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Regulatory Powers (Standard Provisions) Bill 2014

Part 6 Enforceable undertakings

Division 1 Outline and operation of this Part

109   Simplified outline

                   The following is a simplified outline of this Part:

This Part creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

For this Part to operate, a provision must be made enforceable under this Part. This is to be done by another Act.

An authorised person may accept an undertaking relating to compliance with a provision that is enforceable under this Part.

The undertaking may be enforced in a relevant court.

The orders that may be made by a relevant court include an order directing compliance, an order requiring any financial benefit from the failure to comply to be surrendered and an order for damages.

110   Purpose and operation of this Part

             (1)  The principal purpose of this Part is to create a framework for the acceptance and enforcement of undertakings relating to compliance with provisions.

             (2)  However, for this Part to operate, a provision of an Act or a legislative instrument must be made enforceable under this Part.

111   Enforceable provisions

                   A provision of an Act or a legislative instrument is enforceable under this Part if an Act provides that the provision is enforceable under this Part.

112   Authorised person

             (1)  A person is an authorised person for the purposes of exercising powers under this Part in relation to a provision if an Act provides that the person is an authorised person in relation to that provision for the purposes of this Part.

             (2)  A person who is an authorised person for the purpose of exercising powers mentioned in subsection (1) is also an authorised person for the purposes of:

                     (a)  exercising other powers under this Part; or

                     (b)  performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

             (3)  Without limiting subsection (1), an Act may provide that a person is an authorised person in relation to a provision for the purposes of this Part by:

                     (a)  providing that a person of a specified class is an authorised person in relation to the provision for the purposes of this Part; or

                     (b)  authorising another person to specify that a person, or a person of a specified class, is an authorised person in relation to the provision for the purposes of this Part.

113   Relevant court

                   A court is a relevant court for the purposes of exercising powers under this Part in relation to an undertaking given in relation to a provision enforceable under this Part, if an Act provides that the court is a relevant court in relation to that provision for the purposes of this Part.

Division 2 Accepting and enforcing undertakings

114   Acceptance of undertakings

             (1)  An authorised person may accept any of the following undertakings:

                     (a)  a written undertaking given by a person that the person will, in order to comply with a provision enforceable under this Part, take specified action;

                     (b)  a written undertaking given by a person that the person will, in order to comply with a provision enforceable under this Part, refrain from taking specified action;

                     (c)  a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene a provision enforceable under this Part, or is unlikely to contravene such a provision, in the future.

             (2)  The undertaking must be expressed to be an undertaking under this section.

             (3)  The person may withdraw or vary the undertaking at any time, but only with the written consent of an authorised person.

             (4)  The consent of an authorised person is not a legislative instrument.

             (5)  An authorised person may, by written notice given to the person, cancel the undertaking.

115   Enforcement of undertakings

             (1)  An authorised person may apply to a relevant court for an order under subsection (2) if:

                     (a)  a person has given an undertaking under section 114; and

                     (b)  the undertaking has not been withdrawn or cancelled; and

                     (c)  the authorised person considers that the person has breached the undertaking.

             (2)  If the relevant court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:

                     (a)  an order directing the person to comply with the undertaking;

                     (b)  an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (c)  any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the court considers appropriate.