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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Product Emissions Standards Bill 2017
No. , 2017
(Environment and Energy)
A Bill for an Act to improve air quality by
regulating emissions from certain products, and for
related purposes
No. , 2017
Product Emissions Standards Bill 2017
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Objects of this Act ............................................................................. 2
4
Simplified outline of this Act ............................................................ 2
5
Extension to external Territories ....................................................... 3
6
Act binds the Crown .......................................................................... 3
7
Definitions ......................................................................................... 4
Part 2--Emissions-controlled products
7
8
Simplified outline of this Part ............................................................ 7
9
Emissions-controlled products........................................................... 7
10
Certification ....................................................................................... 7
11
Exemptions ........................................................................................ 8
Part 3--Enforcing product emissions standards
9
Division 1--Simplified outline of this Part
9
12
Simplified outline of this Part ............................................................ 9
Division 2--Importing emissions-controlled products
10
13
Import of product that is not certified .............................................. 10
14
Import of product that is not marked as required ............................. 10
Division 3--Supplying emissions-controlled products
12
15
Supply of product that is not certified ............................................. 12
16
Supply of product that is not marked as required ............................ 12
Division 4--Marking emissions-controlled products
14
17
Marking product that is not certified ............................................... 14
18
Incorrect marking of product ........................................................... 14
Part 4--Record keeping
16
19
Simplified outline of this Part .......................................................... 16
20
Rules may provide record-keeping requirements ............................ 16
21
Secretary may require recorded information ................................... 17
22
Reporting on supply of products manufactured in Australia ........... 17
Part 5--Regulatory powers
19
23
Simplified outline of this Part .......................................................... 19
24
Monitoring powers .......................................................................... 19
25
Investigation powers ........................................................................ 20
ii
Product Emissions Standards Bill 2017
No. , 2017
26
Civil penalty provisions ................................................................... 21
27
Infringement notices ........................................................................ 21
28
Enforceable undertakings ................................................................ 21
29
Injunctions ....................................................................................... 22
Part 6--Forfeiture of emissions-controlled products
23
Division 1--Simplified outline of this Part
23
30
Simplified outline of this Part .......................................................... 23
Division 2--Forfeiture following conviction or making of civil
penalty order
24
31
Product forfeited to Commonwealth ................................................ 24
32
Power to seize forfeited product ...................................................... 24
33
Person must not interfere with seized product ................................. 24
Division 3--Forfeiture of seized products
26
34
Forfeiture notices ............................................................................. 26
35
Claims for return of seized product ................................................. 26
36
Forfeiture of seized product to the Commonwealth ......................... 27
37
Right of compensation in certain circumstances .............................. 27
Division 4--General provisions
29
38
Forfeited products become property of Commonwealth .................. 29
39
Disposal of forfeited products ......................................................... 29
Part 7--Miscellaneous
30
40
Simplified outline of this Part .......................................................... 30
41
Inspectors ........................................................................................ 30
42
Publication of information relating to certifications and
exemptions ...................................................................................... 30
43
Disclosure of information ................................................................ 31
44
Compliance audits ........................................................................... 31
45
Delegation by the Minister .............................................................. 32
46
Delegation by the Secretary ............................................................. 33
47
Review of operation of Act ............................................................. 33
48
Physical elements of offences .......................................................... 34
49
Contravening offence and civil penalty provisions .......................... 34
50
Alternative constitutional bases ....................................................... 34
51
Rules ................................................................................................ 35
No. , 2017
Product Emissions Standards Bill 2017
1
A Bill for an Act to improve air quality by
1
regulating emissions from certain products, and for
2
related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the Product Emissions Standards Act 2017.
8
Part 1 Preliminary
Section 2
2
Product Emissions Standards Bill 2017
No. , 2017
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Objects of this Act
13
The objects of this Act are:
14
(a) to regulate emissions from certain products by setting
15
emissions standards; and
16
(b) in doing so, to achieve either or both of the following:
17
(i) contribute to improving air quality in Australia in order
18
to deliver associated health and environmental benefits;
19
(ii) assist in giving effect to Australia's obligations under
20
one or more of the Climate Change Conventions.
21
Note:
For Climate Change Conventions, see section 7.
22
4 Simplified outline of this Act
23
This Act creates a framework for regulating emissions from
24
products.
25
Preliminary Part 1
Section 5
No. , 2017
Product Emissions Standards Bill 2017
3
The Act provides for an emissions-controlled product to be
1
certified. To be certified, the product must meet an emissions
2
standard.
3
A person who imports or supplies an emissions-controlled product
4
that is not certified will commit an offence. There are also offences
5
related to false or incorrect marking of products as certified. Civil
6
penalties are included as alternatives to offences.
7
Products dealt with in breach of the Act are forfeited to the
8
Commonwealth.
9
The rules may exempt persons or products from the operation of
10
the Act.
11
Record-keeping requirements and regulatory powers (mostly
12
drawn from the Regulatory Powers Act) are included to assist in
13
enforcing the Act.
14
The operation of the Act is to be reviewed periodically.
15
5 Extension to external Territories
16
(1) This Act extends to every external Territory.
17
(2) The Regulatory Powers Act, as it applies in relation to this Act,
18
extends to every external Territory.
19
6 Act binds the Crown
20
(1) This Act binds the Crown in each of its capacities.
21
(2) This Act does not make the Crown liable to be:
22
(a) prosecuted for an offence; or
23
(b) subject to civil proceedings for a civil penalty order under
24
Part 4 of the Regulatory Powers Act; or
25
(c) given an infringement notice under Part 5 of the Regulatory
26
Powers Act.
27
Part 1 Preliminary
Section 7
4
Product Emissions Standards Bill 2017
No. , 2017
(3) The protection in subsection (2) does not apply to an authority of
1
the Crown.
2
7 Definitions
3
(1) In this Act:
4
Australia includes the external Territories.
5
certified for the purposes of this Act means certified for the
6
purposes of this Act in accordance with the rules.
7
civil penalty provision has the same meaning as in the Regulatory
8
Powers Act.
9
Climate Change Conventions means:
10
(a) the United Nations Framework Convention on Climate
11
Change, done at New York on 9 May 1992; and
12
(b) the Kyoto Protocol to the United Nations Framework
13
Convention on Climate Change, done at Kyoto on
14
11 December 1997; and
15
(c) the Paris Agreement, done at Paris on 12 December 2015;
16
as amended and in force for Australia from time to time.
17
Note:
The Convention, the Protocol and the Agreement are in Australian
18
Treaty Series 1994 No. 2 ([1994] ATS 2), 2008 No. 2 ([2008] ATS 2)
19
and 2016 No. 24 ([2016] ATS 24), respectively. In 2017 they could be
20
viewed in the Australian Treaties Library on the AustLII website
21
(http://www.austlii.edu.au)
22
emissions-controlled product means a product that is prescribed by
23
the rules for the purposes of section 9.
24
emissions standard means a standard dealing with matters relating
25
to emissions from products.
26
engage in conduct includes omitting to perform an act.
27
evidential material has the same meaning as in the Regulatory
28
Powers Act.
29
forfeiture notice has the meaning given by subsection 34(2).
30
Preliminary Part 1
Section 7
No. , 2017
Product Emissions Standards Bill 2017
5
inspector means a person appointed under section 41.
1
manufacture, for a product prescribed for the purposes of the
2
definition of product, means produce by any method.
3
mark includes label.
4
person assisting an authorised person has the same meaning as in
5
the Regulatory Powers Act.
6
product means a thing (including a substance or mixture of
7
substances) that is:
8
(a) manufactured; or
9
(b) prescribed by the rules for the purposes of this definition.
10
regulatory authority includes a regulatory authority of, or located
11
in, a foreign country.
12
Regulatory Powers Act means the Regulatory Powers (Standard
13
Provisions) Act 2014.
14
reporting period, for an emissions-controlled product, means a
15
period prescribed by the rules.
16
rules means rules made under section 51.
17
Secretary means the Secretary of the Department.
18
supply, in relation to a product, has the meaning given by
19
subsection (2).
20
this Act includes instruments made under this Act.
21
(2) A supply of a product means a supply in the course of trading or
22
commercial activities.
23
(3) For the purposes of subsection (2), supply includes:
24
(a) an offer to supply (including making available, exposing,
25
displaying or advertising the product); and
26
(b) a supply (including a resupply) by way of sale, exchange,
27
gift, lease, loan, hire or hire-purchase; and
28
(c) a supply as part of the supply of another thing.
29
Part 1 Preliminary
Section 7
6
Product Emissions Standards Bill 2017
No. , 2017
(4) For the purposes of subsection (2), it is irrelevant whether the
1
supply is:
2
(a) for consideration; or
3
(b) a wholesale or retail supply.
4
Emissions-controlled products Part 2
Section 8
No. , 2017
Product Emissions Standards Bill 2017
7
Part 2--Emissions-controlled products
1
2
8 Simplified outline of this Part
3
The rules may prescribe a product as an emissions-controlled
4
product.
5
The rules may provide for an emissions-controlled product to be
6
certified. A minimum requirement for certification is that the
7
product meets an emissions standard.
8
The rules may exempt persons or products from the operation of
9
the Act.
10
9 Emissions-controlled products
11
The rules may prescribe a product as an emissions-controlled
12
product.
13
10 Certification
14
(1) The rules may provide for an emissions-controlled product to be
15
certified for the purposes of this Act.
16
Product must meet emissions standard
17
(2) However, the rules must not provide for a product to be certified
18
for the purposes of this Act unless:
19
(a) the Secretary is satisfied that the product complies with an
20
emissions standard set out in the rules for the product; or
21
(b) the product is certified:
22
(i) by a regulatory authority specified in the rules for the
23
product; and
24
(ii) as meeting an emissions standard specified in the rules
25
for the product.
26
Note:
For regulatory authority, see section 7.
27
Part 2 Emissions-controlled products
Section 11
8
Product Emissions Standards Bill 2017
No. , 2017
Other requirements
1
(3) The rules may prescribe other requirements for, or in relation to,
2
certifying a product for the purposes of this Act.
3
(4) Without limiting subsection (3), the requirements may include
4
requirements relating to the following:
5
(a) applications for certification;
6
(b) processes and criteria for certification, including testing;
7
(c) processes for suspending or revoking certification;
8
(d) the use of marks to indicate certification.
9
Note:
The rules may provide for charging fees and for review of decisions:
10
see subsection 51(2).
11
11 Exemptions
12
(1) The rules may provide for the exemption of:
13
(a) a specified emissions-controlled product from one or more
14
provisions of this Act; or
15
(b) a specified emissions-controlled product or person from one
16
or more provisions of this Act in the circumstances set out in
17
the rules.
18
Note:
For specification by class, see subsection 13(3) of the Legislation Act
19
2003.
20
(2) Without limiting paragraph (1)(b), the circumstances may include
21
that a person has:
22
(a) applied for and been granted an exemption; or
23
(b) given the Secretary specified notice or information; or
24
(c) taken other action required by the rules.
25
(3) The rules may provide processes for, and other requirements in
26
relation to, obtaining, varying, suspending or revoking exemptions.
27
Note:
The rules may provide for charging fees: see subsection 51(2).
28
(4) The rules may provide for the Secretary to make decisions in
29
relation to exemptions, including deciding whether to grant an
30
exemption.
31
Note:
The rules may provide for review of decisions: see subsection 51(2).
32
Enforcing product emissions standards Part 3
Simplified outline of this Part Division 1
Section 12
No. , 2017
Product Emissions Standards Bill 2017
9
Part 3--Enforcing product emissions standards
1
Division 1--Simplified outline of this Part
2
12 Simplified outline of this Part
3
Offences and civil penalties apply:
4
(a)
if an emissions-controlled product is imported or
5
supplied and the product is not certified, or marked as
6
required; and
7
(b)
for marking a product that is not certified, and for
8
marking a product incorrectly.
9
Part 3 Enforcing product emissions standards
Division 2 Importing emissions-controlled products
Section 13
10
Product Emissions Standards Bill 2017
No. , 2017
Division 2--Importing emissions-controlled products
1
13 Import of product that is not certified
2
(1) A person contravenes this subsection if:
3
(a) the person imports a product; and
4
(b) the product is an emissions-controlled product; and
5
(c) the product is not certified for the purposes of this Act.
6
(2) For the purposes of paragraph (1)(c), a product is taken to be not
7
certified if the certification of the product is suspended.
8
Strict liability offence
9
(3) A person commits an offence of strict liability if the person
10
contravenes subsection (1).
11
Penalty: 60 penalty units.
12
Civil penalty provision
13
(4) A person is liable to a civil penalty if the person contravenes
14
subsection (1).
15
Civil penalty:
120 penalty units.
16
14 Import of product that is not marked as required
17
(1) A person contravenes this subsection if:
18
(a) the person imports a product; and
19
(b) the product is an emissions-controlled product that is
20
certified for the purposes of this Act; and
21
(c) the rules impose requirements for marking the product; and
22
(d) the product is not marked in the way required by the rules.
23
Strict liability offence
24
(2) A person commits an offence of strict liability if the person
25
contravenes subsection (1).
26
Enforcing product emissions standards Part 3
Importing emissions-controlled products Division 2
Section 14
No. , 2017
Product Emissions Standards Bill 2017
11
Penalty: 60 penalty units.
1
Civil penalty provision
2
(3) A person is liable to a civil penalty if the person contravenes
3
subsection (1).
4
Civil penalty:
120 penalty units.
5
Part 3 Enforcing product emissions standards
Division 3 Supplying emissions-controlled products
Section 15
12
Product Emissions Standards Bill 2017
No. , 2017
Division 3--Supplying emissions-controlled products
1
15 Supply of product that is not certified
2
(1) A person contravenes this subsection if:
3
(a) the person supplies a product; and
4
(b) the product is an emissions-controlled product; and
5
(c) the product is not certified for the purposes of this Act.
6
(2) For the purposes of paragraph (1)(c), a product is taken to be not
7
certified if the certification of the product is suspended.
8
Strict liability offence
9
(3) A person commits an offence of strict liability if the person
10
contravenes subsection (1).
11
Penalty: 60 penalty units.
12
Civil penalty provision
13
(4) A person is liable to a civil penalty if the person contravenes
14
subsection (1).
15
Civil penalty:
120 penalty units.
16
16 Supply of product that is not marked as required
17
(1) A person contravenes this subsection if:
18
(a) the person supplies a product; and
19
(b) the product is an emissions-controlled product that is
20
certified for the purposes of this Act; and
21
(c) the rules impose requirements for marking the product; and
22
(d) the product is not marked in the way required by the rules.
23
Strict liability offence
24
(2) A person commits an offence of strict liability if the person
25
contravenes subsection (1).
26
Enforcing product emissions standards Part 3
Supplying emissions-controlled products Division 3
Section 16
No. , 2017
Product Emissions Standards Bill 2017
13
Penalty: 60 penalty units.
1
Civil penalty provision
2
(3) A person is liable to a civil penalty if the person contravenes
3
subsection (1).
4
Civil penalty:
120 penalty units.
5
Part 3 Enforcing product emissions standards
Division 4 Marking emissions-controlled products
Section 17
14
Product Emissions Standards Bill 2017
No. , 2017
Division 4--Marking emissions-controlled products
1
17 Marking product that is not certified
2
(1) A person contravenes this subsection if:
3
(a) the person applies a mark to a product; and
4
(b) the product is to be imported into, or supplied in, Australia;
5
and
6
(c) the product is an emissions-controlled product; and
7
(d) the rules require the product to be marked if the product is
8
certified for the purposes of this Act; and
9
(e) the mark indicates that the product is so certified; and
10
(f) the product is not so certified.
11
(2) For the purposes of paragraph (1)(f), a product is taken to be not
12
certified if the certification of the product is suspended.
13
Strict liability offence
14
(3) A person commits an offence of strict liability if the person
15
contravenes subsection (1).
16
Penalty: 60 penalty units.
17
Civil penalty provision
18
(4) A person is liable to a civil penalty if the person contravenes
19
subsection (1).
20
Civil penalty:
120 penalty units.
21
18 Incorrect marking of product
22
(1) A person contravenes this subsection if:
23
(a) the person applies a mark to a product; and
24
(b) the product is to be imported into, or supplied in, Australia;
25
and
26
(c) the product is an emissions-controlled product; and
27
Enforcing product emissions standards Part 3
Marking emissions-controlled products Division 4
Section 18
No. , 2017
Product Emissions Standards Bill 2017
15
(d) the rules impose requirements for marking the product if the
1
product is certified for the purposes of this Act; and
2
(e) the mark indicates that the product is so certified; and
3
(f) the mark is not in accordance with the requirements in the
4
rules.
5
Strict liability offence
6
(2) A person commits an offence of strict liability if the person
7
contravenes subsection (1).
8
Penalty: 60 penalty units.
9
Civil penalty provision
10
(3) A person is liable to a civil penalty if the person contravenes
11
subsection (1).
12
Civil penalty:
120 penalty units.
13
Part 4 Record keeping
Section 19
16
Product Emissions Standards Bill 2017
No. , 2017
Part 4--Record keeping
1
2
19 Simplified outline of this Part
3
Importers and suppliers of emissions-controlled products may be
4
required to keep records and to give the Secretary the recorded
5
information.
6
Reports may also be required on the supply of emissions-controlled
7
products manufactured in Australia.
8
20 Rules may provide record-keeping requirements
9
(1) The rules may require a person who imports or supplies
10
emissions-controlled products to make and keep records in relation
11
to the imports or supplies.
12
(2) A person contravenes this subsection if:
13
(a) the rules require the person to make or keep a record; and
14
(b) the person fails to comply with the requirement.
15
Strict liability offence
16
(3) A person commits an offence of strict liability if the person
17
contravenes subsection (2).
18
Penalty: 40 penalty units.
19
Civil penalty provision
20
(4) A person is liable to a civil penalty if the person contravenes
21
subsection (2).
22
Civil penalty:
80 penalty units.
23
Record keeping Part 4
Section 21
No. , 2017
Product Emissions Standards Bill 2017
17
21 Secretary may require recorded information
1
(1) The Secretary may, by notice in writing, require a person to give
2
the Secretary information that the person is required by the rules to
3
keep in a record, if the Secretary reasonably suspects that:
4
(a) a provision of this Act has been contravened or is being
5
contravened; and
6
(b) the information is relevant to the suspected contravention.
7
(2) The notice must:
8
(a) identify the information that must be given to the Secretary;
9
and
10
(b) state the day the information must be given by, which must
11
be a reasonable period after the notice is given to the person.
12
(3) The Secretary may, on application by the person, change the day
13
the information must be given by to a later day.
14
(4) A person contravenes this subsection if:
15
(a) the person is required to give information under this section;
16
and
17
(b) the person fails to comply with the requirement.
18
Strict liability offence
19
(5) A person commits an offence of strict liability if the person
20
contravenes subsection (4).
21
Penalty: 40 penalty units.
22
Civil penalty provision
23
(6) A person is liable to a civil penalty if the person contravenes
24
subsection (4).
25
Civil penalty:
80 penalty units.
26
22 Reporting on supply of products manufactured in Australia
27
(1) The rules may prescribe a reporting period for an
28
emissions-controlled product.
29
Part 4 Record keeping
Section 22
18
Product Emissions Standards Bill 2017
No. , 2017
(2) If, during a reporting period for an emissions-controlled product
1
that is manufactured in Australia, a person makes the first supply
2
of the product, the person must give to the Secretary a report
3
containing the information prescribed by the rules relating to such
4
products that the person has so supplied during the reporting
5
period.
6
(3) The report must be given to the Secretary no later than 60 days
7
after the end of the reporting period.
8
(4) A reference to supply in subsection (2) does not include an offer to
9
supply.
10
Note:
For the usual definition of supply in this Act, see subsections 7(2) to
11
(4).
12
(5) A person contravenes this subsection if:
13
(a) the person is required by subsection (2) to give a report to the
14
Secretary for a reporting period for an emissions-controlled
15
product; and
16
(b) the person does not give the Secretary the report in the period
17
ending 60 days after the end of the reporting period.
18
Strict liability offence
19
(6) A person commits an offence of strict liability if the person
20
contravenes subsection (5).
21
Penalty: 60 penalty units.
22
Civil penalty provision
23
(7) A person is liable to a civil penalty if the person contravenes
24
subsection (5).
25
Civil penalty:
120 penalty units.
26
Regulatory powers Part 5
Section 23
No. , 2017
Product Emissions Standards Bill 2017
19
Part 5--Regulatory powers
1
2
23 Simplified outline of this Part
3
This Part applies the Regulatory Powers Act to the product
4
emissions standards framework.
5
24 Monitoring powers
6
(1) A provision is subject to monitoring under Part 2 of the Regulatory
7
Powers Act if it is:
8
(a) a provision of this Act; or
9
(b) an offence against the Crimes Act 1914 or the Criminal Code
10
that relates to this Act.
11
Note:
Part 2 of the Regulatory Powers Act creates a framework for
12
monitoring whether this Act has been complied with. It includes
13
powers of entry and inspection.
14
(2) Information given in compliance or purported compliance with a
15
provision of this Act is subject to monitoring under Part 2 of the
16
Regulatory Powers Act.
17
Note:
Part 2 of the Regulatory Powers Act creates a framework for
18
monitoring whether the information is correct. It includes powers of
19
entry and inspection.
20
(3) For the purposes of Part 2 of the Regulatory Powers Act as it
21
applies in relation to this Act:
22
(a) there are no related provisions; and
23
(b) an inspector is an authorised applicant; and
24
(c) an inspector is an authorised person; and
25
(d) a magistrate is an issuing officer; and
26
(e) the Secretary is the relevant chief executive; and
27
(f) each of the following is a relevant court:
28
(i) the Federal Court of Australia;
29
(ii) the Federal Circuit Court of Australia;
30
Part 5 Regulatory powers
Section 25
20
Product Emissions Standards Bill 2017
No. , 2017
(iii) a court of a State or Territory that has jurisdiction in
1
relation to matters arising under this Act.
2
(4) An authorised person may be assisted by other persons in
3
exercising powers or performing functions or duties under Part 2 of
4
the Regulatory Powers Act in relation to offences and civil penalty
5
provisions of this Act.
6
25 Investigation powers
7
(1) A provision is subject to investigation under Part 3 of the
8
Regulatory Powers Act if it is:
9
(a) an offence provision of this Act; or
10
(b) a civil penalty provision of this Act; or
11
(c) an offence against the Crimes Act 1914 or the Criminal Code
12
that relates to this Act.
13
Note:
Part 3 of the Regulatory Powers Act creates a framework for
14
investigating whether a provision has been contravened. It includes
15
powers of entry, search and seizure.
16
(2) For the purposes of Part 3 of the Regulatory Powers Act as it
17
applies in relation to this Act:
18
(a) there are no related provisions; and
19
(b) an inspector is an authorised applicant; and
20
(c) an inspector is an authorised person; and
21
(d) a magistrate is an issuing officer; and
22
(e) the Secretary is the relevant chief executive; and
23
(f) each of the following is a relevant court:
24
(i) the Federal Court of Australia;
25
(ii) the Federal Circuit Court of Australia;
26
(iii) a court of a State or Territory that has jurisdiction in
27
relation to matters arising under this Act.
28
(3) An authorised person may be assisted by other persons in
29
exercising powers or performing functions or duties under Part 3 of
30
the Regulatory Powers Act in relation to evidential material that
31
relates to offences and civil penalty provisions of this Act.
32
Regulatory powers Part 5
Section 26
No. , 2017
Product Emissions Standards Bill 2017
21
26 Civil penalty provisions
1
(1) Each civil penalty provision of this Act is enforceable under Part 4
2
of the Regulatory Powers Act.
3
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
4
be enforced by obtaining an order for a person to pay a pecuniary
5
penalty for the contravention of the provision.
6
(2) For the purposes of Part 4 of the Regulatory Powers Act as it
7
applies in relation to this Act:
8
(a) an inspector is an authorised applicant; and
9
(b) each of the following is a relevant court:
10
(i) the Federal Court of Australia;
11
(ii) the Federal Circuit Court of Australia;
12
(iii) a court of a State or Territory that has jurisdiction in
13
relation to matters arising under this Act.
14
27 Infringement notices
15
(1) The following provisions are subject to an infringement notice
16
under Part 5 of the Regulatory Powers Act:
17
(a) an offence provision of this Act that is an offence of strict
18
liability;
19
(b) a civil penalty provision of this Act.
20
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
21
infringement notices in relation to provisions.
22
(2) For the purposes of Part 5 of the Regulatory Powers Act as it
23
applies in relation to this Act:
24
(a) an inspector is an infringement officer; and
25
(b) the Secretary is the relevant chief executive.
26
28 Enforceable undertakings
27
(1) The following provisions are enforceable under Part 6 of the
28
Regulatory Powers Act:
29
(a) an offence provision of this Act;
30
(b) a civil penalty provision of this Act.
31
Part 5 Regulatory powers
Section 29
22
Product Emissions Standards Bill 2017
No. , 2017
Note:
Part 6 of the Regulatory Powers Act creates a framework for accepting
1
and enforcing undertakings relating to compliance with provisions.
2
(2) For the purposes of Part 6 of the Regulatory Powers Act as it
3
applies in relation to this Act:
4
(a) an inspector is an authorised person; and
5
(b) each of the following is a relevant court:
6
(i) the Federal Court of Australia;
7
(ii) the Federal Circuit Court of Australia;
8
(iii) a court of a State or Territory that has jurisdiction in
9
relation to matters arising under this Act.
10
29 Injunctions
11
(1) The following provisions are enforceable under Part 7 of the
12
Regulatory Powers Act:
13
(a) an offence provision of this Act;
14
(b) a civil penalty provision of this Act.
15
Note:
Part 7 of the Regulatory Powers Act creates a framework for using
16
injunctions to enforce provisions.
17
(2) For the purposes of Part 7 of the Regulatory Powers Act as it
18
applies in relation to this Act:
19
(a) an inspector is an authorised person; and
20
(b) each of the following is a relevant court:
21
(i) the Federal Court of Australia;
22
(ii) the Federal Circuit Court of Australia;
23
(iii) a court of a State or Territory that has jurisdiction in
24
relation to matters arising under this Act.
25
Forfeiture of emissions-controlled products Part 6
Simplified outline of this Part Division 1
Section 30
No. , 2017
Product Emissions Standards Bill 2017
23
Part 6--Forfeiture of emissions-controlled products
1
Division 1--Simplified outline of this Part
2
30 Simplified outline of this Part
3
An emissions-controlled product is forfeited when a provision of
4
Part 3 (relating to the import, supply or marking of the product) is
5
contravened in relation to the product.
6
An emissions-controlled product may also be forfeited when it has
7
been seized as part of an investigation and an inspector reasonably
8
suspects a provision in Part 3 has been contravened. A court may
9
order the return of a product so seized, or that compensation be
10
paid.
11
Part 6 Forfeiture of emissions-controlled products
Division 2 Forfeiture following conviction or making of civil penalty order
Section 31
24
Product Emissions Standards Bill 2017
No. , 2017
Division 2--Forfeiture following conviction or making of
1
civil penalty order
2
31 Product forfeited to Commonwealth
3
(1) This section applies if a person is convicted of an offence, or
4
ordered to pay a civil penalty, for contravening a provision of
5
Part 3.
6
(2) The product concerned is forfeited to the Commonwealth.
7
32 Power to seize forfeited product
8
(1) An inspector may seize a product that is forfeited under section 31.
9
(2) Without limiting subsection (1), the product may be seized by
10
attaching to the product, or to the container in which the product is
11
held, a notice in writing signed by the inspector that:
12
(a) identifies the product; and
13
(b) states that the product has been seized under this section; and
14
(c) specifies the reason for the seizure.
15
(3) An inspector must give a copy of the notice as soon as practicable
16
to the owner of the product or the person from whom the product
17
was seized.
18
33 Person must not interfere with seized product
19
(1) A person commits an offence if:
20
(a) the person engages in conduct; and
21
(b) the conduct causes an emissions-controlled product to be
22
moved, altered or interfered with; and
23
(c) the product is the subject of a notice under subsection 32(2).
24
Penalty: Imprisonment for 6 months.
25
(2) Subsection (1) does not apply if the person engages in the conduct
26
in accordance with a direction given to the person by the Minister.
27
Forfeiture of emissions-controlled products Part 6
Forfeiture following conviction or making of civil penalty order Division 2
Section 33
No. , 2017
Product Emissions Standards Bill 2017
25
Note:
The defendant bears an evidential burden in relation to the matter in
1
subsection (2): see subsection 13.3(3) of the Criminal Code.
2
(3) A person commits an offence if:
3
(a) the person is given a notice under subsection 32(3); and
4
(b) the person does not take all reasonable precautions to prevent
5
the product being moved, altered or interfered with except in
6
accordance with a direction given by the Minister.
7
Penalty: Imprisonment for 6 months.
8
Part 6 Forfeiture of emissions-controlled products
Division 3 Forfeiture of seized products
Section 34
26
Product Emissions Standards Bill 2017
No. , 2017
Division 3--Forfeiture of seized products
1
34 Forfeiture notices
2
(1) This section applies if:
3
(a) an inspector seizes an emissions-controlled product under
4
Part 3 of the Regulatory Powers Act as it applies in relation
5
to this Act; and
6
(b) the inspector reasonably suspects that a provision of Part 3 of
7
this Act was contravened in relation to the product.
8
(2) The inspector may, within 7 days after the product is seized, give a
9
written notice (the forfeiture notice) to the owner of the product.
10
(3) If the owner of the product cannot be identified after reasonable
11
inquiry, the inspector may give the forfeiture notice to the person
12
from whom the product was seized.
13
(4) The notice must:
14
(a) identify the product; and
15
(b) state that the product has been seized; and
16
(c) specify the reason for the seizure; and
17
(d) state that the product will be forfeited to the Commonwealth
18
unless a court, on application under section 35, orders the
19
product to be returned.
20
35 Claims for return of seized product
21
(1) This section applies if a forfeiture notice is given in relation to an
22
emissions-controlled product.
23
(2) The owner of the product or the person from whom the product
24
was seized may apply to one of the following for an order that the
25
product be returned:
26
(a) the Federal Court of Australia;
27
(b) the Federal Circuit Court of Australia;
28
(c) a court of a State or Territory that has jurisdiction in relation
29
to matters arising under this Act.
30
Forfeiture of emissions-controlled products Part 6
Forfeiture of seized products Division 3
Section 36
No. , 2017
Product Emissions Standards Bill 2017
27
(3) The application must be made within 60 days after the forfeiture
1
notice is given.
2
(4) The court must order that the product be returned if:
3
(a) an application for the order was made in accordance with this
4
section; and
5
(b) the court is satisfied that no provision of Part 3 was
6
contravened in relation to the product.
7
(5) If the court orders that the product be returned, the Commonwealth
8
must take reasonable steps to return the product to the applicant.
9
(6) Subsection (5) does not apply if:
10
(a) proceedings for which the product may provide evidence
11
were instituted before the order was made, and have not been
12
completed (including any appeal); or
13
(b) returning the product could cause an imminent risk of death,
14
serious illness, serious injury or serious damage to the
15
environment; or
16
(c) an inspector is otherwise authorised (by a law or an order of a
17
court) to retain, destroy or dispose of the product.
18
36 Forfeiture of seized product to the Commonwealth
19
A product in relation to which a forfeiture notice is given is
20
forfeited to the Commonwealth if:
21
(a) no application has been made under section 35 for an order
22
that the product be returned; or
23
(b) such an application has been made, and the court decides not
24
to so order.
25
37 Right of compensation in certain circumstances
26
(1) The person who owned an emissions-controlled product forfeited
27
to the Commonwealth under section 36 may apply to one of the
28
following for compensation:
29
(a) the Federal Court of Australia;
30
(b) the Federal Circuit Court of Australia;
31
Part 6 Forfeiture of emissions-controlled products
Division 3 Forfeiture of seized products
Section 37
28
Product Emissions Standards Bill 2017
No. , 2017
(c) a court of a State or Territory that has jurisdiction in relation
1
to matters arising under this Act.
2
(2) The court must order that the Commonwealth pay compensation to
3
the applicant if the court is satisfied that:
4
(a) the applicant owned the product immediately before it was
5
forfeited; and
6
(b) either:
7
(i) Part 3 of the Regulatory Powers Act, as it applies in
8
relation to this Act, was not complied with in relation to
9
the seizure of the product; or
10
(ii) if the product was forfeited under paragraph 36(a)--no
11
provision of Part 3 of this Act was contravened in
12
relation to the product.
13
(3) The amount of compensation must be the market value of the
14
product at the time the product was forfeited under section 36.
15
Forfeiture of emissions-controlled products Part 6
General provisions Division 4
Section 38
No. , 2017
Product Emissions Standards Bill 2017
29
Division 4--General provisions
1
38 Forfeited products become property of Commonwealth
2
Products forfeited to the Commonwealth under section 31 or 36
3
become the property of the Commonwealth.
4
39 Disposal of forfeited products
5
(1) Products forfeited under section 31 or 36 must be dealt with and
6
disposed of in accordance with the directions of the Minister.
7
(2) The forfeited products must not be sold.
8
Part 7 Miscellaneous
Section 40
30
Product Emissions Standards Bill 2017
No. , 2017
Part 7--Miscellaneous
1
2
40 Simplified outline of this Part
3
This Part deals with the appointment of inspectors, the publication
4
and disclosure of information, and the conduct of audits to ensure
5
compliance with this Act.
6
It also provides for the delegation of powers, requires periodic
7
reviews of the operation of the Act, and enables the Minister to
8
make rules.
9
41 Inspectors
10
(1) The Secretary may, in writing, appoint an APS employee as an
11
inspector for the purposes of this Act.
12
(2) The Secretary must not appoint a person as an inspector unless the
13
Secretary is satisfied that the person has the knowledge or
14
experience necessary to properly exercise the powers of an
15
inspector.
16
(3) An inspector must, in performing functions or exercising powers as
17
an inspector, comply with any directions of the Secretary.
18
(4) If a direction is given under subsection (3) in writing, the direction
19
is not a legislative instrument.
20
42 Publication of information relating to certifications and
21
exemptions
22
(1) The Secretary may publish information relating to an
23
emissions-controlled product that is certified for the purposes of
24
this Act, including but not limited to:
25
(a) information that identifies the product and the manufacturer
26
of the product; and
27
(b) information about emissions from the product; and
28
Miscellaneous Part 7
Section 43
No. , 2017
Product Emissions Standards Bill 2017
31
(c) information about the certification.
1
(2) The Secretary may publish information relating to an exemption of
2
an emissions-controlled product or a person from a provision of
3
this Act, including but not limited to:
4
(a) circumstances in which the exemption applies; and
5
(b) reasons for the exemption; and
6
(c) the person who applied for the exemption.
7
43 Disclosure of information
8
(1) The Secretary may disclose information obtained under this Act to:
9
(a) the Australian Border Force (within the meaning of the
10
Australian Border Force Act 2015); or
11
(b) an agency, body or person prescribed by the rules;
12
if the Secretary reasonably believes that the information will
13
enable or assist the agency, body or person to exercise its powers,
14
or perform its functions or duties.
15
Note:
Subsection 51(6) has requirements relating to rules made for the
16
purposes of paragraph (b).
17
(2) This section does not limit any other powers the Secretary has to
18
disclose information to a person.
19
44 Compliance audits
20
(1) This section applies if the Minister:
21
(a) reasonably suspects that a person has engaged or is engaging
22
in conduct that constitutes:
23
(i) an offence against this Act; or
24
(ii) a contravention of a civil penalty provision; and
25
(b) is satisfied that it would be in the public interest to give the
26
person a notice under this section.
27
(2) The Minister may, by written notice given to the person, require
28
the person:
29
(a) to undertake, or arrange for another person to undertake, an
30
audit of whichever of the following is specified in the notice:
31
(i) the person's compliance with this Act;
32
Part 7 Miscellaneous
Section 45
32
Product Emissions Standards Bill 2017
No. , 2017
(ii) one or more specified aspects of the person's
1
compliance with this Act; and
2
(b) to give the Minister a written report setting out the results of
3
the audit.
4
(3) The notice must specify:
5
(a) if the notice requires the person to arrange another person to
6
undertake the audit--requirements relating to the
7
qualifications and independence of the other person; and
8
(b) the matters to be covered by the audit; and
9
(c) the period within which the audit must be undertaken; and
10
(d) the form and content of the report; and
11
(e) the period within which the report must be given to the
12
Minister.
13
(4) A notice under subsection (2) is not a legislative instrument.
14
(5) A person contravenes this subsection if the person is subject to a
15
requirement under subsection (2) and the person fails to comply
16
with the requirement.
17
Strict liability offence
18
(6) A person commits an offence of strict liability if the person
19
contravenes subsection (5).
20
Penalty: 40 penalty units.
21
Civil penalty provision
22
(7) A person is liable to a civil penalty if the person contravenes
23
subsection (5).
24
Civil penalty:
80 penalty units.
25
45 Delegation by the Minister
26
(1) The Minister may, by writing, delegate all or any of his or her
27
powers and functions under this Act (except section 51) to:
28
(a) the Secretary; or
29
Miscellaneous Part 7
Section 46
No. , 2017
Product Emissions Standards Bill 2017
33
(b) an SES employee, or acting SES employee, in the
1
Department.
2
Note 1:
Section 51 gives the Minister power to make rules.
3
Note 2:
The expressions SES employee and acting SES employee are defined
4
in section 2B of the Acts Interpretation Act 1901.
5
(2) In exercising powers or performing functions under a delegation,
6
the delegate must comply with any directions of the Minister.
7
Note:
See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
8
46 Delegation by the Secretary
9
(1) The Secretary may, by writing, delegate all or any of his or her
10
powers or functions under this Act, or the Regulatory Powers Act
11
as it applies in relation to this Act, to:
12
(a) an SES employee or acting SES employee in the Department;
13
or
14
(b) an APS employee who occupies, or performs the duties of, a
15
position not below Executive Level 2 or equivalent in the
16
Department.
17
Note:
The expressions SES employee, acting SES employee and APS
18
employee are defined in section 2B of the Acts Interpretation Act
19
1901.
20
(2) In exercising powers or performing functions under a delegation,
21
the delegate must comply with any directions of the Secretary.
22
Note:
See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
23
47 Review of operation of Act
24
(1) The Minister must cause a review of the operation of this Act to be
25
undertaken as soon as possible after the seventh anniversary of its
26
commencement and afterwards at intervals of no longer than 10
27
years.
28
(2) The person undertaking a review must give the Minister a written
29
report of the review.
30
Part 7 Miscellaneous
Section 48
34
Product Emissions Standards Bill 2017
No. , 2017
(3) The Minister must cause a copy of the report of a review to be
1
tabled in each House of the Parliament within 15 sitting days of
2
that House after the report is given to the Minister.
3
48 Physical elements of offences
4
(1) This section applies if a provision of this Act provides that a person
5
contravening another provision of this Act (the conduct rule
6
provision) commits an offence.
7
(2) For the purposes of applying Chapter 2 of the Criminal Code to the
8
offence, the physical elements of the offence are set out in the
9
conduct rule provision.
10
Note:
Chapter 2 of the Criminal Code sets out general principles of criminal
11
responsibility.
12
49 Contravening offence and civil penalty provisions
13
(1) This section applies if a provision of this Act provides that a person
14
contravening another provision of this Act (the conduct provision)
15
commits an offence or is liable to a civil penalty.
16
(2) For the purposes of this Act, and the Regulatory Powers Act to the
17
extent that it relates to this Act, a reference to a contravention of an
18
offence provision or a civil penalty provision includes a reference
19
to a contravention of the conduct provision.
20
50 Alternative constitutional bases
21
(1) Without limiting the effect of this Act apart from this section, this
22
Act also has effect as provided by this section.
23
(2) To avoid doubt, no subsection of this section limits the operation of
24
any other subsection.
25
Import
26
(3) This Act has the effect it would have if each reference to import
27
were expressly confined to import in the course of trade or
28
commerce.
29
Miscellaneous Part 7
Section 51
No. , 2017
Product Emissions Standards Bill 2017
35
Supply
1
(4) This Act has the effect it would have if each reference to supply
2
were expressly confined to supply in the course of trade or
3
commerce:
4
(a) between Australia and places outside Australia; or
5
(b) among the States; or
6
(c) within a Territory, between a State and a Territory or
7
between 2 Territories.
8
Corporations power
9
(5) This Act has the effect it would have if each reference to a person
10
were expressly confined to a corporation to which
11
paragraph 51(xx) of the Constitution applies.
12
51 Rules
13
(1) The Minister may, by legislative instrument, make rules
14
prescribing matters:
15
(a) required or permitted by this Act to be prescribed by the
16
rules; or
17
(b) necessary or convenient to be prescribed for carrying out or
18
giving effect to this Act.
19
(2) Without limiting subsection (1), the rules may provide for:
20
(a) charging fees for services provided in the performance of
21
functions under this Act; and
22
(b) the review of decisions made under this Act.
23
(3) Rules setting out an emissions standard for the purposes of
24
paragraph 10(2)(a) may apply, adopt or incorporate any matter
25
contained in an instrument or other writing as in force or existing
26
from time to time if the instrument or writing is produced by one or
27
more of the following:
28
(a) the International Electrotechnical Commission;
29
(b) the International Organization for Standardization;
30
(c) the United Nations Economic Commission for Europe;
31
(d) any other organisation prescribed by the rules.
32
Part 7 Miscellaneous
Section 51
36
Product Emissions Standards Bill 2017
No. , 2017
(4) Rules specifying an emissions standard for the purposes of
1
subparagraph 10(2)(b)(ii) may specify a standard as in force or
2
existing from time to time.
3
(5) To avoid doubt, the rules may not do the following:
4
(a) create an offence or civil penalty;
5
(b) provide powers of:
6
(i) arrest or detention; or
7
(ii) entry, search or seizure;
8
(c) impose a tax;
9
(d) set an amount to be appropriated from the Consolidated
10
Revenue Fund under an appropriation in this Act;
11
(e) directly amend the text of this Act.
12
(6) Before making rules for the purposes of paragraph 43(1)(b), the
13
Minister must consult the Information Commissioner in relation to
14
matters that relate to the privacy functions (within the meaning of
15
the Australian Information Commissioner Act 2010) and have
16
regard to any submissions made by the Information Commissioner
17
because of that consultation.
18
(7) The rules may provide for the collection and recovery of charges
19
imposed by the Product Emissions Standards (Customs) Charges
20
Act 2017 and the Product Emissions Standards (Excise) Charges
21
Act 2017.
22