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Regulatory Powers (Standardisation Reform) Bill 2016



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BILLS DIGEST NO. 42, 2016-17 22 NOVEMBER 2016

Regulatory Powers (Standardisation Reform) Bill 2016 Christina Raymond Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

History of the Bill ................................................................. 4

Structure of the Bill ............................................................. 4

Schedule 1—Amendments to the Regulatory Powers Act ...... 4

Schedules 2-15—Triggering legislation ................................... 4

Background ......................................................................... 5

Key standard powers in the Regulatory Powers Act ............... 5

Part 2—Standard compliance monitoring powers ................ 5

Part 3—Standard investigation powers ................................ 6

Parts 4-7—Standard enforcement powers ........................... 6

Legislative history of the Regulatory Powers Act .................... 7

Policy objectives of the Regulatory Powers Act ...................... 7

Triggering the application of the Regulatory Powers Act ........ 9

Implementation of the Regulatory Powers Act ..................... 10

Committee consideration .................................................. 12

Consideration of the Bill in the 45th Parliament ................... 12

Consideration of the Bill in the 44th Parliament ................... 12

Relevant consideration of the Regulatory Powers (Standard Provisions) Bills, 2012-2014 ................................. 14

Policy position of non-government parties/independents ... 16

Position of major interest groups ....................................... 16

Financial implications ........................................................ 16

Statement of Compatibility with Human Rights .................. 16

Key issues and provisions................................................... 17

Schedule 1—Amendment of the standard provisions of the Regulatory Powers Act .................................................... 17

Date introduced: 12 October 2016

House: Senate

Portfolio: Attorney-General

Commencement: Sections 1-3 commence on Royal Assent. Schedule 1 commences on the day after Royal Assent. Schedules 2-15 commence on a day to be fixed by proclamation, or 12 months from the day of Royal Assent (whichever is earlier).

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

November 2016

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Schedule 2—Amendment of the Australian Sports and Anti-Doping Authority Act 2006 ............................................ 21

Schedule 3—Amendment of the Building Energy Efficiency Disclosure Act 2010 ............................................... 23

Schedule 4—Amendment of the Coal Mining Industry (Long Service Leave) Legislation ............................................ 26

Schedule 5—Amendment of the Defence Act 1903 .............. 29

Schedule 6—Amendment of the Defence Reserve Service (Protection) Act 2001 ............................................................. 31

Schedule 7—Amendment of the Greenhouse and Energy Minimum Standards Act 2012 ............................................... 33

Schedule 8—Amendment of the Horse Disease Response Levy Collection Act 2011 ........................................................ 37

Schedule 9—Amendment of the Illegal Logging Prohibition Act 2012 .............................................................. 39

Schedule 10—Amendment of the Industrial Chemicals (Notification and Assessment) Act 1989 ................................ 42

Schedule 11—Amendment of the Paid Parental Leave Act 2010 ................................................................................. 44

Schedule 12—Amendment of the Personal Property Securities Act 2009 ................................................................ 47

Schedule 13—Amendment of the Privacy Act 1988 ............. 49

Schedule 14—Amendment of the Tobacco Plain Packaging Act 2011 ............................................................... 51

Schedule 15—Amendment of the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 ............... 52

Legal policy issues—Application of the Regulatory Powers Act to existing legislation .......................................... 59

Absence of information about progress towards reviewing existing regulatory legislation ............................. 59

Absence of information about the decision-making methodology in relation to standardisation ....................... 59

Absence of information about the possible future use of ‘omnibus’ triggering Bills ................................................. 60

Absence of information about, or enabling, the evaluation of the Regulatory Powers Act ............................ 61

Concluding comments ....................................................... 62

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Purpose of the Bill The purpose of the Regulatory Powers (Standardisation Reform) Bill 2016 (the Bill) is to:

• amend 15 Commonwealth Acts that establish regulatory regimes by:1

- repealing certain of their existing provisions conferring powers of investigation, compliance monitoring and enforcement (as applicable) on the relevant regulatory agency administering each scheme - substituting each provision repealed with a corresponding ‘standard’ provision of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act or RPA)2 - providing for the continuation of certain, existing regulatory powers and related provisions—generally

because there are no equivalent provisions in the RPA, and it is considered necessary for the relevant regulatory agencies to continue to exercise these powers to perform their statutory functions, and • amend the RPA to give effect to the Government’s intended interpretation of certain standard provisions, and to remove some procedural requirements which it has assessed as imposing ‘unreasonable administrative burdens’3 on agencies exercising powers under the RPA.4 The Government has described the proposed amendments to the RPA as ‘minor’.5

The Regulatory Powers (Standard Provisions) Act 2014 The RPA contains a standard suite of provisions containing investigative, compliance monitoring and enforcement powers which can be applied to individual pieces of Commonwealth regulatory legislation.

According to the Explanatory Memorandum to the originating Bill, the Regulatory Powers (Standard Provisions) Bill 2014 (2014 Bill), the standard provisions in the RPA are based on powers which are commonly available to many Commonwealth regulatory agencies in their various pieces of governing legislation.6

The RPA does not have a direct legal effect, in the sense of conferring powers on regulatory agencies, or imposing duties or liabilities on regulated entities. Rather, its provisions have effect if a new Act is drafted, or if an existing Act is amended, to apply the standard provisions of the RPA to a particular regulatory scheme.7

Legislation applying the provisions of the RPA to an individual regulatory scheme is commonly referred to as triggering legislation. The process of ‘triggering’ the application of the RPA to a piece of regulatory legislation is commonly referred to as standardisation.

The objective of standardisation is to ‘simplify and streamline Commonwealth regulatory powers across the statute book’ by creating a general framework of powers which can be applied to multiple regulatory schemes.8 The standardisation of Commonwealth regulatory powers is also said to ‘support the Government’s regulatory reform agenda’ by reducing the volume of Commonwealth regulatory legislation. This is said to be because triggering legislation can be drafted to cross-refer to (or ‘incorporate by reference’) the relevant provisions of the RPA, rather than reproducing them in full in each enactment.9

Standardisation is also said to ‘increase legal certainty’ for individuals and businesses subject to the relevant regulatory powers.10 (These persons or bodies are referred to in this Bills Digest as regulated entities.)

1. Regulatory Powers (Standardisation Reform) Bill 2016, Schedules 2-15. 2. Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act or RPA). 3. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, pp. 2, 4, 77, 79; and G Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, Senate, Debates, 12 October 2016, p. 1641.

4. Regulatory Powers (Standardisation Reform) Bill 2016, Schedule 1. 5. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 2, 4; and Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1642. 6. Replacement Explanatory Memorandum, Regulatory Powers (Standard Provisions) Bill 2014, p. 2. 7. RPA, subsection 7(2) (application of monitoring powers), subsection 37(2)(application of investigation powers), section 79 (application of civil

penalty provisions), sections 99 and 100 (application of infringement notice provisions), sections 110 and 111 (application of enforceable undertaking provisions) and sections 117 and 118 (application of injunction provisions). 8. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 2, 4. 9. Ibid., p. 2; Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1642. 10. Ibid., p. 1642.

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History of the Bill The Government introduced an almost identical Bill in the Senate in the 44th Parliament. That Bill lapsed upon the dissolution of the Parliament on 9 May 2016 and had not been debated.11

Structure of the Bill The Bill contains 15 schedules of amendments, which are as follows.

Schedule 1—Amendments to the Regulatory Powers (Standard Provisions) Act 2014 Schedule 1 contains proposed amendments to the standard compliance monitoring and enforcement provisions of the RPA, with the objective of:

• giving effect to the Government’s intended interpretation of certain standard provisions, and

• removing some procedural requirements which the Government has assessed as imposing ‘unreasonable administrative burdens’ on agencies exercising powers under the RPA.12

In particular, Schedule 1 contains the following measures:

• proposed amendments to the standard compliance-monitoring powers to:

- extend the maximum age of photographs on identity cards which must be carried by persons exercising compliance monitoring and investigation powers, from one year to five years13

- extend the power to secure evidence of a contravention of a provision of a regulatory law, if a suspected contravention is identified while an authorised person is exercising compliance monitoring powers on a regulated entity’s premises. (In particular, the Bill seeks to extend the types of contraventions in relation to which the power to secure evidence on premises may be exercised),14 and

• proposed amendments to the standard enforcement powers to:

- extend the time period within which an application can be made to the court for the enforcement of a civil penalty, from four years to six years,15 and

- clarify the details that must be included in an infringement notice which relates to multiple contraventions of a single civil penalty provision.16

Schedules 2-15—Triggering legislation Schedules 2-15 amend the regulatory schemes established under 15 Acts (triggering legislation) administered by seven portfolios.17 The amendments repeal certain investigation, compliance monitoring and enforcement provisions of these Acts, and substitute them with corresponding provisions of the RPA.

The amendments variously trigger the RPA provisions in full, or with some modifications. These modifications preserve some agencies’ existing regulatory powers that do not have an equivalent in the RPA, and are said to remain necessary for the relevant agencies to perform their functions.18

According to the Government, the proposed amendments in Schedules 2-15 are ‘the first substantial tranche’ of amendments to trigger the application of the standard provisions of the RPA to existing regulatory regimes.19

11. Parliament of Australia, ‘Regulatory Powers (Standardisation Reform) Bill 2016 homepage (44th Parliament)’, Australian Parliament website. (The Bill as introduced in the 45th Parliament does not include the provisions in Schedule 16 to the Bill as introduced in the 44th Parliament. Schedule 16 in the Bill as introduced to the 44th Parliament contained some contingent amendments in the event that another Bill before the 44th Parliament, the Fairer Paid Parental Leave Bill 2015, was passed and commenced first in time. The Fairer Paid Parental Leave Bill 2016 was introduced in the House of Representatives on 20 October 2016, and Part 2 of Schedule 2 to that Bill contains contingent amendments in the event the Regulatory Powers (Standardisation Reform) Bill 2016, if enacted, does not commence first in time.)

12. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 2, 4, 77, 79. 13. Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., Schedule 1, items 4 and 5. 14. Ibid., Schedule 1, items 1-3. 15. Ibid., Schedule 1, item 6. 16. Ibid., Schedule 1, items 7 and 8. 17. These are: Agriculture and Water Resources; Attorney-General’s; Defence; Employment; Health; Industry, Innovation and Science; and

Social Services. 18. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 3; Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1641.

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The 15 pieces of triggering legislation and their respective schedules to the Bill are as follows:

• Australian Sports Anti-Doping Authority Act 2006 (Schedule 2)

• Building Energy Efficiency Disclosure Act 2010 (Schedule 3)

• Coal Mining Industry (Long Service Leave) Administration Act 1992 and Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 199220 (Schedule 4)

• Defence Act 1903 (Schedule 5)

• Defence Reserve Service (Protection) Act 2001 (Schedule 6)

• Greenhouse and Energy Minimum Standards Act 2012 (Schedule 7)

• Horse Disease Response Levy Collection Act 2011 (Schedule 8)

• Illegal Logging Prohibition Act 2012 (Schedule 9)

• Industrial Chemicals (Notification and Assessment) Act 1989 (Schedule 10)

• Paid Parental Leave Act 2010 (Schedule 11)

• Personal Property Securities Act 2009 (Schedule 12)

• Privacy Act 1988 (Schedule 13)

• Tobacco Plain Packaging Act 2011 (Schedule 14) and

• Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Schedule 15).

Background Detailed background to the RPA is provided in the Bills Digest to the originating Bill, the Regulatory Powers (Standard Provisions) Bill 2014 (the 2014 Bill).21

Following is a summary of the key standard powers in the RPA, the policy objectives of the RPA, and details of its implementation in relation to individual regulatory regimes.

Key standard powers in the Regulatory Powers Act

Part 2—Standard compliance monitoring powers Part 2 of the RPA contains standard compliance monitoring powers, including related authorisation and procedural requirements, which enable an agency to monitor a regulated entity’s compliance with the provisions of regulatory legislation. These powers can also be exercised to determine whether information given in compliance, or purported compliance, with a provision of regulatory legislation is correct.

The standard compliance monitoring powers include the power to:

• enter and search premises, and observe activity carried out on the premises22

• deal with evidence found on premises, including by inspecting, examining, making recordings of and securing things (pending the regulatory agency obtaining authorisation to seize them under investigation powers),23 and

• require persons on the premises to answer questions and produce documents.24

19. Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1641. 20. These Acts are referred to collectively in the Bill and Explanatory Memorandum, and in this Bills Digest, as the ‘Coal Mining Industry (Long Service Leave) Legislation’. 21. J Murphy, Regulatory Powers (Standard Provisions) Bill 2014, Bills digest, 73, 2013-14, Parliamentary Library, Canberra, 2014.

(See also: Parliament of Australia, ‘Regulatory Powers (Standard Provisions Bill) 2014 homepage’, Australian Parliament website.) 22. RPA, section 18, paragraphs 19(a) and (b). 23. Ibid., paragraphs 19(c)-(g). 24. Ibid., section 24.

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The standard provisions prescribe the authorisation process for the exercise of monitoring powers (under warrants issued by a judicial officer acting in a personal capacity, or with the consent of the occupier of the premises).25

They also set out limits on the monitoring powers that may be authorised,26 the obligations applying to persons exercising monitoring powers (such as providing the occupier with details of a warrant, and carrying identification),27 and the rights and responsibilities of persons occupying the premises being searched.28 The standard provisions also state that the compliance monitoring powers do not abrogate legal professional privilege and the privilege against self-incrimination.29

Part 3—Standard investigation powers Part 3 of the RPA contains standard investigation powers, including related authorisation and procedural requirements, which enable an agency to gather evidence of contraventions of criminal offences and civil penalty provisions within its statutory enforcement functions. Standard investigation powers include the power to:

• enter and search premises for evidential material30

• seize evidential material,31 and

• require persons on the premises to answer questions and produce documents.32

The standard investigation powers must be authorised under a warrant issued by a judicial officer acting in a personal capacity, or exercised with the consent of the occupier of the premises.33

They set out the conditions and limits of the investigation powers able to be authorised34as well as the obligations of persons exercising powers and the rights and responsibilities of persons occupying the premises being searched.35 Like the compliance monitoring powers, the investigation powers expressly do not abrogate self-incrimination or legal professional privilege.36

Parts 4-7—Standard enforcement powers Parts 4-7 of the RPA contain standard enforcement mechanisms for contraventions of regulatory legislation, principally through the use of civil penalties, infringement notices, enforceable undertakings and injunctions.

The standard provisions prescribe requirements governing a regulatory agency’s ability to:

• apply to the court for a civil remedy in relation to the contravention (a civil penalty or an injunction)37

• issue an infringement notice to a regulated entity (which means that the regulated entity can pay an amount of money specified in the notice, as an alternative to having court proceedings brought against them for a contravention) and to commence enforcement action in court if the regulated entity does not pay the amount specified in the notice,38 and

25. Ibid., sections 18, 25 and 32. 26. Ibid., Part 2, Division 2, Subdivision A. 27. Ibid., sections 26-28 and section 35. 28. Ibid., Part 2, Division 4. 29. Ibid., section 17. 30. Ibid., section 48, paragraph 49(a). 31. Ibid., paragraph 49(b), section 52, and Part 3, Division 5. 32. Ibid., section 54. 33. Ibid., section 48 and Part 3, Division 6. 34. Ibid., Part 3, Divisions 3, 5 and 6. 35. Ibid., Part 3, Division 4. 36. Ibid., section 47. 37. Ibid., Part 4, Division 2 (civil penalties), Part 7, Division 2 (injunctions). 38. Ibid., Part 5.

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• accept an enforceable undertaking from a regulated entity (for example, to cease engaging in activities that contravene regulatory requirements) and to commence proceedings in court if the regulated entity does not adhere to the terms of the undertaking.39

Legislative history of the Regulatory Powers Act The RPA had its genesis in the Gillard Government’s ‘Clearer Laws Project’, which was undertaken in 2011 to develop various policy, administrative and legislative measures to improve the clarity and reduce complexity of Commonwealth laws.40

The (then) Government introduced a Bill into the 43rd Parliament on 10 October 2012, the Regulatory Powers (Standard Provisions) Bill 2013 (the 2012-13 Bill), which lapsed upon prorogation on 5 August 2013.41

In the 44th Parliament, the Abbott Government introduced a modified version of the 2013 Bill on 20 March 2014 (the 2014 Bill).42 It was passed on 10 July 2014 and received Royal Assent on 21 July 2014. Its substantive provisions commenced on 1 October 2014.43

Policy objectives of the Regulatory Powers Act

Broad policy objectives of standardisation The objective of standardisation is to ‘simplify and streamline Commonwealth regulatory powers across the statute book’ by creating a general framework of powers which can be applied to multiple regulatory schemes.44

The standardisation of Commonwealth regulatory powers is also said to reduce the volume of Commonwealth regulatory legislation, because triggering legislation can be drafted to cross-refer to (or ‘incorporate by reference’) the relevant provisions of the RPA, rather than reproduce them in full in each enactment.45

Standardisation is also said to increase legal certainty for regulatory agencies and individuals and businesses subject to the relevant regulatory powers.46 The Attorney-General’s Department (AGD) explained:

The application of standard provisions to Commonwealth regulatory regimes would benefit both regulators and those subject to regulation. Agencies that exercise powers across multiple regimes are less likely to make inadvertent procedural errors if the regimes provide for consistent powers and procedures. The result would be greater compliance and enforcement outcomes for the Commonwealth.

Standard legal frameworks would also help to reduce the unnecessary compliance burden for individuals and businesses that are subject to multiple regimes. Small differences between regimes make it more difficult for individuals and businesses to be aware of, and to exercise, their rights and obligations in compliance with various laws.

47

Specific policy objectives of standardising existing regulatory legislation According to the Government, the standardisation of existing regulatory legislation is important, in addition to applying the standard provisions to new regulatory regimes, because:

39. Ibid., Part 6. 40. Information about this project is summarised in Murphy, Regulatory Powers (Standard Provisions) Bill 2014, Bills digest, op. cit. See also: Attorney-General's Department (AGD), ‘Reducing the complexity of legislation’, AGD website; and Office of Parliamentary Counsel (OPC), ‘Clearer Commonwealth law’, OPC website.

41. Parliament of Australia, ‘Regulatory Powers (Standard Provisions) Bill 2013 homepage’, Australian Parliament website. (Note that this Bill was originally cited as the Regulatory Powers (Standard Provisions) Bill 2012. The Parliamentary Library published a Digest on this Bill, while it was cited as the 2012 Bill: M Biddington and L Ferris, Regulatory Powers (Standard Provisions) Bill 2012, Bills digest, 99, 2012-13, Parliamentary Library, Canberra, 2013.

42. Parliament of Australia, ‘Regulatory Powers (Standard Provisions) Bill 2014 homepage’, Australian Parliament website. 43. Regulatory Powers (Standard Provisions) Commencement Proclamation 2014, 18 September 2014. 44. Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 53. 45. M Keenan, ‘Second reading speech: Regulatory Powers (Standard Provisions) Bill 2014’, House of Representatives, Debates, 20 March 2014,

p. 2576. (The Minister for Justice, Michael Keenan, stated that ‘provisions relating to the enforcement of a regulatory regime can easily increase the length of legislation by 30 pages, and by up to 80 pages for some regimes’.) 46. Ibid. (See also: Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1641.) 47. AGD, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Legislation, Inquiry into the Regulatory Powers (Standard Provisions) Bill 2014 [Provisions], 16 April 2014, p. 1.

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Over the last 20 years there has been an enormous proliferation of regulatory powers and associated provisions across the Commonwealth statute book. Those powers and provisions vary in their breadth and detail, resulting in inconsistency or unnecessary duplication across regimes. 48

This suggests that, prior to the enactment of the RPA in 2014, whole-of-statute-book consistency may not have been a consistently significant legal policy priority in the development of regulatory legislation. Hence, the standardisation of existing legislation, via the application of the RPA, appears to be a form of remedial action.

The objective of standardisation is greater consistency, not necessarily uniformity The Government has indicated that the policy intent of standardising existing regulatory legislation is not necessarily to achieve absolute uniformity of all provisions on the Commonwealth statute book.49 Standardisation is intended to improve the degree of consistency across regulatory legislation, while maintaining adequate flexibility ‘to ensure that agencies with specialised functions can operate effectively’.50

Some regulatory legislation may be unsuited to standardisation The Government has indicated that some regulatory legislation may not be suitable for standardisation, including the legislation governing ‘law enforcement and security agencies which deal with national security or serious or organised crime’.51

Some regulatory agencies, including the Australian Securities and Investments Commission and the Fair Work Ombudsman, have contended that their legislation is not suited to standardisation. They have commented that their legislation contains specialised powers, which are necessary to perform their respective statutory functions, and that the RPA does not contain equivalent provisions.52

In addition, the Government has acknowledged that standardisation is not intended to result in the wholesale enlargement of Commonwealth agencies’ existing regulatory powers (which might occur if the standard powers in the RPA are more extensive than those currently available to a regulatory agency under its governing legislation). The Government has stated that the standard provisions of the RPA are ‘intended to only be triggered where they would provide appropriate and sufficient powers in the context of the particular regulatory scheme’.53

Determining the ‘appropriateness’ and ‘sufficiency’ of an agency’s regulatory powers appears to involve the exercise of a value judgment in the context of individual regulatory regimes. The Government has acknowledged that the Parliamentary scrutiny of each piece of triggering legislation is an important safeguard in ensuring ‘the suitability of powers in the particular context in which it is proposed that they be exercised’.54

A number of Parliamentary committees have made similar findings, and have made recommendations setting out several requirements or expectations for the contents of explanatory memoranda accompanying future triggering Bills.55 (These findings and recommendations are discussed below in relation to committee consideration.)

48. Keenan, ‘Second reading speech: Regulatory Powers (Standard Provisions) Bill 2014’, op. cit., p. 2576. (This statement was reproduced in Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1642.) 49. See, for example: R Glenn (AGD), Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Regulatory Powers (Standard Provisions) Bill 2012, 12 February 2013, pp. 9-10. 50. Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1641. 51. Keenan, ‘Second reading speech: Regulatory Powers (Standard Provisions) Bill 2014’, op. cit., p. 2577. See also: OPC, Drafting direction no.

3.5A: regulatory powers, document release 1.0, issued February 2015, p. 8. 52. Australian Securities & Investments Commission (ASIC), Submission to the Senate Standing Committee on Legal and Constitutional Affairs Legislation, Inquiry into the Regulatory Powers (Standard Provisions) Bill 2014 [Provisions], April 2014, pp. 1-3; Fair Work Ombudsman,

Submission to the Senate Standing Committee on Legal and Constitutional Affairs Legislation, Inquiry into the Regulatory Powers (Standard Provisions) Bill 2014 [Provisions], April 2014, p. 1. 53. AGD, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Regulatory Powers (Standard Provisions) Bill 2014, op. cit., p. 2. 54. Keenan, ‘Second reading speech: Regulatory Powers (Standard Provisions) Bill 2014’, op. cit., p. 2577. 55. Senate Legal and Constitutional Affairs Committee, Regulatory Powers (Standard Provisions) Bill 2014 [Provisions], The Senate, Canberra,

8 May 2014, pp. 6-7. See also: Parliamentary Joint Committee on Human Rights, Fifth report of the 44th Parliament, 25 March 2014, p. 20.

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Triggering the application of the Regulatory Powers Act Importantly, the application of the RPA can only be triggered by a primary Act and not by subordinate legislation such as regulations. This means that the Parliament has control of every instance in which the standard provisions are triggered, including the ability to amend triggering legislation.56

Triggering legislation may apply some, or all, parts of the RPA to an individual regulatory regime. This will involve a policy decision as to which standard powers are suitable for application to the particular regulatory regime.

For example, in some cases it may be determined that a regulatory agency requires monitoring and civil enforcement powers to administer a particular regulatory scheme, but it does not have an operational need for investigation powers. In this event, triggering legislation could be drafted to apply only the standard monitoring and civil enforcement powers in the RPA.57 Commonwealth First Parliamentary Counsel has issued a drafting direction on the application of the RPA, which sets out requirements that all drafters in the Office of Parliamentary Counsel (OPC) must follow in preparing triggering legislation.58

Triggering the standard provisions subject to modifications In some cases, it may be determined that a regulatory agency requires specialised powers to perform its functions, and that such powers are not covered adequately by the standard provisions of the RPA.

This could be managed in two broad ways. The first option is that the agency’s governing legislation might be assessed as wholly unsuited to standardisation, in which case there would be no need to trigger the RPA.

The second option is that triggering legislation could be drafted to apply some standard provisions of the RPA to the agency’s governing legislation, with specified modifications.59 Such modifications could do one of the following:

• modify the content of the standard provisions of the RPA as they are to be applied to an individual agency. For instance, a modification might alter the applicable thresholds in the criteria in the RPA for the granting of authorisation to exercise standard powers (such as entering and searching premises). A modification might also, for example, alter the procedural requirements set out in the RPA which govern the exercise of a standard power once an authorisation is obtained, such as applicable time limits

• trigger the standard powers in the RPA and authorise the agency to exercise additional powers. For instance, a modification might confer an additional investigative power on an agency to undertake bodily searches of a person on premises, as well as triggering the standard power in the RPA to search premises and to require a person on the premises to answer questions and produce documents upon request

• preserve some of an agency’s existing powers for which there are no equivalent provisions in the RPA. Those of the agency’s existing powers which have equivalent standard provisions in the RPA could be repealed and substituted with the standard provisions in the RPA, while retaining in original form those of the agency’s powers which do not have an equivalent in the RPA.

56. The limitation of triggering legislation to primary Acts (to the exclusion of subordinate legislation) implements a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs on the 2012-13 Bill. See: Senate Committee on Legal and Constitutional Affairs, Inquiry into the Regulatory Powers (Standard Provisions) Bill 2012: government response, The Senate, Canberra, 2013, p. 1 (response to recommendation 1). The Senate Scrutiny of Bills Committee commented favourably on this matter in its consideration of the 2014 Bill: Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2014, The Senate, Canberra, 26 March 2014, pp. 23-24.

57. Replacement Explanatory Memorandum, Regulatory Powers (Standard Provisions) Bill 2014, p. 2. 58. OPC, Drafting direction no. 3.5A: regulatory powers, op. cit. (See also OPC, Drafting direction no. 4.2: referral of drafts to agencies, document release 8.7, reissued August 2016, pp. 11-13, which requires drafters to refer draft Bills to AGD for policy scrutiny before they are finalised in certain circumstances. This includes where a draft Bill purports to apply the standard provisions of the RPA subject to variations which depart

from the general policy of the RPA, and where a draft Bill does not apply the RPA despite covering the same subject matter.) 59. OPC Drafting direction no. 3.5A identifies this possibility and contains some precedent provisions for commonly requested variations (see p. 4 and Attachment A).

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Impact of modification on the policy objectives of standardisation The objective of the RPA is to improve the overall degree of consistency of Commonwealth regulatory laws. Hence, ‘triggering legislation’ that applies the standard provisions with some modifications is not necessarily inconsistent with the policy objective of standardisation. However, the number and nature of modifications will impact on the extent to which the RPA can be said to meet its stated policy objective of improving the consistency of Commonwealth regulatory legislation.

The effectiveness of the RPA will, therefore, depend significantly on how the standard provisions are applied in practice. This will require ongoing scrutiny and assessment over time, as new regulatory legislation is drafted and existing regulatory legislation is amended and utilised by the relevant regulatory agencies. As outlined below, to date, only a small number of existing regulatory Acts have applied the standard provisions of the RPA.

Implementation of the Regulatory Powers Act

Implementation process In his second reading speech on the 2014 Bill, the Minister for Justice outlined the Government’s intention to implement the standard provisions of the RPA in the following (apparently concurrent) stages:

• new laws, which confer investigation, monitoring or enforcement powers upon regulatory agencies, will be drafted to trigger the application of the standard provisions of the RPA

• recently enacted legislation, which was drafted in reliance upon precedent provisions that informed the development of the RPA, will be reviewed and amended to trigger the corresponding provisions of the RPA

• existing legislation, which pre-dates the RPA and is not based on standard drafting precedents, may be reviewed and amended to trigger provisions of the RPA.60

The Attorney-General circulated a replacement Explanatory Memorandum to the 2014 Bill, which included the following information about the intended process for implementing the second and third stages:61

Over time, existing regulatory regimes will be reviewed and, if appropriate, amended to instead trigger the relevant provisions of the Regulatory Powers Bill.

The [Attorney-General’s] Department, in conjunction with the Office of Parliamentary Counsel, has identified Acts passed in the last session of Parliament that include provisions modelled on the Bill. Once the Bill is passed, the Department will contact each of the responsible agencies inviting them to remove those provisions from the relevant Acts and instead trigger the provisions of this Bill. Preliminary work has already begun in drafting amendments of some Acts, so that agencies can gain a clear understanding of what the provisions of their Acts would look like once amended.

In addition, the Department will contact agencies in all portfolios inviting them to identify Acts within their portfolio which include provisions that, although not modelled wholly on the provisions of this Bill, could be replaced with provisions triggering this model. This may require adjustments to the relevant triggering Acts to deal with any novel issues raised because of the environment in which the powers are to be exercised.

62

60. Keenan, ‘Second reading speech: Regulatory Powers (Standard Provisions) Bill 2014’, op. cit., p. 2577. 61. The replacement Explanatory Memorandum to the 2014 Bill was circulated further to a recommendation of the Senate Legal and Constitutional Affairs Committee report on its inquiry into the 2014 Bill, that the Government should provide additional information about its intended approach to implementing the Regulatory Powers Act. See: Senate Committee on Legal and Constitutional Affairs Legislation,

Regulatory Powers (Standard Provisions) Bill 2014 [Provisions], The Senate, Canberra, 8 May 2014, pp. vii and 6 (recommendation 1). In particular, the Committee commented that ‘there is little detail from the Attorney-General's Department on how it intends to progressively implement the Bill and specifically which agencies have agreed that their legislation should be amended to trigger the Bill’ at (p. 6). It recommended that the Explanatory Memorandum to the Bill be amended ‘to provide more detail on the government's strategy for progressively implementing the Bill including outlining any discussions, proposals or agreements with other agencies to develop or amend legislation to trigger the provisions in the Bill’ (recommendation 1). 62. Replacement Explanatory Memorandum, Regulatory Powers (Standard Provisions) Bill 2014, p. 2.

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Implementation progress

Post-2014—Enactment of ad-hoc triggering legislation Various pieces of triggering legislation have been enacted since 2014, which have applied provisions of the RPA to new and existing regulatory regimes.

However, the Government does not appear to have published a consolidated list of all regulatory legislation that applies the standard provisions of the RPA. In addition, it does not appear to have released information identifying the existing Acts which have been reviewed to assess their suitability for standardisation. Accordingly, it is not known which Acts have been assessed as unsuitable for standardisation, or the methodology and process used to conduct reviews of existing regulatory legislation to determine its suitability.

A search of the Federal Register of Legislation in November 2016 identified 12 Acts as having triggered the standard provisions of the RPA. (That is, these Acts have incorporated the standard provisions of the RPA, through the inclusion of triggering provisions which make explicit reference to the relevant provisions of the RPA.) These Acts are as follows:

• Aged Care Act 1997

• Biosecurity Act 2015

• Enhancing Online Safety for Children Act 2015

• Foreign Acquisitions and Takeovers Act 1975

• Future Fund Act 2006

• health records legislation:

- Healthcare Identifiers Act 2010 - My Health Records Act 2012 • Higher Education Support Act 2003

• Migration Act 1958

• Narcotic Drugs Act 1967

• National Greenhouse and Energy Reporting Act 2007

• Offshore Petroleum and Greenhouse Gas Storage Act 2006.

Pre-2014—Enactment of legislation applying drafting precedents on which the RPA is modelled As noted above in the passage quoted from the Minister’s second reading speech on the 2014 Bill, several Bills were passed prior to 2014 that contained regulatory provisions modelled on drafting precedents developed by OPC. These drafting precedents influenced the development of the standard provisions now enacted in the RPA.

There does not appear to be a publicly available list of all such legislation, which is not readily identifiable through searching the Federal Register of Legislation.63 However, in March 2013, AGD gave evidence to the Senate Legal and Constitutional Affairs Committee which identified 15 such Acts and a further three Bills (two of which are now Acts) as at 6 March 2013.64

This legislation is listed below. Seven Acts (identified with footnotes in the below list) are now the subject of proposed amendments in Schedules 2-15 of the Bill. The proposed amendments in the present Bill would, if enacted, repeal the ‘drafting precedent’ provisions enacted prior to the RPA and replace them with the corresponding standard provisions of the RPA, with some minor variations in some cases.

63. This reflects that the relevant drafting precedents had no formal legal status, as they were internal drafting aids developed and used by OPC in the preparation of Bills. Accordingly, there are no common search terms that could identify authoritatively all such legislation in the Federal Register of Legislation.

64. Senate Standing Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, Attorney General’s Department, Inquiry into the Regulatory Powers (Standard Provisions) Bill 2012, 6 March 2013. (Note that the third Bill, which was not enacted, was the Biosecurity Bill 2012. This Bill lapsed at the conclusion of the 43rd Parliament in November 2013, and was replaced with the Biosecurity Bill 2014, which was enacted in May 2015.)

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• Agricultural and Veterinary Chemicals Legislation Amendment Act 2013 (then a Bill of 2012)

• Australian Charities and Not-for-Profits Commission Act 2012

• Australian Sports Anti-Doping Authority Amendment Act 2013 65 (then a Bill of 2013)

• Antarctic Treaty (Environment Protection) Amendment Act 2012

• Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011 66

• Coastal Trading (Revitalising Australian Shipping) Act 2012

• Greenhouse and Energy Minimum Standards Act 2012 67

• Horse Disease Response Levy Collection Act 2011 68

• Illegal Logging Prohibition Act 2012 69

• National Gambling Reform Act 2012

• Privacy Amendment (Enhancing Privacy Protection) Act 2012 70

• Product Stewardship Act 2011

• Shipping Registration Amendment (Australian International Shipping Register) Act 2012

• Stronger Futures in the Northern Territory Act 2012

• Tertiary Education Quality and Standards Agency Act 2011

• Tobacco Plain Packaging Act 2011 71

• Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Act 2012.

Committee consideration Consideration of the Bill in the 45th Parliament On 10 November 2016, the Senate Standing Committee for the Selection of Bills decided that the Bill should not be referred to committee for inquiry.72

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.73

The Parliamentary Joint Committee on Human Rights ‘welcome[d] the detailed human rights assessment contained in the statement of compatibility to the Bill’ and considered that, based on the information provided, the Bill was likely to be compatible with human rights.74

Consideration of the Bill in the 44th Parliament The Senate Standing Committee for the Selection of Bills twice deferred its consideration of the Bill as introduced in the 44th Parliament. It had not reported to the Senate on a decision about the referral of the Bill to a committee prior to the dissolution of the Parliament on 9 May 2016.75

The Parliamentary Joint Committee on Human Rights identified the Bill as introduced in the 44th Parliament as among those which did not raise human rights concerns.76

65. Regulatory Powers (Standardisation Reform) Bill 2016, Schedule 2. 66. Ibid., Schedule 4. 67. Ibid., Schedule 7. 68. Ibid., Schedule 8. 69. Ibid., Schedule 9. 70. Ibid., Schedule 13. 71. Ibid., Schedule 14. 72. Senate Standing Committee for Selection of Bills, Report, 8,2016, The Senate, 13 October 2016, p. 4. 73. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 8, 2016, The Senate, 9 November 2016, p. 39. 74. Parliamentary Joint Committee on Human Rights (PJCHR), Report, 8, 2016, The Senate, 9 November 2016, pp. 47-49. 75. Senate Standing Committee for Selection of Bills, Report, 4, 2016, The Senate, 17 March 2016; Senate Standing Committee for Selection of

Bills, Report, 3, 2016, The Senate, 3 March 2016.

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The Senate Standing Committee for the Scrutiny of Bills raised concerns about two broad aspects of the Bill as introduced in the 44th Parliament in Alert Digest No 4 of 2016. It identified both aspects as potentially trespassing unduly on personal rights and liberties of regulated entities.77

First, the Committee drew the Senate’s attention to certain proposed amendments to the RPA, which would extend the power of regulatory agencies to secure evidence of contraventions of relevant regulatory laws, in the course of exercising compliance monitoring powers.78

The Committee noted that these provisions may result in an increased impact on the privacy of regulated entities by expanding the circumstances in which a regulatory agency may apply intrusive measures to secure evidence on a regulated entity’s premises—for example, by placing the relevant evidence under armed guard.79

Second, the Committee sought the advice of the Attorney-General about the Government’s justification for certain ‘triggering provisions’ in Schedules 2-15 to the Bill, which sought to modify the application of the standard civil penalty provisions in Part 4 of the RPA that deal with the burden of proof in enforcement proceedings arising from an alleged contravention of a civil penalty provision.80

The RPA provides that the applicant bears the legal burden of proof,81 but the respondent bears an evidential burden82 in relation to any exceptions, exemptions, excuses, qualifications or justifications that may be provided for in individual civil penalty provisions.83

As the Committee noted, some proposed amendments in Schedules 2-15 to the Bill modify the application of the RPA, with the result that the respondent has the legal burden of proof in relation to some exceptions to civil penalty provisions. This means that the respondent must prove, on the balance of probabilities, that the exception is established.84

Pending receipt of the Attorney-General’s advice on this matter, the Committee drew these provisions to the attention of the Senate as a potential instance of undue trespass on personal rights and liberties.85 In its Fifth Report of 2016, tabled on 3 May 2016, the Committee reported that it had not yet received a response from the Attorney-General to its request for advice.86

76. Parliamentary Joint Committee on Human Rights (PJCHR), Thirty-sixth report of the 44th Parliament, 16 March 2016, pp. 1-2. 77. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2016, The Senate, 17 March 2016, pp. 10 and 12. 78. These comments related to items 1-3 of Schedule 1 to the 2014 Bill, which sought to amend section 22 of the RPA. Identical amending provisions are included in Schedule 1 to the Bill as introduced in the 45th Parliament (as discussed in the ‘key issues and provisions’ section of

this Bills Digest). 79. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2016, op. cit., p. 10. 80. Ibid., p. 12. (An evidential burden requires the defendant or respondent to adduce or point to evidence suggesting a reasonable possibility

that the matters prescribed in the relevant exception exist. If the defendant or respondent discharges his or her evidential burden, the relevant regulatory authority is required to discharge its legal burden to negate the exception to the legal standard.) 81. That is, the obligation imposed on the applicant to prove, on the balance of probabilities, that the respondent contravened the relevant civil penalty provision, and that there was no applicable exception, exemption, excuse, qualification or justification. 82. RPA, section 4 defines the term ‘evidential burden’ for the purpose of the RPA as ‘the burden of adducing or pointing to evidence that

suggests a reasonable possibility that the matter exists or does not exist’. The effect of imposing an evidential burden on a respondent in civil proceedings is that it defers the point in time at which the applicant must discharge his or her legal burden of proof. That is, if the respondent seeks to rely on an exception to a civil penalty provision and discharges his or her evidential burden by adducing or pointing to evidence suggesting a reasonable possibility that the exception exists, only then is the applicant required to negate the possibility that the exception is made out. The applicant must do so to the civil standard of proof (the balance of probabilities). If the respondent fails to discharge his or her evidential burden in relation to an exception, the applicant is not required to discharge his or her legal burden to negate the exception. 83. RPA, section 96 (exceptions, et cetera to civil penalty provisions—burden of proof). Note that exceptions (et cetera) are generally provided for

in the specific civil penalty provisions in individual pieces of regulatory legislation rather than in Part 4 of the RPA. However, section 95 of the RPA contains a standard excuse of ‘mistake of fact’. Subsection 95(3) provides that the respondent bears the evidential burden. 84. The Committee referred to item 39 of Schedule 7 to the Bill as introduced in the 44th Parliament as an example of such provisions, and noted that similar provisions are contained in other schedules amending ‘triggering Acts’. Its request for information from the Attorney-General

applied to item 39 of Schedule 7 and ‘other instances in which this approach is taken in the Bill’: Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2016, op. cit., pp. 11-12. (Item 39 of Schedule 7 to the Bill as introduced in the 45th Parliament is identical to that provision in the Bill as introduced in the 44th Parliament.) 85. Ibid., p. 12. 86. Senate Standing Committee for the Scrutiny of Bills, Report, 5, 2016, The Senate, 3 May 2016, p. 350. (The Committee noted that the request was made on 17 March 2016 and it had sought a reply by 1 April 2016.)

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Relevant consideration of the Regulatory Powers (Standard Provisions) Bills, 2012-2014 Several Parliamentary committees conducted inquiries into the 2012-13 and 2014 Bills. Their reports emphasised the importance of Parliamentary scrutiny of future triggering legislation. They identified some scrutiny issues in relation to future triggering legislation (detailed below) that may warrant attention.87

Senate Standing Committee for the Scrutiny of Bills

Consideration of the 2012-13 Bill In its consideration of the 2012-13 Bill, the Senate Standing Committee for the Scrutiny of Bills commented that ‘the appropriateness of coercive regulatory powers will depend on the particular statutory context to which they are applied’.88 It noted that each provision of future triggering legislation must be assessed individually against the matters listed in its terms of reference.89

The Committee indicated that legislation triggering the standard civil penalty provisions should be accompanied by a justification of why it is appropriate—in the context of the individual regulatory regime—to place an evidential burden on a person wishing to rely on any exception, exemption excuse or justification.90 (The Committee’s request for the Attorney-General’s advice on the Bill as introduced in the 44th Parliament in Alert Digest No 4 of 2016, summarised above, appears to reflect this area of interest.)

The Committee, as constituted in 2012, also articulated a general expectation that future triggering legislation should be: ‘accompanied by detailed consideration in the Explanatory Memorandum explaining the appropriateness of the standard provisions adopted’ in order to ‘facilitate adequate Parliamentary scrutiny of such legislation’.91

Consideration of the 2014 Bill The Committee reiterated the above expectation in relation to Explanatory Memoranda accompanying future triggering legislation in its consideration of the 2014 Bill.92

The Committee also noted its particular interest in scrutinising future triggering legislation that applies the investigation power now contained in section 59 of the RPA, relating to the execution of an investigation warrant.93 (This provision enables an authorised person, and persons assisting, who are executing an investigation warrant to temporarily cease its execution, leave the premises, and return to complete execution without further authorisation, provided that the warrant is still in force and certain other conditions are satisfied.)

The Committee noted its interest in scrutinising future triggering legislation to determine whether individual regulatory regimes demonstrate an operational need for this power.94 The Committee also identified its ‘future interest in whether any reporting requirements will apply to these situations’.95

Senate Legal and Constitutional Affairs Committee

Consideration of the 2012-13 Bill The Senate Legal and Constitutional Affairs Committee conducted inquiries into the 2012-13 and 2014 Bills. In its inquiry into the 2012-13 Bill, the Committee described Parliamentary scrutiny of future triggering legislation as a matter of the ‘utmost importance’.96 The Committee expressed a ‘strong view that the Bill should

87. Relevant committee reports are summarised and cited in the paragraphs below. See also, OPC, Drafting direction no. 3.5A: regulatory powers, op. cit., pp. 3-4. (The drafting direction refers to relevant Parliamentary committees’ expectations of explanatory memoranda accompanying triggering legislation and directs drafters of such Bills to bring these matters to their instructors’ attention.)

88. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 13, 2012, The Senate, 31 October 2012, p. 17. 89. Ibid., pp. 17-18. 90. Ibid.

91. Ibid., p. 18. 92. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2014, The Senate, 26 March 2014, p. 23. 93. Ibid., pp. 24-25. 94. Ibid., p. 24. 95. Ibid.

96. Senate Standing Committee on Legal and Constitutional Affairs Legislation, Regulatory Powers (Standard Provisions) Bill 2012 [Provisions], The Senate, Canberra, 18 March 2013, p. 16.

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not be used as an opportunity for agencies to augment existing powers and, in particular, the Bill’s coercive powers without strong justification’.97

As an aid to the future scrutiny of triggering legislation, it recommended that the Explanatory Memorandum to each triggering Bill should:

• explicitly identify and explain the status of the Bill as triggering legislation for the purpose of the RPA98

• clearly set out the relevant agency’s current regulatory powers in comparison with the standard provisions of the RPA which the Bill proposes to trigger, and

• if the application of the standard provisions of the RPA to the agency’s governing legislation results in any expansion of the relevant agency’s existing powers—provide a detailed justification for this outcome.99

Consideration of the 2014 Bill The Committee affirmed its support for the above approach to Explanatory Memoranda accompanying future triggering Bills in its report on its inquiry into the 2014 Bill.100

The Committee also commented on the absence of information in the extrinsic materials to the 2014 Bill about the Government’s process for reviewing existing legislation to determine its suitability or otherwise for standardisation. It noted that there was an absence of detailed information about individual Acts or broad areas of regulation that had been reviewed to date, to determine their suitability for standardisation.101

The Committee commented that ‘for the Bill to realise its intended deregulatory effect, legislation affecting multiple Commonwealth agencies would need to be amended to rely on this Bill’ and indicated it would be ‘useful’ for the Parliament to be provided with contextual information about ‘progress in discussions with other Commonwealth agencies’ and ‘specific areas of deregulation’ identified to date.102 The Committee recommended that the Government amend the Explanatory Memorandum to the 2014 Bill to include this information.103 The replacement Explanatory Memorandum (quoted above) included a general statement that AGD would contact individual regulatory agencies with a view to identifying legislation potentially suitable for standardisation.104

Parliamentary Joint Committee on Human Rights

Consideration of the 2012-13 Bill In its consideration of the 2012-13 Bill, the Parliamentary Joint Committee on Human Rights commented that it was difficult to reach a definitive conclusion on the human rights compatibility of the standard powers in the abstract, as ‘each application of its provisions would need to be assessed on a case by case basis’.105

The Committee appeared to place particular emphasis on scrutinising the compatibility of future Bills that sought to trigger the standard civil penalty provisions in Part 4 of the RPA. The Committee identified a possibility that such provisions could, in some instances of their application, be characterised as laws imposing ‘criminal penalties’ upon regulated entities for the purpose of international human rights law.

The Committee emphasised that it would be necessary to consider the compatibility of such triggering provisions with the criminal process requirements in Articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR).106

97. Ibid.

98. Ibid., pp. vii and 16 (recommendation 2). 99. Ibid., (recommendation 3). 100. Senate Standing Committee on Legal and Constitutional Affairs Legislation, Report on the Regulatory Powers (Standard Provisions) Bill 2014 [Provisions], The Senate, Canberra, 8 May 2014, pp. 6-7.

101. Ibid., p. 6. 102. Ibid. 103. Ibid., pp. vii and 6 (recommendation 1). 104. Replacement Explanatory Memorandum, Regulatory Powers (Standard Provisions) Bill 2014, p. 2. 105. PJCHR, Sixth report of 2012, 31 October 2012, p. 23; PJCHR, Tenth report of 2013, 27 June 2013, p. 97. 106. Ibid., p. 98.

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Consideration of the 2014 Bill In its report on the 2014 Bill, the Committee again emphasised the importance of scrutinising the human rights impacts of individual pieces of triggering legislation.107

Policy position of non-government parties/independents At the time of writing, non-government parties and independent members of Parliament do not appear to have commented publicly on the Bill, or on the previous Bill as introduced to the 44th Parliament.

Position of major interest groups Comments on the Bill and the Bill introduced to the 44th Parliament At the time of writing, interest groups do not appear to have commented publicly on the Bill, or on the previous Bill as introduced to the 44th Parliament.

Comments on the 2012-13 and 2014 Bills—Scrutiny of future triggering legislation In the course of Parliamentary scrutiny of the 2012-13 and 2014 Bills to enact the RPA, some interest groups commented on the importance of the scrutiny of future triggering legislation.

For example, in its submission to the Senate Legal and Constitutional Affairs Committee inquiry into the 2012-13 Bill, the Law Council of Australia identified a risk that future triggering legislation could operate to ‘complicate existing regulatory regimes’ rather than fulfil the Government’s stated policy objective of reducing complexity and promoting legal certainty by enabling the adoption of more uniform regulatory powers.108

In particular, the Law Council identified the possibility that triggering legislation could be drafted to preserve parts of an agency’s existing regulatory powers—which may already be contained in multiple Acts—while seeking to augment them by applying some standard powers.109

The Law Council cautioned that such an approach could increase legislative complexity because it would require regulatory agencies and regulated entities to consult multiple pieces of legislation to identify powers, duties, obligations and liabilities arising under the regulatory scheme or schemes administered by the agency.110

Financial implications According to the Explanatory Memorandum, the Bill will have a ‘nil or insignificant’ financial impact on the relevant regulatory agencies performing functions under the legislation to be amended by the Bill, as the amendments ‘generally do not alter the effect of the law’.111 It does not comment on potential or anticipated financial impacts on regulated entities.

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.112

The Statement of Compatibility acknowledges the emphasis that the Parliamentary Joint Committee on Human Rights has previously placed upon the need to assess the compatibility of triggering provisions in their particular regulatory context (as outlined above).113 To this end, the Statement of Compatibility provides an individualised assessment of the compatibility of each Act amended by Schedules 2-15. Two significant issues identified in relation to most schedules to the Bill are:

107. PJCHR, Fifth report of the 44th Parliament, 25 March 2014, p. 20. (See also: PJCHR, Guidance note 2: offence provisions, civil penalties and human rights, December 2014.) 108. Law Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Legislation, Inquiry into the Regulatory Powers (Standard Provisions) Bill 2012, 23 January 2013, p. 7. 109. Ibid., pp. 6-7 and Attachment B. 110. Ibid. See also Murphy, Regulatory Powers (Standard Provisions Bill) 2014, Bills digest, op. cit., pp. 6, 12-13, 15 and 18 (noting the possibility

that the partial or modified application of standard provisions may have the unintended consequence of increasing legislative complexity, as triggering legislation may vary considerably from the framework of standard provisions). 111. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, p. 3. 112. The Statement of Compatibility with Human Rights can be found at pages 4-74 of the Explanatory Memorandum to the Bill. 113. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 4.

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• civil penalties—the issue of whether the civil penalty provisions in the triggering legislation in Schedules 2- 15 amount to ‘criminal penalties’ which attract the criminal process rights in Articles 14 and 15 of the ICCPR,114 and

• monitoring and investigation powers—the issue of whether the amendments to the standard monitoring and investigation powers in Parts 2 and 3 of the RPA (in Schedule 1) and their application by the triggering legislation (in Schedules 2-15) are permissible limitations on the right of regulated entities under Article 17 of the ICCPR to protection against unlawful and arbitrary interferences with their privacy.115

Key issues and provisions Schedule 1—Amendment of the standard powers in the RPA

Outline of proposed amendments Schedule 1 to the Bill amends certain of the standard compliance monitoring, investigation and enforcement provisions in Parts 2-5 of the RPA. The amending items are as follows:

• items 1-3 (compliance monitoring powers) amend section 22 of the RPA (securing evidence of contraventions) as follows:

- items 1 and 2 extend the power of an ‘authorised person’ to secure evidence of a contravention of a provision of a regulatory law, if the authorised person identifies such evidence while exercising compliance monitoring powers on a regulated entity’s premises. Specifically, item 2 substitutes a new paragraph 22(1)(b) which extends the types of contraventions in relation to which the power to secure evidence may be exercised (as discussed below). Item 1 makes a consequential amendment to the heading of section 22

- item 3 further amends section 22 to correct an apparent typographical error in the provision. (It replaces a reference to ‘equipment’ in subsection 22(1) with a reference to a ‘thing’ as is consistent with the use of the latter term in all other provisions of section 22) • items 4 and 5 (compliance monitoring and investigation powers) extend the maximum age of photographs

on identity cards which are required to be issued to ‘authorised persons’ who are permitted to exercise compliance monitoring or investigation powers. The current maximum age of one year is extended to five years116

• item 6 (enforcement powers) extends the time period within which an authorised person must make an application to a court for a civil penalty order, seeking the imposition of a pecuniary penalty against a person

114. The Statement of Compatibility contains an explanation of the Government’s position that the civil penalty provisions in each piece of triggering legislation in Schedules 2-15 do not constitute ‘criminal penalties’ for the purpose of the criminal process requirements in Articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR), having regard to their nature and purpose. In particular, the Statement of Compatibility points to the express statutory classification of these provisions as civil penalties, and their character as solely pecuniary (in the form of a debt payable to the Commonwealth) which does not raise the possibility of imprisonment. The Statement also points to various safeguards in the standard provisions of the RPA, including caps on the maximum penalty amount a court can order. See, for example: Explanatory Memorandum, pp. 8-9 (amendments to the Australian Sports Anti-Doping Authority Act 2006); pp. 11-12 (amendments to the Building and Energy Efficiency Disclosure Act 2010); pp. 16-17 (amendments to the Coal Mining Industry (Long Service Leave) Legislation); pp. 25-27 (amendments to the Greenhouse and Energy Minimum Standards Act 2012); pp. 37-38 (amendments to the Illegal Logging Prohibition Act 2012); pp. 53-54 (amendments to the Paid Parental Leave Act 2010); pp. 59-60 (amendments to the Personal Property Securities Act 2009); pp. 62-64 (amendments to the Privacy Act 1988); and pp. 70-72 (amendments to the Tobacco Plain Packaging Act 2011).

115. The Statement of Compatibility acknowledges that the triggering of the standard investigative and monitoring powers in the RPA will engage (by limiting) the right to privacy in Article 17 of the ICCPR. The Statement provides an explanation of the Government's position that these limitations are directed to a legitimate objective (generally by reference to the regulatory objects of each triggering Act). The Statement further explains why the limitations are considered to be rationally connected and proportionate to the achievement of these regulatory objectives. (This is generally by reference to the triggering of relevant procedural safeguards in the RPA. These safeguards include warrant or consent-based authorisation requirements, and other constraints on the exercise of intrusive powers, such as fixed maximum time periods in which the authorised activities are to be undertaken.) See, for example: Explanatory Memorandum, pp. 4-6 (amendments to the RPA), pp. 22-23 (amendments to the Greenhouse and Energy Minimum Standards Act 2012), pp. 29-32 (amendments to the Horse Disease Response Levy Collection Act 2011), pp. 33-35 (amendments to the Illegal Logging Prohibition Act 2012), pp. 39-42 (amendments to the Industrial Chemicals (Notification and Assessment) Act 1989) and pp. 66-68 (amendments to the Tobacco Plain Packaging Act 2011).

116. Item 4 of Schedule 1 amends paragraph 35(2)(b) of the RPA (identity cards—standard compliance monitoring powers). Item 5 of Schedule 1 amends paragraph 76(2)(b) of the RPA (identity cards—standard investigation powers).

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who is alleged to have contravened a designated civil penalty provision in the relevant regulatory legislation. The current period of four years is extended to six years117

• items 7 and 8 (enforcement powers) make minor amendments to provisions governing the matters that must be included in an infringement notice, including the amount of money payable under the notice, and details of alleged contraventions. These amendments purport to clarify the way in which these requirements apply to an infringement notice which relates to multiple contraventions of a single civil penalty provision118

• items 9-12 (application provisions)119 deal with the application of the proposed amendments in items 1-8 as follows:

- items 9 and 11-12 have the effect that the amendments made by items 1-3 and 6-8 are of prospective application. (That is, they apply to compliance monitoring powers exercised, civil penalty order applications made, and infringement notices issued on, or after, the commencement of Schedule 1)

- item 10 provides for the retrospective application of the amendments made in items 4 and 5 with respect to identity cards. It provides that the amendments in items 4 and 5 apply to identity cards issued during the period of 12 months immediately before the commencement of those items. This means that identity cards which were valid at the time of commencement will remain valid for a further four years.

Analysis of proposed amendments The proposed amendments contained in items 1 and 3-12 appear to be technical or otherwise non-controversial. Reasonably detailed justification is provided in the Explanatory Memorandum.120

The proposed amendments in item 2 may warrant closer attention, as they expand the circumstances in which an intrusive compliance monitoring power (namely, securing things on premises) may be exercised.

Existing section 22 Existing section 22 of the RPA enables an authorised person to secure a thing found on premises during the exercise of monitoring powers, if he or she believes on reasonable grounds that a ‘related provision’ (explained below) has been, is being or will be contravened.121

The authorised person must also believe on reasonable grounds that securing the thing is necessary to prevent it from being concealed, lost or destroyed before a seizure warrant is obtained (under the standard investigation powers in Part 3 of the RPA); and that it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.122

The authorised person may secure the thing for a (renewable) period of up to 24 hours.123 The relevant thing can be secured by locking it up, placing it under guard or via any other means.124

Part 2 of the RPA provides that the standard compliance monitoring powers can be applied to three broad types of matters, as may be specified by the relevant triggering Act. These are:

• the so-called ‘core provisions’125 of a regulatory Act which are specified in that Act as being ‘provisions subject to monitoring’ via the application of the standard monitoring powers in Part 2 of the RPA (section 8)

117. Item 6 of Schedule 1 amends subsection 82(2) of the RPA (civil penalty orders—standard enforcement powers). 118. Items 7 and 8 of Schedule 1 amend paragraph 104(1)(e) and subsection 104(2) of the RPA—matters to be included in an infringement notice. 119. Item 9—compliance monitoring powers (application of amendments made by items 2 and 3); item 10—identity cards (application of amendments made by items 4 and 5); item 11—civil penalty orders (application of amendments made by item 6); and item 12—infringement

notices (application of amendments made by items 7 and 8). 120. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 79 (items 3-5), pp. 79-80 (item 6), pp. 80-81 (items 7-8), pp. 81-82 (items 9-12). 121. RPA, paragraphs 22(1)(a)-(b). 122. RPA, paragraph 22(1)(c). 123. RPA subsection 22(1) (24-hour period) and subsections 22(2) and (4) (extensions of 24-hour period). 124. RPA subsection 22(1). 125. The term ‘core provision’ is used in this Bills Digest as a form of shorthand reference to ‘provisions subject to monitoring’ under section 8 of

the RPA.

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• ‘information subject to monitoring’, being information given in compliance or purported compliance with a provision of a regulatory Act or a legislative instrument, as specified by that Act or instrument as being ‘subject to monitoring’ via the application of Part 2 of the RPA (section 9)

• ‘related provisions’ of a regulatory Act which are specified in that Act as being related to another provision that is subject to monitoring via the application of the standard monitoring powers in Part 2 of the RPA (section 10).

The RPA does not prescribe any subject-matter requirements for a provision of a regulatory Act to qualify as a so-called ‘core provision’ under section 8 or a ‘related provision’ under section 10, or any conceptual or functional framework for distinguishing between the two types of provisions.126

The power to secure things in existing section 22 is expressed as applying only to potential contraventions of ‘related provisions’.127 The other monitoring powers in Part 2 apply to monitoring compliance with so-called ‘core provisions’ and information subject to monitoring.128

Proposed amendment made by item 2—Extended application of section 22 Item 2 proposes to extend the application of the power in section 22 of the RPA in two ways:

• it extends the application of section 22 to so-called ‘core provisions’ subject to monitoring (in addition to ‘related provisions’) so that an authorised person can secure a thing if he or she believes on reasonable grounds that a core provision or a related provision has been, is being, or will be contravened,129 and

• it extends the application of section 22 to information subject to monitoring, so that an authorised person can secure a thing if he or she believes on reasonable grounds that it affords evidence that information subject to monitoring is not correct.130

The Explanatory Memorandum initially describes item 2 as correcting a ‘drafting error’ which limits the power to suspected contraventions of ‘related provisions’.131 Elsewhere, however, the Explanatory Memorandum seems to suggest that the proposed amendment is merely or primarily declaratory in nature—stating that its effect will be to ‘clarify’132 and place ‘beyond doubt’133 the application of the power in section 22 of the RPA to so-called ‘core provisions’ and information subject to monitoring. It further states that the proposed amendment to section 22 is ‘necessary for the purposes of an effective monitoring scheme’ but does not advance reasons in support of this position.134

126. However, OPC, Drafting direction no. 3.5A: regulatory powers, op. cit., p. 4; requires drafters to advise instructing agencies that an overly broad definition of a ‘related provision’ in a triggering Bill may attract criticism from the Senate Scrutiny of Bills Committee. 127. RPA, paragraph 22(1)(b). 128. See RPA, subsection 18(1) (entry to premises—an authorised person may enter premises for the purpose of exercising the monitoring powers

to determine whether a regulated entity is compliant with a core provision subject to monitoring, or whether information subject to monitoring is correct). The monitoring powers in Part 2 of the RPA (in addition to section 22) are as follows: section 19 (‘general monitoring powers’ exercisable upon entry to premises, including: searching premises; observing activities carried on the premises; inspecting things and documents on the premises; and taking images, recordings, measurements, tests, extracts and copies of things or documents on the premises); section 20 (operating electronic equipment on the premises for the purpose of obtaining relevant data, for example from a computer or electronic data storage device on the premises); and section 21 (securing electronic equipment on the premises, such as computers or electronic data storage devices, for up to 24 hours in order to obtain expert assistance to operate it). 129. Proposed new subparagraphs 22(1)(b)(i)-(iii). 130. Proposed new subparagraph 22(1)(b)(iv). 131. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 5. 132. Ibid., p. 78. 133. Ibid. 134. Ibid., p. 79.

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Comment—Item 2 Three issues are worth noting in relation to the proposed expansion of section 22 by item 2. They arise from the practical impact of the proposed amendment, and the limited justification provided in the Explanatory Memorandum.135

Breadth of application of the proposed amendment

The first issue relates to the breadth of application of the proposed amendment, and its potential to have a significant, adverse impact on regulated entities.

The expanded compliance monitoring power in section 22 will, if enacted, be available to all Commonwealth regulatory agencies whose governing legislation currently triggers the application of Part 2 of the RPA, as well as those regulatory agencies whose governing legislation may be amended or enacted in future to trigger the application of Part 2.

The power to deprive a regulated entity of the ability to use or deal with its property for a period of time may have a significant adverse impact on that entity. That impact may extend beyond intrusions into personal privacy as identified by the Senate Scrutiny of Bills Committee in its consideration of the Bill in the 44th Parliament and the Statement of Compatibility in the Explanatory Memorandum. For example, securing a thing on the entity’s premises may render it inoperative, and may consequently limit or prevent a regulated entity from conducting its business and therefore deriving an income for a period of time.

This breadth of application and the potentially significant adverse impact on regulated entities arguably warrants an explanation—including by reference to existing operational experience in applying section 22—of the assertion at page 79 of the Explanatory Memorandum that the expanded power is ‘necessary’ in order for the scheme of monitoring powers in the RPA to be ‘effective’.

At a conceptual level, the conferral of a monitoring power to secure a thing on premises for the purpose of facilitating the subsequent exercise of investigative powers (namely seizure of the thing) arguably extends the scope of the monitoring powers beyond the strict purpose of determining compliance with a regulatory requirement, or the accuracy of information provided in purported compliance with a disclosure or notification requirement. On this view, a proposal to further expand the circumstances in which a monitoring power may be exercised for purposes which extend beyond the actual monitoring of a regulated entity’s compliance requires a thorough justification, including details of operational need arising from evidence of use of the power to date.136

Anticipated practical impact of the proposed amendment

This leads to a second issue, which is that the practical impact of the proposed amendment to section 22 will depend on the way in which individual pieces of regulatory legislation have demarcated so-called ‘core provisions’ subject to monitoring, ‘related provisions’ and ‘information subject to monitoring’ for the purpose of triggering the application of the monitoring powers in Part 2 of the RPA. The more broadly individual triggering Acts define these terms for the purpose of individual regulatory regimes, the more expansive the practical application of the standard monitoring powers, including that in section 22.

Given this context, the potentially broad application of the proposed amendments to section 22 lends further support to the need for a more substantive justification of the need asserted at page 79 of the Explanatory Memorandum. This issue also reinforces the importance of examining carefully the definitions of these terms in individual triggering Bills, and the adequacy of supporting justification for broad definitions.

Description of the intended legal effect of the proposed amendment

The third issue relates to the description of the intended effect of item 2 (at page 78 of the Explanatory Memorandum) as clarifying or placing beyond doubt the application of section 22 to so-called ‘core provisions’ and ‘information subject to monitoring’, in addition to ‘related provisions’.

135. To clarify, the purpose of raising these issues is not to imply that the proposed amendment to paragraph 22(1)(b) of the RPA in item 2 of Schedule 1 to the Bill is unnecessary or inappropriate. Rather, it is suggested that the need for this proposed amendment has not been justified to an extent that is proportionate to the breadth of its application and the potential magnitude of its impact on regulated entities.

136. It is acknowledged that the AGD, Guide to framing Commonwealth offences, infringement notices and enforcement powers, AGD, Canberra, September 2011; indicates (at p. 87) that monitoring warrants may, in appropriate circumstances, confer a power to secure evidence of contraventions pending the issuing of a search / seizure warrant. However, the Guide also states that the conferral of entry, search and seizure powers (including monitoring powers) must address an identified enforcement need (p. 76).

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As mentioned above, this description may be construed as suggesting that the proposed amendments are merely or largely declaratory of the legal interpretation of the existing provision. Such an interpretation would not be an accurate explanation of the legal effect of the proposed amendment. While this might have been the subjective policy intent underlying the provisions as originally drafted, it is not their legal effect.

Rather, item 2 will, if enacted, remove the express limitation of the application of the power in section 22 to ‘related provisions’ by extending it to two additional matters (so-called ‘core provisions’ and ‘information subject to monitoring’). Hence, it would materially change the legal application of the provision. Future Explanatory Memoranda would benefit from precision of language in this regard.

Schedule 2—Amendment of the Australian Sports and Anti-Doping Authority Act 2006

Overview of regulatory scheme The Australian Sports and Anti-Doping Authority Act 2006 (ASADA Act) 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.

The ASADA Act relevantly provides for the establishment and administration of a National Anti-Doping (NAD) Scheme (Part 2) and establishes ASADA and prescribes its statutory functions and powers (Part 3). In general terms, ASADA is the Australian government agency responsible for efforts to eliminate doping in Australian sport. More specifically, ASADA’s statutory function is to support its Chief Executive Officer (CEO) in the performance of his or her statutory functions conferred under the ASADA Act.137

The CEO’s functions are, in broad terms, the administration of the NAD Scheme and other sports doping and safety matters—including activities directed to stakeholder engagement, deterrence (education and awareness), detection (testing and investigation) and enforcement (management of cases involving possible violations).138

The ASADA Act contains several civil penalty provisions which apply to persons who fail to comply with obligations or requirements prescribed by the Act—for example, failure to comply with a disclosure notice requiring a persons to give information, produce documents or things, or attend an interview and answer questions.139

Part 8A establishes an enforcement regime for civil penalty provisions, which authorises the CEO to apply to a court for a civil penalty order in relation to an alleged contravention of a civil penalty provision. Section 80 (Part 9) also makes provision for the Regulations to establish a scheme of infringement notices for civil penalty provisions.140

Part 8A and section 80 were enacted in 2013, and the amending legislation141 was among the legislation identified by AGD in March 2013 as applying OPC’s drafting precedent provisions which subsequently informed the development of the standard provisions of the RPA.142

Application of the Regulatory Powers Act—Enforcement powers (civil penalties, infringement notices) Item 7 proposes to repeal Part 8A of the ASADA Act and substitute it with a new Part 8A, which applies the standard civil penalty enforcement provisions in Part 4 of the RPA.143

Item 7 also proposes to enact a new Part 8B, which triggers the application of the infringement notice provisions in Part 5 of the RPA. Item 8 proposes to make a consequential amendment to repeal existing section 80 (regulation making power with respect to infringement notices).

Items 9 and 10 provide for the prospective application of the proposed amendments to the ASADA Act, and preserve the application of existing Part 8A and section 80 (and the regulations made under section 80) in

137. Australian Sports and Anti-Doping Authority Act 2006 (ASADA Act), section 20. 138. ASADA Act, section 21. See also, Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 7-8, 83. 139. ASADA Act, section 13C. 140. See Australian Sports Anti-Doping Authority Regulations 2006 (ASADA Regulations), Part 5. 141. Australian Sports Anti-Doping Authority Amendment Act 2013, Schedule 1, item 13 (new Part 8A) and item 15 (new section 80). 142. AGD, Senate Standing Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, op. cit. 143. Schedule 2, Part 1, item 7. (Note that items 1-6 make consequential amendments including definitions of civil penalty provisions.)

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relation to alleged contraventions of the civil penalty provisions which occur prior to the commencement of the amendments in Schedule 2, if enacted.

Comment

Limited substantive legal effect of the proposed amendments The proposed amendments in Schedule 2 to the Bill do not appear to extend substantively the scope of ASADA’s existing enforcement powers. Rather, they apply the corresponding provisions of the RPA, in preference to continued reliance on stand-alone provisions that pre-date the RPA (and are, in any case, very similar to those in the RPA).144

Minor extensions of existing powers, consequential to the proposed amendments in Schedule 1 As the Explanatory Memorandum acknowledges, three areas of minor difference arise from the proposed amendments to the standard civil penalty and infringement notice provisions in the RPA itself in items 6-8 of Schedule 1. (Namely, a two year increase in the time limit for bringing enforcement proceedings; and the contents of civil penalty orders and infringement notices dealing with multiple contraventions or alleged contraventions).145 These minor differences would not appear to have a significant effect on the existing obligations or powers of ASADA, or the rights and liabilities of regulated entities, under the ASADA Act.

Redundancy of the infringement notice regime in the ASADA Regulations The proposed elevation to primary legislation of the infringement notice regime currently prescribed by the Australian Sports Anti-Doping Authority Regulations 2006 (ASADA Regulations) via the repeal of section 80 and the enactment of new Part 8B of the ASADA Act is also considered a positive development. This will promote greater transparency and accessibility of the details of the scheme for regulated entities without needing to consult multiple sources, and will enable a greater degree of Parliamentary oversight of any proposed amendments to the regime in future, as compared to the tabling and potential disallowance of amending regulations.

As the Explanatory Memorandum notes, the infringement notice provisions of Part 5 of the ASADA Regulations will become redundant if new Part 8B of the ASADA Act is enacted. The Explanatory Memorandum also indicates that the Government intends to recommend that the Governor-General makes regulations repealing Part 5 of the ASADA Regulations upon the commencement of Schedule 2 to the Bill, if enacted.146 Arguably, the present Bill could have streamlined this process and provided for the repeal of Part 5 of the Regulations, thereby avoiding the retention of spent regulations on the statute book for any period of time. (Although it is acknowledged that there may be practical reasons that the administering portfolio may prefer to develop repealing regulations separately.)

144. See, for example, Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 84-85 (comparison tables of existing provisions of the ASADA Act and Regulations with the proposed application of the RPA). 145. Ibid., pp. 83, 85 and 90. 146. Ibid., p. 90.

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Schedule 3—Amendment of the Building Energy Efficiency Disclosure Act 2010

Overview of regulatory scheme The Building Energy Efficiency Disclosure Act 2010 (BEED Act) establishes the Commercial Building Disclosure Scheme, which imposes several disclosure requirements on sellers, lessors and sub-lessors of commercial buildings with respect to the energy efficiency of the relevant building.147

The BEED Act also establishes a scheme for the energy efficiency certification of commercial buildings;148 a register of certifications issued, varied and revoked;149 and the accreditation and auditing of assessors.150 The regulatory regime is administered principally by the Secretary of the Department of Environment.

The BEED Act contains various civil penalty provisions for failure to comply with certification and disclosure obligations.151 Part 5 of the BEED Act contains a compliance monitoring and enforcement regime, empowering the Secretary to issue disclosure notices for the purpose of monitoring compliance with obligations under the BEED Act;152 to apply to the Federal Court or Federal Circuit Court for civil penalty orders;153 and to issue infringement notices for alleged contraventions of civil penalty provisions.154

Application of the Regulatory Powers Act—Enforcement powers (civil penalties, infringement notices)

Key proposed amendments The key amending provision in Schedule 3 to the Bill is item 8. It proposes to repeal the civil penalty and infringement notice provisions in Divisions 2 and 3 of Part 5 of the BEED Act and substitute them with new Divisions 2 and 3 which trigger the application of Parts 4 and 5 of the RPA.155 The Explanatory Memorandum provides a detailed comparison of the existing provisions of the BEED Act and the standard provisions of the RPA sought to be triggered by the Bill.156

Application of Parts 4 and 5 of the Regulatory Powers Act with some minor modifications The proposed amendments in item 8 apply Parts 4 and 5 of the RPA to the BEED Act subject to some minor modifications. These modifications seek to preserve certain provisions of existing Divisions 2 and 3 of Part 5 of the BEED Act, which do not have an equivalent in the RPA and are said to reflect the specific regulatory environment in which the BEED Act operates.

The main area of modification is the maximum pecuniary penalty amounts able to be imposed under a civil penalty order or specified in an infringement notice. The RPA provides a standard formula for the calculation of these amounts,157 however, the BEED Act currently provides for higher penalty amounts.158 Item 8 (which

147. Building Energy Efficiency Disclosure Act 2010 (BEED Act), Part 2 (obligations to disclose energy efficiency information). 148. Ibid., Part 2, especially sections 13 and 13A (applications for, and issuing of, building energy efficiency certificates). 149. Ibid., Part 2, section 14 (establishment and maintenance of Building Energy Efficiency Register). 150. Ibid., Part 3 (accreditation) and Part 4 (auditing). See also, Building Energy Efficiency Disclosure Regulations 2010 (BEED Regulations), Part 4

(additional requirements for the accreditation of assessors—applications, training and accreditation conditions, made under Part 3 of the BEED Act). 151. For example, BEED Act, Part 2, especially section 11 (prohibition on sale, leasing and subleasing without a building energy efficiency certificate); section 15 (contravention of obligations to include energy efficiency rating in an advertisement of a building for sale, lease or

sublease); and subsection 18(3) (failure to comply with a notice issued by an accredited assessor to provide information necessary for the purpose of conducting an assessment of the building). Note that section 19 also contains a criminal offence for misusing information supplied by another person in compliance with a disclosure notice under subsection 18(3). 152. BEED Act, Part 5, Division 1 (obtaining information and documents). 153. Ibid., Part 5, Division 2 (civil penalties). 154. Ibid., Part 5, Division 3 (infringement notices); and BEED Regulations, Part 7 as made under section 64 of the BEED Act (additional requirements for the content, service and payment of infringement notices, and the issuing of evidentiary certificates in relation to non-compliance, extensions of time or withdrawal of infringement notices). 155. Note that amending items 1-7 and 9-12 make consequential amendments (for example, to definitions and cross-references to the RPA). 156. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, pp. 93-95 (summary table) and pp. 98-109 (discussion). 157. RPA, subsection 82(5) (pecuniary penalties in civil penalty orders are: for bodies corporate—five times the pecuniary penalty specified in the civil penalty provision; and for natural persons--the pecuniary penalty specified in the civil penalty provision); and subsection 104(2) (unless another Act expressly provides otherwise, the amount specified in an infringement notice must be the lesser of one-fifth of the maximum pecuniary penalty a court could impose for contravention of the relevant civil penalty provision; or 12 penalty units for a natural person, or 60 penalty units for a body corporate). Note that one penalty unit is $180 at October 2016: Crimes Act 1914, subsection 4AA(1). 158. BEED Act, subsections 53(5)-(5D). (Subsection 53(5) provides that the penalty must not exceed the relevant amount specified in the particular civil penalty provision, subject to some exceptions in subsections 53(5A)-(5D) which relate to continuing contraventions for failing to comply

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contains proposed new subsection 51(6) and proposed new section 52) preserves the existing penalty amounts in the BEED Act.

The Explanatory Memorandum states that the higher quantum in the BEED Act is tailored to the application of that regulatory regime to large commercial operations, and is necessary to appropriately reflect the relevant compliance costs and provide a suitable deterrent to non-compliance.159

Gaining of new provisions in the BEED Act, consequential to the triggering of the Regulatory Powers Act The Explanatory Memorandum acknowledges that the application of Parts 4 and 5 of the RPA to the BEED Act will result in the gaining of some procedural provisions not part of the existing enforcement framework under the BEED Act.160 The new provisions proposed to be gained are as follows.

Civil penalty provisions gained

The key provisions gained via the application of the civil penalty provisions in Part 4 of the RPA relate to:

• the commencement of criminal proceedings after civil penalty proceedings,161 and the stay of civil penalty provisions in the event criminal proceedings are commenced while civil proceedings are on foot162

• the inadmissibility in criminal proceedings of evidence given in civil penalty proceedings,163 and

• requirements of proof, including:

- the application of the evidential burden on the respondent who seeks to rely on an exception, excuse, justification or qualification to a civil penalty provision (meaning that the respondent must adduce or point to evidence suggesting a reasonable possibility that the facts constituting the exemption exist)164

- the attribution of liability to a body corporate for a contravention of a civil penalty provision, where the conduct constituting the contravention was undertaken by an employee, agent or officer who was acting within the apparent scope of his or her employment or authority.165 In relation to the proposed new provisions relating to the interaction of civil and criminal proceedings, the Explanatory Memorandum emphasises the importance of ensuring that the civil enforcement framework under the RPA does not preclude or dissuade criminal law enforcement in the event the contravention also amounts to a criminal offence.166

In relation to the proposed new provisions governing the requirements of proof, the Explanatory Memorandum does not explain the reasons for the imposition of an evidential burden on the respondent who seeks to rely on an exception (et cetera) to a civil penalty provision under the BEED Act.

Five exceptions or qualifications to the existing civil penalty provisions in the BEED Act are likely to be affected by the application of section 96 of the RPA, only one of which currently imposes an evidential burden on a respondent who seeks to rely upon it. These provisions are as follows:

• subsections 11(6) and 11(7)—exceptions to the civil penalty provisions for contravening the prohibitions in subsections 11(1)-11(4) on selling, leasing or subleasing a building or an area of a building without a building energy efficiency certificate. (The exceptions apply to offers or invitations for offers to let or sublet for a term of 12 months or less)

with statutory time periods or deadlines for the performance of obligations. Subsections 53(5A)-(5D) set out pecuniary penalties for each day of non-compliance with various regulatory obligations, ranging from 100 penalty units, to 50 penalty units for bodies corporate or 20 penalty units for individuals.) Existing subsections 53(5)-(5D) are preserved by new subsection 51(6) and new section 52 (inserted by item 8). 159. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 99-100 (civil penalties) and pp. 103-104 (infringement notices). 160. Ibid., pp.93-94 (comparative tables). 161. RPA, section 90. 162. Ibid., section 89. 163. Ibid., section 91. 164. Ibid., section 96. (See also, section 95—the general excuse of mistake of fact, which imposes an evidential burden on a respondent to civil penalty proceedings who seeks to rely upon it.) 165. Ibid., section 97. 166. Ibid., p. 101.

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• subsection 15(6)—exception to the civil penalty provisions in subsections 15(1)-15(4) for contravening the prohibitions on advertising a building for lease or sublease without including a current energy efficiency rating. (The exception applies to leases or subleases for a term of 12 months or less)

• section 17A—the application of ‘automatic exceptions’ from the disclosure obligations, certification requirements and prohibitions on selling, leasing or advertising without a certificate in sections 11, 12 and 15, if the Secretary has made a legislative instrument under paragraph 21(1)(d) which designates the relevant building or area as being exempt, and

• section 57—the general excuse of mistake of fact, which applies to all civil penalty provisions in the BEED Act. This excuse imposes an evidential burden on the respondent.167 Therefore, the alignment of this provision with Part 4 of the RPA will not result in a substantive change.

Infringement notice provisions gained

The provisions gained via the application of the infringement notice provisions in Part 5 of the RPA to the BEED Act relate to the ability to issue two or more infringement notices to a person for the alleged contravention of a civil penalty provision subject to an infringement notice.168 The Explanatory Memorandum describes this as ‘merely procedural in nature’.169

Prospective application of the proposed amendments Items 13-15 provide for the prospective application of the proposed amendments applying Parts 4 and 5 of the RPA to the BEED Act (that is, in relation to contraventions or alleged contraventions of the BEED Act occurring on or after the commencement of Schedule 3, if enacted). These amending items also provide for the continuation of the pre-existing provisions of the BEED Act in relation to contraventions or alleged contraventions of that Act committed prior to the commencement of the proposed amendments.

No standardisation of compliance monitoring powers Schedule 3 to the Bill does not propose to standardise the compliance-monitoring provisions in the BEED Act which are significantly less intrusive than those available under the RPA. (Division 1 of Part 5 of the BEED Act provides for a notice-based information disclosure regime, whereas Part 2 of the RPA provides for authorised persons to enter premises and undertake compliance monitoring activities including searches.)

Comment

Limited substantive legal effect of the proposed amendments in Schedule 3 On balance, the proposed amendments to the BEED Act are fairly characterised as minor and technical.

Justification for applying Parts 4 and 5 of the Regulatory Powers Act subject to minor modifications The justification provided in the Explanatory Memorandum for the minor variations to Parts 4 and 5 of the RPA (summarised above) appears to be a reasonable explanation. Applying the RPA without the proposed modifications would result in an arbitrary reduction in the quantum of civil penalties, which is not referrable to the regulatory context in which the BEED Act operates.

Redundancy of the Regulations The proposed amendments in item 8 of Schedule 3 will repeal the regulation-making power in section 64 of the BEED Act with respect to infringement notices. This proposed amendment will consequently make redundant the infringement notice provision in Part 7 of the Building Energy Efficiency Disclosure Regulations 2010 (BEED Regulations). The Explanatory Memorandum states that Part 7 of the BEED Regulations will be repealed by regulation following the commencement of Schedule 3, if enacted.170

As with the proposed amendments to the ASADA Act in Schedule 2 (discussed above) it is desirable that matters relating to infringement notices will be dealt with in primary legislation, since this promotes greater transparency and accessibility, and ensures that the Parliament has an opportunity to scrutinise any proposed

167. BEED Act, section 57. 168. RPA, paragraph 108(c). 169. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 105. 170. Ibid., p. 107.

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amendments to measures which impact upon the legal liability of regulated entities to a greater extent than through the tabling and potential disallowance of regulations. However, as with the earlier comments on Schedule 2 a more streamlined and efficient course of action would arguably be for the amending legislation itself to repeal the Part 7 of the BEED Regulations (although it is acknowledged that there may be practical reasons why the administering portfolio may wish to separately prepare repealing regulations).

Exceptions to civil penalty provisions—Imposition of evidential burden on respondent The Explanatory Memorandum does not justify the appropriateness of imposing an evidential burden on the respondent in relation to the qualifications to the civil penalty provisions in subsection 11(6), 11(7) and 15(6) and section 17A of the BEED Act.

It is not self-evident, on the face of these civil penalty provisions, that the matters which constitute the relevant qualifications or exceptions are likely to be peculiarly within the knowledge of the respondent, or are likely to be significantly more difficult and costly for the enforcing Department (as applicant) to disprove than for the respondent to discharge an evidential burden.171

Consistent with the remarks of the Senate Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights on the 2012-13 and 2014 Bills regarding the scrutiny of future triggering legislation (as discussed above), the Explanatory Memorandum would benefit from an explanation of these matters.

The application of section 96 of the RPA to all civil penalty provisions in the BEED Act also means that any future legislative proposals to amend the BEED Act to enact new exemptions or amend existing exemptions to its civil penalty provisions should be examined carefully, to determine whether it is appropriate that section 96 should apply to them. The application of section 96 will mean that the default position is that the respondent bears the evidential burden.

Schedule 4—Amendment of the Coal Mining Industry (Long Service Leave) Legislation

Overview of regulatory scheme The Coal Mining Industry (Long Service Leave) Legislation172 establishes a portable long service leave scheme for coal mining industry employees. The scheme involves the collection of levies from employers, which are held in a fund administered by a statutory corporation, the Coal Mining Industry (Long Service Leave) Corporation (the Corporation).173

The Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Payroll Levy Collection Act) imposes the obligation on employers to pay the levy and provides for related procedural matters.174

The Coal Mining Industry (Long Service Leave) Administration Act 1992 (Administration Act) establishes the fund and the Corporation, and sets out the Corporation’s functions and powers.175 It also establishes employees’ entitlement to long service leave and prescribes arrangements for the making of payments out of the fund (primarily as reimbursements to employers).176

The Payroll Levy Collection Act and the Administration Act contain various civil penalty provisions, primarily in relation to contraventions by employers of their obligations to make payments and to grant long service leave to eligible employees.177 The Administration Act contains enforcement provisions, which authorise the Corporation

171. These circumstances are identified as commonly accepted legal policy justification for offence-specific defences in the AGD, Guide to framing Commonwealth offences, infringement notices and enforcement powers, op. cit., p. 50. Notably, the Senate Scrutiny of Bills Committee, in its consideration of the Bill as introduced to the 44th Parliament, indicated its intention to apply the scrutiny principles for offence-specific defences to its consideration of civil penalty provisions which trigger section 96 of the RPA. See: Senate Scrutiny of Bills Committee, Alert digest, 4, 2016, op. cit., p. 12.

172. This comprises two Acts—the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Payroll Levy Collection Act) and the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Administration Act). 173. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 15-16, 111. 174. Payroll Levy Collection Act, especially sections 3B-9. 175. Administration Act, Part 2 (establishment, functions and powers of the Corporation), Part 6 (establishment of fund). 176. Ibid., Part 5A (entitlement to long service leave), Part 7 (payments out of the fund). 177. For example: Payroll Levy Collection Act section 5 and 10 (contravention of employers' obligation to submit returns, provide reports to the

Corporation, etc.); and Administration Act, sections 39AB, 39AC, 39AD, 39BE (employers’ contravention of obligations to grant long service leave and pay entitlements) and sections 39C, 39CA, 39CB, 39CC (employers’ contravention of obligations to pay employee entitlements on cessation, redundancy, death, etc.).

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to seek the enforcement of civil penalty provisions (in both Acts) in the Federal Court or the Federal Circuit Court in the event of an alleged contravention.178

Application of the Regulatory Powers Act—Enforcement powers (civil penalty provisions)

Key proposed amendments Schedule 4 to the Bill proposes to repeal the existing enforcement scheme for civil penalties in Divisions 1 and 2 of Part 7A of the Administration Act and substitute new provisions that apply the equivalent standard provisions of Part 4 of the RPA.179 It also proposes to amend the Payroll Levy Collection Act to insert a new enforcement scheme for civil penalty provisions in that Act, which applies the corresponding standard provisions in Part 4 of the RPA.180

Minor variations to the application of Part 4 of the Regulatory Powers Act—Application to bodies corporate The proposed amendments in Schedule 4 would apply Part 4 of the RPA with some minor variations.181 These are primarily to continue certain civil penalty provisions in the Coal Mining Industry (Long Service Leave) Legislation for which there are no equivalent provisions in the RPA. These provisions relate to:

• contraventions of civil penalty provisions by ‘executive officers’182 of employers which are bodies corporate,183 and

• the provision of specific statutory guidance to courts in determining the pecuniary penalty amount to be ordered against a body corporate that is found to have contravened a civil penalty provision (within the maximum amount set by the relevant provision).184

The Explanatory Memorandum indicates that the continuation of these provisions is considered necessary to reflect the specific regulatory context of the Coal Mining Industry (Long Service Leave) Legislation, which arises from the corporate status of most regulated entities (that is, employers).

In particular, the Explanatory Memorandum states that the preservation of specific civil penalty provisions for executive officers will recognise the ‘important role’ that such persons play in ‘directing and controlling the actions of an employer body’.185

The Explanatory Memorandum further indicates that the preservation of specific statutory guidance to courts in determining pecuniary penalty amounts (within the maximum set by the relevant penalty provision) will ensure

178. Administration Act, Part 7A (civil penalty orders). 179. Schedule 4, items 27-29 (new section 49A, and consequential amendments). Further consequential amendments to the Administration Act, such as the insertion of definitions, cross-references to the RPA, the amendment of headings and re-numbering of subsections in retained provisions, are in items 1-26 and items 28-36.

180. Schedule 4, item 44 (new sections 13A-13C). In other words, the existing civil penalty scheme in the Administration Act will no longer apply to the Payroll Levy Collection Act. Each Act will have a statute-specific scheme. (Note that further consequential amendments to the Payroll Levy Collection Act, such as the insertion of definitions and cross-references to the RPA, the amendment of headings and re-numbering of subsections in retained provisions, are in items 37-43.)

181. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 112-13 (comparative tables of existing provisions to the proposed application of the corresponding provisions of the RPA, including new provisions gained and instances of variation of the RPA).

182. Administration Act, section 4 defines an executive officer of a body corporate as ‘a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body’. 183. Schedule 4, items 31-34, which amend sections 49CE and 49CF of the Administration Act. (See also, item 44 which inserts corresponding provisions in the Payroll Levy Collection Act, in the form of proposed new sections 13B and 13C.)

Section 49CE of the Administration Act contains a specific civil penalty provision in relation to contraventions by executive officers of bodies corporate. It attributes liability to an executive officer on the basis that he or she was in a position to influence the relevant conduct of the body corporate in relation to the contravention, and failed to take all reasonable steps to prevent the contravention. Section 49CF of the Administration Act sets out the criteria for determining whether an executive officer failed to take all reasonable steps to prevent the contravention for the purpose of section 49CE. 184. Schedule 4, item 27, which relevantly inserts a new subsection 49A(5) in the Administration Act. This provision proposes to supplement the

matters the court must take into consideration under subsection 82(6) of the RPA with some additional factors that are presently contained in subsection 49A(7) of the Administration Act (including the level of the employee, officer or agent of the body corporate who engaged in the conduct constituting the contravention, and the due diligence and corporate culture of the body corporate). See also Schedule 4, item 44, which inserts a corresponding provision in proposed new subsection 13A(5) of the Payroll Levy Collection Act. 185. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 134, 135 (discussion of item 31—proposed

amendments to sections 49CE and 49CF of the Administration Act). See also, pp. 144-46 (discussion of item 44—proposed new section 13A of the Payroll Levy Collection Act).

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that courts impose penalties that ‘reflect the actions and culture of compliance of the body corporate that has contravened the provision’.186

Provisions gained—Evidential burden in relation to exceptions to civil penalty provisions The Explanatory Memorandum acknowledges that the triggering of Part 4 of the RPA187 will result in the enactment of one new type of enforcement provision that is not present in the existing Coal Mining Industry (Long Service Leave) Legislation, in the form of section 96 of the RPA.188

As mentioned above, section 96 of the RPA deals with the evidentiary burden in relation to civil penalty provisions subject to the enforcement arrangements prescribed by Part 4. It provides that a respondent to a civil penalty proceeding who wishes to rely upon any exception, exemption, excuse, justification or qualification to a civil penalty provision bears the evidential burden in relation to that matter.

This means that the respondent must adduce or point to evidence suggesting a reasonable possibility that the facts constituting the relevant exception (et cetera) exist. The Explanatory Memorandum characterises the legal effect of the application of section 96 of the RPA to the Coal Mining Industry (Long Service Leave) Legislation as ‘merely procedural’.189

Prospective application of proposed amendments Item 45 provides that the proposed amendments in Schedule 4 would, if enacted, apply prospectively from their commencement. The existing provisions of the Coal Mining Industry (Long Service Leave) Legislation would apply to contraventions or alleged contraventions which occurred prior to the commencement of Schedule 4.

Comment

Limited substantive legal effect of the proposed amendments in Schedule 4 The proposed amendments are fairly and reasonably described as minor and technical in nature. On balance, they do not appear to result in a significant expansion of regulatory powers, or expose regulated entities to significant new liabilities.

Minor modifications to the application of Part 4 of the Regulatory Powers Act The modified application of Part 4 of the RPA appears to reflect a reasonable operational need arising from the specific regulatory context in which the Coal Mining Industry (Long Service Leave) Legislation operates.

The retention of specific civil penalty provisions for executive officers of employer bodies preserves the policy intention to hold senior officers of employer bodies to a high standard of conduct in relation to the performance of the obligations imposed on employer bodies under the scheme.

Further, even in the absence of a specific provision, it may be open to a court to consider matters such as corporate culture, due diligence and the seniority of employees involved in a contravention in determining a pecuniary penalty amount.190 However, enacting these matters as mandatory considerations will continue to give effect to the policy intention that these matters should be given routine consideration in all civil penalty proceedings, while also avoiding arbitrariness or other unintended consequences that may arise if these matters were prescribed as aggravating (or mitigating) factors.

Justification for provisions gained—Section 96 of the Regulatory Powers Act The Explanatory Memorandum does not provide reasons for its assessment that the application of section 96 of the RPA is merely procedural. However, this assessment appears to be accurate because the one exception to

186. Ibid., p. 131 (discussion of item 27—proposed amendment of the Administration Act) and p. 146 (discussion of item 44—proposed amendment of the Payroll Levy Collection Act). 187. Schedule 4, item 27 (new subsection 49A(1) of the Administration Act) and item 44 (new subsection 13A(1) of the Payroll Levy Collection Act) which provide that the civil penalty provisions are enforceable under Part 4 of the RPA. 188. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 112-113 (summary tables), pp. 132 and 146

(discussion of amending items 27 and 44) and p. 17 (Human Rights Statement of Compatibility). 189. Ibid., pp. 131-132 (item 27—proposed new section 49A of the Administration Act) and p. 146 (item 44—proposed new section 13A of the Payroll Levy Collection Act). 190. This is arguably consistent with the nature of judicial power, and is further confirmed by subsection 82(6) of the RPA which requires the court

to take into account ‘all relevant matters’ in determining the amount of a pecuniary penalty to be imposed.

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the civil penalty provisions presently provided for in the Administration Act—namely, mistake of fact in section 49CB—already provides that the respondent bears an evidential burden.191 (Existing section 49CB is repealed by item 29 of Schedule 4, so that the corresponding standard provision in section 95 of the RPA applies. Subsection 95(5) expressly provides that the respondent bears the evidential burden.)

In the event that any new exemptions to the civil penalty provisions in the Administration Act or Payroll Levy Act are proposed in the future, it will be important to consider whether section 96 of the RPA should (as a matter of policy) apply to them, or whether the Corporation as applicant should bear the legal and evidential burdens.192

Schedule 5—Amendment of the Defence Act 1903

Overview of regulatory scheme The Defence Act 1903 (Defence Act) provides for the naval and military defence and protection of the Commonwealth and the states and territories. Part VIB relevantly creates a regulatory framework for non-Defence personnel to gain conditional access to the Woomera Prohibited Area (being an area used for the testing of war materiel) through an application-based permit system, and Ministerial permission in some cases. Offences apply to persons who are present in the area without a permit or permission, and to persons who contravene the conditions of a permit or permission.193

The Defence Minister (with the agreement of the Industry Minister) is authorised to make rules to give effect to the requirements of Part VIB, including provision for an infringement notice system as an alternative to prosecution for offences against Part VIB relating to the contravention of conditions in a permit or permission to enter the area.194

The Woomera Prohibited Area Rule 2014 establishes an infringement notice scheme. An Australian Defence Force (ADF) member or an Australian Public Service employee of the Department of Defence may be authorised by the Secretary of the Department of the Defence to issue infringement notices. The issuing threshold is that the authorised officer must believe on reasonable grounds that the other person has contravened section 72TG of the Act (that is, by failing to comply with a condition of the permission granted under Part VIB of the Defence Act).195

The Woomera Prohibited Area Rule also establishes a scheme of ‘demerit points’ for the contravention of permit conditions, which can lead to the suspension or cancellation of a permit issued under Part VIB.196

Application of the Regulatory Powers Act—Enforcement powers (infringement notices) Schedule 5 proposes to apply the standard infringement notice provisions in Part 5 of the RPA to Part VIB of the Defence Act.

The key proposed amendment is item 3, which proposes to insert a new section 72TO which makes provision for the issuing of infringement notices via the application of Part 5 of the RPA.197

This item proposes to apply the infringement notice provisions of Part 5 of the RPA to one offence provision in Part VIB of the Defence Act, namely the offence of contravening the conditions of a permission or permit in subsection 72TG(1). (This offence is currently the only offence subject to the infringement notice provisions in the Woomera Prohibited Area Rule.)

191. Administration Act, subsections 49CB(3) and (4). 192. As mentioned above in relation to Schedule 3 to the Bill (proposed amendments to the BEED Act) a useful analogy may be drawn from the legal policy guidance on offence-specific defences at p. 50 of the AGD, Guide to framing Commonwealth offences, infringement notices and enforcement powers, op. cit. (The Guide states that offence-specific defences are generally only appropriate only where the relevant matters

are peculiarly within the defendant's knowledge, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish.) The Senate Scrutiny of Bills Committee, in its consideration of the Bill as introduced to the 44th Parliament, indicated its intention to apply these scrutiny principles to civil penalty provisions which trigger section 96 of the RPA. See: Senate Scrutiny of Bills Committee, Alert digest, 4, 2016, op. cit., p. 12. 193. Defence Act 1903, section 72TC (being in the area without permission) and section 72TG (failing to comply with conditions in a permit). 194. Defence Act, section 72TP. See also, the Woomera Prohibited Area Rule 2014. 195. Woomera Prohibited Area Rule 2014, Part 6 (infringement notices). See especially rule 43 (authorised officer) and rule 44 (when an

infringement notice may be issued). 196. Woomera Prohibited Area Rule 2014, Part 7 (demerit points). 197. Note that items 1-2 make consequential amendments in the form of updating definitions and notes to make reference to the RPA, and

item 4 repeals existing subsections 72TP(4) and 72TP(5) which authorise the rules to make provision for infringement notices.

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Minor variation to the application of Part 5 of the Regulatory Powers Act Variations to preserve the ‘demerit points’ regime

The Explanatory Memorandum identifies some instances of minor variation of the standard provisions in Part 5 of the RPA, and notes that these are mainly directed to preserving the demerit point regime provided for in Part 7 of the Woomera Prohibited Area Rule to the extent it applies to contraventions of the offence provisions in section 72TG.198

In particular, proposed new subsection 72TO(5) provides that demerit points under Part 7 of the Woomera Prohibited Area Rule may be incurred in addition to an infringement notice, and requires infringement notices to include an express statement to this effect. Proposed new subsection 72TO(7) also provides that a person who pays the amount specified in an infringement notice may also incur demerit points.

Other variations—Withdrawal of infringement notices

One further variation unrelated to the demerit point scheme is proposed new subsection 72TO(6), which authorises the Secretary of the Department of Defence to consider additional matters to those prescribed by the RPA when determining whether to withdraw an infringement notice. In particular, it authorises the Secretary to consider whether a court has previously imposed a penalty on the person for contravention of offence provisions in Part VIB of the Defence Act.199

The Explanatory Memorandum notes that this will have the effect of ensuring that the Secretary is able to consider whether a person has a history of offences against Part VIB but does not explain why it was considered necessary to retain this factor.

Prospective application of the proposed amendments Item 5 provides for the prospective application of the proposed amendments to contraventions of Part VIB of the Defence Act occurring on or after the commencement of the proposed amendments, if enacted.200

Item 5 also preserves the appointment of authorised persons under the infringement notice scheme in Part 6 of the Woomera Prohibited Area Rule, and the authority of the Secretary to rescind such appointments.201 It further preserves the continuation of the demerit point scheme in Part 7 of the Woomera Prohibited Area Rule.202

Minor variation to the application of Part 5 of the Regulatory Powers Act Variations to preserve the ‘demerit points’ regime

The Explanatory Memorandum identifies some instances of minor variation of the standard provisions in Part 5 of the RPA, and notes that these are mainly directed to preserving the demerit point regime provided for in Part 7 of the Woomera Prohibited Area Rule to the extent it applies to contraventions of the offence provisions in section 72TG.203

In particular, proposed new subsection 72TO(5) provides that demerit points under Part 7 of the Woomera Prohibited Area Rule may be incurred in addition to an infringement notice, and requires infringement notices to include an express statement to this effect. Proposed new subsection 72TO(7) also provides that a person who pays the amount specified in an infringement notice may also incur demerit points.

Other variations—Withdrawal of infringement notices

One further variation unrelated to the demerit point scheme is proposed new subsection 72TO(6), which authorises the Secretary of the Department of Defence to consider additional matters to those prescribed by the

198. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 149-150 (comparison tables) and pp. 152-153. 199. The relevant provision of the RPA, subparagraph 106(3)(b)(i), provides that the decision-maker may take into account whether a court has previously imposed a penalty on the person for a contravention of a provision subject to an infringement notice that is in the same Act or legislative instrument as the provision in relation to which the current infringement notice is given. (Proposed new subsection 72TO(6)

expands this to cover several offence provisions in Part VIB of the Defence Act.) 200. Schedule 5, sub items 5(1) and 5(2). 201. Schedule 5, sub items 5(3) and 5(4). 202. Schedule 5, sub item 5(5). 203. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 149-150 (comparison tables) and pp. 152-153.

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RPA when determining whether to withdraw an infringement notice. In particular, it authorises the Secretary to consider whether a court has previously imposed a penalty on the person for contravention of offence provisions in Part VIB of the Defence Act.204

The Explanatory Memorandum notes that this will have the effect of ensuring that the Secretary is able to consider whether a person has a history of offences against Part VIB but does not explain why it was considered necessary to retain this factor.

Comment

Limited substantive legal effect of the proposed amendments The proposed amendments in Schedule 5 do not appear to raise significant issues. The modified application of certain provisions of Part 5 of the RPA enable the continued application of the demerit point system under Part VIB of the Defence Act and the Woomera Prohibited Area Rule.

As noted above, the Explanatory Memorandum does not identify why it is considered necessary to expressly retain the additional considerations to those in the RPA with respect to the withdrawal of an infringement notice. However, it does not seem unreasonable for the statute to expressly authorise the Secretary to take into account the totality of a person’s history of compliance (or non-compliance) with the requirements of Part VIB of the Defence Act, and not merely their history of contravening permit conditions under section 72TG.

This is arguably already permissible under subparagraph 106(3)(b)(iv) of the RPA, which permits the decision-maker to take into account any other matter he or she considers relevant. However, the inclusion of an express statutory requirement to consider a person’s history of contraventions of Part VIB of the Defence Act may facilitate consistency and transparency in decision-making in this respect.

Redundancy of provisions of the Woomera Prohibited Area Rule As with the infringement notice provisions in the relevant regulations discussed in relation to Schedules 2 and 3 above, it is desirable, in the interests of transparency and Parliamentary oversight, that the infringement notice scheme currently established under the Woomera Prohibited Area Rule is elevated to primary legislation.

The proposed amendments would also make redundant the infringement notice provisions in the Woomera Prohibited Area Rule. The Explanatory Memorandum indicates an intention to repeal this part of the Rule upon the commencement of the amendments in Schedule 5, if enacted. As mentioned in relation to Schedules 2 and 3 above, a more streamlined and efficient course of action would be for the amending legislation to simply repeal the relevant part of the Rule, in order to avoid the retention of a spent legislative instrument for any period of time (although, as with Schedules 2 and 3, there may be practical reasons why the administering portfolio may wish to separately develop a repealing instrument).

Schedule 6—Amendment of the Defence Reserve Service (Protection) Act 2001

Overview of regulatory scheme The Defence Reserve Service (Protection) Act 2001 (the DRSPA) protects members of the Australian Defence Force Reserves in their employment and education, to facilitate their return to civilian life. It sets out several entitlements of persons who are rendering, or have rendered, defence service as members of the Reserves (and their dependents in some cases).205 It also includes prohibitions on conduct that discriminates against Reserve members, including in their employment or other work, and creates offences for contravention and a scheme of compensation orders in relation to persons who are found guilty of an offence.206

The DRSPA provides for civil remedies, including injunctions to restrain contraventions, and a civil enforcement regime under which a person who suffers loss and damage as a result of a contravention of the DRSPA can

204. The relevant provision of the RPA, subparagraph 106(3)(b)(i), provides that the decision-maker may take into account whether a court has previously imposed a penalty on the person for a contravention of a provision subject to an infringement notice that is in the same Act or legislative instrument as the provision in relation to which the current infringement notice is given. (Proposed new subsection 72TO(6) expands this to cover several offence provisions in Part VIB of the Defence Act.)

205. Defence Reserve Service (Protection) Act 2001 (the DRSPA), section 11 (summary table of protections and benefits provided for in Parts 4-12). 206. DRSPA, Parts 4-9 (protections against discrimination) and Part 11 (enforcement and remedies).

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commence civil proceedings to recover the amount of the loss or damage, whether or not the contravention also constitutes an offence.207

Application of the Regulatory Powers Act—Enforcement powers (injunctions) Item 2 proposes to repeal the injunction provisions in section 75 of the DRSPA and substitute them with new provisions triggering the injunction provisions in Part 7 of the RPA.208 The Explanatory Memorandum contains a comparative table of the existing and amended provisions.209

Item 3 provides for the prospective application of the proposed amendments in items 1 and 2 to contraventions or alleged contraventions occurring on or after the commencement of Schedule 6 (if enacted) and for the continuation of existing section 75 in relation to alleged contraventions occurring prior to the commencement of Schedule 6 (if enacted). This item also provides that persons who are prescribed by the Regulations as having standing to apply to the court for an injunction will continue to have standing after the commencement of the proposed amendments.

Comment The proposed amendments to the DRPSA do not appear to raise significant issues with respect to the modified application of the standard provisions of the RPA, or the extension of existing regulatory powers, but rather appear to modernise and standardise matters of drafting.

207. DRSPA, Part 11 (enforcement and remedies). 208. Schedule 5, item 2. (Item 1 is a consequential amendment, which inserts a definition of the RPA for the purpose of proposed new section 75). 209. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, p. 157. See also p. 158 (‘application of the standard injunction provisions of the Regulatory Powers Act will not result in an expansion of the current regulatory powers framework of the Defence

Reserve Service (Protection) Act’.)

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Schedule 7—Amendment of the Greenhouse and Energy Minimum Standards Act 2012

Overview of regulatory scheme The Greenhouse and Energy Minimum Standards Act 2012 (GEMS Act) is the principal piece of legislation establishing a national framework for product energy efficiency in Australia, known as the Equipment Energy Efficiency (E3) Program. The GEMS Act establishes a scheme of minimum standards for the energy efficiency and labelling of commercial products that use energy, or affect the energy used by another product.

The GEMS Act and legislative instruments made under the GEMS Act regulate the commercial supply and use of regulated products (GEMS products) by prescribing minimum requirements relating to matters including energy consumption, greenhouse gas production, labelling and some other matters including the environment and human health.210

In particular, the GEMS Act authorises the Environment Minister to make determinations via legislative instrument (GEMS determinations) prescribing the standards and other requirements for different classes of GEMS products.211

The GEMS Act also establishes the GEMS Register under which manufacturers and importers of GEMS products (or others connected to the supply of the model in Australia) may apply for the registration of specific models of products against the corresponding GEMS determination for the class of products to which the model belongs. To be registered against a GEMS determination, the model must comply with the requirements of the relevant determination.212

The GEMS Act imposes offences and civil penalty provisions for the commercial supply, offers of supply or use of GEMS products that do not comply with the applicable GEMS determination and registration requirements.213 The GEMS Act also establishes the office of the GEMS Regulator and invests it with functions and powers relating to the conduct of educational, compliance monitoring, investigation and enforcement activities (including civil penalty orders, infringement notices, enforceable undertakings and injunctions).214

The GEMS Act was among the legislation identified by AGD in March 2013 as having been drafted on the basis of precedent provisions which informed the development of the RPA.215 Consequently, the proposed amendments in Schedule 7 do not appear to materially alter the substantive legal effect of the regulatory regime established under the GEMS Act, but rather update its provisions to apply the corresponding provisions of the RPA.

Application of the Regulatory Powers Act—Monitoring, investigation and enforcement powers Schedule 7 proposes to apply the full suite of standard monitoring, investigation and enforcement provisions in Parts 2-7 of the RPA to the GEMS Act. Only a small number of standard provisions of the RPA are applied with modifications, most of which are relatively minor in nature and preserve existing powers in the GEMS Act.216

Key amending items The key amending items are:

• item 35, which inserts new Divisions 4 and 5 of Part 7 of the GEMS Act (applying the standard monitoring and investigation powers in Parts 2 and 3 of the RPA), and

• item 39, which inserts new Divisions 2-5 of Part 8 of the GEMS Act (applying the standard civil penalty, infringement notice, enforceable undertaking and injunction provisions in Parts 4-7 of the RPA).

210. Greenhouse and Energy Minimum Standards Act 2012 (GEMS Act), Part 3 (requirements for supplies and commercial users of GEMS products). Examples of GEMS products include certain types of heating and cooling devices such as air conditioners, heaters and fans; whitegoods including clothes washing machines, dryers, dishwashers and refrigerators and freezers; certain types of lighting; and other products including televisions and computers. (See further, Equipment Energy Efficiency (E3) Program, ‘Products’, Australian Government Energy Rating website.)

211. GEMS Act, Part 4 (GEMS determinations). 212. Ibid., Part 5 (registering models of GEMS products). 213. Ibid., sections 16 and 17 (offences and civil penalty provisions for non-compliance with determination and registration requirements applying to the supply of GEMS products), and sections 18 and 19 (offences and civil penalty provisions for non-compliance with determination and

registration requirements applying to the commercial use of GEMS products). 214. Ibid., Part 6 (GEMS Regulator), Part 7 (monitoring and investigation) and Part 8 (enforcement). 215. AGD, Senate Standing Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, op. cit. 216. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 163-167 (comparative table of provisions).

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Other amending items make consequential amendments, such as inserting definitions and other cross-references to the standard provisions of the RPA as applied to the GEMS Act.

Modifications to the application of the standard provisions of the Regulatory Powers Act The Explanatory Memorandum identifies eight instances in which Schedule 7 proposes to modify the application of the standard compliance monitoring, investigation and enforcement provisions of the RPA in relation to the GEMS Act.217 It states that these instances of modification are intended to retain existing powers in the GEMS Act that do not have an equivalent in the RPA, and are said to be necessary for the effective operation of the regulatory regime established under the GEMS Act.218

The majority of proposed modifications are relatively minor variations to procedural requirements in the RPA, such as the use of identity cards by authorised persons exercising investigation powers,219 the content of infringement notices and enforceable undertakings220 the publication of enforceable undertakings,221 and the issuing of injunctions by consent.222

However, two instances of proposed modification would maintain a substantive difference in the legal rights and liabilities of regulated entities under the GEMS Act, as compared to the position if the corresponding provisions of the RPA were applied without modification. These are as follows.

Use of force in the execution of warrants—Proposed new subsections 87(14) and 88(13) (item 35)

These provisions state that authorised persons and persons assisting authorised persons to execute a monitoring warrant or an investigation warrant may use such force against things as is necessary and reasonable in the circumstances. There is no equivalent authorisation in the RPA.

The Explanatory Memorandum states that it is necessary to retain this power because a GEMS inspector ‘may need to open locked doors, cabinets, drawers and other similar objects that the inspector reasonably suspects contain evidential material’ that would demonstrate a contravention of the GEMS Act.223 It further states that the general obligations in sections 31 and 63 of the RPA to provide reasonable assistance and facilities to a person executing a monitoring warrant or an investigation warrant may not be sufficient to ensure that GEMS inspectors gain the access necessary to exercise their powers.224

Burden of proof in relation to exceptions to civil penalty provisions—Proposed new subsection 129(4) (item 39)

This provision excludes the application of section 96 of the RPA to certain civil penalty provisions in Part 3 of the GEMS Act (namely, contraventions by suppliers and commercial users of GEMS products of obligations to comply with GEMS determination and registration requirements).

As mentioned earlier in this Bills Digest, section 96 of the RPA imposes an evidential burden on the respondent in civil penalty proceedings, in relation to any exceptions or exemptions upon which he or she seeks to rely. Currently, several exceptions to civil penalty provisions in Part 3 of the GEMS Act contain multiple limbs, some of which impose an evidential burden on the applicant for a civil penalty order, and others on the respondent.225

The Explanatory Memorandum states that the retention of the existing approach to the allocation of the legal and evidential burdens is appropriate because the matters for which the respondent has the burden of proof are solely within his or her knowledge, whereas evidence of the matters for which the applicant has the burden of

217. Ibid. 218. Ibid., p. 160. 219. Item 35—proposed new subsection 88(10) (obligation of the Secretary to issue an identity card to the GEMS Regulator). (See also: Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 193.)

220. Item 39—proposed new subsection 130(7) (infringement notices) and proposed new subsection 131(4) (enforceable undertakings). (See also: Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 199.) 221. Items 40-47—amendments to section 162 (publication of contraventions, etc.). (See also: Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 203-206.) 222. Item 39—proposed new subsection 132(4) (consent injunctions). (See also: Explanatory Memorandum, Regulatory Powers (Standardisation

Reform) Bill 2016, op. cit., p. 203.) 223. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 189 (proposed new subsection 87(14)— monitoring) and p. 193 (proposed new subsection 88(13)—investigation). 224. Ibid., pp. 189-190 (proposed new subsection 87(14)—monitoring) and pp. 193-194 (proposed new subsection 88(13)—investigation). 225. For example, GEMS Act, subsections 16(8), 17(8), 18(8) and 19(8).

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proof is reasonably available to the applicant.226 Accordingly, it states that the application of section 96 of the RPA to the civil penalty provisions in Part 3 of the GEMS Act would have the adverse effect of requiring a respondent to adduce or point to evidence suggesting a reasonable possibility that all limbs of the relevant exception are established, based upon information or material that is reasonably available to the prosecution.227 It further states that the non-application of section 96 of the RPA will ensure that ‘the onus of proof continues to be reversed for only those matters that are uniquely within the knowledge’ of the respondent.228

Provision gained through the application of the Regulatory Powers Act The Explanatory Memorandum identifies one new provision gained through the application of the standard investigation powers in Part 3 of the RPA to the GEMS Act, which does not currently contain an equivalent provision.229 This is the application of section 69 of the RPA, which is a standard constitutional savings provision with respect to the ‘just terms’ guarantee in section 51(xxxi) of the Constitution.230 The Explanatory Memorandum notes that the application of this provision will ensure the constitutional validity of the power in section 68 of the RPA, and will protect regulated entities against unjust acquisitions.231

The Explanatory Memorandum also identifies one new provision gained through the application of the standard civil penalty provisions in Part 4 of the RPA. This is the ‘attribution’ provision in section 97 of the RPA which provides for the circumstances in which a body corporate will be liable for the contravention of a civil penalty provision by an employee, officer or agent who is acting within his or her apparent authority.232

Other minor amendments to the existing provisions of the GEMS Act Item 8 amends the definition of ‘relevant court’ in section 5 of the GEMS Act for the purpose of the enforcement provisions. It inserts the Federal Circuit Court, in addition to the Federal Court which is already included.

The Explanatory Memorandum notes that this is consistent with Commonwealth policy with respect to the conferral of federal jurisdiction. In particular, where the Federal Court is invested with jurisdiction, it is considered appropriate to confer concurrent jurisdiction upon the Federal Circuit Court unless the matter requires the specialised knowledge and expertise of judges appointed to the Federal Court. This is intended to ensure the widest possible conferral of jurisdiction to ensure efficient dispute resolution at the lowest possible level of court, and the distribution of workload between courts.233

Retrospective application of some proposed amendments. Items 48-59 provide for the saving of actions taken under the existing provisions of the GEMS Act prior to the commencement of Schedule 7, if enacted. (For example, they preserve the validity of identity cards issued and enforcement orders made.)

These items also provide for the monitoring and investigation powers in the RPA to be exercised in relation to alleged or potential contraventions of the GEMS Act occurring before, on or after the commencement of Schedule 7, if enacted. The Explanatory Memorandum states that the retrospective application of the proposed amendments is considered appropriate because the proposed amendments in Schedule 7 do not ‘impact rights or impose liabilities’ on regulated entities because they do not ‘expand the existing regulatory framework of the GEMS Act’.234

226. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, p. 197. 227. Ibid. 228. Ibid. 229. Ibid., pp. 165 (comparative table) and p. 194 (substantive discussion). 230. Section 69 of the RPA provides that, if the operation of section 68 (the power to dispose of things seized under the investigative powers in

Part 3 of the RPA) would result in an acquisition of property from a person other than on just terms (contrary to section 51(xxxi) of the Constitution) the Commonwealth is liable to pay a reasonable amount of compensation to the person. 231. Ibid., p. 194. 232. Ibid., pp. 166 and 198. 233. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 169-170. 234. Ibid., p. 208 (item 51—monitoring powers), p. 209 (item 52—investigation powers).

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Comment

Limited substantive legal effect of most proposed amendments With one exception, the proposed amendments made by Schedule 7 do not appear to raise significant issues. The exception (discussed below) relates to the safeguards attending the power to exercise reasonable force against things in the execution of monitoring and investigation warrants.

Exception—Use of force in the execution of monitoring and investigation warrants While Schedule 7 proposes to continue the application of existing use of force powers under the GEMS Act, the proposed application of the RPA arguably makes it appropriate to give further consideration to the scope and safeguards applied to the power. In particular, the absence of a use of force provision in the standard monitoring and investigation powers in Parts 2 and 3 of the RPA makes it clear that such powers are exceptional, in that they were not considered appropriate for inclusion in the standard suite of regulatory powers.235

Although the Explanatory Memorandum outlines the perceived operational need for retaining the use of force powers in the GEMS Act, it does not provide an explanation of the breadth of the power conferred or applicable safeguards.

Breadth of the classes of persons who may use force

In particular, the Explanatory Memorandum does not identify why it is considered appropriate to confer the power upon all GEMS inspectors and all persons assisting them. It does not explain why the power could not be conferred upon a more limited class of authorised persons with the necessary training and proficiency in the use of reasonable force. (For example, by limiting the power to GEMS inspectors who are police officers, or conferring the power on police officers who may accompany GEMS inspectors executing warrants for the purpose of exercising reasonable force against things if necessary.)

Absence of mandatory qualification and training requirements, and information about oversight arrangements

The GEMS Act also does not appear to prescribe statutory requirements for the training or qualifications that GEMS inspectors or persons assisting must hold in relation to the use of force. Nor does it appear to prescribe any requirements for the documentation, reporting and internal oversight of the use of force by GEMS inspectors or persons assisting them in the course of individual warrant operations. Further, the Explanatory Memorandum does not identify any administrative arrangements in relation to these matters, nor explain the application of independent oversight arrangements under the Ombudsman Act 1976.

Redress mechanism for the use of excessive or unnecessary force against things

In addition, the GEMS Act does not make provision for the payment of compensation or provision of other redress to persons whose property is damaged by the use of excessive or unnecessary force. This seems somewhat anomalous in light of section 29 of the RPA (which is applied to the GEMS Act by proposed new section 87 in item 35).

Section 29 of the RPA requires the Commonwealth to pay compensation for damage to electronic equipment, data or programs caused by the exercise of monitoring powers under Part 2 of the RPA, if the person executing the warrant takes insufficient care.

This means, for example, if a regulated entity's computer system is damaged (or if data held on that system is lost or corrupted) because a GEMS inspector or an assistant fails to take reasonable care, section 29 of the RPA provides for the Commonwealth's statutory liability to pay compensation. It also provides for a statutory remedy if agreement is not reached on the amount of compensation payable (via application to the court).

In contrast, if a regulated entity's physical property (such as a storage cabinet) is damaged due to the use of unnecessary or excessive force, there is no comparable statutory liability or remedy. The regulated entity must commence civil proceedings against the GEMS Regulator seeking compensation, or may be reliant upon a discretionary payment by the Commonwealth in the nature of a settlement or an ex gratia payment.

235. More detailed discussion of this matter is provided below in the analysis of Schedule 14 to the Bill, which proposes to retain use of force powers under the Tobacco Plain Packaging Act 2014. (See also the discussion below of Schedules 9 and 10 which propose to retain use of force powers under the Illegal Logging Prohibition Act 2012 and the Industrial Chemicals (Notification and Assessment) Act 1989.)

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The absence of a corresponding provision to section 29 of the RPA for the use of unnecessary or excessive force means that physical objects or things and electronic equipment are treated differently under the GEMS Act. It is not clear why this differential treatment is proposed to be preserved via the modified application of the RPA to the GEMS Act. In the absence of a justification in the Explanatory Memorandum, this distinction seems arbitrary. Arguably, the modified application of Parts 2 and 3 of the RPA to the GEMS Act to permit the use of force against things should be accompanied by a corresponding provision to section 29 of the RPA, in relation to the payment of compensation for the use of unreasonable or unnecessary force against things.

Schedule 8—Amendment of the Horse Disease Response Levy Collection Act 2011

Overview of regulatory scheme The Horse Disease Response Levy Collection Act 2011 (Horse Disease Act) and the Horse Disease Response Levy Act 2011 (Levy Act) were enacted to give effect to the Emergency Animal Disease Response Agreement (EADRA) in relation to the horse industry.

The EADRA is a contractual agreement between the Commonwealth, state and territory governments and livestock industry groups to improve Australia's capacity to prepare for and respond to emergency animal disease incidents.236 According to the Department of Agriculture and Water Resources:

The EADRA assures the horse industry of access to the necessary resources and finances to mount an emergency response to an exotic disease incursion. The Horse Disease Response Levy is necessary so that the horse industry can fund its share of obligations in responding to a national emergency disease outbreak affecting the industry. 237

The Horse Disease Act provides the Commonwealth with the authority to collect and administer levies on horse feed and worm treatments.238 The levies are imposed, and their amounts determined, under the Levy Act.239

In particular, the Horse Disease Act imposes penalties for unpaid levies, allows the Commonwealth to recover levies that are due, and provides for refunds where necessary.240 The Horse Disease Act confers compliance monitoring powers on the Secretary of the Department of Agriculture and Water Resources and persons authorised by the Secretary.241 These include powers to seek the compulsory provision of information or documents, and to enter premises and conduct searches for evidential material and to exercise various monitoring powers, which are similar to those in Part 2 of the RPA (such as inspecting things, taking extracts or images or recordings, and operating electronic equipment to access relevant data). The monitoring powers in the Horse Disease Act also include a power to seize a thing found on the premises, which is not among the monitoring powers in Part 2 of the RPA.

The Horse Disease Act was among the legislation identified by AGD in March 2013 as being drafted in accordance with precedent provisions that subsequently informed the development of the RPA.242 (However, as noted above, the seizure powers exceed the monitoring powers available under Part 2 of the RPA.)

Application of the Regulatory Powers Act—Compliance monitoring powers Schedule 8 proposes to amend the Horse Disease Act to replace its compliance monitoring powers with the corresponding monitoring powers in Part 2 of the RPA, subject to modifications primarily to retain the existing seizure powers in Part 3 of the Horse Disease Act. The key amendments are in items 3 and 4, which enact a new Division 2 of Part 3, comprising Subdivision A (monitoring powers) and Subdivision B (provisions relating to seizure).

236. See further, Animal Health Australia, ‘EAD Response Agreement’, Animal Health Australia website, updated 22 September 2016. 237. Department of Agriculture and Water Resources (DAWR), ‘Horse disease response levy review’, DAWR website, updated 5 September 2016. 238. Horse Disease Response Levy Collection Act 2011 (Horse Disease Act), Part 2 (collection of levy). 239. Horse Disease Response Levy Act 2011 (Levy Act), see especially section 5 (imposition of levy), section 6 (who is liable to pay levy) and section

7 (amount of levy). 240. Horse Disease Act, Part 2 (collection of levy). 241. Ibid., Part 3. 242. AGD, Senate Standing Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, op. cit.

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Modifications to the application of the standard provisions of the Regulatory Powers Act Item 4 modifies the application of the standard monitoring powers in Part 2 of the RPA through the insertion of proposed new subsections 13(12) and 13(13) which confer the additional power to seize any thing at any premises entered under section 18 of the RPA. Proposed new Subdivision B of Division 2 of Part 3 of the Horse Disease Act also preserves the existing procedural provisions relating to seizure, including requirements to provide copies of and receipts for things seized; and provisions governing the return, retention or disposal of things seized.

The justification for the proposed retention of power of seizure as part of the monitoring powers is discussed below in the ‘comments’ section relating to Schedule 8.

Provisions gained through the application of the Regulatory Powers Act One provision is proposed to be gained through the application of the RPA, as there is presently no equivalent in the Horse Disease Act. This is the application of section 33 of the RPA, which prescribes a process for obtaining extensions of the 24-hour time period in which electronic equipment or a thing may be secured under sections 21 and 22 of the RPA. The Explanatory Memorandum states that this provision is ‘merely procedural’ in nature.243

Retrospective application of some proposed amendments Items 6 and 7 contain application and savings provisions. Sub item 6(1) provides for the retrospective application of the monitoring powers in Part 2 of the RPA, for the purpose of monitoring compliance with obligations under the Horse Disease Act before, on or after the commencement of Schedule 11, if enacted.

The Explanatory Memorandum states that this retrospective operation is considered necessary to ensure continuity in the monitoring powers under the Horse Disease Act, and is appropriate because the proposed amendments in Schedule 8 do not expand the existing regulatory framework and therefore will not impact rights or impose liabilities on persons subject to monitoring provisions.244

Sub item 6(2) preserves the validity of actions taken under the existing monitoring provisions of the Horse Disease Act prior to the commencement of Schedule 11, including monitoring warrants issued and warrant applications made, and things seized or secured. Item 7 is a savings provision in relation to identity cards.

Comment

Limited substantive legal effect of most proposed amendments With one exception, the proposed amendments in Schedule 8 are fairly described as procedural or otherwise minor in nature. The exception is the proposal to modify the application of the monitoring powers in Part 2 of the RPA to preserve the powers of seizure and related procedural provisions in existing Part 3 of the Horse Disease Act.

Exception—Power of seizure as part of compliance monitoring powers There is a threshold policy question as to whether powers of seizure should be conferred as part of monitoring powers, or whether they should be reserved to investigative powers (and therefore subject to separate authorisation requirements, which require the suspected commission of a contravention of the relevant regulatory legislation). The RPA takes the latter approach, presumably in recognition of the intrusive nature of seizure and its adverse impacts on regulated entities in denying them the opportunity to have possession and use of their property.245 Accordingly, the proposed retention of the seizure powers in the Horse Disease Act arguably represents a significant departure from the approach taken to the framing of the RPA.

243. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 219. 244. Ibid., pp. 223-224. 245. See, for example, the Guide to framing Commonwealth offences, infringement notices and enforcement powers at p. 87 which states that monitoring warrants should follow the established principles set out in the Guide, which relevantly limit the features of such warrants to the

power to temporarily secure evidence of suspected contraventions, if the authorised officer has reasonable grounds to believe that evidence of a contravention would be lost, destroyed or tampered with by the time a separate search / seizure warrant is obtained. (The Guide also states, at p. 82, that seizure should only be allowed under a warrant, even if entry and search without warrant are permitted, and that if entry is permitted under a monitoring warrant or without warrant, then a temporary power to secure should be provided, pending a search

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This departure calls into question the adequacy of the justification provided in the Explanatory Memorandum of the operational need for seizure powers as part of the monitoring powers in the Horse Disease Act. The Explanatory Memorandum refers briefly to the voluminous and complex nature of evidential material, which may preclude its thorough examination on the premises during the exercise of compliance monitoring powers, and notes that the power of seizure will prevent evidence from being concealed, lost or destroyed.246

However, the Explanatory Memorandum does not provide further information explaining why the exercise of the general monitoring powers under Part 2 of the RPA to take copies, extracts, recordings or images would not be practicable or effective. In addition, the power of seizure in proposed new subsection 13(13) of the Horse Disease Act is not limited to circumstances in which the authorised person believes, on reasonable grounds, that the exercise of less intrusive monitoring powers would be ineffective or impracticable (including by reason of circumstances of emergency or urgency; or a risk that the relevant evidence may be concealed, lost or destroyed unless seized in the course of exercising monitoring powers).247 Accordingly, there do not appear to be clear statutory safeguards to ensure that the power of seizure can only be exercised in the circumstances described in the Explanatory Memorandum.

However, the Explanatory Memorandum also notes that there are comparable seizure powers in other legislation governing the collection of emergency animal disease response levies from other industries, including the Primary Industry Levies and Charges Collection Act 1991. It states that the Department is scheduled to undertake a review of the regulatory powers in all legislation governing the collection of the levy in the next 12 months.248

At the time of writing this Bills Digest, the Department’s website indicates that a review of the Horse Disease Levy was in progress, with a consultation period running from 29 July to 29 August 2016. Submissions to the review do not appear to have been published, and the website does not provide an indicative reporting date or timeframe.249 Members of the Parliament may be content to leave the question of the necessity and appropriateness of seizure provisions (as part of compliance monitoring rather than investigative powers) to the Departmental review, and to consider any future legislative proposals that may arise from its recommendations.

Schedule 9—Amendment of the Illegal Logging Prohibition Act 2012

Overview of regulatory scheme The Illegal Logging Prohibition Act 2012 (Illegal Logging Act) establishes a regulatory framework to prohibit the importation and sale of illegally logged timber products in Australia, and the processing in Australia of illegally logged raw logs.250 It also requires importers of regulated timber products and processors of raw logs to conduct due diligence in relation to whether the products or raw logs were logged illegally.251

The Illegal Logging Act confers monitoring, investigation and enforcement powers on inspectors appointed by the Secretary of the Department of Agriculture and Water Resources.252 These are substantially similar to the monitoring, investigation, civil penalty and infringement notice provisions in Parts 2, 3, 4 and 5 of the RPA.

warrant application. It explains that ‘seizure is a significant coercive power and the Commonwealth has consistently taken the approach it should require authorisation under a search warrant’.) 246. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 218. 247. Note that the Guide to framing Commonwealth offences, infringement notices and enforcement powers, (at p. 83) states that ‘there is a very limited range of circumstances where it may be appropriate to allow officers the ability to seize pending the issue of warrant’ and refers to previous reports of the Senate Standing Committee for the Scrutiny of Bills which identify examples including emergencies, serious dangers to public health, or threats to national security. The Guide further states that seizure in such circumstances ‘would only be appropriate where reasonably necessary to resolve a situation of immediate emergency’. 248. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 219. 249. DAWR, ‘Horse disease response levy review’, DAWR website, updated 5 September 2016. 250. Illegal Logging Prohibition Act 2012 (Illegal Logging Act), Part 2, Division 1 (importing illegally logged timber) and Part 3, Division 1 (processing illegally logged raw logs). 251. Ibid., Part 2, Division 2 (importers' due diligence) and Part 3, Division 2 (processors' due diligence). The Regulations made under the Illegal Logging Act contain civil penalty provisions relating to contraventions of due diligence obligations: Illegal Logging Prohibition Regulation 2012, regulations 9-16 (contravention of obligations imposed on importers to comply with due diligence requirements), regulations 17-25 (contravention of obligations imposed on processors to comply with due diligence requirements). 252. Illegal Logging Act, Part 4 (monitoring, investigation and enforcement).

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This reflects that the Illegal Logging Act was among the legislation identified by AGD in March 2013 to have been drafted in accordance with precedent provisions which subsequently informed the development of the RPA.253

Application of the Regulatory Powers Act—Monitoring, investigation and enforcement powers Schedule 9 proposes to amend the Illegal Logging Act to apply the standard provisions of Parts 2, 3, 4 and 5 of the RPA. The key amendments are contained in item 8, which inserts new Divisions 2-5 in Part 4 of the Illegal Logging Act to trigger the application of the above provisions of the RPA.

Modifications to the application of the standard provisions of the Regulatory Powers Act The Explanatory Memorandum identifies a small number of proposed modifications to the standard monitoring and investigation powers in Parts 2 and 3 of the RPA, which preserve existing powers in the Illegal Logging Act for which there are no equivalent provisions in the RPA.254 The two main areas of modification are the power to sample any thing on the premises in the exercise of monitoring and investigation powers,255 and the power to use reasonable force against things in the course of executing an investigation warrant.256

The Explanatory Memorandum states that the power to take samples is an essential element of the monitoring and investigation powers, as it enables inspectors to take a physical DNA sample of a timber or wood-based product in order to verify the characteristics of timber (such as genus, species, and country or region of harvest) which can determine whether the product is what the importer or processor claims it to be. The Explanatory Memorandum further states that ‘the importance of this power is likely to increase in the future, as improved DNA sampling techniques will enable inspectors to gather detailed evidence from timber samples’ and notes similar regulatory arrangements in the United Kingdom and Germany.257

The Explanatory Memorandum further states that the power to exercise reasonable force against things in the course of executing an investigation warrant is considered to be necessary because an inspector (or a person assisting) ‘may need to open locked doors, cabinets, drawers and other similar objects’ that are suspected to contain evidential material that would demonstrate a contravention of the Illegal Logging Act.258 It also states that the offence provision in section 63 of the RPA in relation to occupiers (or others) of premises who fail to provide reasonable facilities and assistance to persons executing an investigation warrant may be inadequate to ensure that inspectors can gain access to evidential material.259

Provisions gained through the application of the Regulatory Powers Act The Explanatory Memorandum also identifies a small number of provisions gained through the proposed application of the RPA to the Illegal Logging Act.260 These include procedural provisions relating to the extension of the period of time for which things may be secured under the exercise of monitoring and investigation powers,261 the procedure for retaining a thing seized in the exercise of investigation powers,262 and requirements of proof in relation to civil penalty provisions.263

253. AGD, Senate Standing Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, op. cit. 254. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 227-231 (comparative table of provisions). 255. Schedule 9, item 8—proposed new subsection 21(11) (monitoring powers), and proposed new subsection 22(10) (investigation powers). 256. Schedule 9, item 8—proposed new subsection 22(11). 257. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 236 and p. 240. 258. Ibid., p. 240. 259. Ibid., p. 241. 260. Ibid., pp. 228-230. 261. RPA, sections 33 and 74. 262. Ibid., subsection 67(3). 263. Ibid., section 96 (respondent bears evidential burden in relation to exceptions to civil penalty provisions) and section 97 (liability of bodies

corporate for contraventions committed by employees, officers and agents acting within the scope of their apparent authority). Although the Explanatory Memorandum (at p. 243) does not provide information about the potential impact of section 96 of the RPA on the civil penalty provisions in the Illegal Logging Prohibition Regulation 2012, these provisions do not contain exceptions or exemptions. As such, it appears that section 96 of the RPA will not have a substantive impact on existing civil penalty provisions. However, if new civil penalty provisions containing exemptions are proposed in future, section 96 will apply to them unless excluded. This matter will require appropriate scrutiny in the event any such amendments are subsequently proposed, either in the Regulation (with a view to possible disallowance) or in amending Bills (with a view to possible amendment during debate).

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Other proposed amendments to the existing provisions of the Illegal Logging Act Proposed new subsection 21(9) (item 8) extends jurisdiction in relation to provisions and information subject to monitoring to the Federal Circuit Court, in addition to the Federal Court. The Explanatory Memorandum indicates that the conferral of concurrent jurisdiction upon both courts is consistent with Commonwealth policy with respect to federal jurisdiction. (Namely, concurrent jurisdiction should be conferred unless the matter requires the specialised expertise of the Federal Court.)264

Retrospective application of some proposed amendments Item 10 provides for the retrospective application of the proposed amendments regarding monitoring and investigation powers in relation to contraventions or alleged contraventions occurring before the commencement of Schedule 9, if enacted (as well as contraventions or alleged contraventions occurring at or after the commencement of Schedule 9).

The Explanatory Memorandum states that the retrospective application of the proposed amendments to the monitoring and investigation powers in Schedule 9 is considered appropriate because the measures do not expand the existing regulatory framework under the Illegal Logging Act. Therefore, it suggests that retrospective application does not impact rights or impose liabilities on a person who is subject to the monitoring and investigation powers.265

Items 9-12 also contain savings provisions, which preserve the validity of actions done under the provisions of the Illegal Logging Act prior to the commencement of Schedule 9. Items 11 and 12 further provide for the prospective application of the proposed amendments relating to civil penalty provisions and infringement notices. (That is, the provisions of Parts 4 and 5 of the RPA will apply to alleged contraventions of the civil penalty provisions of the Illegal Logging Act occurring on or after the commencement of Schedule 9.)

Comment On balance, the proposed amendments are fairly described as procedural or otherwise minor in their legal effect. However, as with the above discussion of the proposed amendments to the GEMS Act in Schedule 7, the proposed retention of the use of force provisions in the Illegal Logging Act merits further scrutiny.

Use of force against things in the course of executing an investigation warrant The Explanatory Memorandum does not contain justification for the breadth of the classes of persons who may use force (inspectors and persons assisting) including an explanation of why the power could not be limited to police officers accompanying inspectors, or others who are trained in the lawful use of force. Nor does the Explanatory Memorandum describe applicable administrative oversight and accountability arrangements to ensure that force is used only where necessary and appropriate, and is limited to reasonable force, and that any instances of unnecessary or unreasonable force are identified and remediated.

The Illegal Logging Act does not appear to prescribe mandatory qualification or training requirements with respect to the use of force. Like the use of force provisions in the GEMS Act (discussed above in relation to Schedule 7) the Illegal Logging Act does not make provision for the payment of compensation or the provision of other redress for persons whose property is damaged by the use of excessive or unnecessary force.

The absence of such a provision produces an anomaly with the protection provided in section 61 of the RPA, which requires the Commonwealth to pay compensation to the owner or user of electronic equipment on the premises, if an authorised person operating that equipment in the course of exercising investigative powers fails to take reasonable care, and the equipment or data stored on the equipment is damaged. This means that physical things and electronic equipment on a regulated entity’s premises could be treated differently under the investigation provisions of the Illegal Logging Act without any apparent justification in the Explanatory Memorandum.

Such differential treatment is arguably arbitrary and could be resolved through the enactment of a similar provision to section 61 of the RPA with respect to property damage caused by the use of unreasonable or unnecessary force against things.

264. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 236. 265. Ibid., p. 246.

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These matters are also discussed below in relation to similar provisions in Schedule 10, which proposes to preserve the use of force provisions in the Industrial Chemicals (Notification and Assessment) Act 1989; and Schedule 14, which proposes to preserve the use of force provisions in the Tobacco Plain Packaging Act 2011.

Schedule 10—Amendment of the Industrial Chemicals (Notification and Assessment) Act 1989

Overview of regulatory scheme The Industrial Chemicals (Notification and Assessment) Act 1989 (ICNA Act) establishes the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) which is administered by the Department of Health and provides for the notification and assessment of industrial chemicals for the protection of human health and the environment.266 The ICNA Act provides that the NICNAS is administered by a Director who is appointed by the Governor-General under the ICNA Act.267

The ICNA Act contains an enforcement regime, under which the Director may appoint inspectors who may exercise compliance monitoring and investigation powers in relation to offences against the ICNA Act or Regulations, or the ancillary and inchoate offences in sections 11.1, 11.4 and 11.5 of the Criminal Code 1995 (attempt, incitement and conspiracy) and section 6 of the Crimes Act 1914 (accessory after the fact).268 The ICNA Act also authorises the Health Minister or any other person to apply to the Federal Court seeking an injunction to restrain a contravention of one of the above offence provisions.269

Application of the Regulatory Powers Act—Monitoring, investigation and enforcement powers Schedule 10 proposes to amend the ICNA Act to apply the standard compliance monitoring, investigation and injunction provisions of Parts 2, 3 and 7 of the RPA.

The key amendments are contained in item 5 (new section 83—injunctions), item 6 (new Divisions 3 and 4 of Part 4—monitoring and investigation) and item 7 (new Division 5 of Part 4—exempt information, such as confidential commercial information, given to inspectors in the exercise of monitoring and investigation powers).

Modifications to the application of the standard provisions of the Regulatory Powers Act The Explanatory Memorandum identifies several proposed modifications to the standard provisions of the RPA, which seek to retain aspects of the existing provisions of the ICNA Act for which there are no equivalent provisions in the RPA.270 Key modifications relate to:

• injunctions—the power of the court to grant an injunction, whether or not the conduct sought to be restrained would constitute a serious or immediate risk of adverse health effects or adverse environmental effects (or in the case of injunctions compelling a person to act, whether or not there would be a serious or immediate risk of the kind described above if the person fails or refuses to do the thing).271 The Explanatory Memorandum states that the retention of this power is necessary to ensure that the Court can make orders restraining potential danger, without needing to wait for the harm or danger to manifest272

• taking and keeping samples—the power to take and keep samples of materials in the exercise of monitoring powers.273 The Explanatory Memorandum states that this power is necessary so that tests can be conducted on relevant items and substances to determine whether they are compliant with the ICNA Act274

266. Industrial Chemicals (Notification and Assessment) Act 1989 (ICNA Act), Part 2 (Australian Inventory of Chemical Substances), Part 3 (Notification and Assessment of Industrial Chemicals) and Part 3A (registration of introducers of industrial chemicals). See further, National Industrial Chemicals Notification and Assessment Scheme (NICNAS), ‘About us’, Department of Health website, updated 28 October 2016.

267. ICNA Act, Part 5. 268. Ibid., Part 4. 269. Ibid., section 83. 270. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 250-253. 271. Item 5—proposed new subsections 83(4)-(6). 272. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 256. 273. Item 6—proposed new subsections 85(12) and 85(13). 274. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 261.

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• use of force—the power to use reasonable force against things in the course of exercising a monitoring warrant or an investigation warrant. 275 The Explanatory Memorandum repeats the justification provided for the use of force provisions in the GEMS Act (Schedule 7) and the Illegal Logging Act (Schedule 9) that this power is necessary for inspectors to gain access to evidential material by opening locked doors, cabinets, drawers and other similar objects. It states that the use of force power will ensure that the execution of monitoring and investigation warrants are not frustrated, and will prevent concealment, loss, destruction of evidential material, or the continued use of things in contravention of the ICNA Act276

• exempt information—the ability of an occupier to make an application to the NICNAS Director to have certain information or evidence compulsorily disclosed to an inspector exercising compliance monitoring or investigative powers treated as ‘exempt information’ under section 75 of the ICNA Act. 277 This means that the relevant information cannot be published and its disclosure is restricted. (Under section 75, the Director may grant an application if satisfied that the publication of the information could reasonably be expected to prejudice substantially the commercial interests of the applicant, and the prejudice outweighs the public interest in publication.) The Explanatory Memorandum states that it is necessary to ensure that the exempt information provisions apply to information obtained via the exercise of the standard monitoring and investigation powers in the RPA, in the same way that the exempt information provisions apply to the existing monitoring and investigation provisions in the ICNA Act.278

Provisions gained through the application of the Regulatory Powers Act As the ICNA Act pre-dates the RPA, and the use of drafting precedent provisions that informed the development of the RPA, a number of new provisions are gained via the application of the RPA to the ICNA Act. These are primarily procedural provisions relating to the authorisation and exercise of monitoring and investigation powers,279 and the extension of the existing monitoring powers in the ICNA Act to information subject to monitoring.280

Other minor amendments to the ICNA Act Items 5 and 6 also confer concurrent jurisdiction on the Federal Circuit Court with that already conferred on the Federal Court to hear and determine injunction applications, and matters relating to monitoring and investigation powers. The Explanatory Memorandum indicates that this is consistent with policy on the conferral of federal jurisdiction (namely, that both courts should be conferred with concurrent jurisdiction, unless the matter requires the specialist expertise of the Federal Court alone).281

Retrospective application of some proposed amendments Part 2 of Schedule 10 (items 9-13) provides for the prospective application of the majority of the proposed amendments to the ICNA Act, and the saving of the existing provisions in relation to actions undertaken before the commencement of Schedule 10 (if enacted).

However, item 11 provides for the retrospective application of the monitoring powers in Part 2 of the RPA, and certain of the investigation powers in Part 3 of the RPA (that is, to alleged contraventions occurring prior to the commencement of Schedule 10).

The Explanatory Memorandum states that this retrospective application is considered appropriate because the application of the standard monitoring and investigation powers does not expand the existing regulatory framework of the ICNA Act, and therefore retrospective application does not impact rights or impose liabilities on regulated entities.282

275. Item 6—proposed new subsection 85(11) (monitoring powers) and proposed new subsection 86(10) (investigation powers). 276. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 260 (compliance monitoring) and p. 268 (investigation). 277. Item 7—proposed new section 89 (exempt information given to inspectors). 278. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 276. 279. RPA, sections 21-34 (monitoring powers) and sections 50-75 (investigation powers) per item 6 (proposed new sections 85 and 86). 280. Ibid., section 9 (information subject to monitoring) per item 6—proposed new subsection 85(2). 281. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 256 (injunctions), pp. 259-260 (monitoring

powers) and pp. 267-268 (investigation powers). 282. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 278.

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Comment

Limited substantive legal effect of most proposed amendments The majority of proposed amendments are largely procedural and do not appear to result in a material expansion of the powers, duties and liabilities imposed by the ICNA Act. Several of the provisions gained via the application of the RPA to the ICNA Act will enhance safeguards in relation to the execution of intrusive powers.

Use of force in the execution of monitoring and investigation warrants As with the previous discussion of the proposed amendments to the GEMS Act (Schedule 7) and the Illegal Logging Act (Schedule 9), the proposed retention of the use of force provisions in the ICNA Act with respect to monitoring and investigation powers may warrant further scrutiny.

The comments made earlier in relation to the use of force provisions in Schedules 7 and 9 apply equally to the equivalent provisions in Schedule 10.283

Possible further standardisation-related amendments to the ICNA Act In addition to the proposed amendments in Schedule 10 to the present Bill, the ICNA Act is currently under review and may be the subject of further proposed amendments in the future. The Department of Health released a consultation paper on 4 October 2016, which relevantly sought stakeholder views as to whether the standard infringement notice, civil penalty and enforceable undertaking provisions in the RPA may be suitable for application to the ICNA Act.284

Schedule 11—Amendment of the Paid Parental Leave Act 2010

Overview of regulatory scheme The Paid Parental Leave Act 2010 (PPL Act) establishes the Paid Parental Leave Scheme (PPL Scheme), which is a Government-funded payment that complements the entitlement to unpaid leave under the National Employment Standards (NES) in the Fair Work Act 2009.

The PPL Scheme comprises two main payment types—‘Parental Leave Pay’ and ‘Dad and Partner Pay’. Parental Leave Pay is an 18-week payment at the rate of the national minimum wage for eligible primary carers 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.285 Determinations about eligibility are made by the Secretary of the Department of Social Services.

The PPL Act contains a number of civil penalty provisions for the contravention of obligations placed upon employers.286 It further establishes a framework of compliance and enforcement powers, exercisable primarily by the Secretary. This includes a request-based information disclosure regime for the purpose of compliance monitoring, the power to refer matters to the Fair Work Ombudsman, the power to issue compliance notices and infringement notices, the power to apply to the Federal Court or Federal Circuit Court for the enforcement of an alleged contravention of certain civil penalty provisions, and debt recovery provisions.287

283. In particular, these comments concern: the breadth of classes of persons who may use force; the absence of a statutory provision prescribing mandatory qualification and training requirements for the use of force; the absence of a statutory redress mechanism of the use of excessive or unnecessary force equivalent to the compensation provisions in sections 29 and 61 of the RPA for damage to electronic equipment; and the absence of statutory requirements—or a reference in the Explanatory Memorandum to existing administrative arrangements—for the oversight of the exercise of the power to use force, including measures to ensure that any use of unnecessary or unreasonable force is identified and remediated. (See also, the below discussion of Schedule 14—retention of use of force provisions in the Tobacco Plain Packaging Act 2011).

284. National Industrial Chemical Notification and Assessment Scheme, Implementing reforms to the NICNAS, Consultation paper, 4, Department of Health, Canberra, October 2016, Part 13 (monitoring and enforcement). 285. Paid Parental Leave Act 2010 (PPL Act), Chapter 2 (when parental leave pay is payable to a person) and Chapter 3A (Dad and partner pay). 286. Ibid., section 146 (table of civil penalty provisions in the PPL Act which are subject to the enforcement provisions in Chapter 4).

Broadly, these civil penalty provisions relate to contraventions by employers of: the limitations on the deductions which are permitted to be made from payments (section 70), the obligation to pay instalments to the recipient each payday using one of the approved methods of payment (sections 72 and 74), obligations to give the person a record of the payment and retain records for seven years (sections 80 and 81), obligations to provide certain information to the Secretary (sections 103 and 105) and the obligation to respond to a compliance notice (section 157). 287. PPL Act, Chapter 4 (compliance and enforcement).

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Application of the Regulatory Powers Act—Enforcement powers (civil penalties, infringement notices) Schedule 11 proposes to amend the PPL Act to apply the standard civil penalty and infringement notice provisions in Parts 4 and 5 of the RPA.288

Schedule 11 does not propose to replace the existing request-based information-gathering powers and disclosure requirements in Part 4-1 of the PPL Act with the standard compliance monitoring powers in Part 2 of the RPA (which are more intrusive in nature).

Key amending items The key proposed amendments are contained in item 17 (proposed new section 147, applying the standard civil penalty provisions in Part 4 of the RPA) and item 20 (proposed new Division 5 of Part 4-2, applying the standard infringement notice provisions in Part 5 of the RPA).

Modifications to the application of the standard provisions of the Regulatory Powers Act The Explanatory Memorandum identifies four instances in which Schedule 11 proposes to modify the application of the standard provisions of the RPA in relation to the PPL Act.289 These relate to the following matters.

The power to obtain, use and disclose ‘protected information’ (items 7-9)

These items propose to amend existing sections 127 and 128 of the PPL Act which permit persons administering the PPL Act to obtain certain personal information (deemed ‘protected information’) for the purpose of administering the PPL Act, and to use that information for the purpose of administering the PPL Act or other social security laws, and to disclose it to certain designated officials performing functions under the PPL Act.

Items 7-9 provide that information may also be obtained, used and disclosed for the purpose of exercising the standard powers in the RPA, as applied to the provisions of the PPL Act. There is no corresponding provision in the RPA. The Explanatory Memorandum notes that these amendments will ensure that the provisions of the RPA can be applied effectively, since enforcement action may require the collection and use of protected information.290

The obligation on persons to assist in applications for civil penalty orders (items 18 and 19)

These items amend the requirement in existing section 156 of the PPL Act for a person to comply with a written request from the Secretary to give all reasonable assistance in connection with an application for a civil penalty order. They extend the requirement to civil penalty orders under Part 4 of the RPA as it applies to the provisions of the PPL Act. There is no equivalent obligation in Part 4 of the RPA. The Explanatory Memorandum indicates that these amendments will ensure that section 156 remains effective following the application of the RPA to the PPL Act.291

The time limit for issuing an infringement notice and the amount to be stated in an infringement notice (item 20)

Proposed new subsections 159(5) and (6) modify the application of the infringement notice provisions in Part 5 of the RPA to preserve existing arrangements under the PPL Act. In particular:

• proposed new subsection 159(5) modifies the time period for issuing infringement notices in subsection 103(2) of the RPA, with respect to the civil penalty provision in subsection 157(4) of the PPL Act relating to a failure to comply with the requirements of a compliance notice issued under the PPL. It provides that infringement notices must be issued within 12 months of the end of the 14-day period in which a person is required to comply with the requirements of a compliance notice. This is in contrast to subsection 103(2) of

288. It should also be noted that the Government introduced the Fairer Paid Parental Leave Bill 2016 (FPPL Bill) to the House of Representatives on 20 October 2016. The FPPL Bill reintroduces a previous Bill that lapsed in the 44th Parliament, and proposes to implement the Government’s policy that parental leave pay under the PPL Scheme will only be provided to parents who have no employer-provided paid primary carer leave, or whose leave entitlements are less than 18 weeks or are paid at a rate below the national minimum wage. Schedule 2, Part 2 of the FPPL Bill contains some proposed amendments to the infringement notice provisions in section 159 of the PPL Act, which are also proposed to be amended by Schedule 11 of the present Bill to apply the standard provisions of Part 5 of the RPA. However, clause 2 of the FPPL Bill provides that the proposed amendments in Schedule 2, Part 2 of the FPPL Bill will not commence if Schedule 11 to the Regulatory Powers (Standardisation Reform) Act 2016 commence at or before the commencement of the Fairer Paid Parental Leave Act 2016.

289. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 281-82. 290. Ibid., p. 285 (item 7), p. 286 (item 8) and p. 287 (item 9). 291. Ibid., p. 293.

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the RPA which provides that an infringement notice must be issued within 12 months of the contravention. The Explanatory Memorandum indicates that this is necessary to accommodate the compliance notice requirements in the PPL Act which do not have an equivalent in the RPA292

• proposed new subsection 159(6) modifies the application of subsection 104(2) of the RPA, which prescribes the maximum penalty amounts to be included in infringement notices, being the lesser of one-fifth of the maximum pecuniary penalty a court could impose for the contravention, or 12 penalty units (currently $2,160) for an individual, or 60 penalty units (currently $10,800) for a body corporate. Proposed new subsection 159(6) preserves the existing, lesser amounts specified in the PPL Act, which are one-tenth of the maximum pecuniary penalty a court could order for the relevant civil penalty provisions. The Explanatory Memorandum states that these penalty amounts are consistent with the penalties applicable to employer contraventions of civil penalty provisions in the Fair Work Act 2009 and have been set at these levels to deter non-compliance without causing financial hardship to businesses.293

Provisions gained through the application of the Regulatory Powers Act Civil penalty provisions—Requirements of proof and other procedural matters relating to civil penalty orders

The Explanatory Memorandum acknowledges that the application of the standard civil penalty provisions in Part 4 of the RPA will result in the addition of some new provisions to the PPL Act. These are the requirements of proof and other procedural matters relating to the enforcement of civil penalty provisions (such as multiple and ancillary contraventions, and the attribution of liability to bodies corporate for the conduct of their employees, agents and officers).294

While the Explanatory Memorandum provides a general explanation of the relevant provisions of the RPA that will be gained, it does not provide details of their specific legal effect on the civil penalty provisions in the PPL Act, or explain the reasons that the application of these provisions is considered appropriate.

In particular, it does not explain how section 96 of the RPA (which imposes an evidential burden on a respondent who seeks to rely upon an exemption to a civil penalty provision) will apply to the existing civil penalty provisions in the PPL Act. However, the civil penalty provisions in the PPL Act do not appear to include any exemptions, exceptions or qualifications.

Infringement notices—Extensions of time

The Explanatory Memorandum also indicates that one provision will be gained through the application of the infringement notice provisions in Part 5 of the RPA.295 This is the power in section 105 of the RPA to grant a person who is issued with an infringement notice an extension of time in which to pay the amount specified in the notice. The Explanatory Memorandum notes that this provision ensures that a person is not prevented from paying an infringement notice due to financial hardship or other difficulties.296

Prospective application of the proposed amendments Items 27 and 28 provide for the prospective application of the proposed amendments, in relation to contraventions or alleged contraventions of civil penalty provisions occurring on or after the commencement of Schedule 11 (if enacted). These items also preserve the application of the existing enforcement provisions of the PPL Act in relation to contraventions or alleged contraventions occurring prior to the commencement of Schedule 11.

Comment On balance, the proposed amendments in Schedule 11 do not appear to raise significant issues of concern. The proposed modifications of the application of the RPA are fairly described as procedural or otherwise minor in nature.

292. Ibid., p. 295. 293. Ibid., p. 296. 294. RPA, sections 85 and 92-97. See also: Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, p. 282 (comparative table of provisions) and pp. 291-292 (substantive discussion).

295. Ibid., p. 283 (comparative table of provisions) and p. 297 (substantive discussion). 296. Ibid., p. 297.

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However, it should be noted that the application of section 96 of the RPA to the civil penalty provisions in the PPL Act means that the default position will be that the respondent to an application for a civil penalty order will bear the evidential burden in relation to any exceptions he or she may seek to rely upon.

While the application of section 96 of the RPA does not appear to impact upon the existing civil penalty provisions in the PPL Act (which do not include specific exceptions), it will be important to consider the appropriateness (or otherwise) of the application of section 96 to any future amendments to the PPL Act.

Schedule 12—Amendment of the Personal Property Securities Act 2009

Overview of regulatory scheme The Personal Property Securities Act 2009 (PPS Act) establishes a national regime for the creation, registration, priority and enforcement of security interests in personal property.297 It also provides for the establishment and maintenance of the Personal Property Securities Register (PPSR), which provides an authoritative public record of interests in personal property.298 Registration is said to provide parties with a means of publicising and protecting their interests, and provides third parties (such as financiers, lenders, insolvency practitioners and prospective purchasers) with a means of identifying interests in personal property that is the subject of a transaction or potential transaction in which they are involved.299

The PPS regime is administered by a Registrar of Personal Property Securities, as supported by a Deputy Registrar. The offices of the Registrar and Deputy Registrar are established under Part 5.9 of the PPS Act, which also prescribes their functions and powers, and the conditions and other requirements for their appointment and engagement.

The PPS Act contains several civil penalty provisions.300 Part 6.3 of the PPS Act contains an enforcement framework under which the Registrar may commence proceedings seeking civil penalty orders in relation to the contravention of civil penalty proceedings, and may obtain and enforce undertakings in relation to compliance with the requirements imposed by the Act.301

The PPS Act was among the legislation identified by AGD in March 2013 as being drafted in accordance with precedent provisions that informed the development of the RPA.302 As such the proposed amendments (discussed below) do not appear to substantively change the legal effect of the existing enforcement provisions.

Application of the Regulatory Powers Act—Enforcement powers (civil penalties, enforceable undertakings) Schedule 12 proposes to replace the existing enforcement provisions in Part 6.3 of the PPS Act dealing with civil penalties and enforceable undertakings with the corresponding standard provisions of Parts 4 and 6 of the RPA.303

Key amending items The key proposed amendments are contained in item 12, which repeals existing Part 6.3 of the PPS Act and substitutes a new part which triggers the application of the civil penalty provisions in Part 4 of the RPA (proposed new section 221) and the enforceable undertaking provisions in Part 6 of the RPA (proposed new section 222).304

297. Personal Property Securities Act 2009 (PPS Act), especially Chapters 2-4 (rules relating to security interests and enforcement of security interests) 298. Ibid., Chapter 5 (Personal Property Securities Register). 299. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 301. 300. For example, section 151 (registration—requirements for collateral to secure obligation), subsection 172(3) (unauthorised searches of the

PPSR) and section 195A (failure to comply with investigation notice issued by Registrar). 301. PPS Act, Part 6.3, Divisions 2 and 3 (civil penalty orders) and Division 4 (enforceable undertakings). 302. AGD, Senate Standing Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, op. cit. 303. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 302-303 (comparative table). 304. Items 1-11 make various consequential amendments, including to the simplified outline of the Act and Part 6.3, definitions, and civil penalty

amounts to reflect the application of the provisions of the RPA.

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Provisions gained through the application of the Regulatory Powers Act Eight civil penalty provisions are gained through the proposed application of Part 4 of the RPA to the PPS Act, as the PPS Act does not currently contain corresponding provisions. The provisions proposed to be gained relate to the requirements of proof in civil penalty proceedings, and other procedural arrangements including multiple and continuing contraventions.305

The Explanatory Memorandum describes the addition of all but one of these provisions as ‘merely procedural’.306 The application of the remaining provision of the RPA—section 93—is said to result in a ‘minor expansion’ of the current regulatory powers in the PPS Act.307 (Section 93 of the RPA makes provision for 'continuing contraventions' of civil penalty provisions which require a person to do an act or thing within a particular period or before a particular time. A person who fails to meet the relevant deadline is deemed to commit a separate contravention in respect of each day during which he or she fails to do the act or thing required.) The Explanatory Memorandum states that the proposed application of section 93 is ‘necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation’.308

Other minor amendments to the existing provisions of the PPS Act Proposed new subsections 221(3) and 222(3) (item 12) modify the relevant courts with jurisdiction to determine applications for civil penalty orders and the enforcement of undertakings. Currently, the PPS Act confers jurisdiction on the Federal Court.309 The proposed amendments extend jurisdiction to the Federal Circuit Court and courts of states and territories that have jurisdiction in relation to matters arising under the PPS Act.

The Explanatory Memorandum states that the conferral of jurisdiction on the Federal Circuit Court is consistent with existing policy in relation to the conferral of federal jurisdiction, which provides that it is appropriate to afford concurrent jurisdiction upon the Federal and Federal Circuit Courts unless the matter requires the specialist knowledge or expertise of the Federal Court.310 The Explanatory Memorandum also states that the conferral of jurisdiction on state and territory courts is appropriate to ensure that jurisdiction is:

… conferred as widely as possible to ensure that disputes can be resolved in the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 311

Prospective application of the proposed amendments Items 13 and 14 provide for the prospective application of the proposed amendments in relation to contraventions or alleged contraventions of the PPS Act, or the provision of undertakings, on or after the commencement of Schedule 12, if enacted. These items also provide for the continued application of the existing enforcement provisions of the PPS Act in relation to contraventions or alleged contraventions occurring, or undertakings given, prior to the commencement of Schedule 12.

Comment The proposed application of Parts 4 and 6 of the RPA to the PPS Act would not result in significant change to the existing enforcement provisions in Part 6.3 of the PPS Act. The Explanatory Memorandum also provides justification for the civil penalty provisions proposed to be gained via the application of Part 4 of the RPA, particularly the effect of the application of section 96 of the RPA to existing civil penalty provisions in the PPS Act (which already impose an evidential burden on a respondent who seeks to rely upon them).312

305. RPA, sections 85-87 and 93-97. 306. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 301. 307. Ibid. 308. Ibid., pp. 301 and pp. 309-310. 309. PPS Act, section 222 (civil penalty orders) and section 231 (enforcement of undertakings). 310. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 309 and 311-312. 311. Ibid. 312. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 305 (item 6—repeal of evidential burden

provision in subsection 151(4) of the PPS Act, which applies to the civil penalty provisions in section 151 relating to requirements for collateral to secure obligations) and p. 307 (item 8—repeal of evidential burden provision in subsection 172(4) of the PPS Act, which applies to the civil penalty provisions in section 172 relating to unauthorised access to the Personal Property Securities Register (PPSR)).

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Schedule 13—Amendment of the Privacy Act 1988

Overview of regulatory scheme The Privacy Act 1988 regulates the handling of personal information about individuals. ‘Personal information’ for the purpose of the Privacy Act is information or an opinion about an identified individual or an individual who is reasonably identifiable.313

The Privacy Act includes thirteen Australian Privacy Principles (APPs) which set out requirements for the collection, handling, use, storage and disclosure of personal information. The APPs apply to certain private sector organisations and most Australian Government agencies.314 The Privacy Act also regulates consumer credit reporting.315 Several obligations prescribed by the Privacy Act apply civil penalty provisions to contraventions.316 Other prohibitions are subject to criminal offences for contraventions.317

The regulatory regime established under the Privacy Act is administered by the Privacy Commissioner, whose office, conditions and other requirements of appointment, functions and powers are established under or prescribed by Part IV.

Part VIB contains an enforcement regime in relation to the civil penalty provisions, authorising the Privacy Commissioner to make an application to the Federal Court or Federal Circuit Court for a civil penalty order in relation to an alleged contravention.

Section 98 also authorises the Privacy Commissioner to seek an injunction to restrain an alleged contravention of a provision of the Privacy Act (covering both civil penalty and offence provisions).

Division 3B of Part IV further authorises the Privacy Commissioner to accept enforceable undertakings from a regulated entity in relation to its compliance with the provisions of the Privacy Act (covering both criminal and civil penalty provisions), and to commence enforcement proceedings in the Federal Court or Federal Circuit Court in the event of an alleged contravention.

Part VIB and Part IV, Division 3B of the Privacy Act were enacted in 2012.318 The relevant amending Act was among the legislation identified by AGD in March 2013 as being prepared using drafting precedents which informed the development of the RPA.319

Application of the Regulatory Powers Act—Enforcement powers (civil penalties, injunctions, enforceable undertakings)

Key amending items Schedule 13 proposes to amend Part VIB, and repeal Division 3B of Part IV and section 98 of the Privacy Act to apply the standard civil penalty, enforceable undertaking and injunction provisions of Parts 4, 6 and 7 of the RPA.

The key amending items are item 7 (which repeals existing Part VIB and substitutes a new Part VIB which provides for civil penalties, enforceable undertakings and injunctions) and items 6 and 8 (which repeal the existing provisions in Division 3B of Part IV and section 98 regarding enforceable undertakings and injunctions).320

Given that the existing provisions of the Privacy Act dealing with civil penalties and enforceable undertakings are reportedly based on precedent provisions upon which the RPA was later based, the proposed amendments do not appear to significantly change their legal effect.

313. Privacy Act 1988 , section 6 (definition of ‘personal information’). 314. Ibid., Part III (information privacy) and Schedule 1 (APPs). 315. Ibid., Part IIIA (credit reporting). 316. For example, section 13G (civil penalty provision for serious and repeated interferences with privacy) and sections 20C-20P, 20V, 20Y, 20Z,

20ZA, 21D-21G, 21R, 22C-22F, 24, and 24A (civil penalty provisions relating to the misuse of credit reporting information). 317. For example, the offence provisions in sections 20P and 21R (provision of false or misleading information under the credit reporting regime) and sections 24 and 24A (unauthorised obtaining of credit reporting or credit eligibility information, or obtaining such information by false

pretence).

318. Privacy Amendment (Enhancing Privacy Protection) Act 2012. 319. AGD, Senate Standing Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, op. cit. 320. Items 1-5 and 9 make consequential amendments, including definitions and cross-references to the RPA.

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The Explanatory Memorandum indicates that six new provisions are gained as a result of the application of the RPA, and one provision of the RPA is modified to retain an additional power in the Privacy Act.321

Provisions gained through the application of the Regulatory Powers Act Civil penalty provisions—Requirements of proof, enforcement of ‘continuing contraventions’

The application of the civil penalty provisions in Part 4 of the RPA to the Privacy Act will, if enacted, result in the gaining of five new provisions governing the requirements of proof in civil penalty proceedings, and the imposition of penalties for continuing contraventions.322 The Explanatory Memorandum describes the general effect of these provisions but does not provide a specific justification for their proposed application to the Privacy Act or provide specific details of how they will apply to the civil penalty provisions in that Act.323

In particular, it does not provide information about how section 96 of the RPA (which provides that the respondent bears the evidential burden in relation to exceptions to civil penalty provisions) will apply to existing exceptions to the civil penalty provisions in the Privacy Act. In this regard, a number of existing civil penalty provisions contain exemptions for permitted uses and disclosures and do not impose an evidential burden on a respondent who seeks to rely upon them.324

Enforceable undertakings—enforcement of alleged contraventions

The application of Part 6 of the RPA, via proposed new subsection 80V(1) (item 7) results in the gaining of one new provision relating to the enforcement of an undertaking, for which there is presently no express equivalent in the Privacy Act.

Subsection 115(2) of the RPA provides for the orders that a court may make, if it finds that a regulated entity has breached an enforceable undertaking. This includes orders to comply with the undertaking, to pay compensation to persons who have suffered loss or damage as a result of the breach, and any other order the court considers appropriate. These provisions are broadly equivalent to existing subsection 33F(2) of the Privacy Act. However, paragraph 115(2)(b) of the RPA includes an additional order, namely an order directing the person to pay 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.

The Explanatory Memorandum describes this proposed amendment as ‘merely procedural in nature’.325 While it does not explain the reasons for this position, it would be open to a court to make an order of the kind specified in paragraph 115(2)(b) of the RPA in the absence of an express conferral of jurisdiction. Existing paragraph 33F(2)(c) of the Privacy Act provides that the court may make any other order that it considers appropriate.

Modifications to the application of the standard provisions of the Regulatory Powers Act Proposed new subsection 80V(4) of the Privacy Act (item 7) retains the existing discretionary power of the Privacy Commissioner in subsection 33E(5) to publish an enforceable undertaking provided by a regulated entity on the Commissioner’s website. There is no equivalent provision in Part 6 of the RPA. The Explanatory Memorandum indicates that the retention of this power is considered necessary to promote compliance with the obligations under the Privacy Act.326

321. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 314-16 (comparative tables). 322. RPA, sections 93-97. 323. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 319. 324. See, for example, the exemptions to the credit reporting civil penalty provisions in subsections 20C(2)-(4), 20D(5), 20E(2)-(3), 20G(2),

20H(2), 20H(5), 20K(2), 20L(2), 20V(4), 20Y(3), 20Y(5), 20Z(4), 20ZA(3), 21D(2), 21F(3), 21G(2)-(3), 21G(5), 22C(2)-(3), 22D(2), 22E(2)-(3), 22F(2)-(3). These provisions provide for various permitted uses and disclosures, commonly including uses and disclosures that are authorised or required by or under an Australian law or a court or tribunal order. See also subsection 98A(4) (treatment of partnerships), subsection 98B(4) (treatment of unincorporated associations) and subsection 98C(4) (treatment of trustees). These provisions state that a member of an unincorporated association's committee of management and a trustee does not contravene a civil penalty provision if that person does not know of the circumstances that constitute the contravention, or knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after becoming aware of it. 325. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 320. 326. Ibid.

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Prospective application of the proposed amendments Items 10-12 provide for the prospective application of the proposed amendments on or after the commencement of Schedule 13, if enacted. These items also preserve the existing enforcement provisions of the Privacy Act in relation to contraventions or alleged contraventions occurring, or enforceable undertakings given, before the commencement of the proposed amendments.

Comment On balance, for the reasons set out below, the proposed amendments in Schedule 13 do not appear to raise significant issues of concern.

Modification of the standard provisions of the Regulatory Powers Act The single instance of modification of the standard provisions of the RPA, relating to the publication of enforceable undertakings, is fairly described as minor in nature and supported by a reasonable policy justification. (Namely, the retention of an existing tool available to the Privacy Commissioner to promote compliance with the Privacy Act.)

Gaining of new provisions, consequential to the application of the Regulatory Powers Act The small number of civil penalty and enforceable undertaking provisions gained as a result of the application of Part 4 of the RPA do not appear to materially alter existing arrangements under the Privacy Act.

However, the Explanatory Memorandum would, ideally, have outlined the reasons for the application of these provisions to the Privacy Act, and in particular the application of section 96 to the existing civil penalty provisions (noting that some existing exceptions do not appear to impose an evidential burden on the respondent).

Some of these exemptions relate to the state of mind of the respondent and might therefore warrant the imposition of an evidential burden on the respondent on the basis that they are peculiarly (if not exclusively) within the respondent’s knowledge.327 However, other exemptions relate to uses and disclosures that are required or authorised by law or under a court or tribunal order, and would not seem to be peculiarly within the respondent’s knowledge.328 It does not seem self-evident, on the face of these provisions, that there would be an unreasonable burden on the Privacy Commissioner as applicant in the event that the respondent did not bear the evidential burden.

Further, as with other proposed amendments in other schedules to the Bill which seek to apply section 96 of the RPA, it will be important to scrutinise carefully any future legislative proposals which seek to enact new exceptions, or amend existing exceptions, to civil penalty provisions in the Privacy Act. The application of section 96 of the RPA means that default position will be that the respondent bears the evidential burden, and it will be necessary to determine whether this is appropriate in the context of individual proposed exemptions.

Schedule 14—Amendment of the Tobacco Plain Packaging Act 2011

Overview of regulatory scheme The Tobacco Plain Packaging Act 2011 (TPP Act) sets out the requirements for the plain packaging and appearance of tobacco products. It prescribes mandatory requirements for the retail packaging and appearance of tobacco products, and imposes offences and civil penalties for the supply, purchase and manufacturing of products that do not comply with the requirements.329

327. For example, the exemptions in subsections 98A(4), 98B(4) and 98C(4) in relation to the liability of trustees, members of an unincorporated association’s management committee and trustees (based on the fact that they were unaware of the circumstances constituting a contravention, or took all reasonable steps to correct it).

328. For example, the permitted use and disclosure exemptions to the credit reporting civil penalty provisions in subsections 20C(2)-(4), 20D(5), 20E(2)-(3), 20G(2), 20H(2), 20H(5), 20K(2), 20L(2), 20V(4), 20Y(3), 20Y(5), 20Z(4), 20ZA(3), 21D(2), 21F(3), 21G(2)-(3), 21G(5), 22C(2)-(3), 22D(2), 22E(2)-(3), 22F(2)-(3).

329. Tobacco Plain Packaging Act 2011 (TPP Act), Chapter 2 (requirements for plain packaging and appearance of tobacco products) and Chapter 3 (offences and civil penalty provisions).

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The TPP Act also includes an investigation and enforcement framework. It invests officers authorised by the Secretary of the Department of Health with investigative powers similar to those in Part 3 of the RPA (including search and seizure and the compulsory production of evidence).330

The TPP Act also provides for the Secretary (or delegate) to apply to the court for a civil penalty order in relation to an alleged contravention, and empowers an authorised officer to issue an infringement notice as an alternative to enforcement proceedings. These provisions are similar to Parts 4 and 5 of the RPA.331

Application of the Regulatory Powers Act—Investigation and enforcement powers Schedule 14 proposes to apply the standard investigation, civil penalty and infringement notice provisions in Parts 3-5 of the RPA to the TPP Act, in relation to the offences and civil penalty provisions in the TPP Act and offences against the Crimes Act 1914 and Criminal Code 1995 that relate to the TPP Act.332

As mentioned earlier in this Bills Digest, the TPP Act was identified by AGD in March 2013 as among the legislation that was drafted in reliance upon precedent provisions developed by OPC, which subsequently informed the development of the standard provisions in the RPA (then a Bill before the Parliament or under development).333

Accordingly, the main proposed amendments in Schedule 14 are largely technical—repealing the existing, stand-alone provisions of the TPP Act and substituting them with provisions triggering the application of the corresponding standard provisions of Parts 3-5 of the RPA.

There are, however, a handful of variations to the standard provisions of the RPA—largely to preserve existing arrangements under the TPP Act that do not have an equivalent in the RPA—which are outlined under the subheadings below.334

Relevant courts—Investigative powers and civil penalty proceedings The TPP Act presently confers jurisdiction on the Federal Court to hear and determine applications for civil penalty proceedings and matters relating to the exercise of investigation powers. Items 23 and 29 extend jurisdiction to the Federal Circuit Court.335

The Explanatory Memorandum indicates that the proposed extension of jurisdiction to the Federal Circuit Court is consistent with Commonwealth policy with respect to the conferral of federal jurisdiction. It states:

Where an Act provides the Federal Court of Australia with jurisdiction in relation to matters arising under that Act, it is appropriate to also afford jurisdiction to the Federal Circuit Court for the same matters, unless such matters would require the specialist knowledge or expertise of judges appointed to the Federal Court. 336

The Explanatory Memorandum further indicates:

Jurisdiction should be conferred as widely as possible to ensure that disputes can be resolved at the lowest level of court appropriate, and that workload is distributed between courts to encourage efficiency in dealing with related matters. 337

330. TPP Act, Chapter 4 (investigation). Note that an ‘authorised officer’ for the purpose of exercising the investigation and enforcement powers is defined in section 81 as a person appointed by the Secretary of the Department of Health who is either appointed or engaged under the Public Service Act 1999, or who is a member or special member of the Australian Federal Police, and if the Secretary is satisfied the person has ‘suitable qualifications, training or experience’.

331. TPP Act, Chapter 5 (enforcement). 332. See especially, Schedule 14, item 23 (new Part 2 of Chapter 4—investigation powers in proposed new section 52) and item 29 (new Part 2 of Chapter 5—civil penalties and infringement notices in proposed new sections 85 and 86).( For completeness, items 30-33 provide for the prospective application of the proposed amendments to contraventions or alleged contraventions occurring on or after the commencement

of the relevant amendments (if enacted) and include savings provisions to preserve the application of the existing provisions of the TPP Act to contraventions or alleged contraventions occurring before the commencement of the amendments.) 333. AGD, Senate Standing Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, op. cit. 334. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 325-328 (comparative tables). 335. Schedule 14, item 23 (proposed new subsection 52(9)—‘relevant court’ for the purpose of matters relating to the exercise of investigative powers in Part 3 of the RPA) and Schedule 14, item 29 (proposed new subsection 85(3)—‘relevant court’ for the purpose of the civil penalty provisions in Part 4 of the RPA). (See also RPA, sections 46 and 81 which provide that the individual triggering Act may specify the ‘relevant court’ for the purpose of Parts 3 and 4 of the RPA, as applied to that Act.) 336. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 338-339 (item 23) and p. 344 (item 29).

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Additional investigative powers—Taking samples of evidential material Proposed new subsections 52(10) and (11) (item 23) provide for additional investigative powers to those in Part 3 of the RPA, in order to preserve existing powers in the TPP Act relating to the taking of samples of evidential material (tobacco products) during the course of an investigation.

The general investigation powers in section 49 of the RPA permit an authorised person who has entered premises under the power of entry in section 48 to search the premises for evidential material, and to deal in various ways with any evidential material found. This relevantly includes the power of seizure, and powers to inspect, examine, take measurements of, conduct tests on, and take images or recordings. However, these powers do not squarely cover the taking of samples.

The Explanatory Memorandum indicates that an explicit power to take samples is necessary to enable the testing of tobacco products found during the course of an investigation. It notes that the taking of samples of tobacco products is, by necessity, destructive and cannot be carried out by alternative means.338

Additional investigative powers—Use of force against things in executing an investigation warrant Proposed new subsection 52(12) (item 23) provides that authorised persons, and persons assisting authorised persons, may in executing an investigation warrant under Part 3 of the RPA use such force against things as is necessary and reasonable in the circumstances. There is no equivalent provision in the RPA.

The inclusion of proposed new subsection 52(12) will preserve the effect of existing section 57 of the TPP Act. The Explanatory Memorandum states that the retention of this power is necessary to, for example:

… open locked doors, cabinets, drawers and other similar objects that the authorised officer reasonably suspects contain evidential material that would demonstrate that a provision in new subsection 52(1) of the TPP Act has been contravened. 339

It further notes that ‘this power is important in the retail tobacco sector due to the retail display bans that are in place under State and Territory legislation’ and that the power will ensure that the execution of an investigation warrant is not frustrated.340

The Explanatory Memorandum further indicates that the offence applying to regulated entities under section 63 of the RPA of failing to provide reasonable facilities and assistance to an authorised person exercising powers under Part 3 of the RPA may be an insufficient means of ensuring compliance, and non-compliance may otherwise lead to the concealment or loss of evidential material, or the continued contravention of the obligations and prohibitions in the TPP Act.341

Abrogation of the privilege against self-incrimination Subsection 47(1) of the RPA expressly preserves the privilege against self-incrimination in relation to regulated entities who are required to provide information or evidential material, which would tend to expose the person to a penalty.

However, proposed new subsections 52(14) (item 23) and 80A(1) (item 25) of the TPP Act expressly abrogate this privilege in relation to persons who are the subject of coercive investigative powers to provide information, answer questions or produce evidential material under the TPP Act. These provisions would retain the position in existing subsection 83(1) of the TPP Act, which is repealed by item 27.

The Explanatory Memorandum states that it is necessary to retain the abrogation of self-incrimination privilege ‘due to the difficulties in obtaining relevant evidence’.342 In particular, it notes that authorised officers may not be in a position to observe transactions throughout the supply chain which contravene the TPP Act, particularly

337. Ibid., p. 339 (item 23) and p. 345 (item 29). 338. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, p. 339. 339. Ibid. 340. Ibid. 341. Ibid. 342. Ibid., pp. 340 (item 23) and 341 (item 25).

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those transactions which occur early in the supply chain. (For example, a transaction between a retailer and a tobacco company supplying tobacco products for retail sale.) It also notes that parties to transactions which contravene the TPP Act may not be forthcoming about their actions, since disclosure may expose them to liability.343

The Explanatory Memorandum further states that the full application of self-incrimination privilege would both ‘compromise investigation and enforcement activities’ and could result in retailers ‘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’.344

Availability of ‘use immunity’ and ‘derivative use immunity’ The potentially adverse effects of the abrogation of self-incrimination privilege are mitigated to an extent by proposed new subsections 52(15) (item 23) and 80A(2) (item 25) which confer ‘use immunity’ and ‘derivative use immunity’ on persons who are subject to coercive investigative and enforcement powers.

Use immunity means that the information or evidential material given, and the fact that the person has given the information or evidence, is not admissible evidence in criminal proceedings against that person.345

Derivative use immunity means that any information, document or thing obtained as a direct or indirect consequence of the person having given information or evidence is not admissible in criminal proceedings against that person.346

Such evidence is admissible in criminal proceedings against other persons, or criminal proceedings against the person in relation to the provision of false information or evidential material. However, the explicit limitation of use immunity and derivative use immunity to criminal proceedings against the person—rather than proceedings which may expose the person to a penalty—means that he or she may still be liable to civil penalty proceedings for contraventions of the TPP Act or any other applicable civil penalty provisions.

New and expanded provisions consequential to the application of the Regulatory Powers Act The Explanatory Memorandum also identifies two procedural-type provisions which are gained, and one provision which is expanded, as a result of the application of the civil penalty and infringement notice provisions in Parts 4 and 5 of the RPA.

New provisions gained—Civil penalties

The new provisions gained relate to civil penalties, namely sections 93 and 96 of the RPA.347

Section 93 of the RPA makes provision for 'continuing contraventions' of civil penalty provisions which require a person to do an act or thing within a particular period or before a particular time.

A person who fails to meet the relevant deadline is deemed to commit a separate contravention in respect of each day during which he or she fails to do the act or thing required. The Explanatory Memorandum states that the proposed application of section 93 is ‘necessary to ensure that failure to comply with an obligation does not excuse a person from meeting that obligation’.348

Section 96 of the RPA (as discussed above) provides that a person who seeks to rely upon an exemption, exception, qualification or excuse to a civil penalty provision bears the evidential burden. The Explanatory Memorandum describes the proposed application of section 96 as ‘merely procedural in nature’ because the existing exemptions to civil penalty provisions in the TPP Act impose an evidential burden upon a respondent who seeks to rely upon them.349

343. Ibid. 344. Ibid. 345. Proposed paragraphs 52(15)(a)-(b) (item 23) and proposed paragraphs 80A(2)(a) and (b) (item 25). 346. Proposed paragraph 52(15)(c) (item 23) and proposed paragraph 80A(2)(c) (item 25). (Derivative use immunity would, for example, extend

the immunity to circumstances in which authorities use factual material contained in a document compulsorily produced by a person to identify alternative sources of evidence of those facts. In this scenario, the application of derivative use immunity would mean that both the document compulsorily produced and the alternative source of evidence would be inadmissible in criminal proceedings against that person.) 347. Schedule 14, item 29—proposed new subsection 85(1) (application of Part 4 of the RPA to the civil penalty provisions in the TPP Act). 348. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 345. 349. Ibid.

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Existing provisions expanded—Infringement notices

Section 100 of the TPP Act would be expanded as a result of the application of section 103 of the RPA.350 These provisions govern the circumstances in which an infringement notice may be issued.

Existing subsection 100(3) of the TPP Act provides that an infringement notice may only relate to a single contravention of a single provision.

In contrast, subsection 103(4) of the RPA provides for limited circumstances in which a single notice may be issued in respect of multiple contraventions of a single provision (namely, where the provision requires a person to do a thing within a particular period or before a particular time, and the person fails to do the thing on more than one day).

The Explanatory Memorandum states that this expansion is minor and is intended to complement the application of section 93 of the RPA (as noted above).351

Retrospective application of some proposed amendments Item 31 provides for the retrospective application of the proposed amendments applying the standard investigative powers in Part 3 of the RPA to the TPP Act (that is, to contraventions or alleged contraventions occurring before, on or after the commencement of Schedule 14, if enacted). The Explanatory Memorandum states that this retrospective application is considered appropriate because the proposed application of Part 3 of the RPA to the TPP Act would not expand the existing regulatory framework and therefore would not impact upon the rights or liabilities of regulated entities.352

Items 30-33 also provide for the saving of existing actions done in compliance with the provisions of the TPP Act prior to the commencement of Schedule 14 (including the issuing of identity cards, applications for investigative warrants) and to alleged contraventions of civil penalty provisions and strict liability offence provisions occurring before the commencement of Schedule 14.

Items 32 and 33 provide for the prospective application of the proposed amendments applying the standard civil penalty and infringement notice provisions in Parts 4 and 5 of the RPA (that is, to contraventions or alleged contraventions occurring on or after the commencement of Schedule 14, if enacted).

Comment

Variations with a significant impact on the legal rights and liabilities of regulated entities Two of the proposed modifications of the investigative powers in Part 3 of the RPA substantially alter the legal rights and liabilities that would otherwise apply to regulated entities, in order to retain existing provisions of the TPP Act. These are the use of force in executing a search warrant, and the abrogation of the privilege against self-incrimination.

Use of force against things in the execution of an investigation warrant While the Explanatory Memorandum contains a general explanation of the perceived operational need for retaining the power to exercise reasonable force against things in the execution of an investigation warrant, it does not provide an explanation for the breadth of the power conferred, or information about applicable safeguards.

In particular, the Explanatory Memorandum does not explain why all classes of authorised officers appointed under section 81 of the TPP Act must be conferred with the power to use force, and why it would not be practicable to limit this power to authorised officers who are members of the Australian Federal Police pursuant to paragraph 81(1)(b) of the TPP Act.

Nor does the Explanatory Memorandum explain why it is considered appropriate for persons who are assisting authorised officers to exercise this power. Further, it does not provide information about the types of qualifications, training and experience that authorised officers appointed under paragraph 81(1)(a) (being

350. Schedule 14, item 29—proposed new subsection 86(1) (application of Part 5 of the RPA to strict liability offences in Chapter 3 of the TPP Act). 351. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 347. 352. Ibid.

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persons who are engaged or appointed under the Public Service Act 1999) must hold with respect to the use of force, or persons assisting them.

Similarly, the Explanatory Memorandum does not identify how the Secretary of the Department of Health makes a decision under subsection 81(2) about whether he or she is satisfied that a person possesses the necessary qualifications, training and experience to be an authorised person, specifically with respect to the use of force.

The need for further justification for the retention of the power

Although the present Bill seeks to continue the existence of a power already conferred under the TPP Act, the case for its continuation warrants further justification for three reasons.

The first reason is that—as outlined in the Attorney-General’s second reading speech to the Bill—the standardisation process ‘provides an opportunity to consider whether existing regulatory powers or functions are still relevant and appropriate’.353 As such, it is reasonable to expect that the justification for the retention of powers which exceed those in the RPA will be documented in the extrinsic materials to triggering legislation.

Secondly, the absence of any corresponding ‘use of force’ provisions in Part 2 of the RPA makes clear that investigative powers of this kind go beyond what the Parliament has considered to be the necessary and appropriate powers to be included in a general or ‘standardised’ suite of investigative provisions.

Thirdly, the TPP Act pre-dates the commencement of the Human Rights (Parliamentary Scrutiny) Act 2011 with the result that the human rights implications of the use of force provisions were not the subject of dedicated analysis or scrutiny in the extrinsic materials to the originating Bill, the Tobacco Plain Packaging Bill 2011.354

The need for further information about safeguards applying to the power

The Explanatory Memorandum would also benefit from the inclusion of information about safeguards applying to the use of the power, in addition to the limitation of the use of force to that which is reasonable and necessary against things (not persons). This includes information about independent oversight, assurance and complaints handling mechanisms in relation to the use of force. It would usefully include, for example, information about:

• oversight by the Commonwealth Ombudsman355

• oversight under the Australian Federal Police (AFP) professional standards framework in relation to authorised officers who are AFP members356

• details of any internal administrative reporting and documentation requirements with respect to the use of force in the course of individual warrant operations, and

• information about redress mechanisms available to regulated entities or others, in the event that force used in the execution of an investigation warrant is found to be unreasonable or unnecessary.

Potential need for enhanced safeguards—Compensation for excessive or inappropriate use of force

It also seems anomalous that section 61 of the RPA (and existing section 66 of the TPP Act) makes express provision for the Commonwealth to pay compensation for damage to electronic equipment, data or programs caused by the exercise of investigative powers under Part 3 of the RPA, but the TPP Act contains no comparable provision in relation to the use of force against things.357 The proposed amendments in Schedule 14 do not include a comparable provision in relation to the use of force.

353. Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1642. 354. For example, the explanation of the use of force provision in the Explanatory Memorandum to the originating Bill was limited to a single paragraph relevantly stating ‘the use of force allowed by an authorised officer is only to be exercised against things and not persons, for example in order to open a door or force a lock. The force allowed is limited to that which is necessary and reasonable in the circumstances’.

Explanatory Memorandum, Tobacco Plain Packaging Bill 2011, p. 24. (The Human Rights Statement of Compatibility accompanying the present Bill only addresses the retention of the use of force provisions to explain that they do not engage the right to security of the person and the right to life under Articles 6 and 9 of the ICCPR, on the basis they do not authorise the use of force against persons. See: Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, p. 68.) 355. Ombudsman Act 1976, Part II (functions and powers of the Ombudsman). 356. Australian Federal Police Act 1979, Part V (professional standards and AFP conduct and practices issues). 357. Subsection 61(1) of the RPA (and existing section 66 of the TPP Act) makes express provision for the payment of compensation if investigative

powers are exercised to use electronic equipment to access relevant data, and damage is caused to the equipment, data or associated

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This means, for example, if a regulated entity’s computer system is damaged, or if data held on that system is lost or corrupted, because an authorised person executing an investigation warrant takes insufficient care, section 61 of the RPA provides for the Commonwealth’s statutory liability to pay compensation, and provides for statutory remedy if agreement on the amount is not reached. In contrast, if a regulated entity’s physical storage cabinets are damaged as a result of an authorised officer or his or her assistant using inappropriate or excessive force, the regulated entity must commence proceedings in tort to establish the Commonwealth’s liability and obtain compensation, or may be reliant upon the Commonwealth’s agreement to make an ex gratia payment.

It is not clear why physical objects or things and electronic equipment are treated differently under the TPP Act, and why this differential treatment is proposed to be preserved via the modified application of the RPA.

In the absence of a justification in the Explanatory Memorandum, this distinction seems arbitrary. Arguably, the modified application of the RPA to the TPP Act to permit the use of force against things should be accompanied by a corresponding provision to section 61 of the RPA in relation to the payment of compensation and provision of redress for the use of unreasonable or unnecessary force.

Abrogation of the privilege against self-incrimination The justification provided in the Explanatory Memorandum for proposed new subsection 52(14) (item 23) and proposed new section 80A (item 25)—by reference to difficulties in obtaining relevant evidence and the distribution of the compliance burden as between retailers and tobacco companies—appears reasonable, having regard to the regulatory environment in which the TPP Act operates.

The conferral of use immunity and derivative use immunity upon the person who provides the relevant evidential material in compliance with coercive information-gathering powers would likely mitigate the adverse effects of the abrogation of privilege on that person, with respect to his or her exposure to criminal liability.

However, the Explanatory Memorandum does not explain the rationale for limiting the use immunity and derivative use immunity to criminal proceedings against the person, to the apparent exclusion of civil penalty proceeding against him or her (whether under the TPP Act or any other enactment).

Schedule 15—Amendment of the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995

Overview of regulatory scheme The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (WMD Act) prohibits the supply or export of goods that will or may be used in, 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 relevantly creates offences in relation to persons who supply or export goods, or provide services, and who believe or suspect on reasonable grounds that the goods or services will be used in a WMD program.358 It also makes provision for the issuing of injunctions to restrain contraventions or apprehended contraventions of its provisions.359

Application of the Regulatory Powers Act—Enforcement powers (injunctions) The amending items in Schedule 15 propose to repeal the injunction provisions in section 16 and substitute them with the standard provisions of Part 7 of the RPA.

programs, as a result of the regulatory authority taking insufficient care to select the person to operate the equipment, or that person exercising insufficient care in operating the equipment. If these conditions are satisfied, subsection 61(2) provides that the Commonwealth must pay the owner or user of the relevant equipment, data or programs as the Commonwealth and the user agree. Subsection 61(3) provides that if agreement cannot be reached, the owner or user may initiate proceedings. Subsection 61(4) provides that the court, in determining the amount of compensation, must have regard to whether the occupier of the premises (or his or her employees or agents) if available at the time provided any appropriate warning or guidance on the use of the electronic equipment. 358. Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (WMD Act), sections 9-11, 14. 359. Ibid., section 16.

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The Explanatory Memorandum identifies two limited instances in which the application of the RPA would result in the enactment of new provisions for which there are presently no equivalent in the WMD Act, and states that these are procedural only.360 (The relevant new provisions remove judicial discretion to require an applicant for an interim injunction to provide an undertaking as to damages as a condition of granting the injunction,361 and preserve the issuing court’s existing, general jurisdiction to grant injunctions in addition to the specific statutory jurisdiction conferred under the WMD Act via the application of Part 7 of the RPA.)362

Item 3 provides for the prospective application of the proposed amendments in Schedule 15, and for the continued application of the existing injunction provisions in the WMD Act in relation to alleged contraventions occurring before the commencement of the proposed amendments, if enacted.

Comment The proposed amendments in Schedule 15 do not appear to raise significant issues of concern with respect to the modified application of the standard provisions of the RPA.

Subject to one matter of qualification (discussed below) the justification provided in the Explanatory Memorandum for the minor expansion of powers available under the WMD Act, consequential to the triggering of the RPA, also appears to be reasonable and accurate.

Prohibition on undertakings as to damages in applications for interim injunctions The proposed application of subsection 122(2) of the RPA (which prohibits the court from requiring an applicant for an interim injunction to provide an undertaking as to damages) may have a legal effect that is more than merely procedural as suggested by the Explanatory Memorandum. For the reasons explained below, this may also impact adversely on the legal rights and interests of regulated entities who are respondents to an application for an injunction, and who are subsequently acquitted of an offence against the WMD Act.

Current legal position

Currently, the WMD Act does not expressly prohibit the court from requiring an undertaking as to damages as a condition to the issuing of an interim injunction in relation to an alleged contravention of a civil penalty provision in the WMD Act. This suggests that a court considering such an application may exercise discretion to require the applicant to provide any undertakings it may consider to be just in the circumstances of the individual case.363

At common law, there is no absolute immunity in favour of the Crown, as the applicant for an interim injunction, from the imposition of a condition that it provides an undertaking as to damages. There is, however, a view that judicial discretion to require the Crown to provide undertakings as a condition to the issuing of interim relief will be exercised rarely in ‘law enforcement’ type actions, as compared to actions in which the Crown is seeking to enforce rights of a kind which are held in common with private litigants (such as contractual or property rights). Nonetheless, decisions on applications for interim injunctions involve an assessment of the circumstances of the individual application, and in the absence of a statutory prohibition there remains a possibility that a court could require the Crown to provide an undertaking as a condition of granting an interim injunction.364

Practical effect of the proposed amendments on regulated entities

In proposing to replace general judicial discretion (which is, perhaps, likely to be exercised in more exceptional cases) with a wholesale statutory prohibition on requiring the provision of undertakings, the proposed application of subsection 122(2) of the RPA to the WMD Act could potentially have a substantial adverse impact on the interests of regulated entities whose actions might subsequently be vindicated at trial.

360. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 351. 361. RPA, subsection 122(2). 362. Ibid., section 125. 363. See, for example, Federal Court of Australia, Usual undertakings as to damages, Practice note, GPN-UNDR, Federal Court of Australia,

Canberra, 25 October 2016. 364. F Hoffman-La Roche & Co AG v Secretary for Trade & Industry (1974) 3 WLR 104 [1975] AC 295; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, [1980] HCA 44 at p. 59 (per Mason J); Australian Competition & Consumer Commission v Giraffe World Australia Pty Ltd

(1988) 84 FCR 512, [1998] FCA 819; Optus Networks Pty Ltd v City of Boroondara (1996) VSC 76, [1997] 2 VR 318.

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For instance, a regulated entity who is subject to an interim injunction, but who is ultimately found not to have contravened the WMD Act, may suffer significant financial loss as a result of the interim injunction. (For example, the entity may sustain loss arising from an inability to perform a contractual obligation that is prohibited by the injunction, or may lose a commercial opportunity.)

Absence of explanation

The potential loss sustained by a respondent whose position is ultimately vindicated at trial is not, of course, conclusive of the policy question of whether judicial discretion to require undertakings (as informed by common law principles) should be replaced by a statutory prohibition.

However, the Explanatory Memorandum could usefully have expanded on how the balance of public policy considerations has been reached on the proposed application of subsection 122(2) to the WMD Act. (That is, an explanation of the apparent position that interests in law enforcement should outweigh categorically the potential adverse impacts that a prohibition on undertakings may have upon regulated entities under the WMD Act.)

Legal policy issues—Application of the Regulatory Powers Act to existing legislation As mentioned in the earlier discussion of committee consideration, the Senate Legal and Constitutional Affairs Legislation Committee, as constituted in 2014, supported a transparent process for the standardisation of existing regulatory legislation with the provisions in the RPA. The Committee emphasised the importance of the Parliament having access to information that explains the context and progress of the standardisation process, when it is called upon to consider individual triggering Bills.365

There appears to have been a limited degree of transparency in relation to these matters in the context of the present Bill, and the lapsed Bill as introduced to the 44th Parliament. The extrinsic materials do not provide current details of the Government’s process for implementing the RPA.

The status of the present Bill as the first ‘omnibus’ triggering Bill may provide an opportunity for the Parliament to consider possible procedural improvements, and for Senators and Members to convey any views, expectations or preferences on this matter. Several areas of concern are outlined below, together with some possible measures to improve transparency.

Absence of information about progress towards reviewing existing regulatory legislation The Explanatory Memorandum does not identify how each of the 15 Acts in Schedules 2-15 were identified for inclusion in the Bill.

For example, it is unknown whether their inclusion might represent a completed review of all regulatory legislation in the relevant administering portfolios and, by implication, a position that other regulatory legislation administered by these portfolios is not intended to be standardised, in full or in part.

The Explanatory Memorandum also does not provide an indication of the status of any remaining work towards the review and standardisation of further pieces of regulatory legislation. For example, it does not identify a systematic process for reviewing any remaining regulatory legislation, or provide details of progress made towards completing any such process.

Absence of information about the decision-making methodology Further, the extrinsic materials to the Bill do not contain information about the methodology the Government has applied to determine whether existing regulatory legislation is suitable (or otherwise) for standardisation.366

In particular, there does not appear to be publicly available information about the following matters:

365. Senate Legal and Constitutional Affairs Committee, Regulatory Powers (Standard Provisions) Bill 2014 [Provisions], op. cit., p. 6. 366. To clarify, the current arrangements for pre-legislative scrutiny of draft triggering Bills appear to be limited to those which apply the RPA with certain variations that differ to the policy approach taken by the RPA, or Bills which contain regulatory provisions covering the subject-matter of the RPA but do not apply the standard provisions. (See: OPC, Drafting direction no. 3.5A: regulatory powers, op. cit., pp. 4-5; and

OPC, Drafting direction no. 4.2: referral of drafts to agencies, op. cit., pp. 11-13.) However, existing pre-legislative scrutiny guidance materials do not contain any information about what, if any, arrangements are in place to moderate and promote consistency in legal policy decision-making about whether existing regulatory legislation should, or should not, be standardised. For example, the Department of the Prime Minister and Cabinet (PM&C), Legislation handbook, PM&C, Canberra, 22 June 1999, updated May 2000 is silent about this matter, as is the AGD, Guide to framing Commonwealth offences, infringement notices and enforcement powers, op. cit.

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• what, if any, decision-making criteria or principles are applied (or what matters are taken into consideration) to determine whether an individual regulatory Act is suitable (or otherwise) for standardisation, and

• whether the Government has implemented any centralised or coordinated pre-legislative scrutiny arrangements to moderate the policy decisions of individual departments or regulatory agencies about whether an individual piece of regulatory legislation is suitable (or otherwise) for standardisation.

Details about any such arrangements might provide an assurance to the Parliament that the Government has implemented internal measures to promote consistency of decision-making and, consequently, whole-of-statute-book integrity.

In particular, evidence of pre-legislative scrutiny and moderation arrangements of the kind outlined above could provide an assurance that there is a process in place to prevent inconsistencies that might arise if individual regulatory agencies with broadly similar sorts of functions were to adopt significantly different policy positions about the necessity or desirability of standardisation of their respective governing legislation.

Evidence of such arrangements might also help manage the risk that individual portfolios may adopt different policy approaches to the standardisation of regulatory legislation within their administrative responsibilities. If variation is not attributable to the particular statutory functions of individual regulatory agencies, but rather reflects a broader policy position or practice adopted by an administering portfolio, this could undermine the objective of the RPA to remove arbitrary or unnecessary differences between the provisions of different regulatory schemes.

Potential release of legislative design and scrutiny guidance materials The AGD website indicates that, in 2015, AGD was developing a consolidated Legislative Design and Scrutiny Guide to provide comprehensive information to Australian Government agencies ‘when designing policy and new legislative approaches’.367 The AGD website states that the guide was ‘expected to be available later in 2015’ although such a resource does not appear to have been published as at November 2016.368

If there remains an intention to release a consolidated scrutiny guide, it may be an appropriate location for information about decision-making about the application of the RPA to existing legislation.

Alternatively, existing guidance materials such as the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers might be updated to provide explicit guidance about decision-making about the application of the RPA, including decision-making about the variation of standard provisions (noting that this resource was last updated in September 2011, prior to the enactment of the RPA).

Absence of information about the possible future use of ‘omnibus’ triggering Bills The present Bill is an ‘omnibus’ Bill in that it proposes to amend multiple pieces of unrelated regulatory legislation, administered by several different portfolios. The Government has described the Bill as ‘the first substantial tranche’ of amendments to trigger the application of the standard provisions of the RPA to existing regulatory regimes (emphasis added).369 It is therefore possible that the use of this type of Bill may represent a new practice in implementing the RPA to existing regulatory legislation. (That is, the possible periodic introduction of ‘omnibus’ standardisation amendment Bills.)

Given the potential for the further use of ‘omnibus’ Bills, it is worth noting that the specific form of amending legislation can have implications for the Parliament’s capacity to conduct effective scrutiny of legislative proposals.

One potential risk associated with the use of omnibus Bills arises from their normally sizeable volume and breadth. This could potentially limit opportunities for the detailed scrutiny of proposed amendments, particularly in the event that an omnibus Bill contained proposed amendments of a legally significant or potentially controversial or sensitive nature.

367. AGD, ‘Legislative design and scrutiny’, AGD website. 368. Ibid. 369. Brandis, ‘Second reading speech: Regulatory Powers (Standardisation Reform) Bill 2016’, op. cit., p. 1641.

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A further risk is that regulated entities may not become aware of proposed amendments to individual pieces of regulatory legislation contained in an omnibus Bill, since the short title of the Bill may not convey clearly its relevance to them.

Potential Parliamentary guidance on the use of ‘omnibus’ triggering Bills and ‘stand-alone’ triggering Bills Members and Senators may wish to consider providing guidance, or otherwise conveying their expectations or views, about the circumstances in which the use of an ‘omnibus’ triggering Bill is considered to be appropriate from a Parliamentary scrutiny perspective; and the circumstances in which it would be considered preferable for the Government to introduce a separate Bill that amends an individual regulatory Act to apply the RPA (or to introduce a Bill that amends multiple, related regulatory Acts).

This might include, for example, conveying a general expectation or preference that explanatory memoranda accompanying any future ‘omnibus’ triggering Bills should contain the following content:

• a statement or certification that the Government considers the proposed measures are appropriate for inclusion in an ‘omnibus’ Bill. (For example, a statement or certification that the Government is satisfied that the relevant measures do not involve significant expansions of existing powers, or have significant impacts on the rights or liberties of regulated entities, and are not otherwise of a potentially controversial or sensitive nature that would warrant Parliamentary scrutiny of a stand-alone amending Bill), and

• details of outreach or consultation undertaken with regulated entities that will be affected by the proposed amendments, to ensure their awareness of the potential changes included in an omnibus Bill.

Absence of information about, or enabling, the evaluation of the Regulatory Powers Act The extrinsic materials to the Bill (and those accompanying the 2014 Bill, the 2012-13 Bill, and other triggering legislation) do not explain how the effectiveness of the RPA in achieving its stated policy objectives is being measured and evaluated, or reported to the Parliament and the public.

The introduction of the Bill may provide an opportunity for the Government and the Parliament to give further consideration to this matter—including mechanisms for the disclosure of information about the implementation of the RPA to enable the Parliament and other stakeholders to undertake evaluation or analysis, if desired.

Potential publication of a consolidated list of legislation applying the RPA A useful starting point may be a suggestion that the Government maintains a consolidated, public list of regulatory legislation that has applied the standard provisions of the RPA. Such a list might be updated progressively or periodically. Such a resource could provide a reliable and efficient means of identifying all such legislation, which could provide a foundation for evaluating the way in which the RPA has been implemented. It may also assist the Parliament in scrutinising future triggering legislation by enabling it to more readily compare approaches taken to the standardisation of individual regulatory legislation.

Potential annual reporting on implementation—Possible inclusion in annual reports on legislative repeals A further possible initiative to aid the evaluation of the implementation of the RPA would be for the Government to include information about the implementation of the RPA in its future ‘annual red tape reduction reports’ which include details of the Government’s performance in repealing spent legislation, and outlining a course of proposed reform over the coming year, as announced in February 2016.370 This information could update the Parliament about the progress and anticipated next steps in the process of standardising existing regulatory legislation, and help ensure that the Parliament has access to contextual information necessary to scrutinise effectively future triggering legislation.

Commissioning a review of the implementation of the Regulatory Powers Act after a period of time Another common evaluation tool for new legislative schemes is to commission a review (internal or independent) after the scheme has been operational for a reasonable period of time (for example, five years).

370. The Government indicated that its bi-annual legislative ‘repeal days’ (involving the introduction of omnibus repeal legislation, directed to reducing regulatory red tape) would be replaced with ‘annual reports that will assess our performance to date and set a course for reform over the next year’ and in doing so ‘will build on our commitment to be transparent and accountable to the parliament’. P Hendy, ‘Spent rules have no place in an innovation nation’, The Australian, 4 February 2016, p. 12. See further: Australian Government, Annual red tape reduction report 2015, PM&C, Canberra, March 2016.

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There is significant precedent for reviews of this kind, including the enactment of statutory provisions requiring the Government to commission or establish a review and to table its report in Parliament.371

Concluding comments The Bill represents the first piece of ‘omnibus’ legislation seeking to trigger the application of the RPA to several, unrelated pieces of regulatory legislation administered by multiple portfolios.

Provisions of the Bill

‘Standardisation’ amendments (Schedules 2-15) The proposed ‘standardisation’ amendments in Schedules 2-15 do not appear to make significant, substantive changes to the relevant regulatory agencies’ existing powers under their respective governing legislation. This reflects, in part, that the relevant provisions of at least seven of the 15 Acts proposed to be amended by the Bill were drafted in accordance with standard drafting precedents that informed the development of the RPA.372

Potential improvements to the Explanatory Memorandum The justification provided in the Explanatory Memorandum for the application of certain provisions of the RPA could withstand greater elaboration in some respects. In particular:

• the justification provided for the proposed application of section 96 of the RPA (which imposes an evidential burden upon a respondent seeking to rely upon an exception to a civil penalty provision) by reference to the existing civil penalty provisions in the relevant Act. In particular:

- identifying whether the Act contains civil penalty provisions with exceptions that do not currently impose an evidential burden on the respondent, and - if so, explaining why it is appropriate to depart from this approach via the application of section 96,373 and • the justification provided for the proposed application of subsection 122(2) of the RPA (which provides that

the relevant regulatory authority cannot be required to provide an undertaking as to damages as a condition for the issuing of an interim injunction) in relation to regulatory legislation that does not already contain such a prohibition.374

The justification provided in the Explanatory Memorandum for the proposed modification of some provisions of the RPA could also withstand greater elaboration in some respects. In particular, the justification for the following investigative powers:

• the authorisation of the use of reasonable force against things, particularly the breadth of the classes of persons who are authorised to use such force, and the applicable oversight and redress mechanisms in relation to the use of inappropriate or excessive force,375 and

• the abrogation of self-incrimination privilege in relation to coercive investigative powers requiring the production of evidence or provision of information, and the limitation of use and derivative use immunity in relation to that evidence to criminal proceedings against the person (and not civil penalty proceedings).376

371. Some examples include the Legislation Act 2003 (section 59—the Attorney-General must appoint persons to a body to conduct a review of the operation of the Act in 2021); Environment Protection and Biodiversity Conservation Act 1999 (section 522A—the Minister must cause a review of the Act to be undertaken every ten years); Public Interest Disclosure Act 2013 (section 82A—the Minister must cause a review of the Act to be undertaken after two years of its operation); and various counter-terrorism and national security legislation (for example, Anti-Terrorism Act 2005, section 4, which referenced an agreement of the Council of Australian Governments to convene a review of certain amendments to the terrorism provisions of the Criminal Code Act 1995 and Crimes Act 1914 after five years of operation, and required the Attorney-General to table in Parliament the report of any such review).

372. As identified in: AGD, Senate Standing Committee on Legal and Constitutional Affairs Legislation, Answers to Questions on Notice, op. cit. 373. See especially: Schedule 3 (amendment of the BEED Act) and existing subsections 11(6) and 11(7), 15(6) and 17A; Schedule 7 (amendment of the GEMS Act) item 39—proposed new subsection 129(4) and existing subsections 16(8), 17(8), 18(8) and 19(8); Schedule 13 (amendment of the Privacy Act) and existing subsections 20C(2)-(4), 20D(5), 20E(2)-(3), 20G(2), 20H(2), 20H(5), 20K(2), 20L(2), 20V(4), 20Y(3), 20Y(5), 20Z(4),

20ZA(3), 21D(2), 21F(3), 21G(2)-(3), 21G(5), 22C(2)-(3), 22D(2), 22E(2)-(3), 22F(2)-(3), 98A(4), 98B(4) and 98C(4). 374. See: Schedule 15 (amendment of the WMD Act) item 2—proposed new subsection 16(1) which applies the injunction provision in Part 7 of the RPA including subsection 122(2); and Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 351. 375. See: Schedule 7 (amendment of the GEMS Act), item 35—proposed new subsections 87(14) and 88(13); Schedule 9 (amendment of the Illegal

Logging Act), item 8—proposed new subsection 22(11); Schedule 10 (amendment of the ICNA Act), item 6—proposed new subsections 85(11) and 86(10); and Schedule 14 (amendment of the TPP Act) item 23, proposed new subsection 52(12).

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Potential amendments to the Bill Consideration might also be given to two amendments to the provisions of the Bill—namely:

• strengthening statutory safeguards in relation to the use of reasonable force against things in the course of exercising monitoring or investigative powers, including to:

- limit the classes of authorised persons who may exercise such force—for example, by prescribing specific qualifications or training requirements, excluding or limiting persons assisting authorised persons, or conferring a power on police officers accompanying authorised persons to use reasonable force, and

- provide for a compensation mechanism analogous to that in sections 29 and 61 of the RPA (in relation to damage caused by the operation of electronic equipment in the execution of monitoring and investigation powers) for the use of unreasonable or unnecessary force against things,377 and • providing for the repeal by statute of legislative instruments, or parts of legislative instruments, that will

be made redundant by the proposed amendments to the primary Acts, which elevate matters currently dealt within in regulations and rules (generally infringement notice regimes) to statutory status.378

Amendments to the Regulatory Powers Act (Schedule 1) The majority of the proposed amendments to the RPA in Schedule 1 are fairly described as minor in terms of their legal substance and effect.

However, the proposed amendments in item 2 will extend the range of regulatory provisions in relation to which intrusive compliance monitoring powers may be exercised. (Namely, the power to secure evidence of a suspected contravention, pursuant to section 22 of the RPA.) The proposed amendment will apply the expanded power to all regulatory legislation that currently applies section 22 of the RPA, and any regulatory legislation which triggers the application of section 22 in future.

The Explanatory Memorandum to the Bill characterises the proposed amendment in item 2 as correcting a ‘drafting error’ in section 22 of the RPA as originally enacted, with the objective of enabling the power to be exercised in ‘all appropriate circumstances’.379 While this may be the subjective policy intention, the extrinsic materials to the Bill do not provide an explanation or an indication of the likely practical impact of the proposed amendment on the existing regulatory regimes which have triggered the application of section 22 of the RPA.

The impact of this proposed amendment will depend on the specific provisions of individual regulatory legislation which have been designated as (or which are in future designated as) ‘related provisions’ and so-called ‘core provisions’ or ‘information subject to monitoring’ for the purpose of the standard monitoring powers.

Information about the way in which section 22 of the RPA has been applied by individual regulatory legislation triggering its application—and the operational experience of individual regulatory agencies in the use of this provision—may assist the Parliament in scrutinising the anticipated impact of the proposed amendment.

Legal policy issues—Implementation of the RPA to existing regulatory legislation There appears to have been limited public transparency about the process the Government has engaged to apply the RPA to existing regulatory legislation. The Government does not appear to have provided public information about the following matters relating to the context, progress and evaluation of the process:

• a progressively or periodically updated list of the regulatory legislation to have applied the RPA to date, which could assist the Parliament in:

376. See: Schedule 14 (amendment of the TPP Act) items 23 and 25, proposed new subsections 52(14) and 52(15) and proposed new section 80A; and Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., pp. 340 and 341. 377. See: Schedule 7 (amendment of the GEMS Act), item 35—proposed new subsections 87(14) and 88(13); Schedule 9 (amendment of the Illegal Logging Act), item 8—proposed new subsection 22(11); Schedule 10 (amendment of the ICNA Act), item 6—proposed new subsections

85(11) and 86(10); and Schedule 14 (amendment of the TPP Act) item 23, proposed new subsection 52(12). 378. See: Schedule 2 (amendment of the ASADA Act) item 2—proposed new Part 8B; Schedule 3 (amendment of the BEED Act) item 8—repeal of section 64; and Schedule 5 (amendment of the Defence Act) item 4—repeal of subsections 72TP(4) and 72TP(5). 379. Explanatory Memorandum, Regulatory Powers (Standardisation Reform) Bill 2016, op. cit., p. 5.

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- comparing or contrasting the approaches taken to the application (and modification) of standard provisions in the RPA to different regulatory regimes, in the course of scrutinising individual pieces of triggering legislation

- monitoring progress towards the implementation of the RPA, and evaluating the impact of the RPA • information about the process engaged to review existing regulatory legislation to determine its suitability or otherwise for standardisation, in particular details of:

- the decision-making methodology used to determine whether legislation is suitable or otherwise for standardisation, and what steps are taken to promote consistency in decision-making (or at least to avoid arbitrary differences in the treatment of similar regulatory schemes, or as between portfolios)

- progress made to date, including details of legislation that has been reviewed and assessed as unsuited to standardisation, and the status of any ongoing or outstanding work in reviewing existing legislation • information about the intended future process for implementing the RPA to existing regulatory legislation, including:

- whether there is an intention to make routine use of ‘omnibus Bills’ in the future to implement the RPA to multiple pieces of unrelated regulatory legislation - if so, confirmation of the circumstances in which ‘stand-alone’ triggering Bills will be introduced in preference to ‘omnibus Bills’. (For example, in relation to proposed amendments that would result in a

material expansion of an agency’s existing regulatory powers, or which are otherwise of a potentially controversial or sensitive nature that would warrant Parliamentary scrutiny of a stand-alone Bill) - confirmation that outreach or consultation has been undertaken with regulated entities to alert them to the inclusion of proposed amendments to relevant regulatory legislation in an ‘omnibus Bill’, and • information explaining how the effectiveness of the RPA in achieving its stated policy objectives is being

measured, evaluated and reported to the Parliament, stakeholders and the public.

Members and Senators may wish to seek additional information about these matters in the course of scrutinising or debating the Bill, and consider whether they wish to convey any general views, expectations or preferences for the routine provision of such information to the Parliament. This might include, for example:

• conveying an expectation or a preference for the inclusion of contextual information about the process for implementing the RPA in Explanatory Memoranda accompanying future triggering legislation—perhaps building upon the matters recommended by the Senate Legal and Constitutional Affairs Legislation Committee in its report on the 2012-13 Bill,380 and

• requesting or expressing support for the provision of separate implementation progress reports to the Parliament—for instance, the inclusion of a standing item on the implementation of the RPA in the Government’s future ‘annual red-tape reduction reports’.381

380. Senate Standing Committee on Legal and Constitutional Affairs Legislation, Regulatory Powers (Standard Provisions) Bill 2012 [Provisions],op. cit., (recommendations 2 and 3). 381. See further, Australian Government, Annual Red Tape Reduction Report 2015, op. cit., (the first annual report); and Hendy, ‘Spent rules have no place in an innovation nation’, op. cit., p. 12 (the Government’s announcement of its intention to provide annual red-tape reduction

reports with respect to spent legislation).

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