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This is a Bill, not an Act. For current law, see the Acts databases.
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Regulatory Powers (Standard
Provisions) Bill 2012
No. , 2012
(Attorney-General)
A Bill for an Act in relation to monitoring,
investigation and enforcement by regulatory
agencies, and for related purposes
i Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3 Simplified
outline
..............................................................................
2
4 Dictionary
..........................................................................................
3
5
Contravening offence and civil penalty provisions ............................ 7
6 Binding
the
Crown
.............................................................................
7
Part 2--Monitoring
8
Division 1--Outline and operation of this Part
8
7 Simplified
outline
..............................................................................
8
8
Purpose and operation of this Part ..................................................... 9
9 Provisions subject to monitoring ....................................................... 9
10 Information subject to monitoring ..................................................... 9
11
Related provisions ........................................................................... 10
12
Authorised applicant ........................................................................ 10
13
Authorised person ............................................................................ 11
14
Identity card ..................................................................................... 11
15
Issuing officer .................................................................................. 11
16
Relevant chief executive ................................................................... 12
17
Relevant court .................................................................................. 13
18
Matters provided for by legislative instrument ................................ 13
Division 2--Powers of authorised persons
14
Subdivision A--Monitoring powers
14
19
Entering premises by consent or under a warrant ............................ 14
20 General
monitoring powers ............................................................. 14
21 Operating
electronic equipment ....................................................... 15
22
Securing electronic equipment to obtain expert assistance .............. 16
23
Securing evidence of the contravention of a related provision ........ 17
24
Persons assisting authorised persons ............................................... 18
Subdivision B--Powers to ask questions and seek production of
documents
19
25
Asking questions and seeking production of documents ................. 19
Division 3--Obligations and incidental powers of authorised
persons
21
26 Consent
............................................................................................
21
27
Announcement before entry under warrant ..................................... 21
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 ii
28
Authorised person to be in possession of warrant ............................ 22
29
Details of warrant etc. to be given to occupier................................. 22
30
Compensation for damage to electronic equipment ......................... 22
Division 4--Occupier's rights and responsibilities
24
31
Right to observe execution of warrant ............................................. 24
32
Responsibility to provide facilities and assistance ........................... 24
Division 5--Monitoring warrants
25
33 Monitoring
warrants
........................................................................
25
Division 6--Extension of periods in which things secured
27
34
Extension of periods in which things secured .................................. 27
Division 7--Powers of issuing officers
28
35 Powers
of
issuing officers ................................................................ 28
Division 8--Identity cards
29
36 Identity
cards
...................................................................................
29
Part 3--Investigation
30
Division 1--Outline and operation of this Part
30
37 Simplified
outline
............................................................................
30
38
Purpose and operation of this Part ................................................... 31
39 Provisions
subject to investigation ................................................... 31
40
Evidential material .......................................................................... 31
41
Related provisions ........................................................................... 32
42
Authorised applicant ........................................................................ 32
43
Authorised person ............................................................................ 32
44
Identity card ..................................................................................... 33
45
Issuing officer .................................................................................. 33
46
Relevant chief executive ................................................................... 34
47
Relevant court .................................................................................. 34
48
Matters provided for by legislative instrument ................................ 35
Division 2--Powers of authorised persons
36
Subdivision A--Investigation powers
36
49
Entering premises by consent or under a warrant ............................ 36
50 General
investigation
powers
...........................................................
36
51 Operating
electronic equipment ....................................................... 37
52
Securing electronic equipment to obtain expert assistance .............. 38
53
Seizing evidence of related provisions............................................. 39
54
Persons assisting authorised persons ............................................... 40
Subdivision B--Powers to ask questions and seek production of
documents
41
iii Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
55
Asking questions and seeking production of documents ................. 41
Division 3--Obligations and incidental powers of authorised
persons
43
56 Consent
............................................................................................
43
57
Announcement before entry under warrant ..................................... 43
58
Authorised person to be in possession of warrant ............................ 44
59
Details of warrant etc. to be given to occupier................................. 44
60
Completing execution after temporary cessation ............................. 45
61
Completing execution of warrant stopped by court order ................ 46
62
Compensation for damage to electronic equipment ......................... 46
Division 4--Occupier's rights and responsibilities
48
63
Right to observe execution of warrant ............................................. 48
64
Responsibility to provide facilities and assistance ........................... 48
Division 5--General provisions relating to seizure
49
65
Copies of seized things to be provided ............................................ 49
66 Receipts
for
seized things ................................................................ 49
67
Return of seized things .................................................................... 49
68
Issuing officer may permit a thing to be retained ............................ 50
69 Disposal
of
things ............................................................................ 51
70
Compensation for acquisition of property ....................................... 52
Division 6--Investigation warrants
53
71 Investigation
warrants
......................................................................
53
72
Investigation warrants by telephone, fax etc. ................................... 54
73 Authority
of
warrant
........................................................................
56
74
Offence relating to warrants by telephone, fax etc. ......................... 56
Division 7--Extension of periods in which things secured
58
75
Extension of periods in which things secured .................................. 58
Division 8--Powers of issuing officers
59
76 Powers
of
issuing officers ................................................................ 59
Division 9--Identity cards
60
77 Identity
cards
...................................................................................
60
Part 4--Civil penalty provisions
61
Division 1--Outline and operation of this Part
61
78 Simplified
outline
............................................................................
61
79 Purposes
and
operation of this Part .................................................. 61
80
Civil penalty provisions ................................................................... 62
81
Enforceable civil penalty provisions ............................................... 62
82
Authorised applicant ........................................................................ 62
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 iv
83
Relevant court .................................................................................. 63
84
Matters provided for by legislative instrument ................................ 63
Division 2--Obtaining a civil penalty order
64
85
Civil penalty orders .......................................................................... 64
86 Civil
enforcement of penalty ........................................................... 65
87
Conduct contravening more than one civil penalty provision .......... 65
88 Multiple
contraventions
...................................................................
65
89
Proceedings may be heard together ................................................. 65
90
Civil evidence and procedure rules for civil penalty orders ............. 66
Division 3--Civil proceedings and criminal proceedings
67
91
Civil proceedings after criminal proceedings .................................. 67
92 Criminal
proceedings
during civil proceedings ............................... 67
93 Criminal
proceedings
after civil proceedings .................................. 67
94
Evidence given in civil proceedings not admissible in
criminal proceedings ........................................................................ 67
Division 4--Miscellaneous
69
95
Ancillary contravention of civil penalty provisions ......................... 69
96
Continuing contraventions of civil penalty provisions .................... 69
97
State of mind .................................................................................... 70
98
Mistake of fact ................................................................................. 70
99
Exceptions etc. to civil penalty provisions--burden of proof .......... 71
100
Civil penalty provisions contravened by employees, agents
or officers ......................................................................................... 71
Part 5--Infringement notices
72
Division 1--Outline and operation of this Part
72
101 Simplified
outline
............................................................................
72
102
Purpose and operation of this Part ................................................... 72
103 Provisions
subject to infringement notices ....................................... 73
104
Infringement officer ......................................................................... 73
105
Relevant chief executive ................................................................... 73
106
Matters provided for by legislative instrument ................................ 74
Division 2--Infringement notices
75
107
When an infringement notice may be given .................................... 75
108
Matters to be included in an infringement notice ............................. 75
109
Extension of time to pay amount ..................................................... 77
110
Withdrawal of an infringement notice ............................................. 78
111
Effect of payment of amount ........................................................... 80
112
Effect of this Part ............................................................................. 81
v Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Part 6--Enforceable undertakings
82
Division 1--Outline and operation of this Part
82
113 Simplified
outline
............................................................................
82
114
Purpose and operation of this Part ................................................... 82
115
Enforceable provisions .................................................................... 82
116
Authorised person ............................................................................ 83
117
Relevant court .................................................................................. 83
118
Matters provided for by legislative instrument ................................ 83
Division 2--Accepting and enforcing undertakings
84
119 Acceptance
of
undertakings ............................................................. 84
120 Enforcement
of
undertakings ........................................................... 84
Part 7--Injunctions
86
Division 1--Outline and operation of this Part
86
121 Simplified
outline
............................................................................
86
122
Purpose and operation of this Part ................................................... 86
123
Enforceable provisions .................................................................... 86
124
Authorised person ............................................................................ 86
125
Relevant court .................................................................................. 87
126
Matters provided for by legislative instrument ................................ 87
Division 2--Injunctions
88
127
Grant of injunctions ......................................................................... 88
128 Interim
injunctions
...........................................................................
88
129 Discharging
or
varying injunctions .................................................. 89
130
Certain limits on granting injunctions not to apply .......................... 89
131
Other powers of a relevant court unaffected .................................... 89
Part 8--General provisions
90
132 Regulations
......................................................................................
90
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 1
A Bill for an Act in relation to monitoring,
1
investigation and enforcement by regulatory
2
agencies, and for related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act may be cited as the Regulatory Powers (Standard
8
Provisions) Act 2012.
9
Part 1 Preliminary
Section 2
2 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
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
Provision(s)
Commencement
Date/Details
1. Part 1 and
anything in this
Act not elsewhere
covered by this
table
The day this Act receives the Royal Assent.
2. Parts 2 to 7
A day or days to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3. Part 8
The day 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 Simplified outline
13
The following is a simplified outline of this Act:
14
This Act creates a framework for each of the following:
15
(a)
monitoring whether provisions of an Act or a
16
legislative instrument have been, or are being,
17
complied with;
18
Preliminary Part 1
Section 4
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 3
(b)
monitoring whether information given in
1
compliance, or purported compliance, with a
2
provision of an Act or a legislative instrument is
3
correct;
4
(c)
gathering material that relates to the contravention
5
of an offence or a civil penalty provision;
6
(d)
the use of civil penalties to enforce provisions;
7
(e)
the use of infringement notices where there is a
8
reasonable belief that a provision has been
9
contravened;
10
(f)
the acceptance and enforcement of undertakings
11
relating to compliance with provisions;
12
(g)
the use of injunctions to enforce provisions.
13
A provision of an Act or a legislative instrument is not subject to
14
monitoring, investigation or enforcement under this Act by force of
15
this Act. This Act must be triggered by another Act or by a
16
regulation.
17
The power to make a regulation triggering this Act must be found
18
in another Act.
19
4 Dictionary
20
In this Act:
21
authorised applicant:
22
(a) in Part 2 (monitoring)--has the meaning given by section 12;
23
and
24
(b) in Part 3 (investigation)--has the meaning given by
25
section 42; and
26
(c) in Part 4 (civil penalty provisions)--has the meaning given
27
by section 82.
28
Part 1 Preliminary
Section 4
4 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
authorised person:
1
(a) in Part 2 (monitoring)--has the meaning given by section 13;
2
and
3
(b) in Part 3 (investigation)--has the meaning given by
4
section 43; and
5
(c) in Part 6 (enforceable undertakings)--has the meaning given
6
by section 116; and
7
(d) in Part 7 (injunctions)--has the meaning given by
8
section 124.
9
civil penalty order has the meaning given by subsection 85(4).
10
civil penalty provision has the meaning given by section 80.
11
Note: The
definition
of
civil penalty provision in section 80 applies in other
12
Acts and legislative instruments (see subsection 80(2)).
13
conduct means:
14
(a) an act; or
15
(b) a failure to act.
16
damage, in relation to data, includes damage by erasure of data or
17
addition of other data.
18
enforceable:
19
(a) in Part 4 (civil penalty provisions)--has the meaning given
20
by section 81; and
21
(b) in Part 6 (enforceable undertakings)--has the meaning given
22
by section 115; and
23
(c) in Part 7 (injunctions)--has the meaning given by
24
section 123.
25
evidential burden, in relation to a matter, means the burden of
26
adducing or pointing to evidence that suggests a reasonable
27
possibility that the matter exists or does not exist.
28
evidential material has the meaning given by section 40.
29
identity card:
30
(a) in Part 2 (monitoring)--has the meaning given by section 14;
31
and
32
Preliminary Part 1
Section 4
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 5
(b) in Part 3 (investigation)--has the meaning given by
1
section 44.
2
infringement officer has the meaning given by section 104.
3
investigation powers has the meaning given by sections 50, 51, 52
4
and 53.
5
investigation warrant means:
6
(a) a warrant issued by an issuing officer under section 71; or
7
(b) a warrant signed by an issuing officer under section 72.
8
issuing officer:
9
(a) in Part 2 (monitoring)--has the meaning given by section 15;
10
and
11
(b) in Part 3 (investigation)--has the meaning given by
12
section 45.
13
judicial officer means:
14
(a) a magistrate; or
15
(b) a Judge of a court of a State or Territory; or
16
(c) a Federal Magistrate; or
17
(d) a Judge of the Federal Court of Australia.
18
monitoring powers has the meaning given by sections 20, 21, 22
19
and 23.
20
monitoring warrant means a warrant issued under section 33.
21
person assisting an authorised person:
22
(a) in Part 2 (monitoring)--has the meaning given by section 24;
23
and
24
(b) in Part 3 (investigation)--has the meaning given by
25
section 54.
26
premises includes the following:
27
(a) a structure, building, vehicle, vessel or aircraft;
28
(b) a place (whether or not enclosed or built on);
29
(c) a part of a thing referred to in paragraph (a) or (b).
30
related: a provision is related:
31
Part 1 Preliminary
Section 4
6 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(a) in Part 2 (monitoring)--to another provision or information
1
in the circumstances set out in section 11; and
2
(b) in Part 3 (investigation)--to evidential material in the
3
circumstances set out in section 41.
4
relevant chief executive:
5
(a) in Part 2 (monitoring)--has the meaning given by section 16;
6
and
7
(b) in Part 3 (investigation)--has the meaning given by
8
section 46; and
9
(c) in Part 5 (infringement notices)--has the meaning given by
10
section 105.
11
relevant court:
12
(a) in Part 2 (monitoring)--has the meaning given by section 17;
13
and
14
(b) in Part 3 (investigation)--has the meaning given by
15
section 47; and
16
(c) in Part 4 (civil penalty provisions)--has the meaning given
17
by section 83; and
18
(d) in Part 6 (enforceable undertakings)--has the meaning given
19
by section 117; and
20
(e) in Part 7 (injunctions)--has the meaning given by
21
section 125.
22
relevant data, in Part 2 (monitoring), has the meaning given by
23
subsection 21(3).
24
subject to an infringement notice, in relation to an offence or civil
25
penalty provision, has the meaning given by section 103.
26
subject to investigation, in relation to an offence or a civil penalty
27
provision, has the meaning given by section 39.
28
subject to monitoring:
29
(a) in relation to a provision of an Act or a legislative
30
instrument--has the meaning given by section 9; and
31
(b) in relation to information given in compliance, or purported
32
compliance, with a provision of an Act or a legislative
33
instrument--has the meaning given by section 10.
34
Preliminary Part 1
Section 5
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 7
5 Contravening offence and civil penalty provisions
1
(1) This section applies if a provision of an Act or a legislative
2
instrument declares that a person contravening another provision of
3
an Act or a legislative instrument (the conduct rule provision):
4
(a) commits an offence; or
5
(b) is liable for a civil penalty.
6
(2) For the purposes of this Act, the person is taken to contravene the
7
offence or the civil penalty provision (as the case requires) if the
8
person contravenes the conduct rule provision.
9
6 Binding the Crown
10
This Act binds the Crown in each of its capacities.
11
12
Part 2 Monitoring
Division 1 Outline and operation of this Part
Section 7
8 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Part 2--Monitoring
1
Division 1--Outline and operation of this Part
2
7 Simplified outline
3
The following is a simplified outline of this Part:
4
This Part creates a framework for monitoring whether the
5
provisions of an Act or a legislative instrument have been, or are
6
being, complied with.
7
It also creates a framework for monitoring whether information
8
given in compliance, or purported compliance, with a provision of
9
an Act or a legislative instrument is correct.
10
For this Part to operate, a provision or information must be made
11
subject to monitoring under this Part. This is to be done by another
12
Act or a regulation.
13
An authorised person may enter premises for the purpose of
14
monitoring.
15
Entry must be with the consent of the occupier of the premises or
16
under a monitoring warrant.
17
An authorised person who enters premises may exercise
18
monitoring powers. The authorised person may be assisted by other
19
persons if that assistance is necessary and reasonable and another
20
Act or a regulation empowers the authorised person to do so.
21
An occupier's consent to an authorised person entering premises
22
for the purposes of monitoring must be voluntary. Authorised
23
persons must abide by the terms of that consent.
24
An authorised person who enters premises under a monitoring
25
warrant must give details of the warrant to the occupier of the
26
premises.
27
Monitoring Part 2
Outline and operation of this Part Division 1
Section 8
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 9
The occupier of the premises may observe the execution of a
1
monitoring warrant and must provide reasonable facilities and
2
assistance for the effective execution of the warrant.
3
8 Purpose and operation of this Part
4
(1) The principal purpose of this Part is to create a framework for
5
monitoring whether:
6
(a) provisions of an Act or a legislative instrument have been, or
7
are being, complied with; and
8
(b) information given in compliance, or purported compliance,
9
with a provision of an Act or a legislative instrument is
10
correct.
11
(2) However, for this Part to operate, either or both of the following
12
must apply:
13
(a) a provision of an Act or a legislative instrument must be
14
made subject to monitoring under this Part;
15
(b) information given in compliance, or purported compliance,
16
with a provision of an Act or a legislative instrument must be
17
made subject to monitoring under this Part.
18
9 Provisions subject to monitoring
19
A provision of an Act or a legislative instrument is subject to
20
monitoring under this Part if an Act or a regulation provides that
21
the provision is subject to monitoring under this Part.
22
10 Information subject to monitoring
23
Information given in compliance, or purported compliance, with a
24
provision of an Act or a legislative instrument is subject to
25
monitoring under this Part if an Act or a regulation provides that
26
the information is subject to monitoring under this Part.
27
Part 2 Monitoring
Division 1 Outline and operation of this Part
Section 11
10 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
11 Related provisions
1
(1) A provision is related to a provision that is subject to monitoring
2
under this Part (the monitored provision) if an Act or a regulation
3
provides that the provision is related to the monitored provision.
4
(2) A provision is related to information that is subject to monitoring
5
under this Part if an Act or a regulation provides that the provision
6
is related to the information.
7
12 Authorised applicant
8
(1) A person is an authorised applicant for the purposes of exercising
9
powers under this Part to determine whether:
10
(a) a provision subject to monitoring under this Part has been, or
11
is being, complied with; or
12
(b) information subject to monitoring under this Part is correct;
13
if an Act or a regulation provides that the person is an authorised
14
applicant in relation to that provision or information for the
15
purposes of this Part.
16
(2) A person who is an authorised applicant for the purpose of
17
exercising powers mentioned in subsection (1) is also an
18
authorised applicant for the purposes of:
19
(a) exercising other powers under this Part; or
20
(b) performing functions or duties under this Part;
21
that are incidental to the powers mentioned in subsection (1).
22
(3) Without limiting subsection (1), an Act or a regulation may
23
provide that a person is an authorised applicant in relation to a
24
provision or information for the purposes of this Part by:
25
(a) providing that a person of a specified class is an authorised
26
applicant in relation to the provision or information for the
27
purposes of this Part; or
28
(b) authorising another person to specify that a person, or a
29
person of a specified class, is an authorised applicant in
30
relation to the provision or information for the purposes of
31
this Part.
32
Monitoring Part 2
Outline and operation of this Part Division 1
Section 13
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 11
13 Authorised person
1
(1) A person is an authorised person for the purposes of exercising
2
powers under this Part to determine whether:
3
(a) a provision subject to monitoring under this Part has been, or
4
is being, complied with; or
5
(b) information subject to monitoring under this Part is correct;
6
if an Act or a regulation provides that the person is an authorised
7
person in relation to that provision or information for the purposes
8
of this Part.
9
(2) A person who is an authorised person for the purpose of
10
exercising powers mentioned in subsection (1) is also an
11
authorised person for the purposes of:
12
(a) exercising other powers under this Part; or
13
(b) performing functions or duties under this Part;
14
that are incidental to the powers mentioned in subsection (1).
15
(3) Without limiting subsection (1), an Act or a regulation may
16
provide that a person is an authorised person in relation to a
17
provision or information for the purposes of this Part by:
18
(a) providing that a person of a specified class is an authorised
19
person in relation to the provision or information for the
20
purposes of this Part; or
21
(b) authorising another person to specify that a person, or a
22
person of a specified class, is an authorised person in relation
23
to the provision or information for the purposes of this Part.
24
14 Identity card
25
Identity card, in relation to a person who is an authorised person in
26
relation to a provision or information for the purposes of this Part,
27
means a card issued to the person under section 36 by the relevant
28
chief executive in relation to that provision or information.
29
15 Issuing officer
30
(1) A judicial officer is an issuing officer for the purposes of
31
exercising powers under this Part to determine whether:
32
Part 2 Monitoring
Division 1 Outline and operation of this Part
Section 16
12 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(a) a provision subject to monitoring under this Part has been, or
1
is being, complied with; or
2
(b) information subject to monitoring under this Part is correct;
3
if an Act or a regulation provides that the judicial officer is an
4
issuing officer in relation to that provision or information for the
5
purposes of this Part.
6
(2) A judicial officer who is an issuing officer for the purpose of
7
exercising powers mentioned in subsection (1) is also an issuing
8
officer for the purposes of exercising other powers under this Part
9
that are incidental to the powers mentioned in subsection (1).
10
(3) Without limiting subsection (1), an Act or a regulation may
11
provide that a judicial officer is an issuing officer in relation to a
12
provision or information for the purposes of this Part by:
13
(a) providing that a judicial officer of a specified class is an
14
issuing officer in relation to the provision or information for
15
the purposes of this Part; or
16
(b) authorising another person to specify that a judicial officer,
17
or a judicial officer of a specified class, is an issuing officer
18
in relation to the provision or information for the purposes of
19
this Part.
20
16 Relevant chief executive
21
(1) A person is the relevant chief executive for the purposes of
22
exercising powers under this Part that relate to an authorised
23
person in relation to a provision or information for the purposes of
24
this Part, if an Act or a regulation provides that the person is the
25
relevant chief executive for the purposes of this Part in relation to
26
the provision or information.
27
(2) A person who is the relevant chief executive for the purpose of
28
exercising powers mentioned in subsection (1) is also the relevant
29
chief executive for the purposes of:
30
(a) exercising other powers under this Part; or
31
(b) performing functions or duties under this Part;
32
that are incidental to the powers mentioned in subsection (1).
33
Monitoring Part 2
Outline and operation of this Part Division 1
Section 17
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 13
(3) Without limiting subsection (1), an Act or a regulation may
1
provide that a person is the relevant chief executive in relation to a
2
provision or information for the purposes of this Part by:
3
(a) providing that a person who holds a specified office is the
4
relevant chief executive in relation to the provision or
5
information for those purposes; or
6
(b) authorising another person to specify that a person, or a
7
person who holds a specified office, is the relevant chief
8
executive in relation to the provision or information for those
9
purposes.
10
17 Relevant court
11
A court is a relevant court in relation to a matter that arises
12
because of:
13
(a) the exercise of powers by a person under this Part to
14
determine whether:
15
(i) a provision subject to monitoring under this Part has
16
been, or is being, complied with; or
17
(ii) information subject to monitoring under this Part is
18
correct; or
19
(b) the exercise of powers, or the performance of functions or
20
duties, under this Part that are incidental to the powers
21
mentioned in paragraph (a);
22
if an Act or a regulation provides that the court is a relevant court
23
in relation to that provision or information for the purposes of this
24
Part.
25
18 Matters provided for by legislative instrument
26
A legislative instrument may make provision about a matter
27
mentioned in this Part only if another Act gives power for the
28
legislative instrument to make provision about the matter.
29
30
Part 2 Monitoring
Division 2 Powers of authorised persons
Section 19
14 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 2--Powers of authorised persons
1
Subdivision A--Monitoring powers
2
19 Entering premises by consent or under a warrant
3
(1) An authorised person may enter any premises and exercise the
4
monitoring powers for either or both of the following purposes:
5
(a) determining whether a provision subject to monitoring under
6
this Part has been, or is being, complied with;
7
(b) determining whether information subject to monitoring under
8
this Part is correct.
9
Note: The
monitoring powers are set out in sections 20, 21, 22 and 23.
10
(2) However, an authorised person is not authorised to enter the
11
premises unless:
12
(a) the occupier of the premises has consented to the entry; or
13
(b) the entry is made under a monitoring warrant.
14
Note:
If entry to the premises is with the occupier's consent, the authorised
15
person must leave the premises if the consent ceases to have effect
16
(see section 26).
17
20 General monitoring powers
18
The following are the monitoring powers that an authorised person
19
may exercise in relation to premises under section 19:
20
(a) the power to search the premises and any thing on the
21
premises;
22
(b) the power to examine or observe any activity conducted on
23
the premises;
24
(c) the power to inspect, examine, take measurements of or
25
conduct tests on any thing on the premises;
26
(d) the power to make any still or moving image or any
27
recording of the premises or any thing on the premises;
28
(e) the power to inspect any document on the premises;
29
(f) the power to take extracts from, or make copies of, any such
30
document;
31
Monitoring Part 2
Powers of authorised persons Division 2
Section 21
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 15
(g) the power to take onto the premises such equipment and
1
materials as the authorised person requires for the purpose of
2
exercising powers in relation to the premises;
3
(h) the powers set out in subsections 21(1) and (4), 22(2) and
4
23(1).
5
21 Operating electronic equipment
6
(1)
The
monitoring powers include the power to:
7
(a) operate electronic equipment on the premises; and
8
(b) use a disk, tape or other storage device that:
9
(i) is on the premises; and
10
(ii) can be used with the equipment or is associated with it.
11
(2)
The
monitoring powers include the powers mentioned in
12
subsection (4) if relevant data is found in the exercise of the power
13
under subsection (1).
14
(3)
Relevant data means information relevant to determining whether:
15
(a) a provision that is subject to monitoring under this Part has
16
been, or is being, complied with; or
17
(b) information subject to monitoring under this Part is correct.
18
(4) The powers are as follows:
19
(a) the power to operate electronic equipment on the premises to
20
put the relevant data in documentary form and remove the
21
documents so produced from the premises;
22
(b) the power to operate electronic equipment on the premises to
23
transfer the relevant data to a disk, tape or other storage
24
device that:
25
(i) is brought to the premises for the exercise of the power;
26
or
27
(ii) is on the premises and the use of which for that purpose
28
has been agreed in writing by the occupier of the
29
premises;
30
and remove the disk, tape or other storage device from the
31
premises.
32
Part 2 Monitoring
Division 2 Powers of authorised persons
Section 22
16 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(5) An authorised person may operate electronic equipment as
1
mentioned in subsection (1) or (4) only if the authorised person
2
believes on reasonable grounds that the operation of the equipment
3
can be carried out without damage to the equipment.
4
Note:
For compensation for damage to electronic equipment, see section 30.
5
22 Securing electronic equipment to obtain expert assistance
6
(1) This section applies if an authorised person enters premises under a
7
monitoring warrant.
8
Securing equipment
9
(2)
The
monitoring powers include the power to secure any electronic
10
equipment that is on the premises if the authorised person suspects
11
on reasonable grounds that:
12
(a) there is relevant data on the premises; and
13
(b) the relevant data may be accessible by operating the
14
equipment; and
15
(c) expert assistance is required to operate the equipment; and
16
(d) the relevant data may be destroyed, altered or otherwise
17
interfered with, if the authorised person does not take action
18
under this subsection.
19
The equipment may be secured by locking it up, placing a guard or
20
any other means.
21
(3) The authorised person must give notice to the occupier of the
22
premises, or another person who apparently represents the
23
occupier, of:
24
(a) the authorised person's intention to secure the equipment;
25
and
26
(b) the fact that the equipment may be secured for up to 24
27
hours.
28
Period equipment may be secured
29
(4) The equipment may be secured until the earlier of the following
30
happens:
31
(a) the 24-hour period ends;
32
Monitoring Part 2
Powers of authorised persons Division 2
Section 23
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 17
(b) the equipment has been operated by the expert.
1
Note:
For compensation for damage to electronic equipment, see section 30.
2
Extensions
3
(5) The authorised person may apply to an issuing officer for an
4
extension of the 24-hour period if the authorised person believes on
5
reasonable grounds that the equipment needs to be secured for
6
longer than that period.
7
(6) Before making the application, the authorised person must give
8
notice to the occupier of the premises, or another person who
9
apparently represents the occupier, of his or her intention to apply
10
for an extension. The occupier or other person is entitled to be
11
heard in relation to that application.
12
(7) The 24-hour period may be extended more than once.
13
Note:
For the process by which an issuing officer may extend the period, see
14
section 34.
15
23 Securing evidence of the contravention of a related provision
16
(1)
The
monitoring powers include the power to secure a thing for a
17
period not exceeding 24 hours if:
18
(a) the thing is found during the exercise of monitoring powers
19
on the premises; and
20
(b) an authorised person believes on reasonable grounds that:
21
(i) a related provision has been contravened with respect to
22
the thing; or
23
(ii) the thing affords evidence of the contravention of a
24
related provision; or
25
(iii) the thing is intended to be used for the purpose of
26
contravening a related provision; and
27
(c) the authorised person believes on reasonable grounds that:
28
(i) it is necessary to secure the thing in order to prevent it
29
from being concealed, lost or destroyed before a warrant
30
to seize the thing is obtained; and
31
(ii) it is necessary to secure the thing without a warrant
32
because the circumstances are serious and urgent.
33
Part 2 Monitoring
Division 2 Powers of authorised persons
Section 24
18 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
The equipment may be secured by locking it up, placing a guard or
1
any other means.
2
Extensions
3
(2) The authorised person may apply to an issuing officer for an
4
extension of the 24-hour period if the authorised person believes on
5
reasonable grounds that the thing needs to be secured for more than
6
that period.
7
(3) Before making the application, the authorised person must give
8
notice to the occupier of the premises, or another person who
9
apparently represents the occupier, of his or her intention to apply
10
for an extension. The occupier or other person is entitled to be
11
heard in relation to that application.
12
(4) The 24-hour period may be extended more than once.
13
Note:
For the process by which an issuing officer may extend the period, see
14
section 34.
15
24 Persons assisting authorised persons
16
Authorised persons may be assisted by other persons
17
(1) An authorised person may be assisted by other persons in
18
exercising powers or performing functions or duties under this
19
Part, if:
20
(a) that assistance is necessary and reasonable; and
21
(b) another Act or a regulation empowers the authorised person
22
to be assisted.
23
A person giving such assistance is a person assisting the
24
authorised person.
25
Powers, functions and duties of a person assisting
26
(2) A person assisting the authorised person:
27
(a) may enter the premises; and
28
(b) may exercise powers under this Part for the purposes of
29
assisting the authorised person to determine whether:
30
Monitoring Part 2
Powers of authorised persons Division 2
Section 25
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 19
(i) a provision subject to monitoring under this Part has
1
been, or is being, complied with; or
2
(ii) information subject to monitoring under this Part is
3
correct; and
4
(c) may exercise powers and perform functions and duties under
5
this Part that are incidental to the powers mentioned in
6
paragraph (b); and
7
(d) must do so in accordance with a direction given to the person
8
assisting by the authorised person.
9
(3) A power exercised by a person assisting the authorised person as
10
mentioned in subsection (2) is taken for all purposes to have been
11
exercised by the authorised person.
12
(4) A function or duty performed by a person assisting the authorised
13
person as mentioned in subsection (2) is taken for all purposes to
14
have been performed by the authorised person.
15
(5) If a direction is given under paragraph (2)(d) in writing, the
16
direction is not a legislative instrument.
17
Subdivision B--Powers to ask questions and seek production of
18
documents
19
25 Asking questions and seeking production of documents
20
Application
21
(1) This section applies if an authorised person enters premises for the
22
purposes of determining whether:
23
(a) a provision subject to monitoring under this Part has been, or
24
is being, complied with; or
25
(b) information subject to monitoring under this Part is correct.
26
Entry with consent
27
(2) If the entry is authorised because the occupier of the premises
28
consented to the entry, the authorised person may ask the occupier
29
to answer any questions, and produce any document, relating to:
30
(a) the operation of the provision; or
31
Part 2 Monitoring
Division 2 Powers of authorised persons
Section 25
20 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(b)
the
information.
1
Entry under a monitoring warrant
2
(3) If the entry is authorised by a monitoring warrant, the authorised
3
person may require any person on the premises to answer any
4
questions, and produce any document, relating to:
5
(a) the operation of the provision; or
6
(b)
the
information.
7
(4) A person is not subject to a requirement under subsection (3) if:
8
(a) the person does not possess the information or document
9
required; and
10
(b) the person has taken all reasonable steps available to the
11
person to obtain the information or document required and
12
has been unable to obtain it.
13
Offence
14
(5) A person commits an offence if:
15
(a) the person is subject to a requirement under subsection (3);
16
and
17
(b) the person fails to comply with the requirement.
18
Penalty for contravention of this subsection: 30 penalty units.
19
20
Monitoring Part 2
Obligations and incidental powers of authorised persons Division 3
Section 26
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 21
Division 3--Obligations and incidental powers of
1
authorised persons
2
26 Consent
3
(1) Before obtaining the consent of an occupier of premises for the
4
purposes of paragraph 19(2)(a), an authorised person must inform
5
the occupier that the occupier may refuse consent.
6
(2) A consent has no effect unless the consent is voluntary.
7
(3) A consent may be expressed to be limited to entry during a
8
particular period. If so, the consent has effect for that period unless
9
the consent is withdrawn before the end of that period.
10
(4) A consent that is not limited as mentioned in subsection (3) has
11
effect until the consent is withdrawn.
12
(5) If an authorised person entered premises because of the consent of
13
the occupier of the premises, the authorised person, and any person
14
assisting the authorised person, must leave the premises if the
15
consent ceases to have effect.
16
(6)
If:
17
(a) an authorised person enters premises because of the consent
18
of the occupier of the premises; and
19
(b) the authorised person has not shown the occupier his or her
20
identity card before entering the premises;
21
the authorised person must do so on, or as soon as is reasonably
22
practicable after, entering the premises.
23
27 Announcement before entry under warrant
24
Before entering premises under a monitoring warrant, an
25
authorised person must:
26
(a) announce that he or she is authorised to enter the premises;
27
and
28
(b) show his or her identity card to the occupier of the premises,
29
or to another person who apparently represents the occupier,
30
if the occupier or other person is present at the premises; and
31
Part 2 Monitoring
Division 3 Obligations and incidental powers of authorised persons
Section 28
22 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(c) give any person at the premises an opportunity to allow entry
1
to the premises.
2
28 Authorised person to be in possession of warrant
3
An authorised person executing a monitoring warrant must be in
4
possession of the warrant or a copy of the warrant.
5
29 Details of warrant etc. to be given to occupier
6
(1) An authorised person must comply with subsection (2) if:
7
(a) a monitoring warrant is being executed in relation to
8
premises; and
9
(b) the occupier of the premises, or another person who
10
apparently represents the occupier, is present at the premises.
11
(2) The authorised person must, as soon as practicable:
12
(a) make a copy of the warrant available to the occupier or other
13
person; and
14
(b) inform the occupier or other person in writing of the rights
15
and responsibilities of the occupier or other person under
16
Division 4.
17
30 Compensation for damage to electronic equipment
18
(1) This section applies if:
19
(a) as a result of electronic equipment being operated as
20
mentioned in this Part:
21
(i) damage is caused to the equipment; or
22
(ii) the data recorded on the equipment is damaged; or
23
(iii) programs associated with the use of the equipment, or
24
with the use of the data, are damaged or corrupted; and
25
(b) the damage or corruption occurs because:
26
(i) insufficient care was exercised in selecting the person
27
who was to operate the equipment; or
28
(ii) insufficient care was exercised by the person operating
29
the equipment.
30
Monitoring Part 2
Obligations and incidental powers of authorised persons Division 3
Section 30
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 23
(2) The Commonwealth must pay the owner of the equipment, or the
1
user of the data or programs, such reasonable compensation for the
2
damage or corruption as the Commonwealth and the owner or user
3
agree on.
4
(3) However, if the owner or user and the Commonwealth fail to
5
agree, the owner or user may institute proceedings in a relevant
6
court for such reasonable amount of compensation as the court
7
determines.
8
(4) In determining the amount of compensation payable, regard is to
9
be had to whether the occupier of the premises, or the occupier's
10
employees or agents, if they were available at the time, provided
11
any appropriate warning or guidance on the operation of the
12
equipment.
13
14
Part 2 Monitoring
Division 4 Occupier's rights and responsibilities
Section 31
24 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 4--Occupier's rights and responsibilities
1
31 Right to observe execution of warrant
2
(1) The occupier of premises to which a monitoring warrant relates, or
3
another person who apparently represents the occupier, is entitled
4
to observe the execution of the monitoring warrant if the occupier
5
or other person is present at the premises while the warrant is being
6
executed.
7
(2) The right to observe the execution of the warrant ceases if the
8
occupier or other person impedes that execution.
9
(3) This section does not prevent the execution of the warrant in 2 or
10
more areas of the premises at the same time.
11
32 Responsibility to provide facilities and assistance
12
(1) The occupier of premises to which a monitoring warrant relates, or
13
another person who apparently represents the occupier, must
14
provide:
15
(a) an authorised person executing the warrant; and
16
(b) any person assisting the authorised person;
17
with all reasonable facilities and assistance for the effective
18
exercise of their powers.
19
(2) A person commits an offence if:
20
(a) the person is subject to subsection (1); and
21
(b) the person fails to comply with that subsection.
22
Penalty for contravention of this subsection: 30 penalty units.
23
24
Monitoring Part 2
Monitoring warrants Division 5
Section 33
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 25
Division 5--Monitoring warrants
1
33 Monitoring warrants
2
Application for warrant
3
(1) An authorised applicant may apply to an issuing officer for a
4
warrant under this section in relation to premises.
5
Issue of warrant
6
(2) The issuing officer may issue the warrant if the issuing officer is
7
satisfied, by information on oath or affirmation, that it is
8
reasonably necessary that one or more authorised persons should
9
have access to the premises for the purpose of determining
10
whether:
11
(a) a provision that is subject to monitoring under this Part has
12
been, or is being, complied with; or
13
(b) information subject to monitoring under this Part is correct.
14
(3) However, the issuing officer must not issue the warrant unless the
15
authorised applicant or some other person has given to the issuing
16
officer, either orally or by affidavit, such further information (if
17
any) as the issuing officer requires concerning the grounds on
18
which the issue of the warrant is being sought.
19
Content of warrant
20
(4)
The
warrant
must:
21
(a) describe the premises to which the warrant relates; and
22
(b) state that the warrant is issued under this section; and
23
(c) state the purpose for which the warrant is issued; and
24
(d) authorise one or more authorised persons (whether or not
25
named in the warrant) from time to time while the warrant
26
remains in force:
27
(i) to enter the premises; and
28
(ii) to exercise the powers set out in this Part in relation to
29
the premises; and
30
Part 2 Monitoring
Division 5 Monitoring warrants
Section 33
26 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(e) state whether entry is authorised to be made at any time of
1
the day or during specified hours of the day; and
2
(f) specify the day (not more than 3 months after the issue of the
3
warrant) on which the warrant ceases to be in force.
4
Monitoring Part 2
Extension of periods in which things secured Division 6
Section 34
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 27
Division 6--Extension of periods in which things secured
1
34 Extension of periods in which things secured
2
Application
3
(1) This section applies where an authorised person applies to an
4
issuing officer under subsection 22(5) or 23(2) for an extension of
5
the period during which a thing may be secured.
6
Granting extension
7
(2) The issuing officer may, by order, grant an extension of the period
8
if the issuing officer is satisfied, by information on oath or
9
affirmation, that:
10
(a) where the thing is secured under section 22--it is necessary
11
to secure the thing to ensure that relevant data is not
12
destroyed, altered or otherwise interfered with; or
13
(b) where the thing is secured under section 23--it is necessary
14
to secure the thing in order to prevent it from being
15
concealed, lost or destroyed before a warrant to seize the
16
thing is obtained.
17
(3) However, the issuing officer must not grant the extension unless
18
the authorised person or some other person has given to the issuing
19
officer, either orally or by affidavit, such further information (if
20
any) as the issuing officer requires concerning the grounds on
21
which the extension is being sought.
22
Content of order
23
(4) The order extending the period must:
24
(a) describe the thing to which the order relates; and
25
(b) state the period for which the extension is granted; and
26
(c) state that the order is made under this section; and
27
(d) state that the authorised person is authorised to secure the
28
thing for that period.
29
30
Part 2 Monitoring
Division 7 Powers of issuing officers
Section 35
28 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 7--Powers of issuing officers
1
35 Powers of issuing officers
2
Powers conferred personally
3
(1) A power conferred on an issuing officer by this Part is conferred on
4
the issuing officer:
5
(a) in a personal capacity; and
6
(b) not as a court or a member of a court.
7
Powers need not be accepted
8
(2) The issuing officer need not accept the power conferred.
9
Protection and immunity
10
(3) An issuing officer exercising a power conferred by this Part has the
11
same protection and immunity as if the issuing officer were
12
exercising the power:
13
(a) as the court of which the issuing officer is a member; or
14
(b) as a member of the court of which the issuing officer is a
15
member.
16
17
Monitoring Part 2
Identity cards Division 8
Section 36
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 29
Division 8--Identity cards
1
36 Identity cards
2
(1) The relevant chief executive must issue an identity card to an
3
authorised person.
4
Form of identity card
5
(2) The identity card must:
6
(a) be in the form prescribed by the regulations; and
7
(b) contain a photograph that is no more than 1 year old of the
8
authorised person.
9
Offence
10
(3) A person commits an offence if:
11
(a) the person has been issued with an identity card; and
12
(b) the person ceases to be an authorised person; and
13
(c) the person does not return the identity card to the relevant
14
chief executive within 14 days after ceasing to be an
15
authorised person.
16
Penalty: 1 penalty unit.
17
(4) An offence against subsection (3) is an offence of strict liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
Exception--card lost or destroyed
20
(5) Subsection (3) does not apply if the identity card was lost or
21
destroyed.
22
Note:
A defendant bears an evidential burden in relation to the matter in this
23
subsection: see subsection 13.3(3) of the Criminal Code.
24
Authorised person must carry card
25
(6) An authorised person must carry his or her identity card at all times
26
when exercising powers under this Part as an authorised person.
27
28
Part 3 Investigation
Division 1 Outline and operation of this Part
Section 37
30 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Part 3--Investigation
1
Division 1--Outline and operation of this Part
2
37 Simplified outline
3
The following is a simplified outline of this Part:
4
This Part creates a framework for gathering material that relates to
5
the contravention of offences and civil penalty provisions.
6
For this Part to operate, an offence or a civil penalty provision
7
must be made subject to investigation under this Part. This is to be
8
done by another Act or a regulation.
9
An authorised person may enter premises if there are reasonable
10
grounds for suspecting that there may be material on the premises
11
related to the contravention of an offence or a civil penalty
12
provision that is subject to investigation under this Part.
13
Entry must be with the consent of the occupier of the premises or
14
under an investigation warrant.
15
An authorised person who enters premises may exercise
16
investigation powers. The authorised person may be assisted by
17
other persons if that assistance is necessary and reasonable and
18
another Act or a regulation empowers the authorised person to do
19
so.
20
An occupier's consent to an authorised person entering premises
21
for the purposes of investigation must be voluntary. Authorised
22
persons must abide by the terms of that consent.
23
An authorised person who enters premises under an investigation
24
warrant must give details of the warrant to the occupier of the
25
premises.
26
Investigation Part 3
Outline and operation of this Part Division 1
Section 38
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 31
The occupier of the premises may observe the execution of an
1
investigation warrant and must provide reasonable facilities and
2
assistance for the effective execution of the warrant.
3
38 Purpose and operation of this Part
4
(1) The principal purpose of this Part is to create a framework for
5
gathering material that relates to the contravention of offences and
6
civil penalty provisions.
7
(2) However, for this Part to operate, an offence or a civil penalty
8
provision must be made subject to investigation under this Part.
9
39 Provisions subject to investigation
10
(1) An offence against an Act or a legislative instrument is subject to
11
investigation under this Part if an Act or a regulation provides that
12
the offence is subject to investigation under this Part.
13
(2) A civil penalty provision under an Act or a legislative instrument is
14
subject to investigation under this Part if an Act or a regulation
15
provides that the civil penalty provision is subject to investigation
16
under this Part.
17
40 Evidential material
18
Evidential material means any of the following:
19
(a) a thing with respect to which an offence or a civil penalty
20
provision subject to investigation under this Part has been
21
contravened or is suspected, on reasonable grounds, to have
22
been contravened;
23
(b) a thing that there are reasonable grounds for suspecting will
24
afford evidence as to the contravention of such an offence or
25
a civil penalty provision;
26
(c) a thing that there are reasonable grounds for suspecting is
27
intended to be used for the purpose of contravening such an
28
offence or a civil penalty provision.
29
Part 3 Investigation
Division 1 Outline and operation of this Part
Section 41
32 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
41 Related provisions
1
A provision is related to evidential material if an Act or a
2
regulation provides that the provision is related to the evidential
3
material for the purposes of this Part.
4
42 Authorised applicant
5
(1) A person is an authorised applicant for the purposes of exercising
6
powers under this Part in relation to evidential material if an Act or
7
a regulation provides that the person is an authorised applicant in
8
relation to evidential material for the purposes of this Part.
9
(2) A person who is an authorised applicant for the purpose of
10
exercising powers mentioned in subsection (1) is also an
11
authorised applicant for the purposes of:
12
(a) exercising other powers under this Part; or
13
(b) performing functions or duties under this Part;
14
that are incidental to the powers mentioned in subsection (1).
15
(3) Without limiting subsection (1), an Act or a regulation may
16
provide that a person is an authorised applicant in relation to
17
evidential material for the purposes of this Part by:
18
(a) providing that a person of a specified class is an authorised
19
applicant in relation to the evidential material for the
20
purposes of this Part; or
21
(b) authorising another person to specify that a person, or a
22
person of a specified class, is an authorised applicant in
23
relation to the evidential material for the purposes of this
24
Part.
25
43 Authorised person
26
(1) A person is an authorised person for the purposes of exercising
27
powers under this Part in relation to evidential material if an Act or
28
a regulation provides that the person is an authorised person in
29
relation to the evidential material for the purposes of this Part.
30
Investigation Part 3
Outline and operation of this Part Division 1
Section 44
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 33
(2) A person who is an authorised person for the purpose of
1
exercising powers mentioned in subsection (1) is also an
2
authorised person for the purposes of:
3
(a) exercising other powers under this Part; or
4
(b) performing functions or duties under this Part;
5
that are incidental to the powers mentioned in subsection (1).
6
(3) Without limiting subsection (1), an Act or a regulation may
7
provide that a person is an authorised person in relation to
8
evidential material for the purposes of this Part by:
9
(a) providing that a person of a specified class is an authorised
10
person in relation to the evidential material for those
11
purposes; or
12
(b) authorising another person to specify that a person, or a
13
person of a specified class, is an authorised person in relation
14
to the evidential material for those purposes.
15
44 Identity card
16
Identity card, in relation to a person who is an authorised person in
17
relation to evidential material for the purposes of this Part, means a
18
card issued to the person under section 77 by the relevant chief
19
executive in relation to that evidential material.
20
45 Issuing officer
21
(1) A judicial officer is an issuing officer for the purposes of
22
exercising powers under this Part in relation to evidential material,
23
if an Act or a regulation provides that the judicial officer is an
24
issuing officer in relation to the evidential material for the purposes
25
of this Part.
26
(2) A judicial officer who is an issuing officer for the purpose of
27
exercising powers mentioned in subsection (1) is also an issuing
28
officer for the purposes of exercising other powers under this Part
29
that are incidental to the powers mentioned in subsection (1).
30
(3) Without limiting subsection (1), an Act or a regulation may
31
provide that a judicial officer is an issuing officer in relation to
32
evidential material for the purposes of this Part by:
33
Part 3 Investigation
Division 1 Outline and operation of this Part
Section 46
34 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(a) providing that a judicial officer of a specified class is an
1
issuing officer in relation to the evidential material for the
2
purposes of this Part; or
3
(b) authorising another person to specify that a judicial officer,
4
or a judicial officer of a specified class, is an issuing officer
5
in relation to the evidential material for the purposes of this
6
Part.
7
46 Relevant chief executive
8
(1) A person is the relevant chief executive for the purposes of
9
exercising powers under this Part in relation to evidential material,
10
if an Act or a regulation provides that the person is the relevant
11
chief executive in relation to the evidential material for the
12
purposes of this Part.
13
(2) A person who is the relevant chief executive for the purpose of
14
exercising powers mentioned in subsection (1) is also the relevant
15
chief executive for the purposes of:
16
(a) exercising other powers under this Part; or
17
(b) performing functions or duties under this Part;
18
that are incidental to the powers mentioned in subsection (1).
19
(3) Without limiting subsection (1), an Act or a regulation may
20
provide that a person is the relevant chief executive in relation to
21
evidential material for the purposes of this Part by:
22
(a) providing that a person who holds a specified office is the
23
relevant chief executive in relation to the evidential material
24
for those purposes; or
25
(b) authorising another person to specify that a person, or a
26
person who holds a specified office, is the relevant chief
27
executive in relation to the evidential material for those
28
purposes.
29
47 Relevant court
30
A court is a relevant court in relation to a matter that arises
31
because of:
32
Investigation Part 3
Outline and operation of this Part Division 1
Section 48
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 35
(a) the exercise of powers by a person under this Part in relation
1
to evidential material; or
2
(b) the exercise of powers, or the performance of functions or
3
duties, under this Part that are incidental to the powers
4
mentioned in paragraph (a);
5
if an Act or a regulation provides that the court is a relevant court
6
in relation to that evidential material for the purposes of this Part.
7
48 Matters provided for by legislative instrument
8
A legislative instrument may make provision about a matter
9
mentioned in this Part only if another Act gives power for the
10
legislative instrument to make provision about the matter.
11
12
Part 3 Investigation
Division 2 Powers of authorised persons
Section 49
36 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 2--Powers of authorised persons
1
Subdivision A--Investigation powers
2
49 Entering premises by consent or under a warrant
3
(1) If an authorised person has reasonable grounds for suspecting that
4
there may be evidential material on any premises, the authorised
5
person may:
6
(a) enter the premises; and
7
(b) exercise the investigation powers.
8
Note: The
investigation powers are set out in sections 50, 51, 52 and 53.
9
(2) However, an authorised person is not authorised to enter the
10
premises unless:
11
(a) the occupier of the premises has consented to the entry; or
12
(b) the entry is made under an investigation warrant.
13
Note:
If entry to the premises is with the occupier's consent, the authorised
14
person must leave the premises if the consent ceases to have effect
15
(see section 56).
16
50 General investigation powers
17
The following are the investigation powers that an authorised
18
person may exercise in relation to premises under section 49:
19
(a) if entry to the premises is with the occupier's consent--the
20
power to search the premises and any thing on the premises
21
for the evidential material the authorised person has
22
reasonable grounds for suspecting may be on the premises;
23
(b) if entry to the premises is under an investigation warrant:
24
(i) the power to search the premises and any thing on the
25
premises for the kind of evidential material specified in
26
the warrant; and
27
(ii) the power to seize evidential material of that kind if the
28
authorised person finds it on the premises;
29
(c) the power to inspect, examine, take measurements of or
30
conduct tests on evidential material referred to in
31
paragraph (a) or (b);
32
Investigation Part 3
Powers of authorised persons Division 2
Section 51
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 37
(d) the power to make any still or moving image or any
1
recording of the premises or evidential material referred to in
2
paragraph (a) or (b);
3
(e) the power to take onto the premises such equipment and
4
materials as the authorised person requires for the purpose of
5
exercising powers in relation to the premises;
6
(f) the powers set out in subsections 51(1) and (2), subsection
7
52(2) and section 53.
8
51 Operating electronic equipment
9
(1)
The
investigation powers include the power to:
10
(a) operate electronic equipment on the premises; and
11
(b) use a disk, tape or other storage device that:
12
(i) is on the premises; and
13
(ii) can be used with the equipment or is associated with it;
14
if an authorised person has reasonable grounds for suspecting that
15
the electronic equipment, disk, tape or other storage device is or
16
contains evidential material.
17
(2)
The
investigation powers include the following powers in relation
18
to evidential material found in the exercise of the power under
19
subsection (1):
20
(a) if entry to the premises is under an investigation warrant--
21
the power to seize the equipment and the disk, tape or other
22
storage device referred to in that subsection;
23
(b) the power to operate electronic equipment on the premises to
24
put the evidential material in documentary form and remove
25
the documents so produced from the premises;
26
(c) the power to operate electronic equipment on the premises to
27
transfer the evidential material to a disk, tape or other storage
28
device that:
29
(i) is brought to the premises for the exercise of the power;
30
or
31
(ii) is on the premises and the use of which for that purpose
32
has been agreed in writing by the occupier of the
33
premises;
34
Part 3 Investigation
Division 2 Powers of authorised persons
Section 52
38 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
and remove the disk, tape or other storage device from the
1
premises.
2
(3) An authorised person may operate electronic equipment as
3
mentioned in subsection (1) or (2) only if the authorised person
4
believes on reasonable grounds that the operation of the equipment
5
can be carried out without damage to the equipment.
6
Note:
For compensation for damage to electronic equipment, see section 62.
7
(4) An authorised person may seize equipment or a disk, tape or other
8
storage device as mentioned in paragraph (2)(a) only if:
9
(a) it is not practicable to put the evidential material in
10
documentary form as mentioned in paragraph (2)(b) or to
11
transfer the evidential material as mentioned in
12
paragraph (2)(c); or
13
(b) possession of the equipment or the disk, tape or other storage
14
device by the occupier could constitute an offence against a
15
law of the Commonwealth.
16
52 Securing electronic equipment to obtain expert assistance
17
(1) This section applies if an authorised person enters premises under
18
an investigation warrant to search for evidential material.
19
Securing equipment
20
(2)
The
investigation powers include the power to secure any
21
electronic equipment that is on the premises if the authorised
22
person suspects on reasonable grounds that:
23
(a) there is evidential material of the kind specified in the
24
warrant on the premises; and
25
(b) the evidential material may be accessible by operating the
26
electronic equipment; and
27
(c) expert assistance is required to operate the equipment; and
28
(d) the evidential material may be destroyed, altered or otherwise
29
interfered with, if the authorised person does not take action
30
under this subsection.
31
The equipment may be secured by locking it up, placing a guard or
32
any other means.
33
Investigation Part 3
Powers of authorised persons Division 2
Section 53
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 39
(3) The authorised person must give notice to the occupier of the
1
premises, or another person who apparently represents the
2
occupier, of:
3
(a) the authorised person's intention to secure the equipment;
4
and
5
(b) the fact that the equipment may be secured for up to 24
6
hours.
7
Period equipment may be secured
8
(4) The equipment may be secured until the earlier of the following
9
happens:
10
(a) the 24-hour period ends;
11
(b) the equipment has been operated by the expert.
12
Note:
For compensation for damage to electronic equipment, see section 62.
13
Extensions
14
(5) The authorised person may apply to an issuing officer for an
15
extension of the 24-hour period, if the authorised person believes
16
on reasonable grounds that the equipment needs to be secured for
17
longer than that period.
18
(6) Before making the application, the authorised person must give
19
notice to the occupier of the premises, or another person who
20
apparently represents the occupier, of the authorised person's
21
intention to apply for an extension. The occupier or other person is
22
entitled to be heard in relation to that application.
23
(7) The 24-hour period may be extended more than once.
24
Note:
For the process by which an issuing officer may extend the period, see
25
section 75.
26
53 Seizing evidence of related provisions
27
(1) This section applies if an authorised person enters premises under
28
an investigation warrant to search for evidential material.
29
(2)
The
investigation powers include seizing a thing that is not
30
evidential material of the kind specified in the warrant if:
31
Part 3 Investigation
Division 2 Powers of authorised persons
Section 54
40 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(a) in the course of searching for the kind of evidential material
1
specified in the warrant, the authorised person finds the
2
thing; and
3
(b) the authorised person believes on reasonable grounds that:
4
(i) the thing is evidential material of another kind; or
5
(ii) a related provision has been contravened with respect to
6
the thing; or
7
(iii) the thing is evidence of the contravention of a related
8
provision; or
9
(iv) the thing is intended to be used for the purpose of
10
contravening a related provision; and
11
(c) the authorised person believes on reasonable grounds that it
12
is necessary to seize the thing in order to prevent its
13
concealment, loss or destruction.
14
54 Persons assisting authorised persons
15
Authorised persons may be assisted by other persons
16
(1) An authorised person may be assisted by other persons in
17
exercising powers or performing functions or duties under this
18
Part, if:
19
(a) that assistance is necessary and reasonable; and
20
(b) another Act or a regulation empowers the authorised person
21
to be assisted.
22
A person giving such assistance is a person assisting the
23
authorised person.
24
Powers, functions and duties of a person assisting
25
(2) A person assisting the authorised person:
26
(a) may enter the premises; and
27
(b) may exercise powers under this Part in relation to evidential
28
material; and
29
(c) may exercise powers and perform functions and duties under
30
this Part that are incidental to the powers mentioned in
31
paragraph (b); and
32
Investigation Part 3
Powers of authorised persons Division 2
Section 55
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 41
(d) must do so in accordance with a direction given to the person
1
assisting by the authorised person.
2
(3) A power exercised by a person assisting the authorised person as
3
mentioned in subsection (2) is taken for all purposes to have been
4
exercised by the authorised person.
5
(4) A function or duty performed by a person assisting the authorised
6
person as mentioned in subsection (2) is taken for all purposes to
7
have been performed by the authorised person.
8
(5) If a direction is given under paragraph (2)(d) in writing, the
9
direction is not a legislative instrument.
10
Subdivision B--Powers to ask questions and seek production of
11
documents
12
55 Asking questions and seeking production of documents
13
Application
14
(1) This section applies if an authorised person enters premises to
15
search for evidential material.
16
Entry with consent
17
(2) If the entry is authorised because the occupier of the premises
18
consented to the entry, the authorised person may ask the occupier
19
to answer any questions, and produce any document, relating to
20
evidential material.
21
Entry under an investigation warrant
22
(3) If the entry is authorised by an investigation warrant, the
23
authorised person may require any person on the premises to
24
answer any questions, and produce any document, relating to
25
evidential material of the kind specified in the warrant.
26
(4) A person is not subject to a requirement under subsection (3) if:
27
(a) the person does not possess the information or document
28
required; and
29
Part 3 Investigation
Division 2 Powers of authorised persons
Section 55
42 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(b) the person has taken all reasonable steps available to the
1
person to obtain the information or document required and
2
has been unable to obtain it.
3
Offence
4
(5) A person commits an offence if:
5
(a) the person is subject to a requirement under subsection (3);
6
and
7
(b) the person fails to comply with the requirement.
8
Penalty for contravention of this subsection: 30 penalty units.
9
10
Investigation Part 3
Obligations and incidental powers of authorised persons Division 3
Section 56
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 43
Division 3--Obligations and incidental powers of
1
authorised persons
2
56 Consent
3
(1) Before obtaining the consent of an occupier of premises for the
4
purposes of paragraph 49(2)(a), an authorised person must inform
5
the occupier that the occupier may refuse consent.
6
(2) A consent has no effect unless the consent is voluntary.
7
(3) A consent may be expressed to be limited to entry during a
8
particular period. If so, the consent has effect for that period unless
9
the consent is withdrawn before the end of that period.
10
(4) A consent that is not limited as mentioned in subsection (3) has
11
effect until the consent is withdrawn.
12
(5) If an authorised person entered premises because of the consent of
13
the occupier of the premises, the authorised person, and any person
14
assisting the authorised person, must leave the premises if the
15
consent ceases to have effect.
16
(6)
If:
17
(a) an authorised person enters premises because of the consent
18
of the occupier of the premises; and
19
(b) the authorised person has not shown the occupier his or her
20
identity card before entering the premises;
21
the authorised person must do so on, or as soon as is reasonably
22
practicable after, entering the premises.
23
57 Announcement before entry under warrant
24
(1) Before entering premises under an investigation warrant, an
25
authorised person must:
26
(a) announce that he or she is authorised to enter the premises;
27
and
28
(b) show his or her identity card to the occupier of the premises,
29
or to another person who apparently represents the occupier,
30
if the occupier or other person is present at the premises; and
31
Part 3 Investigation
Division 3 Obligations and incidental powers of authorised persons
Section 58
44 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(c) give any person at the premises an opportunity to allow entry
1
to the premises.
2
(2) However, an authorised person is not required to comply with
3
subsection (1) if the authorised person believes on reasonable
4
grounds that immediate entry to the premises is required:
5
(a) to ensure the safety of a person; or
6
(b) to ensure that the effective execution of the warrant is not
7
frustrated.
8
(3)
If:
9
(a) an authorised person does not comply with subsection (1)
10
because of subsection (2); and
11
(b) the occupier of the premises, or another person who
12
apparently represents the occupier, is present at the premises;
13
the authorised person must, as soon as practicable after entering the
14
premises, show his or her identity card to the occupier or other
15
person.
16
58 Authorised person to be in possession of warrant
17
An authorised person executing an investigation warrant must be in
18
possession of:
19
(a) the warrant issued by the issuing officer under section 71, or
20
a copy of the warrant as so issued; or
21
(b) the form of warrant completed under subsection 72(6), or a
22
copy of the form as so completed.
23
59 Details of warrant etc. to be given to occupier
24
(1) An authorised person must comply with subsection (2) if:
25
(a) an investigation warrant is being executed in relation to
26
premises; and
27
(b) the occupier of the premises, or another person who
28
apparently represents the occupier, is present at the premises.
29
(2) The authorised person executing the warrant must, as soon as
30
practicable:
31
(a) do one of the following:
32
Investigation Part 3
Obligations and incidental powers of authorised persons Division 3
Section 60
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 45
(i) if the warrant was issued under section 71--make a
1
copy of the warrant available to the occupier or other
2
person (which need not include the signature of the
3
issuing officer who issued it);
4
(ii) if the warrant was signed under section 72--make a
5
copy of the form of warrant completed under subsection
6
72(6) available to the occupier or other person; and
7
(b) inform the occupier or other person in writing of the rights
8
and responsibilities of the occupier or other person under
9
Division 4.
10
60 Completing execution after temporary cessation
11
(1) This section applies if an authorised person, and all persons
12
assisting, who are executing an investigation warrant in relation to
13
premises temporarily cease its execution and leave the premises.
14
(2) The authorised person, and persons assisting, may complete the
15
execution of the warrant if:
16
(a) the warrant is still in force; and
17
(b) the authorised person and persons assisting are absent from
18
the premises:
19
(i) for not more than 1 hour; or
20
(ii) if there is an emergency situation, for not more than 12
21
hours or such longer period as allowed by an issuing
22
officer under subsection (5); or
23
(iii) for a longer period if the occupier of the premises
24
consents in writing.
25
Application for extension in emergency situation
26
(3) An authorised person, or person assisting, may apply to an issuing
27
officer for an extension of the 12-hour period mentioned in
28
subparagraph (2)(b)(ii) if:
29
(a) there is an emergency situation; and
30
(b) the authorised person or person assisting believes on
31
reasonable grounds that the authorised person and the
32
persons assisting will not be able to return to the premises
33
within that period.
34
Part 3 Investigation
Division 3 Obligations and incidental powers of authorised persons
Section 61
46 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(4) If it is practicable to do so, before making the application, the
1
authorised person or person assisting must give notice to the
2
occupier of the premises of his or her intention to apply for an
3
extension.
4
Extension in emergency situation
5
(5) An issuing officer may extend the period during which the
6
authorised person and persons assisting may be away from the
7
premises if:
8
(a) an application is made under subsection (3); and
9
(b) the issuing officer is satisfied, by information on oath or
10
affirmation, that there are exceptional circumstances that
11
justify the extension; and
12
(c) the extension would not result in the period ending after the
13
warrant ceases to be in force.
14
61 Completing execution of warrant stopped by court order
15
An authorised person, and any persons assisting, may complete the
16
execution of a warrant that has been stopped by an order of a court
17
if:
18
(a) the order is later revoked or reversed on appeal; and
19
(b) the warrant is still in force when the order is revoked or
20
reversed.
21
62 Compensation for damage to electronic equipment
22
(1) This section applies if:
23
(a) as a result of electronic equipment being operated as
24
mentioned in this Part:
25
(i) damage is caused to the equipment; or
26
(ii) the data recorded on the equipment is damaged; or
27
(iii) programs associated with the use of the equipment, or
28
with the use of the data, are damaged or corrupted; and
29
(b) the damage or corruption occurs because:
30
(i) insufficient care was exercised in selecting the person
31
who was to operate the equipment; or
32
Investigation Part 3
Obligations and incidental powers of authorised persons Division 3
Section 62
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 47
(ii) insufficient care was exercised by the person operating
1
the equipment.
2
(2) The Commonwealth must pay the owner of the equipment, or the
3
user of the data or programs, such reasonable compensation for the
4
damage or corruption as the Commonwealth and the owner or user
5
agree on.
6
(3) However, if the owner or user and the Commonwealth fail to
7
agree, the owner or user may institute proceedings in a relevant
8
court for such reasonable amount of compensation as the court
9
determines.
10
(4) In determining the amount of compensation payable, regard is to
11
be had to whether the occupier of the premises, or the occupier's
12
employees or agents, if they were available at the time, provided
13
any appropriate warning or guidance on the operation of the
14
equipment.
15
16
Part 3 Investigation
Division 4 Occupier's rights and responsibilities
Section 63
48 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 4--Occupier's rights and responsibilities
1
63 Right to observe execution of warrant
2
(1) The occupier of premises to which an investigation warrant relates,
3
or another person who apparently represents the occupier, is
4
entitled to observe the execution of the investigation warrant if the
5
occupier or other person is present at the premises while the
6
warrant is being executed.
7
(2) The right to observe the execution of the warrant ceases if the
8
occupier or other person impedes that execution.
9
(3) This section does not prevent the execution of the warrant in 2 or
10
more areas of the premises at the same time.
11
64 Responsibility to provide facilities and assistance
12
(1) The occupier of premises to which an investigation warrant relates,
13
or another person who apparently represents the occupier, must
14
provide:
15
(a) an authorised person executing the warrant; and
16
(b) any person assisting the authorised person;
17
with all reasonable facilities and assistance for the effective
18
exercise of their powers.
19
(2) A person commits an offence if:
20
(a) the person is subject to subsection (1); and
21
(b) the person fails to comply with that subsection.
22
Penalty for contravention of this subsection: 30 penalty units.
23
24
Investigation Part 3
General provisions relating to seizure Division 5
Section 65
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 49
Division 5--General provisions relating to seizure
1
65 Copies of seized things to be provided
2
(1) This section applies if:
3
(a) an investigation warrant is being executed in relation to
4
premises; and
5
(b) an authorised person seizes one or more of the following
6
from the premises under this Part:
7
(i) a document, film, computer file or other thing that can
8
be readily copied;
9
(ii) a storage device, the information in which can be
10
readily copied.
11
(2) The occupier of the premises, or another person who apparently
12
represents the occupier and who is present when the warrant is
13
executed, may request the authorised person to give a copy of the
14
thing or the information to the occupier or other person.
15
(3) The authorised person must comply with the request as soon as
16
practicable after the seizure.
17
(4) However, the authorised person is not required to comply with the
18
request if possession of the document, film, computer file, thing or
19
information by the occupier or other person could constitute an
20
offence against a law of the Commonwealth.
21
66 Receipts for seized things
22
(1) The authorised person must provide a receipt for a thing that is
23
seized under this Part.
24
(2) One receipt may cover 2 or more things seized.
25
67 Return of seized things
26
(1) The relevant chief executive must take reasonable steps to return a
27
thing seized under this Part when the earliest of the following
28
happens:
29
(a) the reason for the thing's seizure no longer exists;
30
Part 3 Investigation
Division 5 General provisions relating to seizure
Section 68
50 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(b) it is decided that the thing is not to be used in evidence;
1
(c) the period of 60 days after the thing's seizure ends.
2
Note:
For exceptions to this rule, see subsections (2) and (3).
3
Exceptions
4
(2)
Subsection
(1):
5
(a) is subject to any contrary order of a court; and
6
(b) does not apply if the thing:
7
(i) is forfeited or forfeitable to the Commonwealth; or
8
(ii) is the subject of a dispute as to ownership.
9
(3) The relevant chief executive is not required to take reasonable
10
steps to return a thing because of paragraph (1)(c) if:
11
(a) proceedings in respect of which the thing may afford
12
evidence were instituted before the end of the 60 days and
13
those proceedings (and any appeal from those proceedings)
14
have not been completed; or
15
(b) the thing may continue to be retained because of an order
16
under section 68; or
17
(c) the Commonwealth or the relevant chief executive is
18
otherwise authorised (by a law, or an order of a court, of the
19
Commonwealth or of a State or Territory) to retain, destroy,
20
dispose of or otherwise deal with the thing.
21
Return of thing
22
(4) A thing that is required to be returned under this section must be
23
returned to the person from whom it was seized (or to the owner if
24
that person is not entitled to possess it).
25
68 Issuing officer may permit a thing to be retained
26
(1) The relevant chief executive may apply to an issuing officer for an
27
order permitting the retention of a thing seized under this Part for a
28
further period if proceedings in respect of which the thing may
29
afford evidence have not commenced before the end of:
30
(a) 60 days after the seizure; or
31
Investigation Part 3
General provisions relating to seizure Division 5
Section 69
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 51
(b) a period previously specified in an order of an issuing officer
1
under this section.
2
(2) Before making the application, the relevant chief executive must:
3
(a) take reasonable steps to discover who has an interest in the
4
retention of the thing; and
5
(b) if it is practicable to do so, notify each person whom the
6
relevant chief executive believes to have such an interest of
7
the proposed application.
8
(3) Any person notified under paragraph (2)(b) is entitled to be heard
9
in relation to the application.
10
Order to retain thing
11
(4) The issuing officer may order that the thing may continue to be
12
retained for a period specified in the order if the issuing officer is
13
satisfied that it is necessary for the thing to continue to be retained:
14
(a) for the purposes of an investigation as to whether an offence
15
or a civil penalty provision that is subject to investigation
16
under this Part has been contravened; or
17
(b) for the purposes of an investigation as to whether a related
18
provision has been contravened; or
19
(c) to enable evidence of a contravention mentioned in
20
paragraph (a) or (b) to be secured for the purposes of a
21
prosecution or an action to obtain a civil penalty order.
22
(5) The period specified must not exceed 3 years.
23
69 Disposal of things
24
(1) The relevant chief executive may dispose of a thing seized under
25
this Part if:
26
(a) the relevant chief executive has taken reasonable steps to
27
return the thing to a person; and
28
(b)
either:
29
(i) the relevant chief executive has been unable to locate
30
the person; or
31
(ii) the person has refused to take possession of the thing.
32
Part 3 Investigation
Division 5 General provisions relating to seizure
Section 70
52 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(2) The relevant chief executive may dispose of the thing in such
1
manner as the relevant chief executive thinks appropriate.
2
70 Compensation for acquisition of property
3
(1) If the operation of section 69 would result in an acquisition of
4
property from a person otherwise than on just terms, the
5
Commonwealth is liable to pay a reasonable amount of
6
compensation to the person.
7
(2) If the Commonwealth and the person do not agree on the amount
8
of the compensation, the person may institute proceedings in a
9
relevant court for the recovery from the Commonwealth of such
10
reasonable amount of compensation as the court determines.
11
(3) In this section:
12
acquisition of property has the same meaning as in paragraph
13
51(xxxi) of the Constitution.
14
just terms has the same meaning as in paragraph 51(xxxi) of the
15
Constitution.
16
17
Investigation Part 3
Investigation warrants Division 6
Section 71
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 53
Division 6--Investigation warrants
1
71 Investigation warrants
2
Application for warrant
3
(1) An authorised applicant may apply to an issuing officer for a
4
warrant under this section in relation to premises.
5
Issue of warrant
6
(2) The issuing officer may issue the warrant if the issuing officer is
7
satisfied, by information on oath or affirmation, that there are
8
reasonable grounds for suspecting that there is, or there may be
9
within the next 72 hours, evidential material on the premises.
10
(3) However, the issuing officer must not issue the warrant unless the
11
authorised applicant or some other person has given to the issuing
12
officer, either orally or by affidavit, such further information (if
13
any) as the issuing officer requires concerning the grounds on
14
which the issue of the warrant is being sought.
15
Content of warrant
16
(4)
The
warrant
must:
17
(a) state the offence or offences, or civil penalty provision or
18
civil penalty provisions, to which the warrant relates; and
19
(b) describe the premises to which the warrant relates; and
20
(c) state that the warrant is issued under this Division; and
21
(d) specify the kinds of evidential material to be searched for
22
under the warrant; and
23
(e) state that evidential material of the kind specified may be
24
seized under the warrant; and
25
(f) state that the person executing the warrant may seize any
26
other thing found in the course of executing the warrant if the
27
person believes on reasonable grounds that:
28
(i) the thing is evidential material of a kind not specified in
29
the warrant; or
30
Part 3 Investigation
Division 6 Investigation warrants
Section 72
54 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(ii) a related provision has been contravened with respect to
1
the thing; or
2
(iii) the thing is evidence of the contravention of a related
3
provision; or
4
(iv) the thing is intended to be used for the purpose of
5
contravening a related provision; and
6
(g) name one or more authorised persons; and
7
(h) authorise the authorised persons named in the warrant:
8
(i) to enter the premises; and
9
(ii) to exercise the powers set out in this Part in relation to
10
the premises; and
11
(i) state whether entry is authorised to be made at any time of
12
the day or during specified hours of the day; and
13
(j) specify the day (not more than 1 week after the issue of the
14
warrant) on which the warrant ceases to be in force.
15
72 Investigation warrants by telephone, fax etc.
16
Application for warrant
17
(1) An authorised applicant may apply to an issuing officer by
18
telephone, fax or other electronic means for a warrant under
19
section 71 in relation to premises:
20
(a) in an urgent case; or
21
(b) if the delay that would occur if an application were made in
22
person would frustrate the effective execution of the warrant.
23
(2) The issuing officer:
24
(a) may require communication by voice to the extent that it is
25
practicable in the circumstances; and
26
(b) may make a recording of the whole or any part of any such
27
communication by voice.
28
(3) Before applying for the warrant, the authorised applicant must
29
prepare an information of the kind mentioned in subsection 71(2)
30
in relation to the premises that sets out the grounds on which the
31
warrant is sought. If it is necessary to do so, the authorised
32
applicant may apply for the warrant before the information is
33
sworn or affirmed.
34
Investigation Part 3
Investigation warrants Division 6
Section 72
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 55
Issuing officer may complete and sign warrant
1
(4) The issuing officer may complete and sign the same warrant that
2
would have been issued under section 71 if, after considering the
3
terms of the information and receiving such further information (if
4
any) that the issuing officer requires, the issuing officer is satisfied
5
that:
6
(a) the warrant should be issued urgently; or
7
(b) the delay that would occur if an application were made in
8
person would frustrate the effective execution of the warrant.
9
(5) After completing and signing the warrant, the issuing officer must
10
inform the authorised applicant, by telephone, fax or other
11
electronic means, of:
12
(a) the terms of the warrant; and
13
(b) the day on which, and the time at which, the warrant was
14
signed.
15
Obligations on authorised applicant
16
(6) The authorised applicant must then do the following:
17
(a) complete a form of warrant in the same terms as the warrant
18
completed and signed by the issuing officer;
19
(b) state on the form the following:
20
(i) the name of the issuing officer;
21
(ii) the day on which, and the time at which, the warrant
22
was signed;
23
(c) send the following to the issuing officer:
24
(i) the form of warrant completed by the authorised
25
applicant;
26
(ii) the information referred to in subsection (3), which
27
must have been duly sworn or affirmed.
28
(7) The authorised applicant must comply with paragraph (6)(c) by the
29
end of the day after the earlier of the following:
30
(a) the day on which the warrant ceases to be in force;
31
(b) the day on which the warrant is executed.
32
Part 3 Investigation
Division 6 Investigation warrants
Section 73
56 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Issuing officer to attach documents together
1
(8) The issuing officer must attach the documents provided under
2
paragraph (6)(c) to the warrant signed by the issuing officer.
3
73 Authority of warrant
4
(1) A form of warrant duly completed under subsection 72(6) is
5
authority for the same powers as are authorised by the warrant
6
signed by the issuing officer under subsection 72(4).
7
(2) In any proceedings, a court is to assume (unless the contrary is
8
proved) that an exercise of power was not authorised by a warrant
9
under section 72 if:
10
(a) it is material, in those proceedings, for the court to be
11
satisfied that the exercise of power was authorised by that
12
section; and
13
(b) the warrant signed by the issuing officer authorising the
14
exercise of the power is not produced in evidence.
15
74 Offence relating to warrants by telephone, fax etc.
16
An authorised applicant must not:
17
(a) state in a document that purports to be a form of warrant
18
under section 72 the name of an issuing officer unless that
19
issuing officer signed the warrant; or
20
(b) state on a form of warrant under that section a matter that, to
21
the authorised applicant's knowledge, departs in a material
22
particular from the terms of the warrant signed by the issuing
23
officer under that section; or
24
(c) purport to execute, or present to another person, a document
25
that purports to be a form of warrant under that section that
26
the authorised applicant knows departs in a material
27
particular from the terms of a warrant signed by an issuing
28
officer under that section; or
29
(d) purport to execute, or present to another person, a document
30
that purports to be a form of warrant under that section where
31
the authorised applicant knows that no warrant in the terms
32
of the form of warrant has been completed and signed by an
33
issuing officer; or
34
Investigation Part 3
Investigation warrants Division 6
Section 74
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 57
(e) give to an issuing officer a form of warrant under that section
1
that is not the form of warrant that the authorised applicant
2
purported to execute.
3
Penalty: Imprisonment for 2 years.
4
5
Part 3 Investigation
Division 7 Extension of periods in which things secured
Section 75
58 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 7--Extension of periods in which things secured
1
75 Extension of periods in which things secured
2
Application
3
(1) This section applies where an authorised person applies to an
4
issuing officer under subsection 52(5) for an extension of the
5
period during which a thing may be secured.
6
Granting extension
7
(2) The issuing officer may, by order, grant an extension of the period
8
if the issuing officer is satisfied, by information on oath or
9
affirmation, that it is necessary to secure the thing in order to
10
prevent evidential material from being destroyed, altered or
11
otherwise interfered with.
12
(3) However, the issuing officer must not grant the extension unless
13
the authorised person or some other person has given to the issuing
14
officer, either orally or by affidavit, such further information (if
15
any) as the issuing officer requires concerning the grounds on
16
which the extension is being sought.
17
Content of order
18
(4) The order extending the period must:
19
(a) describe the thing to which the order relates; and
20
(b) state the period for which the extension is granted; and
21
(c) state that the order is made under this section; and
22
(d) state that the authorised person is authorised to secure the
23
thing for that period.
24
25
Investigation Part 3
Powers of issuing officers Division 8
Section 76
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 59
Division 8--Powers of issuing officers
1
76 Powers of issuing officers
2
Powers conferred personally
3
(1) A power conferred on an issuing officer by this Part is conferred on
4
the issuing officer:
5
(a) in a personal capacity; and
6
(b) not as a court or a member of a court.
7
Powers need not be accepted
8
(2) The issuing officer need not accept the power conferred.
9
Protection and immunity
10
(3) An issuing officer exercising a power conferred by this Part has the
11
same protection and immunity as if the issuing officer were
12
exercising the power:
13
(a) as the court of which the issuing officer is a member; or
14
(b) as a member of the court of which the issuing officer is a
15
member.
16
17
Part 3 Investigation
Division 9 Identity cards
Section 77
60 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 9--Identity cards
1
77 Identity cards
2
(1) The relevant chief executive must issue an identity card to an
3
authorised person.
4
Form of identity card
5
(2) The identity card must:
6
(a) be in the form prescribed by the regulations; and
7
(b) contain a photograph that is no more than 1 year old of the
8
authorised person.
9
Offence
10
(3) A person commits an offence if:
11
(a) the person has been issued with an identity card; and
12
(b) the person ceases to be an authorised person; and
13
(c) the person does not return the identity card to the relevant
14
chief executive within 14 days after ceasing to be an
15
authorised person.
16
Penalty: 1 penalty unit.
17
(4) An offence against subsection (3) is an offence of strict liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
Exception--card lost or destroyed
20
(5) Subsection (3) does not apply if the identity card was lost or
21
destroyed.
22
Note:
A defendant bears an evidential burden in relation to the matter in this
23
subsection: see subsection 13.3(3) of the Criminal Code.
24
Authorised person must carry card
25
(6) An authorised person must carry his or her identity card at all times
26
when exercising powers under this Part as an authorised person.
27
Civil penalty provisions Part 4
Outline and operation of this Part Division 1
Section 78
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 61
Part 4--Civil penalty provisions
1
Division 1--Outline and operation of this Part
2
78 Simplified outline
3
The following is a simplified outline of this Part:
4
This Part defines civil penalty provision. The definition applies in
5
any Act or legislative instrument without being triggered by
6
another Act or a regulation.
7
It also creates a framework for the use of civil penalties to enforce
8
civil penalty provisions.
9
For this Part to operate for the purposes of that framework, a civil
10
penalty provision must be made enforceable under this Part. This is
11
done by another Act or a regulation.
12
Civil penalty orders may be sought from a court in relation to
13
contraventions of civil penalty provisions.
14
This Part also contains some rules of general application in relation
15
to civil penalty provisions (such as the state of mind that must be
16
proved and the defence of mistake of fact).
17
79 Purposes and operation of this Part
18
(1) The principal purposes of this Part are:
19
(a)
to
define
civil penalty provision for the purposes of any Act
20
or any legislative instrument; and
21
(b) to create a framework for the use of civil penalties to enforce
22
civil penalty provisions.
23
(2) However, for this Part to operate for the purposes of
24
paragraph (1)(b), a civil penalty provision must be made
25
enforceable under this Part.
26
Part 4 Civil penalty provisions
Division 1 Outline and operation of this Part
Section 80
62 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
80 Civil penalty provisions
1
(1) A provision of an Act or a legislative instrument is a civil penalty
2
provision if:
3
(a)
either:
4
(i) the provision sets out at its foot a pecuniary penalty, or
5
penalties, indicated by the words "Civil penalty"; or
6
(ii) another provision of an Act or a legislative instrument
7
provides that the provision is a civil penalty provision,
8
or that a person is liable to a civil penalty if the person
9
contravenes the provision; and
10
(b) the provision is:
11
(i) a subsection, or a section that is not divided into
12
subsections; or
13
(ii) a subregulation, or a regulation that is not divided into
14
subregulations; or
15
(iii) a subclause (however described) of a Schedule to an Act
16
or of a legislative instrument; or
17
(iv) a clause (however described) of a Schedule to an Act, or
18
of a legislative instrument, that is not divided into
19
subclauses.
20
(2) The definition of civil penalty provision in subsection (1) of this
21
section applies in any Act or any legislative instrument.
22
81 Enforceable civil penalty provisions
23
A civil penalty provision is enforceable under this Part if an Act or
24
a regulation provides that the civil penalty provision is enforceable
25
under this Part.
26
82 Authorised applicant
27
(1) A person is an authorised applicant for the purposes of exercising
28
powers under this Part in relation to the contravention of a civil
29
penalty provision if an Act or a regulation provides that the person
30
is an authorised applicant in relation to the civil penalty provision
31
for the purposes of this Part.
32
Civil penalty provisions Part 4
Outline and operation of this Part Division 1
Section 83
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 63
(2) A person who is an authorised applicant for the purpose of
1
exercising powers mentioned in subsection (1) is also an
2
authorised applicant for the purposes of:
3
(a) exercising other powers under this Part; or
4
(b) performing functions or duties under this Part;
5
that are incidental to the powers mentioned in subsection (1).
6
(3) Without limiting subsection (1), an Act or a regulation may
7
provide that a person is an authorised applicant in relation to a civil
8
penalty provision for the purposes of this Part by:
9
(a) providing that a person of a specified class is an authorised
10
applicant in relation to the civil penalty provision for those
11
purposes; or
12
(b) authorising another person to specify that a person, or a
13
person of a specified class, is an authorised applicant in
14
relation to the civil penalty provision for those purposes.
15
83 Relevant court
16
A court is a relevant court for the purposes of exercising powers
17
under this Part in relation to the contravention of a civil penalty
18
provision, if an Act or a regulation provides that the court is a
19
relevant court in relation to the civil penalty provision for the
20
purposes of this Part.
21
84 Matters provided for by legislative instrument
22
A legislative instrument may make provision about a matter
23
mentioned in this Part only if another Act gives power for the
24
legislative instrument to make provision about the matter.
25
26
Part 4 Civil penalty provisions
Division 2 Obtaining a civil penalty order
Section 85
64 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 2--Obtaining a civil penalty order
1
85 Civil penalty orders
2
Application for order
3
(1) An authorised applicant may apply to a relevant court for an order
4
that a person, who is alleged to have contravened a civil penalty
5
provision, pay the Commonwealth a pecuniary penalty.
6
(2) The authorised applicant must make the application within 4 years
7
of the alleged contravention.
8
Court may order person to pay pecuniary penalty
9
(3) If the relevant court is satisfied that the person has contravened the
10
civil penalty provision, the court may order the person to pay to the
11
Commonwealth such pecuniary penalty for the contravention as the
12
court determines to be appropriate.
13
Note:
Subsection (5) sets out the maximum penalty that the court may order
14
the person to pay.
15
(4) An order under subsection (3) is a civil penalty order.
16
Determining pecuniary penalty
17
(5) The pecuniary penalty must not be more than:
18
(a) if the person is a body corporate--5 times the pecuniary
19
penalty specified for the civil penalty provision; and
20
(b) otherwise--the pecuniary penalty specified for the civil
21
penalty provision.
22
(6) In determining the pecuniary penalty, the court must take into
23
account all relevant matters, including:
24
(a) the nature and extent of the contravention; and
25
(b) the nature and extent of any loss or damage suffered because
26
of the contravention; and
27
(c) the circumstances in which the contravention took place; and
28
Civil penalty provisions Part 4
Obtaining a civil penalty order Division 2
Section 86
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 65
(d) whether the person has previously been found by a court
1
(including a court in a foreign country) to have engaged in
2
any similar conduct.
3
86 Civil enforcement of penalty
4
(1) A pecuniary penalty is a debt payable to the Commonwealth.
5
(2) The Commonwealth may enforce a civil penalty order as if it were
6
an order made in civil proceedings against the person to recover a
7
debt due by the person. The debt arising from the order is taken to
8
be a judgement debt.
9
87 Conduct contravening more than one civil penalty provision
10
(1) If conduct constitutes a contravention of 2 or more civil penalty
11
provisions, proceedings may be instituted under this Part against a
12
person in relation to the contravention of any one or more of those
13
provisions.
14
(2) However, the person is not liable to more than one pecuniary
15
penalty under this Part in relation to the same conduct.
16
88 Multiple contraventions
17
(1) A relevant court may make a single civil penalty order against a
18
person for multiple contraventions of a civil penalty provision if
19
proceedings for the contraventions are founded on the same facts,
20
or if the contraventions form, or are part of, a series of
21
contraventions of the same or a similar character.
22
Note:
For continuing contraventions of civil penalty provisions, see
23
section 96.
24
(2) However, the penalty must not exceed the sum of the maximum
25
penalties that could be ordered if a separate penalty were ordered
26
for each of the contraventions.
27
89 Proceedings may be heard together
28
A relevant court may direct that 2 or more proceedings for civil
29
penalty orders are to be heard together.
30
Part 4 Civil penalty provisions
Division 2 Obtaining a civil penalty order
Section 90
66 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
90 Civil evidence and procedure rules for civil penalty orders
1
A relevant court must apply the rules of evidence and procedure
2
for civil matters when hearing proceedings for a civil penalty
3
order.
4
5
Civil penalty provisions Part 4
Civil proceedings and criminal proceedings Division 3
Section 91
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 67
Division 3--Civil proceedings and criminal proceedings
1
91 Civil proceedings after criminal proceedings
2
A relevant court may not make a civil penalty order against a
3
person for a contravention of a civil penalty provision if the person
4
has been convicted of an offence constituted by conduct that is the
5
same, or substantially the same, as the conduct constituting the
6
contravention.
7
92 Criminal proceedings during civil proceedings
8
(1) Proceedings for a civil penalty order against a person for a
9
contravention of a civil penalty provision are stayed if:
10
(a) criminal proceedings are commenced or have already been
11
commenced against the person for an offence; and
12
(b) the offence is constituted by conduct that is the same, or
13
substantially the same, as the conduct alleged to constitute
14
the contravention.
15
(2) The proceedings for the order (the civil proceedings) may be
16
resumed if the person is not convicted of the offence. Otherwise:
17
(a) the civil proceedings are dismissed; and
18
(b) costs must not be awarded in relation to the civil proceedings.
19
93 Criminal proceedings after civil proceedings
20
Criminal proceedings may be commenced against a person for
21
conduct that is the same, or substantially the same, as conduct that
22
would constitute a contravention of a civil penalty provision
23
regardless of whether a civil penalty order has been made against
24
the person in relation to the contravention.
25
94 Evidence given in civil proceedings not admissible in criminal
26
proceedings
27
(1) Evidence of information given, or evidence of production of
28
documents, by an individual is not admissible in criminal
29
proceedings against the individual if:
30
Part 4 Civil penalty provisions
Division 3 Civil proceedings and criminal proceedings
Section 94
68 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(a) the individual previously gave the information or produced
1
the documents in proceedings for a civil penalty order against
2
the individual for an alleged contravention of a civil penalty
3
provision (whether or not the order was made); and
4
(b) the conduct alleged to constitute the offence is the same, or
5
substantially the same, as the conduct alleged to constitute
6
the contravention.
7
(2) However, subsection (1) does not apply to criminal proceedings in
8
relation to the falsity of the evidence given by the individual in the
9
proceedings for the civil penalty order.
10
11
Civil penalty provisions Part 4
Miscellaneous Division 4
Section 95
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 69
Division 4--Miscellaneous
1
95 Ancillary contravention of civil penalty provisions
2
(1) A person must not:
3
(a) attempt to contravene a civil penalty provision; or
4
(b) aid, abet, counsel or procure a contravention of a civil
5
penalty provision; or
6
(c) induce (by threats, promises or otherwise) a contravention of
7
a civil penalty provision; or
8
(d) be in any way, directly or indirectly, knowingly concerned in,
9
or party to, a contravention of a civil penalty provision; or
10
(e) conspire with others to effect a contravention of a civil
11
penalty provision.
12
Civil penalty
13
(2) A person who contravenes subsection (1) in relation to a civil
14
penalty provision is taken to have contravened the provision.
15
Note:
Section 97 (which provides that a person's state of mind does not need
16
to be proven in relation to a civil penalty provision) does not apply to
17
the extent that proceedings relate to the contravention of
18
subsection (1).
19
96 Continuing contraventions of civil penalty provisions
20
(1) If an act or thing is required under a civil penalty provision to be
21
done:
22
(a) within a particular period; or
23
(b) before a particular time;
24
then the obligation to do that act or thing continues until the act or
25
thing is done (even if the period has expired or the time has
26
passed).
27
(2) A person who contravenes a civil penalty provision that requires an
28
act or thing to be done:
29
(a) within a particular period; or
30
(b) before a particular time;
31
Part 4 Civil penalty provisions
Division 4 Miscellaneous
Section 97
70 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
commits a separate contravention of that provision in respect of
1
each day during which the contravention occurs (including the day
2
the relevant civil penalty order is made or any later day).
3
97 State of mind
4
(1) In proceedings for a civil penalty order against a person for a
5
contravention of a civil penalty provision, it is not necessary to
6
prove:
7
(a) the person's intention; or
8
(b) the person's knowledge; or
9
(c) the person's recklessness; or
10
(d) the person's negligence; or
11
(e) any other state of mind of the person.
12
(2) Subsection (1) does not apply to the extent that the proceedings
13
relate to a contravention of subsection 95(1) (which is about
14
ancillary contravention of civil penalty provisions).
15
(3) Subsection (1) does not affect the operation of section 98 (which is
16
about mistake of fact).
17
(4) Subsection (1) does not apply to the extent that the civil penalty
18
provision, or a provision that relates to the civil penalty provision,
19
expressly provides otherwise.
20
98 Mistake of fact
21
(1) A person is not liable to have a civil penalty order made against the
22
person for a contravention of a civil penalty provision if:
23
(a) at or before the time of the conduct constituting the
24
contravention, the person:
25
(i) considered whether or not facts existed; and
26
(ii) was under a mistaken but reasonable belief about those
27
facts; and
28
(b) had those facts existed, the conduct would not have
29
constituted a contravention of the civil penalty provision.
30
(2) For the purposes of subsection (1), a person may be regarded as
31
having considered whether or not facts existed if:
32
Civil penalty provisions Part 4
Miscellaneous Division 4
Section 99
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 71
(a) the person had considered, on a previous occasion, whether
1
those facts existed in the circumstances surrounding that
2
occasion; and
3
(b) the person honestly and reasonably believed that the
4
circumstances surrounding the present occasion were the
5
same, or substantially the same, as those surrounding the
6
previous occasion.
7
(3) A person who wishes to rely on subsection (1) or (2) in
8
proceedings for a civil penalty order bears an evidential burden in
9
relation to that matter.
10
99 Exceptions etc. to civil penalty provisions--burden of proof
11
If, in proceedings for a civil penalty order against a person for a
12
contravention of a civil penalty provision, the person wishes to rely
13
on any exception, exemption, excuse, qualification or justification
14
provided by the law creating the civil penalty provision, then the
15
person bears an evidential burden in relation to that matter.
16
100 Civil penalty provisions contravened by employees, agents or
17
officers
18
If an element of a civil penalty provision is done by an employee,
19
agent or officer of a body corporate acting within the actual or
20
apparent scope of his or her employment, or within his or her
21
actual or apparent authority, the element must also be attributed to
22
the body corporate.
23
24
Part 5 Infringement notices
Division 1 Outline and operation of this Part
Section 101
72 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Part 5--Infringement notices
1
Division 1--Outline and operation of this Part
2
101 Simplified outline
3
The following is a simplified outline of this Part:
4
This Part creates a framework for the use of infringement notices
5
where an infringement officer reasonably believes that a provision
6
has been contravened.
7
For this Part to operate, a provision must be made subject to an
8
infringement notice under this Part. This is to be done by another
9
Act or a regulation.
10
A person can be given an infringement notice in relation to a
11
contravention of a provision that is subject to an infringement
12
notice under this Part. The provision may be a strict liability
13
offence or a civil penalty provision, or both.
14
A person who is given an infringement notice can choose to pay an
15
amount as an alternative to having court proceedings brought
16
against the person for a contravention of a provision subject to an
17
infringement notice under this Part. If the person does not choose
18
to pay the amount, proceedings can be brought against the person
19
in relation to the contravention.
20
102 Purpose and operation of this Part
21
(1) The principal purpose of this Part is to create a framework for the
22
use of infringement notices where an infringement officer
23
reasonably believes that a provision has been contravened.
24
(2) However, for this Part to operate, a provision of an Act or a
25
legislative instrument must be made subject to an infringement
26
notice under this Part.
27
Infringement notices Part 5
Outline and operation of this Part Division 1
Section 103
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 73
103 Provisions subject to infringement notices
1
A provision that is an offence of strict liability or a civil penalty
2
provision in an Act or a legislative instrument is subject to an
3
infringement notice under this Part if an Act or a regulation
4
provides that the provision is subject to an infringement notice
5
under this Part.
6
104 Infringement officer
7
(1) A person is an infringement officer for the purposes of exercising
8
powers under this Part in relation to a contravention of a provision
9
if an Act or a regulation provides that the person is an infringement
10
officer in relation to that provision for the purposes of this Part.
11
(2) A person who is an infringement officer for the purpose of
12
exercising powers mentioned in subsection (1) is also an
13
infringement officer for the purposes of:
14
(a) exercising other powers under this Part; or
15
(b) performing functions or duties under this Part;
16
that are incidental to the powers mentioned in subsection (1).
17
(3) Without limiting subsection (1), an Act or a regulation may
18
provide that a person is an infringement officer in relation to a
19
provision for the purposes of this Part by:
20
(a) providing that a person of a specified class is an infringement
21
officer in relation to the provision for the purposes of this
22
Part; or
23
(b) authorising another person to specify that a person, or a
24
person of a specified class, is an infringement officer in
25
relation to the provision for the purposes of this Part.
26
105 Relevant chief executive
27
(1) A person is the relevant chief executive for the purposes of
28
exercising powers under this Part in relation to a contravention of a
29
provision if an Act or a regulation provides that the person is the
30
relevant chief executive in relation to that provision for the
31
purposes of this Part.
32
Part 5 Infringement notices
Division 1 Outline and operation of this Part
Section 106
74 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(2) A person who is the relevant chief executive for the purpose of
1
exercising powers mentioned in subsection (1) is also the relevant
2
chief executive for the purposes of:
3
(a) exercising other powers under this Part; or
4
(b) performing functions or duties under this Part;
5
that are incidental to the powers mentioned in subsection (1).
6
(3) Without limiting subsection (1), an Act or a regulation may
7
provide that a person is the relevant chief executive in relation to a
8
provision for the purposes of this Part by:
9
(a) providing that a person who holds a specified office is the
10
relevant chief executive in relation to the provision for the
11
purposes of this Part; or
12
(b) authorising another person to specify that a person, or a
13
person who holds a specified office, is the relevant chief
14
executive in relation to the provision for the purposes of this
15
Part.
16
106 Matters provided for by legislative instrument
17
A legislative instrument may make provision about a matter
18
mentioned in this Part only if another Act gives power for the
19
legislative instrument to make provision about the matter.
20
21
Infringement notices Part 5
Infringement notices Division 2
Section 107
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 75
Division 2--Infringement notices
1
107 When an infringement notice may be given
2
(1) If an infringement officer has reasonable grounds to believe that a
3
person has contravened a provision subject to an infringement
4
notice under this Part, the infringement officer may give to the
5
person an infringement notice for the alleged contravention.
6
(2) The infringement notice must be given within 12 months after the
7
day on which the contravention is alleged to have taken place.
8
(3) A single infringement notice must relate only to a single
9
contravention of a single provision unless subsection (4) applies.
10
(4) An infringement officer may give a person a single infringement
11
notice relating to multiple contraventions of a single provision if:
12
(a) the provision requires the person to do a thing within a
13
particular period or before a particular time; and
14
(b) the person fails or refuses to do that thing within that period
15
or before that time; and
16
(c) the failure or refusal occurs on more than 1 day; and
17
(d) each contravention is constituted by the failure or refusal on
18
one of those days.
19
Note:
For continuing offences, see subsection 4K(2) of the Crimes Act 1914.
20
For continuing contraventions of civil penalty provisions, see
21
section 96 of this Act.
22
(5) If a single provision can constitute both a civil penalty provision
23
and an offence provision, the infringement notice must relate to the
24
provision as an offence provision.
25
108 Matters to be included in an infringement notice
26
(1) An infringement notice must:
27
(a) be identified by a unique number; and
28
(b) state the day on which it is given; and
29
(c) state the name of the person to whom the notice is given; and
30
Part 5 Infringement notices
Division 2 Infringement notices
Section 108
76 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(d) state the name and contact details of the person who gave the
1
notice, and that the person is an infringement officer for the
2
purposes of issuing the infringement notice; and
3
(e) give brief details of the alleged contravention, including:
4
(i) the provision that was allegedly contravened; and
5
(ii) the maximum penalty that a court could impose if the
6
provision were contravened; and
7
(iii) the time (if known) and day of, and the place of, the
8
alleged contravention; and
9
(f) state the amount that is payable under the notice; and
10
(g) give an explanation of how payment of the amount is to be
11
made; and
12
(h) state that, if the person to whom the notice is given pays the
13
amount within 28 days after the day the notice is given, then
14
(unless the notice is withdrawn):
15
(i) if the provision is an offence and does not also
16
constitute a civil penalty provision--the person will not
17
be liable to be prosecuted in a court for the alleged
18
contravention; or
19
(ii) if the provision is an offence that can also constitute a
20
civil penalty provision--the person is not liable to be
21
prosecuted in a court, and proceedings seeking a civil
22
penalty order will not be brought, in relation to the
23
alleged contravention; or
24
(iii) if the provision is a civil penalty provision--
25
proceedings seeking a civil penalty order will not be
26
brought in relation to the alleged contravention; and
27
(i) state that payment of the amount is not an admission of guilt
28
or liability; and
29
(j) state that the person may apply to the relevant chief executive
30
to have the period in which to pay the amount extended; and
31
(k) state that the person may choose not to pay the amount and, if
32
the person does so:
33
(i) if the provision is an offence and does not also
34
constitute a civil penalty provision--the person may be
35
prosecuted in a court for the alleged contravention; or
36
Infringement notices Part 5
Infringement notices Division 2
Section 109
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 77
(ii) if the provision is an offence and can also constitute a
1
civil penalty provision--the person may be prosecuted
2
in a court, or proceedings seeking a civil penalty order
3
may be brought, in relation to the alleged contravention;
4
or
5
(iii) if the provision is a civil penalty provision--
6
proceedings seeking a civil penalty order may be
7
brought in relation to the alleged contravention; and
8
(l) set out how the notice can be withdrawn; and
9
(m) state that if the notice is withdrawn:
10
(i) if the provision is an offence and does not also
11
constitute a civil penalty provision--the person may be
12
prosecuted in a court for the alleged contravention; or
13
(ii) if the provision is an offence and can also constitute a
14
civil penalty provision--the person may be prosecuted
15
in a court, or proceedings seeking a civil penalty order
16
may be brought, in relation to the alleged contravention;
17
or
18
(iii) if the provision is a civil penalty provision--
19
proceedings seeking a civil penalty order may be
20
brought in relation to the alleged contravention; and
21
(n) state that the person may make written representations to the
22
relevant chief executive seeking the withdrawal of the notice.
23
(2) Unless another Act expressly provides otherwise, the amount to be
24
stated in the notice for the purposes of paragraph (1)(f) for the
25
alleged contravention of the provision by the person must be the
26
lesser of:
27
(a) one-fifth of the maximum penalty that a court could impose
28
on the person for that contravention; and
29
(b) 12 penalty units where the person is an individual, or 60
30
penalty units where the person is a body corporate.
31
109 Extension of time to pay amount
32
(1) A person to whom an infringement notice has been given may
33
apply to the relevant chief executive for an extension of the period
34
referred to in paragraph 108(1)(h).
35
Part 5 Infringement notices
Division 2 Infringement notices
Section 110
78 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(2) If the application is made before the end of that period, the relevant
1
chief executive may, in writing, extend that period. The relevant
2
chief executive may do so before or after the end of that period.
3
(3) If the relevant chief executive extends that period, a reference in
4
this Part, or in a notice or other instrument under this Part, to the
5
period referred to in paragraph 108(1)(h) is taken to be a reference
6
to that period so extended.
7
(4) If the relevant chief executive does not extend that period, a
8
reference in this Part, or in a notice or other instrument under this
9
Part, to the period referred to in paragraph 108(1)(h) is taken to be
10
a reference to the period that ends on the later of the following
11
days:
12
(a) the day that is the last day of the period referred to in
13
paragraph 108(1)(h);
14
(b) the day that is 7 days after the day the person was given
15
notice of the relevant chief executive's decision not to
16
extend.
17
(5) The relevant chief executive may extend the period more than once
18
under subsection (2).
19
110 Withdrawal of an infringement notice
20
Representations seeking withdrawal of notice
21
(1) A person to whom an infringement notice has been given may
22
make written representations to the relevant chief executive
23
seeking the withdrawal of the notice.
24
Withdrawal of notice
25
(2) The relevant chief executive may withdraw an infringement notice
26
given to a person (whether or not the person has made written
27
representations seeking the withdrawal).
28
(3) When deciding whether or not to withdraw an infringement notice
29
(the relevant infringement notice), the relevant chief executive:
30
Infringement notices Part 5
Infringement notices Division 2
Section 110
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 79
(a) must take into account any written representations seeking
1
the withdrawal that were given by the person to the relevant
2
chief executive; and
3
(b) may take into account the following:
4
(i) whether a court has previously imposed a penalty on the
5
person for a contravention of a provision subject to an
6
infringement notice under this Part that is included in
7
the same Act or legislative instrument as the provision
8
in relation to which the infringement notice is given;
9
(ii) the circumstances of the alleged contravention;
10
(iii) whether the person has paid an amount, stated in an
11
earlier infringement notice, for a contravention of a
12
provision subject to an infringement notice under this
13
Part if the contravention is constituted by conduct that is
14
the same, or substantially the same, as the conduct
15
alleged to constitute the contravention in the relevant
16
infringement notice;
17
(iv) any other matter the relevant chief executive considers
18
relevant.
19
Notice of withdrawal
20
(4) Notice of the withdrawal of the infringement notice must be given
21
to the person. The withdrawal notice must state:
22
(a) the person's name and address; and
23
(b) the day the infringement notice was given; and
24
(c) the identifying number of the infringement notice; and
25
(d) that the infringement notice is withdrawn; and
26
(e)
that:
27
(i) if the provision is an offence and does not also
28
constitute a civil penalty provision--the person may be
29
prosecuted in a court for the alleged contravention; or
30
(ii) if the provision is an offence and can also constitute a
31
civil penalty provision--the person may be prosecuted
32
in a court, or proceedings seeking a civil penalty order
33
may be brought, in relation to the alleged contravention;
34
or
35
Part 5 Infringement notices
Division 2 Infringement notices
Section 111
80 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
(iii) if the provision is a civil penalty provision--
1
proceedings seeking a civil penalty order may be
2
brought in relation to the alleged contravention.
3
Refund of amount if infringement notice withdrawn
4
(5)
If:
5
(a) the relevant chief executive withdraws the infringement
6
notice; and
7
(b) the person has already paid the amount stated in the notice;
8
the Commonwealth must refund to the person an amount equal to
9
the amount paid.
10
111 Effect of payment of amount
11
(1) If the person to whom an infringement notice for an alleged
12
contravention of a provision is given pays the amount stated in the
13
notice before the end of the period referred to in paragraph
14
108(1)(h):
15
(a) any liability of the person for the alleged contravention is
16
discharged; and
17
(b) if the provision is an offence and does not also constitute a
18
civil penalty provision--the person may not be prosecuted in
19
a court for the alleged contravention; and
20
(c) if the provision is an offence and can also constitute a civil
21
penalty provision--the person may not be prosecuted in a
22
court, and proceedings seeking a civil penalty order may not
23
be brought, in relation to the alleged contravention; and
24
(d) if the provision is a civil penalty provision--proceedings
25
seeking a civil penalty order may not be brought in relation to
26
the alleged contravention; and
27
(e) the person is not regarded as having admitted guilt or liability
28
for the alleged contravention; and
29
(f) if the provision is an offence--the person is not regarded as
30
having been convicted of the alleged offence.
31
(2) Subsection (1) does not apply if the notice has been withdrawn.
32
Infringement notices Part 5
Infringement notices Division 2
Section 112
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 81
112 Effect of this Part
1
This Part does not:
2
(a) require an infringement notice to be given to a person for an
3
alleged contravention of a provision subject to an
4
infringement notice under this Part; or
5
(b) affect the liability of a person for an alleged contravention of
6
a provision subject to an infringement notice under this Part
7
if:
8
(i) the person does not comply with an infringement notice
9
given to the person for the contravention; or
10
(ii) an infringement notice is not given to the person for the
11
contravention; or
12
(iii) an infringement notice is given to the person for the
13
contravention and is subsequently withdrawn; or
14
(c) prevent the giving of 2 or more infringement notices to a
15
person for an alleged contravention of a provision subject to
16
an infringement notice under this Part; or
17
(d) limit a court's discretion to determine the amount of a
18
penalty to be imposed on a person who is found to have
19
contravened a provision subject to an infringement notice
20
under this Part.
21
22
Part 6 Enforceable undertakings
Division 1 Outline and operation of this Part
Section 113
82 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Part 6--Enforceable undertakings
1
Division 1--Outline and operation of this Part
2
113 Simplified outline
3
The following is a simplified outline of this Part:
4
This Part creates a framework for accepting and enforcing
5
undertakings relating to compliance with provisions.
6
For this Part to operate, a provision must be made enforceable
7
under this Part. This is to be done by another Act or a regulation.
8
An authorised person may accept an undertaking relating to
9
compliance with a provision that is enforceable under this Part.
10
The undertaking may be enforced in a relevant court.
11
The orders that may be made by a relevant court include an order
12
directing compliance, an order requiring any financial benefit from
13
the failure to comply to be surrendered and an order for damages.
14
114 Purpose and operation of this Part
15
(1) The principal purpose of this Part is to create a framework for the
16
acceptance and enforcement of undertakings relating to compliance
17
with provisions.
18
(2) However, for this Part to operate, a provision of an Act or a
19
legislative instrument must be made enforceable under this Part.
20
115 Enforceable provisions
21
A provision of an Act or a legislative instrument is enforceable
22
under this Part if an Act or a regulation provides that the provision
23
is enforceable under this Part.
24
Enforceable undertakings Part 6
Outline and operation of this Part Division 1
Section 116
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 83
116 Authorised person
1
(1) A person is an authorised person for the purposes of exercising
2
powers under this Part in relation to a provision if an Act or a
3
regulation provides that the person is an authorised person in
4
relation to that provision for the purposes of this Part.
5
(2) A person who is an authorised person for the purpose of
6
exercising powers mentioned in subsection (1) is also an
7
authorised person for the purposes of:
8
(a) exercising other powers under this Part; or
9
(b) performing functions or duties under this Part;
10
that are incidental to the powers mentioned in subsection (1).
11
(3) Without limiting subsection (1), an Act or a regulation may
12
provide that a person is an authorised person in relation to a
13
provision for the purposes of this Part by:
14
(a) providing that a person of a specified class is an authorised
15
person in relation to the provision for the purposes of this
16
Part; or
17
(b) authorising another person to specify that a person, or a
18
person of a specified class, is an authorised person in relation
19
to the provision for the purposes of this Part.
20
117 Relevant court
21
A court is a relevant court for the purposes of exercising powers
22
under this Part in relation to an undertaking given in relation to a
23
provision enforceable under this Part, if an Act or a regulation
24
provides that the court is a relevant court in relation to that
25
provision for the purposes of this Part.
26
118 Matters provided for by legislative instrument
27
A legislative instrument may make provision about a matter
28
mentioned in this Part only if another Act gives power for the
29
legislative instrument to make provision about the matter.
30
31
Part 6 Enforceable undertakings
Division 2 Accepting and enforcing undertakings
Section 119
84 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 2--Accepting and enforcing undertakings
1
119 Acceptance of undertakings
2
(1) An authorised person may accept any of the following
3
undertakings:
4
(a) a written undertaking given by a person that the person will,
5
in order to comply with a provision enforceable under this
6
Part, take specified action;
7
(b) a written undertaking given by a person that the person will,
8
in order to comply with a provision enforceable under this
9
Part, refrain from taking specified action;
10
(c) a written undertaking given by a person that the person will
11
take specified action directed towards ensuring that the
12
person does not contravene a provision enforceable under
13
this Part, or is unlikely to contravene such a provision, in the
14
future.
15
(2) The undertaking must be expressed to be an undertaking under this
16
section.
17
(3) The person may withdraw or vary the undertaking at any time, but
18
only with the written consent of an authorised person.
19
(4) The consent of an authorised person is not a legislative instrument.
20
(5) An authorised person may, by written notice given to the person,
21
cancel the undertaking.
22
120 Enforcement of undertakings
23
(1) An authorised person may apply to a relevant court for an order
24
under subsection (2) if:
25
(a) a person has given an undertaking under section 119; and
26
(b) the undertaking has not been withdrawn or cancelled; and
27
(c) the authorised person considers that the person has breached
28
the undertaking.
29
(2) If the relevant court is satisfied that the person has breached the
30
undertaking, the court may make any or all of the following orders:
31
Enforceable undertakings Part 6
Accepting and enforcing undertakings Division 2
Section 120
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 85
(a) an order directing the person to comply with the undertaking;
1
(b) an order directing the person to pay to the Commonwealth an
2
amount up to the amount of any financial benefit that the
3
person has obtained directly or indirectly and that is
4
reasonably attributable to the breach;
5
(c) any order that the court considers appropriate directing the
6
person to compensate any other person who has suffered loss
7
or damage as a result of the breach;
8
(d) any other order that the court considers appropriate.
9
10
Part 7 Injunctions
Division 1 Outline and operation of this Part
Section 121
86 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Part 7--Injunctions
1
Division 1--Outline and operation of this Part
2
121 Simplified outline
3
The following is a simplified outline of this Part:
4
This Part creates a framework for using injunctions to enforce
5
provisions.
6
For this Part to operate, a provision must be made enforceable
7
under this Part. This is to be done by another Act or a regulation.
8
Injunctions may be used to restrain a person from contravening a
9
provision enforceable under this Part, or to compel compliance
10
with such a provision.
11
An interim injunction is available.
12
122 Purpose and operation of this Part
13
(1) The principal purpose of this Part is to create a framework for the
14
use of injunctions in the enforcement of provisions.
15
(2) However, for this Part to operate, a provision of an Act or a
16
legislative instrument must be made enforceable under this Part.
17
123 Enforceable provisions
18
A provision of an Act or a legislative instrument is enforceable
19
under this Part if an Act or a regulation provides that the provision
20
is enforceable under this Part.
21
124 Authorised person
22
(1) A person is an authorised person for the purposes of applying
23
under this Part for an injunction in relation to a provision
24
enforceable under this Part, if an Act or a regulation provides that
25
Injunctions Part 7
Outline and operation of this Part Division 1
Section 125
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 87
the person is an authorised person in relation to that provision for
1
the purposes of this Part.
2
(2) A person who is an authorised person for the purpose of
3
exercising powers mentioned in subsection (1) is also an
4
authorised person for the purposes of:
5
(a) exercising other powers under this Part; or
6
(b) performing functions or duties under this Part;
7
that are incidental to the powers mentioned in subsection (1).
8
(3) Without limiting subsection (1), an Act or a regulation may
9
provide that a person is an authorised person in relation to a
10
provision for the purposes of this Part by:
11
(a) providing that a person of a specified class is an authorised
12
person in relation to the provision for the purposes of this
13
Part; or
14
(b) authorising another person to specify that a person, or a
15
person of a specified class, is an authorised person in relation
16
to the provision for the purposes of this Part.
17
125 Relevant court
18
A court is a relevant court for the purposes of exercising powers
19
under this Part in relation to the contravention of a provision
20
enforceable under this Part, if an Act or a regulation provides that
21
the court is a relevant court in relation to that provision for the
22
purposes of this Part.
23
126 Matters provided for by legislative instrument
24
A legislative instrument may make provision about a matter
25
mentioned in this Part only if another Act gives power for the
26
legislative instrument to make provision about the matter.
27
28
Part 7 Injunctions
Division 2 Injunctions
Section 127
88 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Division 2--Injunctions
1
127 Grant of injunctions
2
Restraining injunctions
3
(1) If a person has engaged, is engaging or is proposing to engage, in
4
conduct in contravention of a provision enforceable under this Part,
5
a relevant court may, on application by an authorised person, grant
6
an injunction:
7
(a) restraining the person from engaging in the conduct; and
8
(b) if, in the court's opinion, it is desirable to do so--requiring
9
the person to do a thing.
10
Performance injunctions
11
(2)
If:
12
(a) a person has refused or failed, or is refusing or failing, or is
13
proposing to refuse or fail, to do a thing; and
14
(b) the refusal or failure was, is or would be a contravention of a
15
provision enforceable under this Part;
16
the court may, on application by an authorised person, grant an
17
injunction requiring the person to do that thing.
18
128 Interim injunctions
19
Grant of interim injunctions
20
(1) Before deciding an application for an injunction under section 127,
21
a relevant court may grant an interim injunction:
22
(a) restraining a person from engaging in conduct; or
23
(b) requiring a person to do a thing.
24
No undertakings as to damages
25
(2) The court must not require an applicant for an injunction under
26
section 127 to give an undertaking as to damages as a condition of
27
granting an interim injunction.
28
Injunctions Part 7
Injunctions Division 2
Section 129
Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012 89
129 Discharging or varying injunctions
1
A relevant court may discharge or vary an injunction granted by
2
that court under this Part.
3
130 Certain limits on granting injunctions not to apply
4
Restraining injunctions
5
(1) The power of a relevant court under this Part to grant an injunction
6
restraining a person from engaging in conduct may be exercised:
7
(a) whether or not it appears to the court that the person intends
8
to engage again, or to continue to engage, in conduct of that
9
kind; and
10
(b) whether or not the person has previously engaged in conduct
11
of that kind; and
12
(c) whether or not there is an imminent danger of substantial
13
damage to any other person if the person engages in conduct
14
of that kind.
15
Performance injunctions
16
(2) The power of a relevant court under this Part to grant an injunction
17
requiring a person to do a thing may be exercised:
18
(a) whether or not it appears to the court that the person intends
19
to refuse or fail again, or to continue to refuse or fail, to do
20
that thing; and
21
(b) whether or not the person has previously refused or failed to
22
do that thing; and
23
(c) whether or not there is an imminent danger of substantial
24
damage to any other person if the person refuses or fails to do
25
that thing.
26
131 Other powers of a relevant court unaffected
27
The powers conferred on a relevant court under this Part are in
28
addition to, and not instead of, any other powers of the court,
29
whether conferred by this Act or otherwise.
30
31
Part 8 General provisions
Section 132
90 Regulatory Powers (Standard Provisions) Bill 2012 No. , 2012
Part 8--General provisions
1
2
132 Regulations
3
The Governor-General may make regulations prescribing matters:
4
(a) required or permitted to be prescribed by this Act; or
5
(b) necessary or convenient to be prescribed for carrying out or
6
giving effect to this Act.
7
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