environmental effects if the person fails or refuses to do that thing. New subsection 83(4) of the ICNA Act ensures that a court may prevent conduct that would be contrary to the purposes of the Act, without needing to wait for the conduct to occur. New subsection 83(5) of the ICNA Act ensures that a court may require conduct to uphold the purposes of the Act, without needing to wait for the danger to manifest. New subsections 83(4) and (5) of the ICNA Act preserve the effect of current subsections 83(4) and (5) of that Act, which are repealed by Schedule 10 to this Bill. The amendments in Schedule 10 to this Bill relating to injunctions and the triggered injunctions provisions do not limit any of the criminal process rights in Article 14 of the ICCPR. Accordingly, the provisions are compatible with human rights.

Additional triggered monitoring and investigation provisions

276.         Alignment with the Regulatory Powers Act will also apply additional provisions pertaining to monitoring and investigation powers that do not currently have equivalents in the ICNA Act, as in force immediately before the commencement of Schedule 10 to this Bill. These provisions are sections 25, 26, 27, 28, 29, 30, 33, 34, 55, 56, 57, 58, 59, 60, 61, 62, 64, 65, 67, 68, 69, 71, 72, 74 and 75 of the Regulatory Powers Act. These provisions are merely procedural matters, and do not result in an expansion of the current regulatory framework of the ICNA Act. They do not engage any human rights, as discussed below.

277.         Sections 25, 26, 27, 28 and 30 of the Regulatory Powers Act relate to entry onto premises, consent, and the right of the occupier to observe monitoring activities. An authorised person may enter premises and exercise monitoring powers under Part 2 of the Regulatory Powers Act with the consent of the occupier. Section 25 of the Regulatory Powers Act outlines matters in relation to valid consent, including that consent must be informed and voluntary, and may be withdrawn at any time by the occupier. Subsection 25(6) of the Regulatory Powers Act provides that an authorised person must present their identity card to the occupier prior to entry or as soon as is reasonably practicable after entry to the premises.

278.         Section 26 of the Regulatory Powers Act provides that, before entering premises under a monitoring warrant, an authorised person must:

·          announce that he or she is authorised to enter the premises, and

·          show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises, and

·          give any person at the premises an opportunity to allow entry to the premises.

279.         Section 27 of the Regulatory Powers Act states that an authorised person executing a monitoring warrant must be in possession of the warrant or a copy of the warrant. Section 28 of the Regulatory Powers Act requires an authorised person to provide a copy of the monitoring warrant to the occupier of the premises, or another person who apparently represents the occupier, if either person is present at the premises. Under subsection 28(2) of the Regulatory Powers Act, the authorised person must also inform, in writing, the occupier or other person of their rights and responsibilities under sections 30 and 31 of that Act.

280.         Section 30 of the Regulatory Powers Act provides the occupier of premises, or another person who apparently represents the occupier, with the right to observe the execution of a monitoring warrant on their premises, if the occupier or other person is present at the premises at the time of execution of the warrant. Subsection 30(2) of the Regulatory Powers Act states that the right ceases if the occupier or other person impedes execution of the warrant.

281.         These provisions protect the interests of the occupier and promote informed consent. Sections 25, 26, 27, 28 and 30 of the Regulatory Powers Act do not engage any human rights.

282.         Section 29 of the Regulatory Powers Act provides that a person is entitled to compensation for damage to electronic equipment or data during monitoring activities in some circumstances. This does not engage human rights.

283.         Section 33 of the Regulatory Powers Act sets out the procedure for extension of the period during which a thing may be secured. This does not engage human rights.

284.         Section 34 of the Regulatory Powers Act relates to the power conferred on an issuing officer by Part 2 of that Act. It provides that this power is conferred on that person in a personal capacity, and not as a court or as a member of a court. This section recognises that issuing a warrant is an executive function and not an exercise of judicial power. This provision does not engage human rights.

285.         Sections 55. 56, 57, 58 and 62 of the Regulatory Powers Act relate to entry onto premises, consent of the occupier, and the right of the occupier to observe investigation activities. An authorised person may enter premises and exercise investigation powers under Part 3 of the Regulatory Powers Act with the consent of the occupier. Section 55 of the Regulatory Powers Act outlines matters relating to valid consent, including that consent must be informed and voluntary, and may be withdrawn at any time by the occupier. Section 56 of the Regulatory Powers Act provides that, before entering premises under an investigation warrant, an authorised person must:

·          announce that he or she is authorised to enter the premises, and

·          show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises, and

·          give any person at the premises an opportunity to allow entry to the premises.

286.         Subsection 56(2) of the Regulatory Powers Act states that an authorised person is not required to comply with subsection 56(1) of the Regulatory Powers Act if the authorised person believes on reasonable grounds that immediate entry to the premises is required to ensure the safety of a person or to ensure that the effective execution of the warrant is not frustrated.

287.         Section 57 of the Regulatory Powers Act states that an authorised person who is executing an investigation warrant must be in possession of the warrant or a copy of the warrant, and the form of warrant completed under subsection 71(6) of that Act or a copy of that completed form.

288.         Section 58 of the Regulatory Powers Act requires an authorised person to provide a copy of the investigation warrant to the occupier of the premises. Under subsection 58(2) of the Regulatory Powers Act, the authorised person must also inform, in writing, the occupier or other person of their rights and responsibilities under sections 62 and 63 of that Act.

289.         Section 62 of the Regulatory Powers Act provides the occupier of premises, or another person who apparently represents the occupier, with the right to observe the execution of an investigation warrant on their premises, if the occupier or other person is present at the premises at the time of execution of the warrant.

290.         Sections 55, 56, 57, 58 and 62 of the Regulatory Powers Act protect the interests of the occupier and promote informed consent. They do not engage any human rights.

291.         Sections 59 and 60 of the Regulatory Powers Act set out procedures that apply if an authorised person temporarily ceases execution of the warrant and leaves the premises. These provisions do not engage any human rights. 

292.         Section 61 of the Regulatory Powers Act provides that a person is entitled to compensation for damage to electronic equipment or data during investigation activities in some circumstances. This does not engage human rights.

293.         Sections 64, 65, 66, 68 and 74 of the Regulatory Powers Act relate to the provision of copies of seized things or information to the occupier on request, receipts for seized things, requirements for the return of seized things, and applications to the issuing officer to extend the period in which seized things may be retained. These provisions do not engage any human rights. 

294.         Sections 71 and 72 of the Regulatory Powers Act sets out the procedure by which an investigation warrant may be obtained from an issuing officer electronically in urgent circumstances, and the authority of such a warrant. These provisions do not engage any human rights.

295.         Section 75 of the Regulatory Powers Act provides that a power conferred on an issuing officer by Part 3 of that Act is conferred on that person in a personal capacity, and not as a court or as a member of a court. This section recognises that issuing a warrant is an executive function and not an exercise of judicial power. It does not engage any human rights.

296.         Accordingly, these additional triggered provisions relating to monitoring and investigation are compatible with human rights.

Conclusion

297.         Schedule 10 to this Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Overview of Schedule 11 - Paid Parental Leave Act 2010

298.         The Paid Parental Leave Act 2010 (the ‘PPL Act’) establishes the Paid Parental Leave Scheme, which is a Government-funded payment that complements the entitlement to unpaid leave under the National Employment Standards in the Fair Work Act 2009 . The Paid Parental Leave Scheme currently consists of the Parental Leave Pay and the Dad and Partner Pay. Parental Leave Pay is an 18-week payment at the rate of the national minimum wage for eligible primary carers (mostly birth mothers) of newborn and recently adopted children. Dad and Partner Pay is a two-week payment at the rate of the national minimum wage for eligible dads or partners caring for newborn or recently adopted children.

299.         Schedule 11 to this Bill amends the PPL Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the PPL are enforceable under that Part of the Regulatory Powers Act.

300.         Under these amendments, the Secretary of the department that administers the PPL Act and the Fair Work Ombudsman are authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the PPL Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined.

301.         The PPL Act is also amended to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable the Secretary of the department that administers the PPL Act and the Fair Work Ombudsman to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a civil penalty provision of the PPL Act has been contravened.

302.         An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court.

Human rights implications

Civil penalties and Article 14

303.         The PPL Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 11 to this Bill. However, the amendments in Schedule 11 to this Bill mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the PPL Act.

304.         Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as ‘criminal’ under international human rights law.

305.         As set out at paragraph 39 above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

306.         The penalty provisions of the PPL Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the Paid Parental Leave Scheme under the PPL Act. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the PPL Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the PPL Act are civil rather than criminal in nature.

307.         The amendments in Schedule 11 to this Bill do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the PPL Act (see current section 146 and current subsection 147(3) of the PPL Act), which are 60 penalty units for individuals and 300 penalty units for bodies corporate for a contravention of subsection 70(2), 72(1), 72(2), 72(3), 82(2), 105(3) or 157(4) or section 74, or 103 of the PPL Act, or 30 penalty units for individuals and 150 penalty units for bodies corporate for a contravention of subsection 81(1), 81(2) or 157(4) or section 80 of the PPL Act (see subsection 82(5) of the Regulatory Powers Act, as applied to the PPL Act by Schedule 11 to this Bill). The civil penalty provisions do not carry the possibility of imprisonment.

308.         Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the PPL Act due to the application of section 93 of the Regulatory Powers Act. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This section is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. It does not engage any human rights.

309.          As noted above, subsection 85(2) of the Regulatory Powers Act allows a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. Under subsection 85(2) of the Regulatory Powers Act, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. The maximum penalty for each contravention is provided by subsection 82(5) of the Regulatory Powers Act (for individuals, no more than the amount specified in the civil penalty provision, and for bodies corporate, no more than five times that amount).

310.         As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia’s human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 11 to this Bill.

Fair hearing and criminal process rights

311.         The amendments relating to civil penalty provisions in Schedule 11 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited.

312.         The amendments in Schedule 11 to this Bill modify the operation of Part 4 of the Regulatory Powers Act, and provide that a person commits an offence if they fail to comply with a written request from the Secretary of the department that administers the PPL Act to give all reasonable assistance in connection with an application for a civil penalty order (see section 156 of the PPL Act, as amended by Schedule 11 to this Bill). These amendments preserve existing arrangements under the PPL Act.

313.         The power in amended section 156 of the PPL Act to request information is restricted to situations where it appears that a person is unlikely to have contravened the civil penalty provision or committed an offence, but that person is likely to have information relevant to the civil penalty application. Accordingly, use of this provision is unlikely to infringe the privilege against self-incrimination in Article 14(2)(g) of the ICCPR. In addition, the requirement to provide assistance does not expressly abrogate legal professional privilege or other privileges or immunities relating to the disclosure of information. Further, the Secretary of the department that administers the PPL Act cannot request a person to assist if they are, or have been, a lawyer for a person suspected of contravening the civil penalty provision that is the subject of the application. The usual guarantees and criminal process rights will apply to this offence. Accordingly, the exercise of the power is restricted, and the criminal process rights in Article 14 of the ICCPR are not limited by this power.

314.         Further, under amended section 156 of the PPL Act, the Secretary of the department that administers the PPL Act may apply to a relevant court for an order requiring a person to comply with a request for assistance. In these circumstances, as the order can only be made by a court, the right to a fair and public hearing provided for by Article 14(1) of the ICCPR is not limited.

Infringement notices and Article 14

315.         Under the amendments in Schedule 11 to this Bill, infringement notices can be issued under the Regulatory Powers Act in relation to contraventions of civil penalty provisions of the PPL Act. This infringement notice mechanism does not apply to offences against the PPL Act. As noted above, the civil penalty provisions do not impose criminal penalties. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged. There are no criminal consequences associated with infringement notice for civil penalty provisions. For example, they do not carry the possibility of imprisonment if the person does not pay the penalty or attend court.

316.         Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty order may be brought against them in a court. Accordingly, the person must always be advised of the consequences of not paying the penalty, and of their right to have the matter dealt with by a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair hearing in civil matters provided by Article 14(1) of the ICCPR is not limited.

317.         The amendments in Schedule 11 to this Bill modify the operation of subsection 103(2) of the Regulatory Powers Act, and provide that an infringement notice given in relation to a failure to comply with a compliance notice issued under current subsection 157(4) of the PPL Act must be given within 12 months of the day on which the 14-day period referred to in current subsection 157(3) of that Act ends (see new subsection 159(5) of the PPL Act). New subsection 159(5) of the PPL Act preserves the effect of current subsection 159(3) of the PPL Act, and does not engage any human rights.

318.         As noted above, the application of section 93 of the Regulatory Powers Act to the PPL Act by Schedule 11 to this Bill will mean that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs. Accordingly, an infringement notice may relate to a number of contraventions. Schedule 11 to this Bill modifies the operation of subsections 104(2) and 104(3) of the Regulatory Powers Act, which provide the maximum amount payable under an infringement notice for single contraventions and multiple contraventions respectively. New paragraphs 159(6)(a) and (b) of the PPL Act provide that for single contraventions, the amount to be stated in an infringement notice for an alleged contravention of a provision mentioned in new subsection 159(1) or (3) of the PPL Act must be 15 or 30 penalty units for bodies corporate and 3, 15 or 6 penalty units for others, depending on the contravention. These paragraphs preserve the effect of current subsections 159(5) and (6) of the PPL Act.

319.         Where the infringement notice relates to a number of contraventions, new paragraph 159(6)(c) of the PPL Act provides that the maximum penalty is the number of penalty units worked out by multiplying the number of alleged contraventions by the relevant penalty specified in paragraph 159(6)(a) or (b) of that Act. Neither the modification of the operation of subsections 104(2) and (3) of the Regulatory Powers Act, nor this additional provision, raise any further human rights implications.

320.         Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the PPL Act. However, alignment with Regulatory Powers Act will apply section 105 of that Act, which does not have an equivalent in the current PPL Act. Section 105 of the Regulatory Powers Act is merely procedural in nature and sets out matters in relation to the extension of time to pay an infringement notice. This provision does not engage any human rights.

Additional triggered provisions without human rights implications

321.         Further, alignment with Regulatory Powers Act will apply additional provisions, which are not currently in the PPL Act, that are merely procedural in nature. Sections 92, 94, 95 and 97 of the Regulatory Powers Act relate to ancillary contraventions of civil penalty provisions, the relevance of a person’s state of mind, mistake of fact and vicarious liability of employees, agents or officers of a body corporate, respectively. These provisions do not engage the criminal process rights in Article 14 of the ICCPR, as they do not impact upon criminal proceedings.

322.         Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged.

323.         Finally, the time period for the making of an application for a civil penalty order will be increased from within 4 years to within 6 years of the alleged contravention, due to the operation of subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill). The change to the time period is a result of alignment with the standard provisions of the Regulatory Powers Act. As Article 14 of the ICCPR is not engaged, the right to be tried without undue delay provided by paragraph 14(3)(c) of the ICCPR is not engaged.

Right to privacy

324.         Schedule 11 to this Bill amends section 127 of the PPL Act, which provides that a person may obtain protected information if the information is obtained for the purposes of the PPL Act. The amendments to section 127 of the PPL Act clarify that a person may also obtain protected information if that information is obtained for the purposes of carrying out powers, duties or functions under the Regulatory Powers Act, as that Act applies in relation to the provisions of the PPL Act. Obtaining information for the purposes of compliance and enforcement under the PPL Act will no longer be purely for the purposes of that Act, as the compliance and enforcement framework will be provided for by the Regulatory Powers Act. Accordingly, it is necessary to obtain protected information for the purposes of the Regulatory Powers Act, as that Act applies to the PPL Act.

325.         Schedule 11 to this Bill also amends subsection 128(1) of the PPL Act to clarify that, in certain listed circumstances, the Secretary of the department that administers the PPL Act may disclose personal information acquired by an officer in the exercise of the officer’s powers or performance of the officer’s duties or functions under the Regulatory Powers Act, as that Act applies to the provisions of the PPL Act. It is necessary to make this clarification, as Schedule 11 to this Bill amends the PPL Act to apply to standard provisions of the Regulatory Powers Act, and personal information may need to be disclosed by the Secretary for the purposes of the Regulatory Powers Act, as that Act applies to the PPL Act.

326.         Amended sections 127 and 128 of the PPL Act engage the protection against arbitrary or unlawful interference with privacy. 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. As set out above, the right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances.

327.         The PPL Act pursues the legitimate objective of providing Paid Parental Leave for parents who are primary carers of a child born or adopted on or after 1 January 2011. The Act pursues this objective by establishing a national, government-funded Paid Parental Leave scheme. To the extent that sections 127 and 128 of the PPL Act may limit the right to privacy, these limitations are provided by law. Protected information is used under the PPL Act for assessing customers’ claims for payment. Subsection 127(1) of the PPL Act limits the purposes for which protected information may be obtained for the purposes of the PPL Act and the Regulatory Powers Act. This ensures that information is only collected for the purpose of assessing a claim for Paid Parental Leave in order to provide financial support to primary carers of a newborn or newly adopted child, or enforcement under the Regulatory Powers Act.

328.         Under subsection 127(2) of the PPL Act, protected information may only be used or disclosed:

·          for the purposes of

o      the PPL Act or the Regulatory Powers Act, as that Act applies to the PPL Act

o      the family assistance law

o      the social security law

o      the Student Assistance Act 1973

o      for the purposes for which the information was disclosed to the person under section 128 of the PPL Act, or

·          with the express or implied authorisation of the person to whom the information relates.

329.         These restrictions on the use of protected information ensure that the power is only used for the purposes of assessing a person’s claim for Paid Parental Leave, or for the purpose allowed under the other legislation listed.

330.         There are also restrictions on the persons to whom personal information may be disclosed, and for what purpose, under section 128 of the PPL Act. For example, under section 128 of the PPL Act, if the disclosure is necessary for the public interest, the Secretary of the department that administers the PPL Act can determine who to disclose information to and for what purpose. Section 128 of the PPL Act also provides that if the information is required by a law of the Commonwealth, information can be disclosed to the Agency Head of the relevant Agency, or to the Minister responsible for the department that administers the PPL Act for the purposes of assisting the Minister to consider a complaint or issue, or to an SES or APS employee of the department that administers the PPL Act for the purpose of briefing the Minister in considering a complaint or issue. These restrictions ensure that information is only disclosed for the purposes of assessing a claim or assessing an issue or complaint. Further, in disclosing information, the Secretary of the department that administers the PPL Act is required to act in accordance with guidelines issued by the Minister responsible for the department that administers the PPL Act. These restrictions ensure that any limitation of the right to privacy is lawful and not arbitrary and that the powers are not susceptible to abuse. Sections 127 and 128 of the PPL Act are necessary, reasonable and proportionate to the objectives of that Act.

Conclusion

331.         Schedule 11 to this Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are necessary, reasonable and proportionate.

Overview of Schedule 12 - Personal Property Securities Act 2009

332.         The Personal Property Securities Act 2009 (the ‘PPS Act’) replaced a complex and fragmented system, including over 70 Commonwealth, State and Territory Acts, with a single national regime for the creation, registration, priority and enforcement of security interests in personal property. The PPS Act also created the Personal Property Securities Register (the ‘Register’) which consolidated and replaced over 40 Commonwealth, State and Territory registers used to provide notification to third parties of interests in personal property. Apart from giving secured parties a simple means of publicising and protecting their interests, the Register also provides an authoritative public record of interests in personal property for the benefit of third parties (such as financiers, lenders, insolvency practitioners and buyers of personal property). The legitimate objectives of the PPS Act are to provide for this national scheme and register.

333.         Schedule 12 to this Bill amends the PPS Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the PPS Act are enforceable under that Part of the Regulatory Powers Act.

334.         Under these amendments, the Registrar of Personal Property Securities (as defined in the PPS Act) is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the PPS Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined

335.         The PPS Act is also amended to trigger the enforceable undertakings provisions in Part 6 of the Regulatory Powers Act, which will enable the Registrar of Personal Property Securities (as defined in the PPS Act) to accept and enforce undertakings relating to compliance with civil penalty provisions of the PPS Act. Further, if the Registrar of Personal Property Securities is satisfied that the person has breached the undertaking, he or she may apply to a relevant court for an order relating to the undertaking.

Human rights implications

Civil penalties and Article 14

336.         The PPS Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 12 to this Bill. However, the amendments in Schedule 12 to this Bill mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the PPS Act.

337.         Triggering the civil penalty provisions of the Regulatory Powers Act could engage criminal process rights if the imposition of civil penalties is classified as ‘criminal’ under international human rights law. As set out at paragraph 39 above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

338.         The penalty provisions of the PPS Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the personal property securities regime provided by the PPS Act. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the PPS Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the PPS Act are civil rather than criminal in nature.

339.         The amendments in Schedule 12 to this Bill do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the PPS Act, which are 50 penalty units for individuals and 250 penalty units for bodies corporate (see subsection 82(5) of the Regulatory Powers Act, as applied to the PPS Act by Schedule 12 to this Bill). The civil penalty provisions do not carry the possibility of imprisonment.

340.         The amendments in Schedule 12 to this Bill will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment.

341.         As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia’s human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 12 to this Bill.

342.         The amendments relating to civil penalty provisions in Schedule 12 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited.

Additional triggered civil penalty provisions without human rights implications

343.         Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the PPS Act due to the triggering of section 93 of the Regulatory Powers Act. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This section is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. As noted above, subsection 85(2) of the Regulatory Powers Act, applied to the PPL Act by the amendments in this Bill, allows a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. Under subsection 85(2) of the Regulatory Powers Act, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. The maximum penalty for each contravention is provided by subsection 82(5) of the Regulatory Powers Act (for individuals, no more than the amount specified in the civil penalty provision, and for bodies corporate, no more than five times that amount).

344.         The application of section 93 of the Regulatory Powers Act does not engage any human rights.

345.         Further, alignment with Regulatory Powers Act will apply additional provisions, which are not currently in the PPS Act, that are merely procedural in nature. These are sections 85, 86, 87, 94, 95, 96 and 97 of the Regulatory Powers Act.

346.         Sections 85, 86, 87, 94, 95 and 97 of the Regulatory Powers Act relate to multiple contraventions of civil penalty provisions, the ability to hear two or more civil penalty order proceedings together, the application of the rules and evidence and procedure for civil matters, the relevance of a person’s state of mind, mistake of fact and vicarious liability of employees, agents or officers of a body corporate, respectively. These provisions do not engage the criminal process rights in Article 14 of the ICCPR, as they do not impact upon criminal proceedings.

347.         Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged.

Enforceable undertakings and Article 14

348.         Under the amendments in Schedule 12 to this Bill, enforceable undertakings may be accepted and enforced under the Regulatory Powers Act in relation to contraventions of civil penalty provisions of the PPS Act. The enforceable undertakings mechanism does not apply to offences against the PPS Act. Accordingly, the criminal process rights provided for by Article 14(1) of the ICCPR are not engaged.

349.         As orders to enforce an undertaking can only be made by a relevant court under section 115 of the Regulatory Powers Act, the right to a fair hearing in civil matters provided for by Article 14(1) is not limited.

Conclusion

350.         Schedule 12 to this Bill is compatible with human rights because it does not engage the criminal process rights in Article 14 of the ICCPR and does not limit the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR.

Overview of Schedule 13 - Privacy Act 1988

351.         The Privacy Act 1988 regulates the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information, and access to and correction of that information. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence. The Privacy Act gives effect to Article 17 of the ICCPR, giving individuals rights in relation to how organisations and agencies handle personal information, both online and offline.

352.         Schedule 13 to this Bill amends the Privacy Act to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the Privacy Act are enforceable under that Part of the Regulatory Powers Act.

353.         Under these amendments, the Commissioner (defined in the Privacy Act as the Information Commissioner within the meaning of the Australian Information Commissioner Act 2010 ) is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the Privacy Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined.

354.         The Privacy Act is also amended to trigger the enforceable undertakings provisions in Part 6 of the Regulatory Powers Act, which will enable the Commissioner to accept and enforce undertakings relating to compliance with the provisions of the Privacy Act. Further, if the Commissioner is satisfied that the person has breached the undertaking, he or she may apply to a relevant court for an order relating to the undertaking.

355.         Schedule 13 to this Bill also amends the Privacy Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the Commissioner to apply to a relevant court for an injunction to restrain the person from engaging in conduct or requiring the person to do a thing. Further, the Commissioner may apply to a relevant court for an interim injunction.

Human rights implications

Civil penalties and Article 14

356.         The Privacy Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 13 to this Bill. However, the amendments in Schedule 13 mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act, instead of by the Privacy Act.

357.         Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as ‘criminal’ under international human rights law. As set out above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

358.         The civil penalty provisions of the Privacy Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the Privacy Act, which supports the implementation of Australia’s obligations under the ICCPR. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the Privacy Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the Privacy Act are civil rather than criminal in nature.

359.         The amendments in Schedule 13 to this Bill do not alter the maximum pecuniary penalties specified for contraventions of the Privacy Act (see current subsection 80U(5) of the Privacy Act). The Privacy Act specifies penalties of 60, 200, 500, 1000 or 2000 penalty units in various civil penalty provisions. Subsection 82(5) of the Regulatory Powers Act, as applied to the Privacy Act, provides that where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision, and if the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. The application of this provision preserves the effect of current subsection 80W(5) of the Privacy Act. Accordingly, the maximum penalties for bodies corporate are 300, 1000, 2500 or 10 000 penalty units depending on the provision. This preserves the current maximum penalty amounts.

360.         The Privacy Act confers enforcement and other regulatory powers on the Commissioner, which are based on an escalation model that has a range of regulatory responses including civil penalty provisions. The Guide to Privacy Regulatory Action provides guidance on the Commissioner’s exercise of regulatory powers in the Privacy Act and indicates the preferred regulatory approach is to work with entities to facilitate legal and best practice compliance. The Guide states the Commissioner will not seek a civil penalty order for all contraventions of a civil penalty provision in the Privacy Act and is unlikely to seek a civil penalty order for minor or inadvertent contraventions.

361.         The more serious penalties apply to serious breaches of privacy. For example, section 13G of the Privacy Act imposes a civil penalty of 2000 penalty units for serious interference with an individual’s privacy or repeated interference of the privacy of one or more individuals. The penalties set out in the civil penalty provisions are maximum penalties and it is open to a court to exercise its discretion to impose a lower penalty. This discretion would be informed by reference to subsection 82(6) of the Regulatory Powers Act, which provides that a court must take into account all relevant matters in determining a pecuniary penalty, including the nature and extent of the contraventions, the loss or damage suffered, the circumstances in which the contraventions took place and whether a court has previously found the person to have engaged in similar conduct. Subsection 82(6) of the Regulatory Powers Act preserves section 80W(6) of the Privacy Act.

362.         The civil penalty provisions do not carry the possibility of imprisonment.

363.         The amendments in Schedule 13 to this Bill will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment.

364.         As such, the civil penalties under the Privacy Act are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia’s human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the amendments relating to civil penalty orders in Schedule 13 to this Bill.

365.         The amendments relating to civil penalty provisions in Schedule 13 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited.

366.         Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the Privacy Act due to the triggering of section 93 of the Regulatory Powers Act. Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This section is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. As discussed above, section 85 of the Regulatory Powers Act provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment. The application of section 93 of the Regulatory Powers Act does not engage any human rights.

Additional civil penalty provisions without human rights implications

367.         Alignment with Regulatory Powers Act will apply additional provisions, which are not currently in the Privacy Act, that are merely procedural in nature. These are sections 94, 95, 96 and 97 of the Regulatory Powers Act.

368.         Sections 94, 95 and 97 of the Regulatory Powers Act relate to the relevance of a person’s state of mind, mistake of fact and vicarious liability of employees, agents or officers of a body corporate, respectively. These provisions do not engage the criminal process rights in Article 14 of the ICCPR, as they do not impact upon criminal proceedings.

369.         Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged.

Enforceable undertakings and Article 14

370.         Under the amendments in Schedule 13 to this Bill, enforceable undertakings may be accepted and enforced under the Regulatory Powers Act in relation to contraventions of provisions of the Privacy Act (including offence provisions). As the enforceable undertakings framework applies to the offence provisions, the right to a fair and public hearing and the other criminal process rights and minimum guarantees in Article 14 of the ICCPR are engaged.

371.         Under Part 6 of the Regulatory Powers Act, an order enforcing an undertaking that relates to compliance with provisions of the Privacy Act can only be made by a court. Accordingly, the right to a fair and public trial is not limited.

372.         The amendments in Schedule 13 to this Bill also do not limit the minimum guarantees and other criminal process rights in Article 14 of the ICCPR.

Injunctions and Article 14

373.         Under the amendments in Schedule 13 to this Bill, an injunction can be granted under the Regulatory Powers Act in relation to contraventions of the provisions of the Privacy Act. Accordingly, as the injunctions framework applies to the offence provisions of the Privacy Act, the right to a fair and public trial and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR are engaged.

374.         Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Further, a court may only grant an injunction where a person has engaged, is engaging or is proposing to engage, in conduct that contravenes a provision of the Privacy Act, or where a person has refused or failed, or is refusing or failing, or proposing to refuse or fail, to do a thing and that refusal or failure was, is or would be a contravention of a provision of the Privacy Act. Thus, the right to a fair and public trial is not limited.

375.         The other criminal process rights and minimum guarantees in Article 14 of the ICCPR are not limited by the amendments in Schedule 13 to this Bill.

Right to privacy

376.         Schedule 13 to this Bill also modifies the operation of Part 6 of the Regulatory Powers Act, and provides that the Commissioner may publish an undertaking given in relation to a provision of that Act on the Commissioner’s website . New subsection 80V(4) of the Privacy Act preserves the effect of current subsection 33E(5) of that Act.

377.         This provision engages the protection against arbitrary or unlawful interference with privacy. 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. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances.

378.         The Privacy Act pursues the legitimate objective of giving effect to Australia’s obligations under Article 17 of the ICCPR. It pursues this objective by regulating the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information, and access to and correction of that information.

379.         To the extent that the power in new section 80V(4) of the Privacy Act may limit the right to privacy, this limitation is provided for by law. It is necessary that the Commissioner retain the power in new section 80V(4) of the Privacy Act in order to pursue the legitimate objective of the Privacy Act by promoting compliance with that Act. The power may only be exercised by the Commissioner, ensuring that its use is reasonable, necessary and proportionate to the objectives of the Privacy Act and limiting the risk of abuse of this power. The objectives of the Privacy Act are themselves consistent with the ICCPR. Accordingly, the provision is compatible with the protection from arbitrary or unlawful interference with privacy.

Conclusion

380.         Schedule 13 to this Bill is compatible with human rights because to the extent that it may limit human rights, the limitation of those rights is necessary, reasonable and proportionate .

Overview of Schedule 14 - Tobacco Plain Packaging Act 2011

381.         The Tobacco Plain Packaging Act 2011 (the ‘TPP Act’) sets out the requirements for the plain packaging of tobacco products. The legislation prohibits the use of logos, brand imagery and promotional text on tobacco products and packaging, and includes restrictions on colour, size, format and materials of packaging, as well as the appearance of brand and variant names. All tobacco products sold, offered for sale or otherwise supplied in Australia from 1 December 2012 are required to be in plain packaging, and be labelled with updated and expanded health warnings.

382.         Schedule 14 to this Bill amends the TPP Act to trigger the provisions pertaining to investigation powers in Part 3 of the Regulatory Powers Act, which will enable an authorised officer (as defined in the TPP Act) to enter premises and exercise investigation powers where the authorised officer suspects on reasonable grounds that there may be material on the premises related to the contravention of an offence or civil penalty provision of the TPP Act, or an offence against the Crimes Act 1914 or Criminal Code Act 1995 that relates to the TPP Act. The general investigation powers of an authorised person are set out in Part 3 of the Regulatory Powers Act, and are discussed above in relation to the GEMS Act.

383.         The TPP Act is also amended to trigger the civil penalty provisions in Part 4 of the Regulatory Powers Act, which means that the civil penalty provisions of the TPP Act are enforceable under that Part of the Regulatory Powers Act.

384.         Under these amendments, the Secretary of the department that administers the TPP Act is authorised to apply to a relevant court for a civil penalty order requiring a person to pay the Commonwealth a pecuniary penalty for a contravention of the TPP Act. Subsections 82(5) and (6) of the Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order is to be determined.

385.         Schedule 14 to this Bill also amends the TPP Act to trigger the infringement notice provisions in Part 5 of the Regulatory Powers Act, which will enable an authorised officer to issue an infringement notice under that Part where he or she believes, on reasonable grounds, that a strict liability offence against Chapter 3 of the TPP Act has been contravened.

386.         An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court.

Human rights implications

Right to privacy

387.         Schedule 14 to this Bill engages the protection against arbitrary or unlawful interference with privacy. 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. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances.

388.         The legitimate objectives of the TPP Act are to give effect to Australia’s obligations as a party to the Convention on Tobacco Control, and to improve public health by discouraging people from taking up smoking or using tobacco products, encouraging people to give up smoking or to stop using tobacco products, discouraging people who have given up smoking or who have stopped using tobacco products from relapsing, and reducing people’s exposure to smoke from tobacco products. Schedule 14 to this Bill supports this objective by triggering the standard provisions pertaining to investigation in Part 3 of the Regulatory Powers Act, which will replace the existing investigation regime of the TPP Act. Application of the standard provisions pertaining to investigation in the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the TPP Act.

389.         Part 3 of the Regulatory Powers Act protects against arbitrary interference with privacy, as the entry, search and seizure powers cannot be exercised without the fully informed and voluntary consent of the occupier of the premises, or prior judicial authorisation in the form of a warrant. Where entry is based on the consent of the occupier, entry may be restricted to a particular period. Additional safeguards are provided through provisions requiring authorised persons, and any persons assisting, to leave the premises if the occupier withdraws their consent.

390.         The Regulatory Powers Act also provides limits on the issuing 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 next 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.

391.         Further, an authorised person cannot enter premises under a warrant unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the powers, and mitigates arbitrariness and risk of abuse.

392.         The investigation powers may only be exercised in certain circumstances set out in the Regulatory Powers Act. For example, under section 52 of the Regulatory Powers Act, the power to seize evidence of a kind not specified in a warrant may only be exercised where:

·          the authorised person finds the thing in the course of searching for material of the kind specified in an investigation warrant, and

·          the authorised person believes on reasonable grounds that

o       the thing is evidential material of another kind, or

o      a related provision has been contravened with respect to the thing, or

o      the thing is evidence of a contravention of a related provision, or

o       the thing is intended to be used to contravene a related provision, and

·          the authorised person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its loss, concealment or destruction.

393.         These constraints on the exercise of the powers limit their susceptibility to arbitrary use or abuse and ensure that their use is reasonable and proportionate in the circumstances.

394.         New subsection 52(11) of the TPP Act modifies the operation of Part 3 of the Regulatory Powers Act, and provides an authorised officer (as defined in the TPP Act) with the power to take samples of any thing at any premises entered under section 48 of the Regulatory Powers Act for the purposes of exercising investigation powers. New subsection 52(11) of the TPP Act preserves the effect of current paragraph 53(c) of that Act.

395.         This provision engages the right to privacy in Article 17 of the ICCPR. To the extent that it may limit this right, the limitation is provided for by law. It is necessary to retain the power to take samples in the TPP Act in order to pursue the legitimate objectives of that Act. The power is an essential element of an authorised officer’s investigation powers under the current regulatory powers framework of that Act. The power allows for the testing of samples of tobacco products during the course of an investigation, which provides for more targeted investigations of businesses that are potentially breaching the TPP Act. The tests are, by necessity, destructive and cannot be carried out otherwise than by taking samples.

396.         The power to sample any thing on any premises is restricted in various ways. The power may not be exercised without an investigation warrant, or the occupier’s consent to enter the premises. The authorised officer can only take samples of evidential material. Section 39 of the Regulatory Powers Act defines evidential material as material that an authorised person suspects on reasonable grounds is linked to the contravention of a provision. Accordingly, the exercise of the power is restricted, and these restrictions ensure its use is reasonable, necessary and proportionate to the legitimate objectives of the TPP Act. The provision is compatible with the protection against arbitrary or unlawful interference with privacy.

Right to security of person and right to life

397.         Schedule 14 to this Bill modifies the operation of Part 3 of the Regulatory Powers Act, and permits an authorised person to use force against things when exercising an investigation warrant. New subsection 52(12) of the TPP Act preserves the effect of current section 57 of the TPP Act.

398.         New subsection 52(12) of the TPP Act provides that, in executing an investigation warrant, an authorised officer (as defined in the TPP Act), or person assisting an authorised officer, may use such force against things as is necessary and reasonable in the circumstances. It is necessary to include this power, as an authorised person executing an investigation warrant may need to open locked doors, cabinets, drawers and other similar objects that the authorised person reasonably suspects contain evidential material that would demonstrate that a provision of the TPP Act subject to investigation has been contravened.

399.         The power can only be exercised under an investigation warrant, which must be issued by a judicial officer. Further, the power may only be used as is necessary and reasonable in the circumstances, and use of force against persons is not authorised.

400.         As the power is limited to use of force against things, and not persons, the right to life provided for in Article 6 of the ICCPR and the right to liberty and security of person provided for in Article 9 of the ICCPR are not engaged.

Investigation powers and Article 14

401.         Schedule 14 to this Bill engages the criminal process rights contained in Article 14 of the ICCPR. Part 3 of the Regulatory Powers Act provides questioning powers to authorised persons in certain situations. Under subsection 54(3) of the Regulatory Powers Act, an authorised person who enters premises under an investigation warrant may require persons on the premises to answer questions or produce documents relating to evidential material of the kind specified in the warrant. If the person fails to do so, this is an offence under subsection 54(5) of the Regulatory Powers Act. The penalty is 30 penalty units.

402.         Section 47 of the Regulatory Powers Act makes it clear that in general, the privilege against self-incrimination and legal professional privilege have not been abrogated by the provisions pertaining to investigation powers. These protections guarantee the criminal process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR by limiting the operation of the questioning powers.

403.         However, Schedule 14 to this Bill abrogates the operation of section 47 of the Regulatory Powers Act through the inclusion of new subsections 52(14) and (15) and new section 80A of the TPP Act. New subsection 52(14) of the TPP Act provides that, despite section 47 of the Regulatory Powers Act, a person is not excused from giving information, producing a document or answering a question under subsection 54(3) of the Regulatory Powers Act, as Part 3 of that Act applies in relation to the TPP Act, on the ground that the information, the production of the document, or answer to the question, might tend to incriminate that person or expose that person to a penalty. New subsection 52(15) of the TPP Act provides that, in the case of an individual, none of the following is admissible in evidence against that individual in criminal proceedings:

·          the information given, the document produced or the answer given

·          giving the information, producing the document or answering the question, or

·          any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question.

404.         New section 80A of the TPP Act states that a person is not excused from giving information, producing a document or answering a question under subsection 80(2) of that Act on the ground that the information, the production of the document, or answer to the question, might tend to incriminate that person or expose that person to a penalty. New subsection 80A(2) of the TPP Act provides that, in the case of an individual, none of the following is admissible in evidence against that individual in criminal proceedings:

·          the information given, the document produced or the answer given

·          giving the information, producing the document or answering the question, or

·          any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question.

405.         New subsection 80A(2) of the TPP Act provides an authorised officer (as defined in the TPP Act) with the power to give a notice to a person requiring him or her to provide information, produce documents or answer questions where the authorised officer has reason to believe that person has information relevant to the administration or enforcement of the TPP Act.

406.         New subsections 52(14) and (15) and new section 80A of the TPP Act preserve the effect of sections 58 and 83 of the TPP Act. These provisions engage the right to be free from self-incrimination set out in Article 14(3) of the ICCPR. It is necessary to retain the abrogation of the self-incrimination privilege in the TPP Act due to the difficulties in obtaining relevant evidence. Authorised officers are often not in a position to observe a transaction that would form the basis of a contravention of the TPP Act, as such evidence may only be obtained from an individual who is a party to a transaction. The type of information that may be requested from a tobacco company would not be obtainable other than from representatives of that company, or people who engage in dealings with that company. The full application of the privilege against self-incrimination would compromise investigation and enforcement activities, and would result in retailers of tobacco products unfairly bearing the burden of compliance with the requirements of the TPP Act, as retailers are the most readily accessible point for investigation and enforcement. Retaining the abrogation of the self-incrimination privilege ensures that evidence is available, which enables identification of persons who engage in contraventions at an earlier point in the supply chain.

407.         New subsections 52(15) and 80A(2) of the TPP Act restrict the abrogation of the privilege against self-incrimination, and protect an individual from incriminating himself or herself in a way that would allow evidence to be used against him or her in criminal proceedings. The usual criminal process rights and minimum guarantees apply in criminal proceedings under the TPP Act, including the right to a fair and public hearing and appeal rights to a higher court. Accordingly, the provisions are compatible with the criminal process rights in Article 14 of the ICCPR.

Civil penalties and Article 14

408.         The TPP Act creates civil penalties for contraventions of that Act by setting out civil penalty provisions. Those civil penalty provisions are retained under Schedule 14 to this Bill. However, the amendments in Schedule 14 to this Bill mean that the enforcement framework for those civil penalty provisions is provided by the Regulatory Powers Act instead of by the TPP Act.

409.         Triggering the civil penalty provisions of the Regulatory Powers Act could engage the criminal process rights under Article 14 of the ICCPR if the imposition of civil penalties is classified as under international human rights law. As set out at paragraph 39 above, determining whether the penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

410.         The penalty provisions of the TPP Act expressly classify the penalties as civil penalties. These provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties is to encourage compliance with the plain packaging regime of the TPP Act. The civil penalty provisions of the TPP Act do not impose criminal liability and do not lead to the creation of a criminal record. The penalties only apply to the regulatory regime of the TPP Act, rather than to the public in general. Further, the imposition of the civil penalties is not dependent on a finding of guilt. These factors all suggest that the civil penalties imposed by the TPP Act are civil rather than criminal in nature.

411.         The amendments in Schedule 14 to this Bill do not alter the maximum pecuniary penalties that may be imposed in civil penalty orders for contraventions of the TPP Act (see current subsection 85(5) of the TPP Act), which are, depending on the applicable civil penalty provision, 30 penalty units, 60 penalty units or 2000 penalty units Under subsection 82(5) of the Regulatory Powers Act, as applied to the TPP Act, the maximum penalties which apply to individuals are the same as those specified in the civil penalty provisions of the TPP Act. For bodies corporate, the penalties will be no more than five times higher than the penalties specified in the civil penalty provisions, that is, 150, 300 or 10 000 penalty units depending on the provision. This preserves the effect of current subsection 85(5) of the TPP Act and maintains the current maximum penalty amounts. The civil penalty provisions do not carry the possibility of imprisonment.

412.         The penalty levels in the TPP Act were set to align with the Competition and Consumer Act 2010 . It is necessary to maintain this alignment to ensure that the penalties for a breach of plain packaging requirements are the same as the penalties that could be applied under Schedule 2 of the Competition and Consumer Act for a breach of the requirements to display graphic health warnings.  The higher penalties apply to the more serious cases of non-compliance, such as individuals or corporations who deal with a high volume of non-compliant tobacco products. The maximum penalties are intended to encourage compliance by manufacturers, importers and other large scale suppliers participating in the tobacco industry. The penalties set out in the civil penalty provisions are maximum penalties and it is open to a court to exercise its discretion to impose a lower penalty. This discretion would be informed by reference to subsection 82(6) of the Regulatory Powers Act, which provides that a court must take into account all relevant matters in determining a pecuniary penalty, including the nature and extent of the contraventions, the loss or damage suffered, the circumstances in which the contraventions took place and whether a court has previously found the person to have engaged in similar conduct. Subsection 82(6) of the Regulatory Powers Act preserves the effect of current section 85(6) of the TPP Act.

413.         The amendments in Schedule 14 to this Bill will also apply section 85 of the Regulatory Powers Act, which provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character; however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, they do not carry the possibility of imprisonment.

414.         As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia’s human rights obligations. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged.

415.         The amendments relating to civil penalty provisions in Schedule 14 to this Bill engage, but do not limit, the right to a fair and public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty. Accordingly, the right to a fair hearing is not limited.

416.         Application of the standard civil penalty provisions of the Regulatory Powers Act does result in a minor expansion of the current regulatory powers framework of the TPP Act due to the acquisition of section 93 of the Regulatory Powers Act; however that provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation.

417.         Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This section is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation. As discussed above, section 85 of the Regulatory Powers Act provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions. For example, as noted above, they do not carry the possibility of imprisonment. The application of section 93 of the Regulatory Powers Act does not engage any human rights.

418.         Further, alignment with Regulatory Powers Act will apply an additional provision, not currently in the TPP Act, which is merely procedural in nature. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. As section 96 of the Regulatory Powers Act only relates to proceedings for civil penalty orders, not offences, the right to be presumed innocent in Article 14(2) of the ICCPR is not engaged.

Infringement notices and Article 14

419.         Under the amendments in Schedule 14 to this Bill, infringement notices can be issued under the Regulatory Powers Act in relation to strict liability offences against Chapter 3 of the TPP Act. If the person does not pay the amount in the notice, they may be prosecuted for the offence. Accordingly, the right to a fair and public hearing in criminal matters provided for by Article 14(1) of the ICCPR is engaged.

420.         Section 104 of the Regulatory Powers Act (applied to the TPP Act by Schedule 14 to this Bill) provides that an infringement notice is required to state that the person may choose not to pay the penalty, and notify them that, if they do so, they may be prosecuted in a court for the alleged offence. Accordingly, the person must always be advised of the consequences of not paying the penalty, and of their right to have the matter dealt with by a court. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited.

421.         Article 14 of the ICCPR also provides for other criminal process rights, such as the right to be presumed innocent. It sets out the minimum guarantees in criminal proceedings. These rights are not limited by the amendments in Schedule 14 to this Bill.

422.         Alignment with the Regulatory Powers Act will also result in a minor expansion of the scope of current section 100 of the TPP Act. Current subsection 100(3) of the TPP Act provides that a single infringement notice must only relate to a single contravention of a single provision. Subsection 103(3) of the Regulatory Powers Act provides that an infringement notice must only relate to a single contravention of a single provision, unless the circumstances in subsection 103(4) of the Regulatory Powers Act apply. Subsection 103(4) of the Regulatory Powers Act states that a single infringement notice may relate to multiple contraventions of a single provision if that provision requires the person to do a thing within a particular period or before a particular time, and the person fails or refuses to do that thing on more than one day after the period has expired or relevant time has passed. The difference between current section 100 of the TPP Act and section 103 of the Regulatory Powers Act is a minor procedural difference, and complements the application of section 93 of the Regulatory Powers Act (see the discussion of this section above). This provision does not engage any human rights.

Conclusion

423.         Schedule 14 to this Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are necessary, reasonable and proportionate.

Overview of Schedule 15 - Weapons of Mass Destruction (Prevention of Proliferation) Act 1995

424.         The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (the ‘WMD Act’) prohibits the supply or export of goods that will or may be used, and the provision of services that will or may assist, in the development, production, acquisition or stockpiling of weapons capable of causing mass destruction, or missiles capable of delivering such weapons. The WMD Act regulates the supply of goods and the provision of services, in addition to the export of non-listed goods, where it is believed or suspected that they will or may be used in a weapons of mass destruction program. The WMD Act pursues the legitimate objectives of prohibiting and regulating these activities.

425.         Schedule 15 to this Bill amends the WMD Act to trigger the injunctions provisions in Part 7 of the Regulatory Powers Act, which will enable the Minister responsible for the department that administers the WMD Act to apply to a relevant court for an injunction to restrain the person from engaging in conduct or requiring the person to do a thing. Further, the Minister may apply to a relevant court for an interim injunction.

Human rights implications

Injunctions and Article 14

426.         Under the amendments in Schedule 15 to this Bill, an injunction can be granted under the Regulatory Powers Act in relation to contraventions of the offence provisions of the WMD Act. The right to a fair and public hearing and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR are engaged.

427.         Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Further, a court may only grant an injunction where a person has engaged, is engaging or is proposing to engage, in conduct that contravenes an offence provision of the WMD Act, or where a person has refused or failed, or is refusing or failing, or proposing to refuse or fail, to do a thing and that refusal or failure was, is or would be a contravention of an offence provision of the WMD Act. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited.

428.         The other criminal process rights and minimum guarantees in Article 14 of the ICCPR are not limited by the amendments and triggered provisions in Schedule 15 to this Bill.

Conclusion

429.         Schedule 15 to this Bill is compatible with human rights because, where it engages the right to a fair and public hearing and the other criminal process rights and minimum guarantees provided for by Article 14 of the ICCPR, it does not limit those rights.



 

ACRONYMS AND ABBEVIATIONS

Regulatory Powers Act

Regulatory Powers (Standard Provisions) Act 2014

Criminal Code

Criminal Code Act 1995

Crimes Act

Crimes Act 1914



 

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                    Clause 1 provides for the short title of the Act to be the Regulatory Powers (Standardisation Reform) Act 2016.

Clause 2 - Commencement

2.                    Clause 2 provides for the commencement of each provision in this Bill, as set out in the table.

3.                    Subclause 2(1) provides that each provision of this Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

4.                    Item 1 in the table provides that sections 1, 2 and 3, which concern the formal aspects of this Bill, as well as anything in this Bill not elsewhere covered by the table, will commence on the day on which this Bill receives the Royal Assent.

5.                    Item 2 in the table provides that Schedule 1 to this Bill commences on the day after this Bill receives the Royal Assent.

6.                    Item 3 in the table provides that Schedules 2 to 15 of this Bill commence on a day or days to be fixed by Proclamation. However, if any of the provisions do not commence within the period of 12 months beginning on the day this Bill receives the Royal Assent, they commence on the day after the end of that period. Deferring commencement for a 12 month period for Schedules 2 to 15 of this Bill will ensure administering agencies have sufficient time to implement any necessary changes to policies and procedures as a result of the amendments.

7.                    Subclause 2(2) provides that any information in column 3 of the table is not part of this Bill. Information may be inserted in column 3 of the table, or information in it may be edited, in any published version of this Bill.

Clause 3 - Schedules

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



 

Schedule 1 - Regulatory Powers (Standard Provisions) Act 2014

GENERAL OUTLINE

9.                    The Regulatory Powers (Standard Provisions) Act 2014 (the ‘Regulatory Powers Act’) provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions. The Regulatory Powers Act commenced on 1 October 2014, but only has effect where Commonwealth Acts are drafted or amended to trigger the standard provisions in that Act.

10.                This Schedule amends the Regulatory Powers Act to clarify the operation of certain provisions and remove unreasonable administrative burdens on agencies exercising regulatory powers under the Regulatory Powers Act.

PART 1—AMENDMENTS

Item 1 - Section 22 (heading)

11.                Item 1 repeals the heading to section 22 of the Regulatory Powers Act and substitutes a new heading, ‘Securing evidence of a contravention’. Section 22 of the Regulatory Powers Act is currently entitled ‘Securing evidence of the contravention of a related provision’. This item is consequential to the amendments made by item 2 below.

Item 2 - Paragraph 22(1)(b)

12.                Item 2 repeals paragraph 22(1)(b) of the Regulatory Powers Act and substitutes new paragraph 22(1)(b) of that Act.

13.                Current subsection 22(1) of the Regulatory Powers Act provides that the monitoring powers provided by Part 2 of that Act include the power to secure a thing for a period not exceeding 24 hours if:

a.        the thing is found during the exercise of monitoring powers on the premises, and

b.       an authorised person believes on reasonable grounds that:

                                                              i.       a related provision has been contravened with respect to the thing, or

                                                            ii.       the thing affords evidence of the contravention of a related provision, or

                                                          iii.       the thing is intended to be used for the purpose of contravening a related provision, and

c.        the authorised person believes on reasonable grounds that:

                                                              i.       it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained, and

                                                            ii.       it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.

14.                New paragraph 22(1)(b) of the Regulatory Powers Act provides that an authorised person may secure a thing where that authorised person believes on reasonable grounds that:

a.        a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act, or a related provision, has been contravened with respect to the thing, or

b.       the thing affords evidence of the contravention of a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act, or a related provision, or

c.        the thing is intended to be used for the purpose of contravening a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act, or a related provision, or

d.       the thing affords evidence that information subject to monitoring under Part 2 of the Regulatory Power Act is not correct.

15.                New paragraph 22(1)(b) of the Regulatory Powers Act ensures that an authorised person may secure a thing that would demonstrate that a provision subject to monitoring has not been, or is not being, complied with, or that information subject to monitoring is incorrect. New paragraph 22(1)(b) of the Regulatory Powers Act also ensures that an authorised person may secure a thing that would demonstrate that a related provision has been, is being or will be used to contravene a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act. A provision is ‘related’ to a provision or information subject to monitoring under Part 2 of the Regulatory Powers Act if an Act provides that the provision or information is related to that provision or information. A provision or information is typically considered ‘related’ where that provision or information would impact the provision or information subject to monitoring under Part 2 of the Regulatory Powers Act.

16.                It is necessary to amend section 22 of the Regulatory Powers Act to clarify that section 22 of that Act applies to contraventions of core provisions or information subject to monitoring under Part 2 of the Regulatory Powers Act, as well as related provisions or information.

17.                Current paragraph 22(1)(a) of the Regulatory Powers Act provides that the monitoring powers provided by Part 2 of that Act include the power to secure a thing for a period not exceeding 24 hours if the thing is found during the exercise of monitoring powers on the premises. However, the effect of current paragraph 22(1)(b) of the Regulatory Powers Act is that an authorised person may only secure things that would demonstrate that a related provision has been, is being or will be used to contravene a provision that is subject to monitoring under Part 2 of the Regulatory Powers Act.

18.                The approach taken in the amendments to Commonwealth Acts in the Schedules to this Bill is to prescribe that provisions subject to monitoring under Part 2 of the Regulatory Powers Act include the offence and civil penalty provisions of a triggering Act, and an offence against the Crimes Act or the Criminal Code that relates to the triggering Act. Accordingly, there are no related provisions for the purposes of Part 2 of the Regulatory Powers Act, as that Part relates to the amendments to Commonwealth Acts in Schedules 2 to 15 of this Bill.

19.                This item puts it beyond doubt that an authorised person may also secure a thing that would demonstrate that a provision subject to monitoring has not been, or is not being, complied with, or that information subject to monitoring is incorrect, which is necessary for the purposes of an effective monitoring scheme.

Item 3 - Subsection 22(1)

20.                Item 3 omits ‘The equipment may be secured by locking it up’ from the end of subsection 22(1) of the Regulatory Powers Act and substitutes ‘The thing may be secured by locking it up’. This item amends a typographical error in current subsection 22(1) of the Regulatory Powers Act, as that section relates to securing ‘things’ not ‘equipment’.

Item 4 - Paragraph 35(2)(b)

21.                Item 4 omits ‘1 year’ from paragraph 35(2)(b) of the Regulatory Powers Act and substitutes ‘5 years’.

22.                Current paragraph 35(2)(b) of the Regulatory Powers Act provides that an identity card issued to an authorised person must contain a photograph that is no more than 1 year old of that authorised person.

23.                This item removes an unreasonable administrative burden on agencies exercising regulatory powers under the Regulatory Powers Act, as those agencies must currently update identity cards on an annual basis. Although this item extends the lifespan of a photograph of an authorised person, an identity card with a photograph of the authorised person that is no more than five years old is still appropriate to ensure that the photograph is contemporary for the purposes of verifying the identity of the authorised person.

Item 5 - Paragraph 76(2)(b)

24.                Item 5 omits ‘1 year’ from paragraph 76(2)(b) of the Regulatory Powers Act and substitutes ‘5 years’.

25.                Current paragraph 76(2)(b) of the Regulatory Powers Act provides that an identity card issued to an authorised person must contain a photograph that is no more than 1 year old of that authorised person.

26.                This item removes an unreasonable administrative burden on agencies exercising regulatory powers under the Regulatory Powers Act, as those agencies must currently update identity cards on an annual basis. Although this item extends the lifespan of a photograph of an authorised person, an identity card with a photograph of the authorised person that is no more than five years old is still appropriate to ensure that the photograph is contemporary for the purposes of verifying the identity of the authorised person.

Item 6 - Subsection 82(2)

27.                Item 6 omits ‘4 years’ from subsection 82(2) of the Regulatory Powers Act and substitutes ‘6 years’.

28.                Current subsection 82(2) of the Regulatory Powers Act provides that an authorised applicant must make an application for a civil penalty order to a relevant court within 4 years of the alleged contravention of the civil penalty provision.

29.                This item provides for consistency across the Commonwealth, as existing regulatory regimes typically provide for a time period of within 6 years of the alleged contravention. Further, limitation periods of general application in the ‘Limitation Acts’ of each State and Territory are 6 years from the date of the action (with the exception of the Northern Territory).

Item 7 - Paragraph 104(1)(e)

30.                Item 6 repeals paragraph 104(1)(e) of the Regulatory Powers Act and substitutes new paragraph 104(1)(e) of that Act.

31.                Current paragraph 104(1)(e) of the Regulatory Powers Act provides that an infringement notice must give brief details of the alleged contravention, including the provision that was allegedly contravened, the maximum penalty that a court could impose for contravention of the provision, and the time (if known) and day of, and place of, the alleged contravention.

32.                New paragraph 104(1)(e) of the Regulatory Powers Act provides that an infringement notice must give brief details of the alleged contravention, or each alleged contravention, to which the notice relates, including the provision that was allegedly contravened, the maximum penalty that a court could impose for each contravention, and the time (if known) and day of, and place of, each alleged contravention.

33.                This item clarifies that an infringement notice may relate to multiple contraventions, and ensures that the information provided in an infringement notice appropriately deals with each contravention. This amendment complements subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision, where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time.

Item 8 - Subsection 104(2)

34.                Item 8 repeals subsection 104(2) of the Regulatory Powers Act and substitutes new subsections 104(2), (3) and (4) of that Act.

35.                Current subsection 104(2) of the Regulatory Powers Act provides that, unless another Act expressly provides otherwise, the amount to be stated in the infringement notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the alleged contravention of the provision by the person must be the lesser of:

a.        one-fifth of the maximum penalty that a court could impose on the person for that contravention, and

b.       12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate.

36.                New subsection 104(2) of the Regulatory Powers Act provides that, if the notice relates to only one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act is the lesser of:

a.        one-fifth of the maximum penalty that a court could impose on the person for that contravention, and

b.       12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate.

37.                New subsection 104(3) of the Regulatory Powers Act provides that, if the notice relates to more than one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act is the lesser of:

a.        one-fifth of the amount worked out by adding together the maximum penalty that a court could impose on the person for each alleged contravention, and

b.       either:

                                                              i.       if the person is an individual—the number of penalty units worked out by multiplying the number of alleged contraventions by 12, or

                                                            ii.       if the person is a body corporate—the number of penalty units worked out by multiplying the number of alleged contraventions by 60.

38.                Item 8 also inserts a note to new subsection 104(3) of the Regulatory Powers Act, which provides that, under section 103 of that Act, a single infringement notice may only deal with multiple contraventions if they are contraventions of a single provision continuing over a period. This note puts it beyond doubt that an infringement notice must only relate to a single contravention of a single provision unless multiple contraventions of a single civil penalty provision occur, and those contraventions relate to a continuing failure to comply with an obligation within or by a particular time.

39.                New subsection 104(4) of the Regulatory Powers Act provides that new subsections 104(2) and (3) of that Act do not apply if another Act expressly provides otherwise.

40.                This item clarifies that the cap on the amount to be stated in an infringement notice applies to an individual contravention, not an infringement notice as a whole. This amendment complements subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision, where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time.

PART 2—APPLICATION OF AMENDMENTS

Item 9 - Amendments relating to monitoring powers

41.                Item 9 provides for the application of the amendments made by items 2 and 3 of this Schedule, and makes it clear that those amendments apply where premises are entered under Part 2 of the Regulatory Powers Act on or after the commencement of items 2 or 3 of this Schedule.

Item 10 - Amendments relating to identity cards

42.                Item 10 provides for the application of the amendments made by items 4 and 5 of this Schedule, and makes it clear that the amendments apply in relation to:

a.        identity cards issued during the period of 12 months immediately before the commencement of items 4 and 5 of this Schedule, and

b.       identity cards issued on or after the commencement of items 4 and 5 of this Schedule.

43.                This item preserves the validity of cards issued before the commencement of Schedule 1 of this Bill which contain a photograph of the authorised person that is no more than 1 year old (that is, identity cards which are valid at the time of that commencement will remain valid for a further 4 years).

44.                Item 10 does not preserve identity cards that were issued before the commencement of Schedule 1 of this Bill which contain a photograph of the authorised person that is more than 1 year old, as those cards would not be valid as at the date of that commencement.

45.                This item provides clarity for authorised persons exercising monitoring and/or investigation powers under Parts 2 and 3 of the Regulatory Powers Act, and ensures continuity in the use of those monitoring and investigation powers.

46.                As this Schedule does not expand monitoring or investigation powers, the retrospective application provided for by this item does not impact rights or impose liabilities on a person subject to monitoring or investigation powers under Parts 2 or 3 of the Regulatory Powers Act.

Item 11 - Amendment relating to civil penalty orders

47.                Item 11 provides for the application of the amendments made by item 6 of this Schedule, and makes it clear that the amendments apply in relation to an application for a civil penalty order made on or after the commencement of item 6 of this Schedule.

Item 12 - Amendments relating to infringement notices

48.                Item 12 provides for the application of the amendments made by items 7 and 8 of this Schedule, and makes it clear that the amendments apply in relation to infringement notices issued on or after the commencement of items 7 and 8 of this Schedule.



 

Schedule 2 - Australian Sports Anti-Doping Authority Act 2006

GENERAL OUTLINE

49.                The Australian Sports Anti-Doping Authority Act 2006 (the ‘ASADA Act’) establishes the Australian Sports Anti-Doping Authority (‘ASADA’), and gives effect to Australia’s international anti-doping obligations under the United Nations Educational, Scientific and Cultural Organisation (UNESCO) International Convention against Doping in Sport. Under the Convention, signatories are required to implement arrangements that are consistent with the principles in the World Anti-Doping Code (the ‘Code’). The Code is an international agreement that provides the framework for harmonised anti-doping policies, rules and regulations within sporting organisations and public authorities around the world.

50.                ASADA is the Australian Government agency responsible for efforts to eliminate doping in Australian sport, thereby protecting the integrity of sport and the health of those who participate. ASADA implements Code-compliant programmes and activities that encompass engagement (building better relations with stakeholders), deterrence (education and awareness), detection (testing and investigations) and enforcement (management of cases involving possible anti-doping rule violations).

51.                Current Part 8A of the ASADA Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions of the ASADA Act. Current section 80 of the ASADA Act states that the regulations may provide for an infringement notices scheme in relation to alleged contraventions of civil penalty provisions in the ASADA Act. Part 5 of the Australian Sports Anti-Doping Authority Regulations 2006 (the ‘ASADA Regulations’), deals with the use of infringement notices where an authorised person reasonably believes that a civil penalty provision has been contravened.

52.                This Schedule amends the ASADA Act to apply the standard civil penalty and infringement notices provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the ASADA Act; however, the time period for the making of an application for a civil penalty order will be increased from within 4 years to within 6 years of the alleged contravention (see subsection 82(2) of the Regulatory Powers Act as amended by Schedule 1 to this Bill).

53.                Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories.

54.                Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices that may be issued in relation to a breach of an offence or civil penalty provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5 of that Act to operate, a provision of an Act or legislative instrument must be made subject to an infringement notice under that Part by a triggering Act. When a triggering Act applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an infringement officer or officers for the purposes of exercising powers under that Part (see section 101 of the Regulatory Powers Act). A triggering Act must also identify the relevant chief executive for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil penalty provisions of a triggering Act are subject to an infringement notice and apply in external Territories or offshore areas, the triggering Act should identify whether Part 5 of the Regulatory Powers Act extends to any external Territories.

COMPARISON OF PROVISIONS

Australian Sports Anti-Doping Authority Act 2006

55.                The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 7) for the provisions of the ASADA Act that are repealed by items 7 and 8.

Current provision in the ASADA Act

Provision

Provision as amended by this Schedule

Applicable provision (Regulatory Powers Act)

Civil penalty provisions

Part 8A

 

Part 4-Civil penalty provisions

Relevant courts

4

Retained

N/A (see new subsection 72(3) of the ASADA Act)

Civil penalty orders

73B

Retained

82

Application for civil penalty order to be made within 4 years

73B(2)

Aligned

See subsection 82(2) of the Regulatory Powers Act as amended by this Bill

Civil enforcement of penalty

73C

Retained

83

Conduct contravening more than one civil penalty provision

73D

Retained

84

Multiple contraventions

73E

Retained

85

Proceedings may be heard together

73F

Retained

86

Civil evidence and procedure rules for civil penalty orders

73G

Retained

87

Civil proceedings after criminal proceedings

73H

Retained

88

Criminal proceedings during civil proceedings

73J

Retained

89

Criminal proceedings after civil proceedings

73K

Retained

90

Evidence given in civil proceedings not admissible in criminal proceedings

73L

Retained

91

Ancillary contravention of civil penalty provisions

73M

Retained

92

Continuing contraventions of civil penalty provisions

73N

Retained

93

State of mind

73P

Retained

94

Mistake of fact

73Q

Retained

95

Exceptions etc. to civil penalty provisions - burden of proof

73R

Retained

96

Civil penalty provisions contravened by employees, agents or officers

73S

Retained

97

Infringement notices scheme by Regulation

80

 

Part 5-Infringement notices

Regulations may provide for an infringement notices scheme for civil penalty provisions

80

Repealed and substituted by new Part 8B

Part 5

Australian Sports Anti-Doping Authority Regulations 2006

56.                The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 7) for the provisions of the ASADA Regulations, which are made redundant by virtue of the repeal of section 80 of the ASADA Act by item 8. Part 5 of the ASADA Regulations will be repealed by regulation following commencement of this Schedule.

Current provision in the ASADA Regulations

Provision

Provision as amended by this Schedule

Applicable provision (Regulatory Powers Act)

Infringement notices

Part 5

 

Part 5-Infringement notices

Authorised person

17

Retained

N/A (see new subsections 73B(2) and (4) of the ASADA Act)

When an infringement notice may be given

18

Retained

103

Matters to be included in an infringement notice

19

Aligned

See section 104 of the Regulatory Powers Act as amended by this Bill

Extension of time to pay amount

20

Retained

105

Withdrawal of an infringement notice

21

Retained

106

Effect of payment of amount

22

Retained

107

Effect of Part

23

Retained

108

PART 1—AMENDMENTS

Item 1 - Section 4 (definition of civil penalty order )

57.                Item 1 repeals the definition of civil penalty order in section 4 of the ASADA Act. That definition is no longer necessary, as this Schedule amends the ASADA Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act.

58.                It is not necessary to substitute a new definition of civil penalty order in section 4 of the ASADA Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act.

Item 2 - Section 4 (definition of civil penalty provision )

59.                Item 2 repeals the definition of civil penalty provision in section 4 of the ASADA Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act.

Item 3 - Section 4

60.                Item 3 repeals the definitions of conduct and evidential burden in section 4 of the ASADA Act. Those definitions are no longer necessary, as this Schedule amends the ASADA Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and conduct and evidential burden are defined in section 4 of that Act.

61.                It is not necessary to substitute a new definition of conduct in section 4 of the ASADA Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act.

62.                It is not necessary to substitute a new definition of evidential burden in section 4 of the ASADA Act as, for the purposes of the civil penalty provisions in that Act, section 96 of the Regulatory Powers Act will apply. Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision.

63.                Where the phrase evidential burden is used in other provisions of the ASADA Act, section 13.3 of the Criminal Code defines evidential burden as the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

Item 4 - Section 4

64.                Item 4 amends section 4 of the ASADA Act to insert a definition of Regulatory Powers Act . That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014 .

Item 5 - Section 4 (definition of relevant court )

65.                Item 5 repeals the definition of relevant court in section 4 of the ASADA Act. Courts identified as relevant courts for the purposes of the Regulatory Powers Act in relation to the civil penalty provisions of the ASADA Act are inserted by item 7 below. The definition of relevant court is only relevant for the purposes of the use of civil penalty orders to enforce civil penalty provisions, and is not applied in any other provision of the ASADA Act. Accordingly, it is not necessary to substitute a new definition of relevant court in section 4 of the ASADA Act.

Item 6 - Subsection 13C(2) (note)

66.                Item 6 repeals the note to subsection 13C(2) of the ASADA Act and substitutes a new note to replace the reference to current section 73R of the ASADA Act with a reference to section 96 of the Regulatory Powers Act.

67.                Current section 73R of the ASADA Act states that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, that person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision. Current section 73R of the ASADA Act is repealed by item 7 below.

68.                Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision.

69.                The new note directs the reader to the applicable section of the Regulatory Powers Act that deals with evidential burden in the context of civil penalty provisions.

Item 7 - Part 8A

70.                Item 7 repeals current ‘Part 8A—Civil penalty orders’ of the ASADA Act, and substitutes new ‘Part 8A—Civil penalty provisions’ and new ‘Part 8B—Infringement notices’. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce civil penalty provisions in the ASADA Act, and Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to alleged contraventions of civil penalty provisions in the ASADA Act.

Civil penalty provisions

71.                Current Part 8A of the ASADA Act provides for provisions in relation to civil penalty orders, and includes sections 73AA, 73A, 73B, 73C, 73D, 73E, 73F, 73G, 73H, 73J, 73K, 73L, 73M, 73N, 73P, 73Q, 73R and 73S of that Act. Those sections are no longer necessary, as this Schedule amends the ASADA Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 56 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the ASADA Act that are repealed by this item.

72.                New Part 8A of the ASADA Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 72(1) of the ASADA Act). New section 71 of the ASADA Act provides for a simplified outline of new Part 8A of that Act, and new section 72 of that Act outlines matters in relation to the authorised applicant, relevant courts and the extension of matters to external Territories.

73.                New subsection 72(1) of the ASADA Act states that each civil penalty provision of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the ASADA Act. Item 7 also inserts a note at the end of new subsection 72(1) of the ASADA Act, which directs the reader to Part 4 of the Regulatory Powers Act.

74.                New subsection 72(2) of the ASADA Act identifies the CEO of ASADA (as defined in the ASADA Act) as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the CEO, on behalf of the Commonwealth, to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision, must pay the Commonwealth a pecuniary penalty (that is, a ‘civil penalty order’). New subsection 72(2) of the ASADA Act preserves the effect of current subsection 73B(1) of that Act, which is repealed by this item.

75.                New subsection 72(3) of the ASADA Act identifies the following courts as a relevant court in relation to the civil penalty provisions of that Act:

a.        the Federal Court of Australia

b.       the Federal Circuit Court of Australia, and

c.        a court of a State or Territory that has jurisdiction in relation to matters arising under the ASADA Act.

76.                These courts are currently identified in the definition of relevant court in section 4 of the ASADA Act. That definition is repealed by item 5 above. Accordingly, new subsection 72(3) of the ASADA Act preserves the effect of that definition.

77.                New subsection 72(4) of the ASADA Act extends the application of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act, to every external Territory. New subsection 72(4) of the ASADA Act reflects existing arrangements under that Act (see sections 7 and 8 of the ASADA Act). Section 7 of the ASADA Act provides that the ASADA Act extends to every external Territory. Section 8 of the ASADA Act extends that Act to acts, omissions, matters and things outside Australia; unless a contrary intention appears in a provision of that Act. New subsection 72(4) of the ASADA Act preserves the effect of section 8 of the ASADA Act, as it does not provide an express contrary intention to extra-territorial application.

78.                Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the ASADA Act; however, the comparison table provided at paragraph 56 above identifies that current subsection 73B(2) of the ASADA Act is aligned to subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill).

79.                Current subsection 73B(2) of the ASADA Act provides that the CEO of ASADA must make an application for a civil penalty order within 4 years of the alleged contravention. Application of subsection 82(2) of the Regulatory Powers Act (as amended by Schedule 1 to this Bill) will increase this time period from within 4 years to within 6 years of the alleged contravention (see the discussion of amended subsection 82(2) of the Regulatory Powers Act in Schedule 1 to this Bill).

Infringement notices

80.                Current section 80 of the ASADA Act provides that the regulations may provide for an infringement notices scheme in relation to alleged contraventions of civil penalty provisions in the ASADA Act. That section is repealed by item 8 below.

81.                Part 5 of the ASADA Regulations provides for provisions in relation to infringement notices, and includes regulations 16, 17, 18, 19, 20, 21, 22 and 23 of those Regulations. Those provisions are no longer necessary, as this Schedule amends the ASADA Act to apply the standard infringement notices provisions of the Regulatory Powers Act, and remove the power to provide for an infringement notices scheme by regulation. The comparison table provided at paragraph 57 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the ASADA Regulations that are made redundant by item 8. Part 5 of the ASADA Regulations will be repealed by regulation following commencement of this Schedule.

82.                New Part 8B of the ASADA Act directs the reader to Part 5 of the Regulatory Powers Act, which provides for provisions in relation to infringement notices (see the note to new subsection 73B(1) of the ASADA Act). New section 73A of the ASADA Act provides for a simplified outline of new Part 8B of that Act. New section 73B of the ASADA Act outlines matters in relation to the infringement officer, the relevant chief executive and the extension of matters to external Territories.

83.                New subsection 73B(1) of the ASADA Act states that a civil penalty provision of that Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act, which ensures that Part 5 of the Regulatory Powers Act operates for the purposes of the civil penalty provisions of the ASADA Act. Item 7 also inserts a note at the end of new subsection 73B(1) of the ASADA Act, which directs the reader to Part 5 of the Regulatory Powers Act.

84.                New subsection 73B(2) of the ASADA Act identifies the CEO of ASADA (as defined in the ASADA Act), and a person authorised by the CEO for the purposes of new paragraph 73B(2)(b) of that Act, as an infringement officer for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act. New subsection 73B(2) of the ASADA Act preserves the effect of regulation 17 of the ASADA Regulations, which is made redundant by item 8 below.

85.                New subsection 73B(2) of the ASADA Act will enable an infringement officer to issue an infringement notice to a person if they reasonably believe that person has contravened a civil penalty provision of the ASADA Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), proceedings seeking a civil penalty order under Part 4 of the Regulatory Powers Act may be brought against the person.

86.                New subsection 73B(3) of the ASADA Act identifies the CEO of ASADA as the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act. New subsection 73B(3) of the ASADA Act preserves the effect of existing arrangements under the ASADA Regulations (see regulations 17, 20 and 21 of the ASADA Regulations, which are made redundant by item 8 below).

87.                New subsection 73B(4) of the ASADA Act provides that the CEO of ASADA may, in writing, delegate his or her powers and functions as the relevant chief executive under Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act, to a member of the ASADA staff or an individual whose services are made available to the CEO under section 24M of the ASADA Act. New subsection 73B(4) of the ASADA Act reflects existing arrangements under that Act in relation to delegations (see section 24N of the ASADA Act), and preserves the effect of regulation 17 of the ASADA Regulations, which is made redundant by item 8 below.

88.                New subsection 73B(5) of the ASADA Act provides that a delegate must comply with any written directions of the CEO of ASADA, which reflects existing arrangements under that Act (see subsection 24N(4) of the ASADA Act).

89.                New subsection 73B(6) of the ASADA Act extends the application of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the ASADA Act, to every external Territory. New subsection 73B(6) of the ASADA Act reflects existing arrangements under that Act (see sections 7 and 8 of the ASADA Act). Section 7 of the ASADA Act provides that the ASADA Act extends to every external Territory. Section 8 of the ASADA Act extends that Act to acts, omissions, matters and things outside Australia; unless a contrary intention appears in a provision of that Act. New subsection 73B(6) of the ASADA Act preserves the effect of section 8 of the ASADA Act, as it does not provide an express contrary intention to extra-territorial application.

90.                Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the ASADA Act; however, the comparison table provided at paragraph 57 above identifies that current regulation 19 of the ASADA Regulations is aligned to section 104 of the Regulatory Powers Act (as amended by Schedule 1 to this Bill).

91.                Section 104 of the Regulatory Powers Act is amended by Schedule 1 to this Bill to clarify that the cap on the amount to be stated in an infringement notice applies to an individual contravention, not an infringement notice as a whole. This amendment complements subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision, where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time.

Item 8 - Section 80

92.                Item 8 repeals section 80 of the ASADA Act, which provides that the regulations may provide for an infringement notices scheme in relation to alleged contraventions of civil penalty provisions in the ASADA Act. The repeal of section 80 reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, rather than by regulation or legislative instrument.

93.                Item 7 above inserts new Part 8B of the ASADA Act, which applies the infringement notices provisions in Part 5 of the Regulatory Powers Act to alleged contraventions of civil penalty provisions in the ASADA Act. Part 5 of the ASADA Regulations will be repealed by regulation following commencement of this Schedule.

PART 2—APPLICATION AND SAVING PROVISIONS

Item 9 - Application and saving provision—civil penalties

94.                Item 9 provides for the application of the amendments in this Schedule in relation to civil penalties, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule.

95.                This item also provides that Part 8A of the ASADA Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule.

Item 10 - Application and saving provision—infringement notices

96.                Item 10 provides for the application of the amendments in this Schedule in relation to infringement notices, and makes it clear that the amendments apply in relation to alleged contraventions of civil penalty provisions referred to in new subsection 73B(1) of the ASADA Act occurring on or after the commencement of this Schedule.

97.                This item also provides that regulations made under section 80 of the ASADA Act, as in force immediately before the commencement of this Schedule, continue to apply on and after that commencement in relation to alleged contraventions of civil penalty provisions of the ASADA Act occurring before the commencement of this Schedule.



 

Schedule 3 - Building Energy Efficiency Disclosure Act 2010

GENERAL OUTLINE

98.                The Building Energy Efficiency Disclosure Act 2010 (the ‘BEED Act’) establishes the Commercial Building Disclosure Scheme, which requires disclosure of certain energy efficiency information relating to commercial office buildings in the context of sales and lease transactions.

99.                Current Division 2 of Part 5 of the BEED Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions. Current Division 3 of Part 5 of the BEED Act deals with the use of infringement notices where an authorised person reasonably believes that a civil penalty provision has been contravened.

100.            This Schedule amends the BEED Act to apply the standard civil penalty and infringement notices provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the BEED Act, and the new provisions gained by alignment with the Regulatory Powers Act, which are not currently in the BEED Act, are merely procedural matters in relation to civil penalty and infringement notices provisions. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the BEED Act.

101.            Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories.

102.            Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices that may be issued in relation to a breach of an offence or civil penalty provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5 of that Act to operate, a provision of an Act or legislative instrument must be made subject to an infringement notice under that Part by a triggering Act. When a triggering Act applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an infringement officer or officers for the purposes of exercising powers under that Part (see section 101 of the Regulatory Powers Act). A triggering Act must also identify the relevant chief executive for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil penalty provisions of a triggering Act are subject to an infringement notice and apply in external Territories or offshore areas, the triggering Act should identify whether Part 5 of the Regulatory Powers Act extends to any external Territories.

COMPARISON OF PROVISIONS

Building Energy Efficiency Disclosure Act 2010

103.            The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 8) for the provisions of the BEED Act that are repealed by item 8.

Current provision in the BEED Act

Provision

Provision as amended by this Schedule

Applicable provision (Regulatory Powers Act)

Civil penalty provisions

Division 2, Part 5

 

Part 4-Civil penalty provisions

Relevant courts

3

Retained

N/A (see new subsection 51(5) of the BEED Act)

Continuing contraventions

18(7)

Retained

93

Ancillary contravention of civil penalty provisions

52

Retained

92

Civil penalty order

53

Aligned

82

Maximum pecuniary penalty

53(5);

53(5A);

53(5B);

53(5C);

53(5D)

Retained through modification to the operation of the Regulatory Powers Act

N/A (see new subsection 51(6) and new section 52 of the BEED Act)

Multiple contraventions

53(6)

Retained

85

Conduct contravening more than one civil penalty provision

53(7)

Retained

84

Civil enforcement of penalty

53(8)

Retained

83

Two or more proceedings may be heard together

54

Retained

86

Contravening a civil penalty provision is not an offence

55

Repealed

N/A

Civil evidence and procedure rules for civil penalty order

56

Retained

87

Mistake of fact

57

Retained

95

N/A (Civil proceedings after criminal proceedings)

N/A

Gained

88

N/A (Criminal proceedings during civil proceedings)

N/A

Gained

89

N/A (Criminal proceedings after civil proceedings)

N/A

Gained

90

N/A (Evidence given in civil proceedings not admissible in criminal proceedings)

N/A

Gained

91

N/A (State of mind)

N/A

Gained

94

N/A (Exceptions etc. to civil penalty provisions - burden of proof)

N/A

Gained

96

N/A (Civil penalty provisions contravened by employees, agents or officers)

N/A

Gained

97

Infringement notices

Division 3, Part 5

 

Part 5-Infringement notices

When an infringement notice can be given

58

Aligned

103

(also see new subsection 53(6) of the BEED Act)

Matters to be included in an infringement notice

59

Aligned

See section 104 of the Regulatory Powers Act as amended by this Bill

An infringement notice must state that if the notice is withdrawn, any amount paid under the notice must be refunded

59(1)(n)(i)

Repealed

N/A

(however, see the operation of section 106 of the Regulatory Powers Act)

An infringement notice must set out such other matters (if any) as are specified by the regulations

59(1)(p)

Repealed

N/A

Maximum pecuniary penalty

59(2)

Retained through modification to the operation of the Regulatory Powers Act

N/A (see new subsection 53(7) of the BEED Act)

Extension of time to pay penalty

60

Retained

105

Withdrawal of an infringement notice

61

Retained

106

Time limits on representations seeking withdrawal of notice

61(1)

Retained through modification to the operation of the Regulatory Powers Act

N/A (see new subsection 53(8) of the BEED Act)

Evidence given to the Secretary in the course of making representations seeking withdrawal of notice

61(2)

Repealed

N/A

Effect of payment of penalty

62

Retained

107

Effect of this Division

63

Retained

108

The regulations may make further provision in relation to infringement notices

64

Repealed

N/A

N/A (2 or more infringement notices may be given to a person for alleged contravention of a provision subject to an infringement notice)

N/A

Gained

108(c)

Building Energy Efficiency Disclosure Regulations 2010

104.            The below table identifies the corresponding provisions of the Regulatory Powers Act (if applicable) for the provisions of the Building Energy Efficiency Disclosure Regulations 2010 (the ‘BEED Regulations’), which are made redundant by virtue of the repeal of section 64 of the BEED Act by item 8. Part 7 of the BEED Regulations will be repealed by regulation following commencement of this Schedule.

Current provision in the BEED Regulations

Provision

Provision as amended by this Schedule

Applicable provision (Regulatory Powers Act)

Infringement notices

Part 7

 

Part 5-Infringement notices

Infringement notices—contents of notice

12

Redundant

N/A

Other provisions for infringement notices

13

Redundant

N/A

Method of service for infringement notices

14

Redundant

N/A

Infringement notices—evidentiary certificates

15

Redundant

N/A

Payment of infringement notice penalty—cheques

16

Redundant

N/A

Payment by instalment

17

Redundant

N/A

PART 1—AMENDMENTS

Item 1 - Section 3 (definition of civil penalty order )

105.            Item 1 repeals the definition of civil penalty order in section 3 of the BEED Act. That definition is no longer necessary, as this Schedule amends the BEED Act to apply the standard civil penalty provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act.

106.            It is not necessary to substitute a new definition of civil penalty order in section 3 of the BEED Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act. Where the phrase ‘civil penalty order’ is used in a provision external to current Divisions 2 and 3 of Part 5 of the BEED Act, that phrase is amended to ‘civil penalty order under the Regulatory Powers Act’ (see items 5 and 10 below).

Item 2 - Section 3 (definition of civil penalty provision )

107.            Item 2 repeals the definition of civil penalty provision in section 3 of the BEED Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act.

Item 3 - Section 3

108.            Item 3 amends section 3 of the BEED Act to insert a definition of Regulatory Powers Act . That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014 .

Item 4 - Subsection 8(2)

109.            Item 4 omits ‘to a pecuniary penalty or’ from subsection 8(2) of the BEED Act, which provides that the BEED Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence. This item is consequential to the amendments made by item 8 below, which repeals current Divisions 2 and 3 of Part 5 of the BEED Act and applies the standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act.

110.            The effect of the text omitted from current subsection 8(2) of the BEED Act is preserved by item 8 below, which inserts new subsections 51(8) and (9) of the BEED Act. Those new subsections provide that Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, does not make the Crown liable to a pecuniary penalty, however, that protection does not apply to an authority of the Crown.

Item 5 - Subsections 11(5) and 15(5)

111.            Item 5 inserts ‘under the Regulatory Powers Act’ after ‘civil penalty order’ in subsections 11(5) and 15(5) of the BEED Act, which clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 8 below.

112.            Current subsection 11(5) of the BEED Act provides that a constitutional corporation that contravenes a requirement of section 11 of that Act in relation to a continuing offer, or a continuing invitation, commits a separate contravention in respect of each day during which the person fails to comply with that requirement, including the day of the making of a relevant civil penalty order, and any subsequent day.

113.            Current subsection 15(5) of the BEED Act provides that a constitutional corporation that contravenes a requirement of section 15 of that Act in relation to a continuing advertisement commits a separate contravention in respect of each day during which the person fails to comply with that requirement, including the day of the making of a relevant civil penalty order, and any subsequent day.

114.            Item 5 is consequential to the amendments made by item 8 below, which repeals current Divisions 2 and 3 of Part 5 of the BEED Act and applies the standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act.

Item 6 - Subsection 18(7)

115.            Item 6 repeals subsection 18(7) of the BEED Act and substitutes a new subsection and note to make it clear that section 93 of the Regulatory Powers Act applies to a contravention of subsection 18(6) of the BEED Act.

116.            Current subsection 18(7) of the BEED Act provides that a person who contravenes subsection 18(6) of that Act commits a separate contravention of that subsection in respect of:

a.        where the person fails to give information within the period specified in the notice—each day after the end of that period which the failure continues, including a day of the making of a relevant civil penalty order and any subsequent day, and

b.       where the person fails to give access at a day and time on which access is required under the notice—each day after the day specified, including a day of the making of a relevant civil penalty order and any subsequent day.

117.            Subsection 18(6) of the BEED Act outlines the civil penalty applicable for non-compliance with a notice issued under section 18 of that Act, which is prescribed as 200 penalty units for an individual and 500 penalty units for a body corporate.

118.            Section 18 of the BEED Act allows the Secretary of the department that administers the BEED Act to issue a written notice to an owner, lessee or sublessee of a building or area of a building to give an accredited assessor access to that building or area at a particular day and time.

119.            Item 6 repeals current subsection 18(7) of the BEED Act and substitutes a new subsection 18(7) of that Act, which provides for the matters outlined in current paragraph 18(7)(b) of the BEED Act only. It is no longer necessary to include current paragraph 18(7)(a) of the BEED Act, as the effect of that paragraph is preserved by the application of section 93 of the Regulatory Powers Act (see item 8 below, which repeals current Divisions 2 and 3 of Part 5 of the BEED Act and applies the standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act).

120.            Current paragraph 18(7)(b) of the BEED Act provides for where a person fails to do an act at a particular time. However, section 93 of the Regulatory Powers Act provides for where a person fails to comply with an obligation within a particular period or before a particular time (even if the period has expired or the time has passed). Consequently, section 93 of the Regulatory Powers Act is unable to deal with matters provided for in current paragraph 18(7)(b) of the BEED Act.

121.            The amendments made by this item make it clear that, where a person or body corporate fails to give access at a day and time required under the notice issued under section 18 of the BEED Act, that person or body corporate will continue to commit a separate contravention of subsection 18(6) of the BEED Act each day after the required day until that person or body corporate complies with the access request.

122.            Item 6 also inserts a note to new subsection 18(7) of the BEED Act, which directs the reader to section 93 of the Regulatory Powers Act.

123.            Section 93 of the Regulatory Powers Act provides that if an act or thing is required under a civil penalty provision to be done within a particular period or before a particular time, the obligation to do that act or thing continues until that act or thing is done, even if the period has expired or the time has passed. This section further provides that a person commits a separate contravention of the civil penalty provision in respect of each day during which the contravention occurs, including the day the civil penalty order is made (or any later day). This provision is necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation.

Item 7 - Subsection 49(1)

124.            Item 7 inserts ‘of this Act’ after ‘civil penalty provision’ in subsection 49(1) of the BEED Act.

125.            Current subsection 49(1) of the BEED Act provides the Secretary of the department that administers the BEED Act with the ability to issue a written notice to a person requiring that person to provide information, or produce documents, where the Secretary reasonably believes that person has knowledge of information, or custody or control of documents, relating to whether there has been compliance with a civil penalty provision of the BEED Act.

126.            This item makes it clear that a written notice issued by the Secretary under section 49 of the BEED Act only applies to compliance with a civil penalty provision provided for in that Act.

Item 8 - Divisions 2 and 3 of Part 5

127.            Item 8 repeals current Divisions 2 and 3 of Part 5 of the BEED Act, and substitutes new ‘Division 2—Civil penalties’ and new ‘Division 3—Infringement notices’ of Part 5 of that Act. This item applies the provisions of Part 4 of the Regulatory Powers Act for the use of civil penalties to enforce civil penalty provisions in the BEED Act, and Part 5 of the Regulatory Powers Act for issuing infringement notices in relation to alleged contraventions of civil penalty provisions in the BEED Act.

Civil penalty provisions

128.            Current Division 2 of Part 5 of the BEED Act provides for provisions in relation to civil penalty orders, and includes sections 51, 52, 53, 54, 55, 56 and 57 of that Act. Those sections are no longer necessary, as this Schedule amends the BEED Act to apply the standard civil penalty provisions of the Regulatory Powers Act. The comparison table provided at paragraph 104 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the BEED Act that are repealed by this item.

129.            New Division 2 of Part 5 of the BEED Act directs the reader to Part 4 of the Regulatory Powers Act, which provides for provisions in relation to civil penalty orders (see the note to new subsection 51(1) of the BEED Act). New section 51 of the BEED Act outlines matters in relation to the authorised applicant, relevant courts, maximum pecuniary penalties, the extension of matters to external Territories and liability of the Crown.

130.            New subsection 51(1) of the BEED Act states that each civil penalty of that Act is enforceable under Part 4 of the Regulatory Powers Act, which ensures that Part 4 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the BEED Act. Item 8 also inserts a note at the end of new subsection 51(1) of the BEED Act, which directs the reader to Part 4 of the Regulatory Powers Act.

131.            New subsection 51(2) of the BEED Act identifies the Secretary of the department that administers the BEED Act as the authorised applicant in relation to the civil penalty provisions of that Act. This will enable the Secretary to seek an order from a relevant court that a person, who is alleged to have contravened a civil penalty provision of the BEED Act, must pay the Commonwealth a pecuniary penalty (that is, a ‘civil penalty order’). New subsection 51(2) of the BEED Act preserves the effect of current subsection 53(1) of that Act, which is repealed by this item.

132.            New subsection 51(3) of the BEED Act provides the Secretary with the ability to delegate, in writing, his or her powers and functions in relation to the civil penalty provisions of the BEED Act, to an SES employee or acting SES employee of the department that administers the BEED Act. New subsection 51(3) of the BEED Act reflects existing arrangements under that Act (see subsection 71(1) of the BEED Act).

133.            New subsection 51(4) provides that a delegate must comply with any directions of the Secretary, which reflects existing arrangements under that Act (see subsection 71(3) of the BEED Act).

134.            New subsection 51(5) of the BEED Act identifies the Federal Court of Australia and the Federal Circuit Court of Australia as a relevant court for the purposes of Part 4 of the Regulatory Powers Act. New subsection 51(5) of the BEED Act reflects existing arrangements under that Act (see the definition of Court in section 3 of the BEED Act).

135.            New subsection 51(6) of the BEED Act modifies the operation of subsection 82(5) of the Regulatory Powers Act, and provides that the pecuniary penalty payable under a civil penalty order must not be more than the amount stated in new section 52 of the BEED Act. New section 52 of the BEED Act provides for the maximum pecuniary penalty payable by a person for a civil penalty order made under Part 4 of the Regulatory Powers Act, as that Part applies to a contravention of section 11, 15 or 18 of the BEED Act. New subsection 51(6) and new section 52 of the BEED Act preserve the effect of current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act, which are repealed by this item.

136.            Current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act were tailored to large commercial operations, and are appropriate in quantum to ensure compliance. It is necessary to preserve the effect of current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act through the inclusion of new subsection 51(6) of that Act, as the applicable penalty units appropriately reflect compliance costs. The average cost of providing a Building Energy Efficiency Certificate is between $6,000 and $10,000, depending on the complexity of the building. Accordingly, new section 52 of the BEED Act acts as a suitable deterrent against non-compliance.

137.            New subsection 51(7) of the BEED Act extends the application of Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, to every external Territory. New subsection 51(7) of the BEED Act reflects existing arrangements under that Act (see section 9 of the BEED Act).

138.            New subsection 51(8) of the BEED Act provides that Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, does not make the Crown liable to a pecuniary penalty. New subsection 51(9) of the BEED Act provides that the protection does not apply to an authority of the Crown. New subsections 51(8) and (9) of the BEED Act preserve the effect of current subsection 8(2) of the BEED Act, which is amended by item 4 above.

139.            Item 8 also inserts new section 52 of the BEED Act, which complements new subsection 51(6) of that Act, and provides for the maximum pecuniary penalty payable by a person for a civil penalty order made under Part 4 of the Regulatory Powers Act, as that Part applies to a contravention of section 11, 15 or 18 of the BEED Act. New section 52 of the BEED Act modifies the operation of subsection 82(5) of the Regulatory Powers Act, which provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision.

140.            New subsection 52(1) of the BEED Act states that, subject to that section, the pecuniary penalty payable by a person for a civil penalty order made under Part 4 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, must not exceed the pecuniary penalty specified for the civil penalty provision in the BEED Act. New subsection 52(1) of the BEED Act preserves the effect of current subsection 53(5) of that Act, which is repealed by this item.

141.            New subsection 52(2) of the BEED Act provides that if the contravention is of a requirement under section 11 of that Act in relation to a continuing offer or a continuing invitation, and the contravention is in respect of one or more days that fall after the first day on which the offer or invitation is made, then the pecuniary penalty must not exceed 100 penalty units for each day that falls after the first day. New subsection 52(2) of the BEED Act preserves the effect of current subsection 53(5A) of that Act, which is repealed by this item.

142.            New subsection 52(3) of the BEED Act provides that if the contravention is of a requirement under section 15 of that Act in relation to a continuing advertisement, and the contravention is in respect of one or more days that fall after the first day on which advertising began, then the pecuniary penalty must not exceed 100 penalty units for each day that falls after the first day. New subsection 52(3) of the BEED Act preserves the effect of current subsection 53(5B) of that Act, which is repealed by this item.

143.            New subsection 52(4) of the BEED Act provides that if the contravention is of a requirement under section 18 of that Act in relation to giving information within a period specified in a notice, and the contravention is in respect of one or more days that fall after the end of that period, then the pecuniary penalty must not exceed 20 penalty units for an individual and 50 penalty units for a body corporate for each day that falls after the end of that period. New subsection 52(4) of the BEED Act preserves the effect of current subsection 53(5C) of that Act, which is repealed by this item.

144.            New subsection 52(5) of the BEED Act provides that if the contravention is of a requirement under section 18 of that Act in relation to giving access to a place at a day and time specified in a notice, and the contravention is in respect of one or more days that fall after the day specified, then the pecuniary penalty must not exceed 20 penalty units for an individual and 50 penalty units for a body corporate for each day that falls after the day specified. New subsection 52(5) of the BEED Act preserves the effect of current subsection 53(5D) of that Act, which is repealed by this item.

145.            Current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act were tailored to large commercial operations, and are appropriate in quantum to ensure compliance. It is necessary to preserve the effect of current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act through the inclusion of new section 52 of that Act, as the applicable penalty units appropriately reflect compliance costs. The average cost of providing a Building Energy Efficiency Certificate is between $6,000 and $10,000, depending on the complexity of the building. Accordingly, new section 52 of the BEED Act acts as a suitable deterrent against non-compliance.

146.            Application of the standard civil penalty provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the BEED Act. The comparison table provided at paragraph 104 above identifies provisions gained through alignment with the Regulatory Powers Act, which are not currently in the BEED Act, that are merely procedural in nature and set out matters in relation to civil proceedings and criminal proceedings, state of mind, burden of proof and vicarious liability (see sections 88, 89, 90, 91, 94, 96 and 97 of the Regulatory Powers Act, which are discussed below).

147.            Section 88 of the Regulatory Powers Act provides that a court cannot make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

148.            Section 89 of the Regulatory Powers Act stays proceedings for a civil penalty order against a person for a contravention of a civil penalty provision if criminal proceedings are commenced, or have already been commenced, against the person for an offence, and the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention. Subsection 89(2) of the Regulatory Powers Act clarifies that civil proceedings may be resumed if the person is not convicted of the offence. However, if the person is convicted of the offence, then the civil proceedings are dismissed and costs must not be awarded in relation to the civil proceedings.

149.            Section 90 of the Regulatory Powers Act clarifies that criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against the person in relation to the contravention. This section recognises the importance of criminal proceedings and criminal penalties in dissuading and sanctioning contraventions of the triggering Act, and ensures that criminal remedies are not precluded by earlier civil action.

150.            Section 91 of the Regulatory Powers Act provides that evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

a.        the individual previously gave the information or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made), and

b.       the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

151.            However, subsection 91(2) of the Regulatory Powers Act states that subsection 91(1) of that Act does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order. This section ensures that information or documents produced during civil proceedings are not relied upon to support subsequent criminal proceedings, unless those proceedings are criminal proceedings relating to falsifying evidence in civil proceedings.

152.            Section 94 of the Regulatory Powers Act provides that it is not necessary to prove a person’s state of mind in civil penalty proceedings under that Act. Subsections 94(2) and (4) of the Regulatory Powers Act clarify that this does not apply to ancillary contravention of civil penalty provisions, or where the relevant provision expressly provides otherwise. Subsection 94(3) of the Regulatory Powers Act provides that subsection 94(1) of that Act does not affect the operation of section 95 of that Act (note, section 95 of the Regulatory Powers Act provides that a person cannot be held liable for a civil penalty order if his or her actions arose from a legitimate mistake of fact).

153.            Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, a person bears an evidential burden where that person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision.

154.            Section 97 of the Regulatory Powers Act provides that a body corporate is responsible for the actions of an employee, agent or officer of that body corporate, who is acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority.

155.            The comparison table provided at paragraph 104 above also identifies that current section 53 of the BEED Act is aligned to section 82 of the Regulatory Powers Act, and that current section 55 of the BEED Act is repealed without substitution.

156.            Alignment with the Regulatory Powers Act will result in minor modifications to the scope of current section 53 of the BEED Act, which concerns matters the court must have regard to in determining the pecuniary penalty. Current paragraph 53(4)(d) of the BEED Act provides that in determining a pecuniary penalty, the court must take into account whether the person has previously been found by a court, in proceedings under that Act, to have engaged in any similar conduct. Paragraph 82(6)(d) of the Regulatory Powers Act also applies this requirement, but provides that in determining a pecuniary penalty, the court must take into account whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct. Paragraph 82(6)(d) of the Regulatory Powers Act is not restricted to prior similar conduct related to the triggering Act, and makes it clear that a court includes a court in a foreign country.

157.            Current paragraph 53(4)(e) of the BEED Act provides that in determining a pecuniary penalty, the court must take into account the extent to which the person has cooperated with the authorities. This consideration is not expressly required under subsection 82(6) of the Regulatory Powers Act; however, the list of factors in subsection 82(6) of the Regulatory Powers Act is not exhaustive, and a court may nonetheless consider the extent to which the person has cooperated with the authorities when determining the appropriate pecuniary penalty.

158.            Alignment with the Regulatory Powers Act will also repeal current section 55 of the BEED Act, which provides that a contravention of a civil penalty provision is not an offence. This section is no longer necessary, as that provision does not add anything beyond the established common law principle, and its inclusion is no longer in line with current drafting standards.

Infringement notices

159.            Current Division 3 of Part 5 of the BEED Act provides for provisions in relation to infringement notices, and includes sections 58, 59, 60, 61, 62, 63 and 64 of that Act. Those sections are no longer necessary, as this Schedule amends the BEED Act to apply the standard infringement notices provisions of the Regulatory Powers Act. The comparison table provided at paragraph 104 above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the BEED Act that are repealed by this item.

160.            New Division 3 of Part 5 of the BEED Act directs the reader to Part 5 of the Regulatory Powers Act, which provides for provisions in relation to infringement notices (see the note to new subsection 53(1) of the BEED Act). New section 53 of the BEED Act outlines matters in relation to the infringement officer, the relevant chief executive, delegations, maximum penalties, time limits for withdrawals and the extension of matters to external Territories.

161.            New subsection 53(1) of the BEED Act states that a civil penalty provision of that Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act, which ensures that Part 5 of the Regulatory Powers Act operates for the purposes of all civil penalty provisions in the BEED Act. Item 8 also inserts a note at the end of new subsection 53(1) of the BEED Act, which directs the reader to Part 5 of the Regulatory Powers Act.

162.            New subsection 53(2) of the BEED Act identifies the Secretary of the department that administers the BEED Act as an infringement officer for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act. This new subsection will enable the Secretary to issue an infringement notice to a person that he or she reasonably believes has contravened a civil penalty provision of the BEED Act. If the person pays the amount stated in the infringement notice within 28 days (or other period if extended by the relevant chief executive), any liability of the person for the alleged contravention is discharged. If the person chooses not to pay the amount that is payable under the infringement notice within 28 days (or other extended period), proceedings seeking a civil penalty order under Part 4 of the Regulatory Powers Act may be brought against the person. New subsection 53(2) of the BEED Act preserves the effect of current subsection 58(1) of the BEED Act, which is repealed by this item.

163.            New subsection 53(3) of the BEED Act identifies the Secretary as the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act. New subsection 53(3) of the BEED Act reflects existing arrangements in current Division 3 of Part 5 of the BEED Act, which is repealed by this item.

164.            New subsection 53(4) of the BEED Act provides the Secretary with the ability to delegate, in writing, his or her powers and functions as the infringement officer or as the relevant chief executive, in relation to the civil penalty provisions of the BEED Act. New subsection 53(4) of the BEED Act reflects existing arrangements under that Act (see subsection 71(1) of the BEED Act).

165.            New subsection 53(5) of the BEED Act provides that a delegate must comply with any directions of the Secretary, which reflects existing arrangements under that Act (see subsection 71(3) of the BEED Act).

166.            New subsection 53(6) of the BEED Act modifies the operation of subsection 103(3) of the Regulatory Powers Act, and provides that an infringement officer may give a person a single infringement notice relating to multiple contraventions of subsection 18(6) of the BEED Act, which are alleged to have occurred because the person failed to give access to a place at a particular day and time specified in a notice issued under subsection 18(4) of the BEED Act, and continued to fail to do so after that day and time. New subsection 53(6) of the BEED Act complements the amendments made to subsection 18(7) of that Act by item 6 above.

167.            Subsection 18(6) of the BEED Act outlines the civil penalty applicable for non-compliance with a notice issued under section 18 of that Act, which is prescribed as 200 penalty units for an individual and 500 penalty units for a body corporate.

168.            Subsection 18(4) of the BEED Act provides that, at the written request of the accredited assessor, the Secretary may, by written notice, require an owner, lessee or sublessee of the building or an area of a building to give the assessor access to a place in or associated with the building or area if access to the place is necessary for the purposes of the assessment.

169.            Section 18 of the BEED Act provides for where a person fails to do an act at a particular time. However, subsections 103(3) and (4) of the Regulatory Powers Act apply where a person fails to comply with an obligation within a particular period or before a particular time. Consequently, subsections 103(3) and (4) of the Regulatory Powers Act are unable to deal with matters provided for in current subsection 18(6) of the BEED Act.

170.            Subsection 103(3) of the Regulatory Powers Act states that a single infringement notice must only relate to a single contravention of a single provision, unless the circumstances in subsection 103(4) of the Regulatory Powers Act apply. Subsection 103(4) of the Regulatory Powers Act states that a single infringement notice may relate to multiple contraventions of a single provision if that provision requires the person to do a thing within a particular period or before a particular time, and the person fails or refuses to do that thing on more than one day after the period has expired or relevant time has passed.

171.            New subsection 53(6) of the BEED Act makes it clear that, where a person or body corporate fails to give access at a day and time required under the notice issued under section 18 of the BEED Act, that person or body corporate will continue to commit a separate contravention of subsection 18(6) of the BEED Act each day after the required day until that person or body corporate complies with the access request, and a single infringement notice may be issued in relation to multiple contraventions of that provision.

172.            New subsection 53(7) of the BEED Act modifies the operation of subsection 104(2) of the Regulatory Powers Act, and provides that the amount to be stated in an infringement notice, for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act, must not exceed an amount equal to one-tenth of the maximum penalty that a court could impose on the person for that contravention. New subsection 53(7) of the BEED Act preserves the effect of current subsection 59(2) of that Act, which is repealed by this item.

173.            New subsection 53(7) of the BEED Act complements new subsection 51(6) and new section 52 of that Act, which preserve the effect of current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act. Current subsections 53(5), (5A), (5B), (5C) and (5D) of the BEED Act were tailored to large commercial operations, and are appropriate in quantum to ensure compliance. It is necessary to preserve the effect of current subsection 59(2) of the BEED Act through the inclusion of new subsection 53(7) of that Act, as the applicable penalty units appropriately reflect compliance costs and act as a suitable deterrent against non-compliance.

174.            New subsection 53(8) of the BEED Act modifies the operation of section 106 of the Regulatory Powers Act, and provides a time limit for representations to be made when seeking withdrawal of an infringement notice. New paragraph 53(8)(a) of the BEED Act states that a recipient of an infringement notice who is seeking withdrawal of that notice must make written representations to the Secretary within 28 days of receipt of the notice. New paragraph 53(8)(b) of the BEED Act provides that the Secretary is not required to take into account any representations seeking withdrawal that are made after the expiration of the 28-day period. New subsection 53(8) of the BEED Act preserves the effect of current subsections 61(1) and (2) of that Act, which are repealed by this item.

175.            It is necessary to preserve the effect of current subsections 61(1) and (2) of the BEED Act through the inclusion of new subsection 53(8) of that Act, as the 28-day time limit aims to provide certainty and efficiency in relation to withdrawal of infringement notice requests. Following consideration of the timing of prior withdrawal requests, the department that administers the BEED Act determined that a timely resolution of withdrawal matters was required. Accordingly, the Building Energy Efficiency Disclosure Amendment Act 2015 amended current subsection 61(1) of the BEED Act to provide for the 28-day time limit. New subsection 53(8) of the BEED Act preserves that amendment.

176.            New subsection 53(9) of the BEED Act extends the application of Part 5 of the Regulatory Powers Act, as that Part applies to the civil penalty provisions of the BEED Act, to every external Territory. New subsection 53(9) of the BEED Act reflects existing arrangements under that Act (see section 9 of the BEED Act).

177.            Application of the standard infringement notices provisions of the Regulatory Powers Act does not result in an expansion of the current regulatory powers framework of the BEED Act. The comparison table provided at paragraph 104 above identifies the provision gained through alignment with the Regulatory Powers Act, which is not currently in the BEED Act, that is merely procedural in nature and sets out matters in relation to the provision of two or more infringement notices (see paragraph 108(c) of the Regulatory Powers Act, which is discussed below).

178.            Paragraph 108(c) of the Regulatory Powers Act states that the application of Part 5 of that Act does not prevent the giving of two or more infringement notices to a person for an alleged contravention of a provision subject to an infringement notice under that Part.

179.            The comparison table provided at paragraph 104 above also identifies that current section 58 of the BEED Act is aligned to section 103 of the Regulatory Powers Act, and that current section 59 of the BEED Act is aligned to section 104 of the Regulatory Powers Act (as amended by Schedule 1 to this Bill).

180.            Alignment with the Regulatory Powers Act will result in minor modifications to the scope of current section 58 of the BEED Act, as current paragraph 58(3)(b) of that Act has no equivalent in the Regulatory Powers Act, and subsections 103(4) and (5) of the Regulatory Powers Act do not currently exist in the BEED Act.

181.            Current paragraph 58(3)(b) of the BEED Act provides that a single infringement notice may be given to a person in respect of alleged contraventions of two or more civil penalty provisions. There is no equivalent to this provision in the Regulatory Powers Act.

182.            Subsection 103(3) of the Regulatory Powers Act states that a single infringement notice must only relate to a single contravention of a single provision, unless the circumstances in subsection 103(4) of the Regulatory Powers Act apply. Subsection 103(4) of the Regulatory Powers Act states that a single infringement notice may relate to multiple contraventions of a single provision if that provision requires the person to do a thing within a particular period or before a particular time, and the person fails or refuses to do that thing on more than one day after the period has expired or relevant time has passed. Subsection 103(5) of the Regulatory Powers Act states that, if a single provision can constitute both a civil penalty provision and an offence provision, the infringement notice must relate to the provision as an offence provision.

183.            Current section 59 of the BEED Act provides for matters to be included in an infringement notice, including the amount to be stated in the notice for the alleged contravention of a civil penalty provision.

184.            Section 104 of the Regulatory Powers Act is amended by Schedule 1 to this Bill to clarify that the cap on the amount to be stated in an infringement notice applies to an individual contravention, not an infringement notice as a whole. This amendment complements subsection 103(4) of the Regulatory Powers Act, which enables a single infringement notice to be given to a person in respect of multiple contraventions of a single civil penalty provision, where those contraventions relate to a continuing failure to comply with an obligation within or by a particular time.

185.            The comparison table provided at paragraph 104 above identifies that current subparagraph 59(1)(n)(i), current paragraph 59(1)(p), current subsection 61(2) and current section 64 of the BEED Act are repealed without substitution.

186.            Current subparagraph 59(1)(n)(i) of the BEED Act provides that an infringement notice must state that if the notice is withdrawn, any amount paid under the notice must be refunded. That paragraph is not necessary to retain, as subsection 106(5) of the Regulatory Powers Act provides that, if the infringement notice is withdrawn, the Commonwealth must refund any amount paid under the notice. The absence of the requirement in current subparagraph 59(1)(n)(i) of the BEED Act does not impact the operation of subsection 106(5) of the Regulatory Powers Act.

187.            Current paragraph 59(1)(p) of the BEED Act provides that an infringement notice must set out such other matters (if any) that are specified by the regulations. This item repeals current section 64 of the BEED Act, which provides that the regulations may prescribe further matters in relation to infringement notices issued under that Act. Current paragraph 59(1)(p) of the BEED Act complements section 64 of that Act. The repeal of paragraph 59(1)(p) of the BEED Act reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, rather than by regulation or legislative instrument. Accordingly, it is no longer necessary to retain paragraph 59(1)(p) of the BEED Act (see also the discussion of current section 64 of the BEED Act at paragraph 190 below).

188.            Current subsection 61(2) of the BEED Act provides that evidence or information that the person, or a representative of the person, gives to the Secretary in the course of making representations for withdrawal of an infringement notice under current section 61 of that Act is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information being false or misleading). There is no equivalent to this provision in the Regulatory Powers Act, as the ability of a person to make representations for the withdrawal of an infringement notice is not designed to be an information or evidence gathering exercise for the regulator. Current subsection 61(2) of the BEED Act is repealed without substitution, as retention of this provision is no longer required for the purposes of that Act.

189.            Current section 64 of the BEED Act provides that the regulations may prescribe further matters in relation to infringement notices issued under the BEED Act. That section is repealed by this item. The repeal of section 64 of the BEED Act reflects the principle that important matters such as infringement notices should be dealt with in primary legislation, rather than by regulation or legislative instrument (see also the discussion of current paragraph 59(1)(p) of the BEED Act at paragraph 188 above).

190.            Part 7 of the BEED Regulations provides for provisions in relation to infringement notices, and includes regulations 12, 13, 14, 15, 16 and 17 of those Regulations. Those provisions will be made redundant by virtue of the repeal of section 64 by this item. The comparison table provided at paragraph 105 above identifies that there are no corresponding provisions under the Regulatory Powers Act for the provisions of the BEED Regulations that are made redundant by this item. Part 7 of the BEED Regulations will be repealed by regulation following commencement of this Schedule. Regulations 12, 13, 14, 15, 16 and 17 of the BEED Regulations are not retained through insertion of new identical provisions in the BEED Act, as it is no longer necessary to legislate for these matters.

191.            Regulation 12 of the BEED Regulations provides that, in relation to an infringement notice issued for a contravention of a civil penalty provision in section 11 or 15 of the BEED Act, the infringement notice must state that if the contravention continues beyond a date, or dates, specified in the notice, a fresh liability will arise even if the notice is paid. It is not necessary to replicate this provision in the BEED Act, as this Schedule amends the BEED Act to apply the standard provisions of the Regulatory Powers Act, and section 93 of that Act provides that a failure to comply with an obligation within a particular period or before a particular time does not excuse a person from meeting that obligation (even if the period has expired or the time has passed). Subsections 103(3) and (4) of the Regulatory Powers Act complement section 93 of that Act, and enable a single infringement notice to relate to multiple contraventions of a single provision if that provision requires the person to do a thing within a particular period or before a particular time, and the person fails or refuses to do that thing on more than one day after the period has expired or relevant time has passed.

192.            Regulation 13 of the BEED Regulations states that for the purposes of section 64 of the BEED Act, Division 3 of Part 7 of the BEED Regulations makes further provision in relation to infringement notices. It is not necessary to replicate this provision in the BEED Act, as current section 64 of the BEED Act is repealed by this item.

193.            Regulation 14 of the BEED Regulations outlines the method of service for infringement notices. It is not necessary to replicate this provision in the BEED Act, as Part 6 of the Acts Interpretation Act 1901 (the ‘AIA’) deals with service of documents, and the BEED Act does not expressly exclude the application of the AIA to that Act.

194.            Regulation 15 of the BEED Regulations provides that the Secretary of the department that administers the BEED Act may sign an evidentiary certificate that provides for matters in relation to an infringement notice served on a person. It is not necessary to replicate this provision in the BEED Act, as it is no longer in line with current drafting standards.

195.            Regulation 16 of the BEED Regulations states that if a person pays an infringement notice by cheque, payment is not taken to have been made until the cheque has been honoured on presentation. It is not necessary to replicate this provision in the BEED Act, as the provision does not add anything beyond the established common law principle, and its inclusion is no longer in line with current drafting standards.

196.            Regulation 17 of the BEED Regulations provides that the Secretary may agree, in writing, to accept payment of an infringement notice by instalments. It is not necessary to replicate this provision in the BEED Act, as regulation 17 of the BEED Regulations is, in effect, an extension of time to pay an infringement notice and, as this Schedule amends the BEED Act to apply the standard provisions of the Regulatory Powers Act, section 105 of the Regulatory Powers Act will enable the Secretary to make such an agreement when approving an application for an extension of the time to pay an infringement notice.

Item 9 - Paragraph 65(3)(a)

197.            Item 9 omits ‘Division 3’ from paragraph 65(3)(a) of the BEED Act, and substitutes ‘Part 5 of the Regulatory Powers Act in relation to a civil penalty provision of this Act’, which clarifies that an infringement notice is issued under the Regulatory Powers Act, due to the amendments made by item 8 above.

198.            Current paragraph 65(3)(a) of the BEED Act states that each of the following is an instance of non-disclosure by a person:

a.        the person is given an infringement notice under current Division 3 of Part 5 of the BEED Act, or

b.       a court makes a civil penalty order against the person for a contravention of sections 11 or 15 or subsection 12(6) of the BEED Act.

199.            Subsection 65(1) of the BEED Act requires the Secretary of the department that administers the BEED Act to maintain, or cause to be maintained, an Energy Efficiency Non-disclosure Register.

200.            Item 9 is consequential to the amendments made by item 8 above, which repeals current Divisions 2 and 3 of Part 5 of the BEED Act and applies the standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act.

Item 10 - Paragraph 65(3)(b)

201.            Item 10 inserts ‘under the Regulatory Powers Act’ after ‘order’ in paragraph 65(3)(b) of the BEED Act, which clarifies that a civil penalty order is issued under the Regulatory Powers Act, due to the amendments made by item 8 above.

202.            Current paragraph 65(3)(a) of the BEED Act states that each of the following is an instance of non-disclosure by a person:

a.        the person is given an infringement notice under current Division 3 of Part 5 of the BEED Act, or

b.       a court makes a civil penalty order against the person for a contravention of sections 11 or 15 or subsection 12(6) of the BEED Act.

203.            Subsection 65(1) of the BEED Act requires the Secretary of the department that administers the BEED Act to maintain, or cause to be maintained, an Energy Efficiency Non-disclosure Register.

204.            Item 10 is consequential to the amendments made by item 8 above, which repeals Divisions 2 and 3 of Part 5 of the BEED Act and applies the standard civil penalty and infringement notices provisions in Parts 4 and 5 of the Regulatory Powers Act.

Item 11 - Subparagraph 70(1)(a)(iii)

205.            Item 11 omits ‘; and’ from subparagraph 70(1)(a)(iii) of the BEED Act, and substitutes ‘; or’ to provide for the inclusion of new subparagraph 70(1)(a)(iv) of that Act, which is inserted by item 12 below.

206.            Section 70 of the BEED Act provides for the protection of information obtained or generated by issuing authorities, auditors and authorised persons in the course of exercising powers or performing functions under the BEED Act. Subsection 70(1) of the BEED Act provides for an offence punishable by imprisonment for 2 years where a person copies, makes a record of, uses or discloses information obtained or generated in the course of exercising powers or performing functions under the BEED Act. Subsection 70(2) of the BEED Act provides for specific exemptions from subsection 70(1) of that Act.

207.            Item 11 is consequential to the amendments made by item 12 below and item 8 above.

Item 12 - At the end of paragraph 70(1)(a)

208.            Item 12 inserts new subparagraph 70(1)(a)(iv) of the BEED Act at the end of paragraph 70(1)(a) of that Act. This new subparagraph provides that a person commits an offence if they copy, use or disclose information obtained or generated in the course of exercising powers or performing functions under the Regulatory Powers Act for the purposes of the BEED Act.

209.            Section 70 of the BEED Act provides for the protection of information obtained or generated by issuing authorities, auditors and authorised persons in the course of exercising powers or performing functions under the BEED Act. Subsection 70(1) of the BEED Act provides for an offence punishable by imprisonment for 2 years where a person copies, makes a record of, uses or discloses information obtained or generated in the course of exercising powers or performing functions under the BEED Act. Subsection 70(2) of the BEED Act provides for specific exemptions from subsection 70(1) of that Act.

210.            Item 12 is consequential to the amendments made by item 8 above, and protects the integrity of information and the privacy or confidentiality of participants from unnecessary or illegitimate disclosure.

PART 2—APPLICATION AND SAVING PROVISIONS

Item 13 - Application and saving provision—civil penalties

211.            Item 13 provides for the application of the amendments in this Schedule, and makes it clear that the amendments apply in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule.

212.            This item also provides that Division 2 of Part 5 of the BEED Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule.

Item 14 - Application and saving provision—infringement notices

213.            Item 14 provides for the application of the amendments in this Schedule, and makes it clear that the amendments apply in relation to alleged contraventions of civil penalty provisions occurring on or after the commencement of this Schedule.

214.            This item also provides that Division 3 of Part 5 of the BEED Act, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to alleged contraventions of civil penalty provisions occurring before the commencement of this Schedule.

Item 15 - Saving provision—Energy Efficiency Non-disclosure Register

215.            Item 15 provides that an infringement notice given to a person under current Division 3 of Part 5 of the BEED Act, as that Division applies to alleged contraventions of civil penalty provisions occurring before the commencement of this Schedule, is taken to be an instance of non-disclosure under section 65 of the BEED Act, as amended by this Schedule.

216.            This item also provides that a civil penalty order made by a court under subsection 53(2) of the BEED Act before, on or after the commencement of this Schedule for a contravention of sections 11 or 15 or subsection 12(6) of the that Act, is taken to be an instance of non-disclosure under section 65 of the BEED Act, as amended by this Schedule.

217.            Item 15 provides clarity for the Secretary of the department that administers the BEED Act, and ensures continuity in the maintenance of the Energy Efficiency Non-disclosure Register by the Secretary under section 65 of the BEED Act.



 

Schedule 4 - Coal Mining Industry (Long Service Leave) Legislation

GENERAL OUTLINE

218.            The Coal Mining Industry (Long Service Leave) Legislation consists of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the ‘Administration Act’) and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (the ‘Payroll Levy Collection Act’). The Administration Act and the Payroll Levy Collection Act collectively provide for a portable long service leave scheme where coal mining industry employers are required to financially contribute to a fund, which contributes to the long service leave entitlements of eligible coal mining industry employees. This primarily occurs through collection of a levy from coal mining industry employers, which is then administered by the Coal Mining Industry (Long Service Leave) Corporation (the ‘Corporation’).

219.            Current Part 7A of the Administration Act establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions of the Administration Act and the Payroll Levy Collection Act. Subsections 5(1), 10(1) and 10A(3) of the Payroll Levy Collection Act are expressly identified as civil penalty provisions. The current notes to subsections 5(4), 10(3) and 10A(5) of the Payroll Levy Collection Act direct the reader to current Part 7A of the Administration Act.

220.            This Schedule amends the Administration Act and the Payroll Levy Collection Act to apply the standard civil penalty provisions of the Regulatory Powers Act. Application of these provisions does not result in an expansion of the current regulatory powers framework of the Administration Act or the Payroll Levy Collection Act, and the provision gained by alignment with the Regulatory Powers Act, which is not currently in the Administration Act or the Payroll Levy Collection Act, is merely a procedural matters in relation to burden of proof. This Schedule also modifies the operation of the Regulatory Powers Act to retain existing powers in the Administration Act and the Payroll Levy Collection Act.

221.            Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision must be made enforceable under that Part by another Act (a triggering Act). When a triggering Act applies Part 4 of the Regulatory Powers Act, it must identify the authorised person or persons and relevant court or courts that may exercise powers under that Part (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also express whether the authorised person may delegate his or her powers and functions in relation to the civil penalty provisions of the triggering Act (see subsection 80(3) of the Regulatory Powers Act). If civil penalty provisions of the triggering Act apply in external Territories or offshore areas, the triggering Act should identify whether Part 4 of the Regulatory Powers Act extends to any external Territories.

COMPARISON OF PROVISIONS

Coal Mining Industry (Long Service Leave) Administration Act 1992

222.            The below table identifies the corresponding provisions of the Regulatory Powers Act (applied by item 27) for the provisions of the Administration Act that are repealed by item 27.

Current provision in the Administration Act

Provision

Provision as amended by this Schedule

Applicable provision (Regulatory Powers Act)

Civil penalty provisions

Part 7A

 

Part 4-Civil penalty provisions

Relevant courts

49A(1)

Retained

N/A (see new subsection 49A(4) of the Administration Act)

Civil penalty orders

49A

Retained

82

Additional matters to be taken into account in determining a pecuniary penalty

49A(7)

Retained through modification to the operation of the Regulatory Powers Act

N/A (see new subsection 49A(5) of the Administration Act)

Civil enforcement of penalty

49AA

Retained

83

Conduct contravening more than one civil penalty provision

49AB

Retained

84

Multiple contraventions

49AC

Retained

85

Proceedings may be heard together

49AD

Retained

86

Civil evidence and procedure rules to apply

49AE

Retained

87

Contravening a civil penalty provision is not an offence

49AF

Repealed

N/A

Civil proceedings after criminal proceedings

49B

Retained

88

Criminal proceedings during civil proceedings

49BA

Retained

89

Criminal proceedings after civil proceedings

49BB

Retained

90

Evidence given in civil proceedings not admissible in criminal proceedings

49BC

Retained

91

Ancillary contravention of civil penalty provisions

49C

Retained

92

Continuing contraventions of civil penalty provisions

49CA

Retained

93

Mistake of fact

49CB

Retained

95

State of mind

49CC

Retained

94

Civil penalty provisions contravened by employees, agents or officers

49CD

Retained

97

Civil penalty provisions contravened by executive officers

49CE

Retained through modification to the operation of the Regulatory Powers Act

N/A (see section 49CE of the Administration Act as amended by this Schedule)

Establishing whether an executive officer took reasonable steps to prevent the contravention of a civil penalty provision

49CF

Retained through modification to the operation of the Regulatory Powers Act

N/A (see section 49CF of the Administration Act as amended by this Schedule)

N/A (Exceptions etc. to civil penalty provisions - burden of proof)

N/A

Gained

96

Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992

223.            The below table identifies the provisions of the Regulatory Powers Act applicable to the Payroll Levy Collection Act due to the insertion of new section 13A of that Act by item 44. Subsections 5(1), 10(1) and 10A(3) of the Payroll Levy Collection Act are expressly identified as civil penalty provisions. The current notes to subsections 5(4), 10(3) and 10A(5) of the Payroll Levy Collection Act direct the reader to current Part 7A of the Administration Act, which establishes a framework that allows civil penalty orders to be sought from a court in relation to contraventions of civil penalty provisions of that Act or the Payroll Levy Collection Act. Item 44 amends the Payroll Levy Collection Act to apply the standard civil penalty provisions of the Regulatory Powers Act to enforce the civil penalty provisions of the Payroll Levy Collection Act.

Current provision in the Payroll Levy Collection Act

Provision

Provision as amended by this Schedule

Applicable provision (Regulatory Powers Act)

Civil penalty provisions

N/A

 

Part 4-Civil penalty provisions

Relevant courts

49A(1)

Retained

N/A (see new subsection 13A(4) of the Payroll Levy Collection Act)

Civil penalty provisions

Note to 5(4);

Note to 10(3);

Note to 10A(5)

Retained

82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 97

N/A (Exceptions etc. to civil penalty provisions - burden of proof)

N/A

Gained

96

N/A (Additional matters to be taken into account in determining a pecuniary penalty)

N/A

Gained

N/A (see new subsection 13A(5) of the Payroll Levy Collection Act)

N/A (Civil penalty provisions contravened by executive officers)

N/A

Gained

N/A (see new section 13B of the Payroll Levy Collection Act)

N/A (Establishing whether an executive officer took reasonable steps to prevent the contravention of a civil penalty provision)

N/A

Gained

N/A (see new section 13C of the Payroll Levy Collection Act)

PART 1—AMENDMENTS

Coal Mining Industry (Long Service Leave) Administration Act 1992

Item 1 - Subsection 4(1) (definition of civil penalty order )

224.            Item 1 repeals the definition of civil penalty order in subsection 4(1) of the Administration Act. That definition is no longer necessary, as this Schedule amends the Administration Act to apply the standard provisions of the Regulatory Powers Act, and civil penalty order is defined in section 4 of that Act.

225.            It is not necessary to substitute a new definition of civil penalty order in subsection 4(1) of the Administration Act, as that definition is only relevant for the purposes of civil penalty provisions, and is not applied in any other provision of that Act.

Item 2 - Subsection 4(1) (definition of civil penalty provision )

226.            Item 2 repeals the definition of civil penalty provision in subsection 4(1) of the Administration Act, and substitutes a new definition to direct the reader to the Regulatory Powers Act, which defines civil penalty provision in section 4 of that Act.

Item 3 - Subsection 4(1)

227.            Item 3 amends subsection 4(1) of the Administration Act to insert a definition of Regulatory Powers Act . That definition provides that a reference to the Regulatory Powers Act is a reference to the Regulatory Powers (Standard Provisions) Act 2014 .

Item 4 - At the end of subsections 39AB(3) and (4)

228.            Item 4 inserts ‘Civil penalty:     60 penalty units’ at the end of subsections 39AB(3) and (4) of the Administration Act.

229.            Subsection 39AB(3) of the Administration Act provides that, as soon as possible, but no later than 14 days after the application is made, the employer must give the employee a written response stating whether or not the employer grants the long service leave, and, if the employer refuses to grant the long service leave, give details of the reasons for the refusal. Subsection 39AB(4) of the Administration Act states that the employer may only rely on reasonable business grounds when refusing to grant long service leave.

230.            Current subsection 39AB(6) of the Administration Act provides that subsections 39AB(3) and (4) of that Act are civil penalty provisions. Note 1 to current subsection 39AB(6) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 7 below repeals current subsection 39AB(6) of the Administration Act, including the two notes.

231.            Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below.

232.            The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act.

233.            Subsection 82(5) of the Regulatory Powers Act provides that, where the person is not a body corporate, a pecuniary penalty must not be more than the penalty specified for the civil penalty provision. If the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision.

234.            Item 4 is consequential to the amendments made by item 27 below, which repeals current Divisions 1 and 2 of Part 7A of the Administration Act and applies the standard civil penalty provisions in Part 4 of the Regulatory Powers Act to enforce the civil penalty provisions of the Administration Act.

Item 5 - Subsection 39AB(5) (note)

235.            Item 5 omits ‘Note’ from the note to subsection 39AB(5) of the Administration Act, and substitutes ‘Note 1’. The current note to subsection 39AB(5) of the Administration Act states that the number of hours of long service leave that an employee is entitled to in respect of certain qualifying service may be affected by section 39CE of that Act.

236.            Section 39CE of the Administration Act provides for the effect of payment in respect of qualifying service, and applies in relation to a period of qualifying service completed by an employee if, on ceasing to be an eligible employee, the employee is paid an amount under section 39CA or 39CB in respect of the period of qualifying service.

237.            Item 5 is consequential to the insertion of ‘Note 2’ by item 6 below.

Item 6 - At the end of subsection 39AB(5)

238.            Item 6 inserts a new note at the end of subsection 39AB(5) of the Administration Act.

239.            Subsection 39AB(5) of the Administration Act provides that, for the purposes of section 39AB of that Act, the long service leave credit ( LSL credit ) of an eligible employee on a day (the calculation day ) is the number of hours worked out as follows:

a.        first, add together the number of hours of long service leave that the employee is entitled to under section 39AA of the Administration Act for each week of qualifying service completed by the employee before the calculation day,

b.       then, subtract the number of hours of long service leave (if any) previously granted to the employee under section 39AB of the Administration Act.

240.            The current note to subsection 39AB(5) of the Administration Act states that the number of hours of long service leave that an employee is entitled to in respect of certain qualifying service may be affected by section 39CE of that Act. That note is renumbered to ‘Note 1’ by item 5 above.

241.            New Note 2 directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions.

242.            Item 6 preserves the effect of Note 2 to current subsection 39AB(6) of the Administration Act, which is repealed by item 7 below.

Item 7 - Subsection 39AB(6)

243.            Item 7 repeals subsection 39AB(6) of the Administration Act, including the two notes.

244.            Current subsection 39AB(6) of the Administration Act states that subsections 39AB(3) and (4) of that Act are civil penalty provisions.

245.            Subsection 39AB(3) of the Administration Act provides that, as soon as possible, but no later than 14 days after the application is made, the employer must give the employee a written response stating whether or not the employer grants the long service leave, and, if the employer refuses to grant the long service leave, give details of the reasons for the refusal. Subsection 39AB(4) of the Administration Act states that the employer may only rely on reasonable business grounds when refusing to grant long service leave.

246.            Note 1 to current subsection 39AB(6) of the Administration Act directs the reader to current Part 7A of that Act for the use of pecuniary penalties for contraventions of civil penalty provisions.

247.            Note 2 to current subsection 39AB(6) of the Administration Act directs the reader to Division 4 of Part 5A of the Administration Act, which provides for remedies other than civil penalty orders for contraventions of civil penalty provisions.

248.            Item 7 is consequential to the amendments made by items 4, 5 and 6 above and item 27 below.

Item 8 - At the end of subsection 39AC(1)

249.            Item 8 inserts ‘Civil penalty:     60 penalty units’ at the end of subsection 39AC(1) of the Administration Act.

250.            Subsection 39AC(1) of the Administration Act states that, if an eligible employee takes a period of long service leave, the employer must pay the employee for the long service leave no less than an amount that is equal to the base rate of pay (including incentive-based payments and bonuses) that would have been payable to the employee during the period had the employee not taken the leave.

251.            Current subsection 39AC(2) of the Administration Act provides that subsection 39AC(1) of that Act is a civil penalty provision. Note 1 to current subsection 39AC(2) of the Administration Act directs the reader to current Part 7A of that Act in relation to pecuniary penalties for contraventions of civil penalty provisions. Item 9 below repeals current subsection 39AC(2) of the Administration Act, including the two notes.

252.            Current Part 7A of the Administration Act includes subsection 49A(5) of that Act, which states that the pecuniary penalty for a civil penalty provision of the Administration Act must not be more than 60 penalty units where the person is not a body corporate, or more than 300 penalty units where the person is a body corporate. That subsection is repealed by item 27 below.

253.            The amendments made by this item, and the operation of subsection 82(5) of the Regulatory Powers Act (which is applied by item 27 below), preserve the effect of current subsection 49A(5) of the Administration Act.