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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Regulatory Powers (Standard
Provisions) Bill 2014
No. , 2014
(Attorney-General)
A Bill for an Act in relation to monitoring,
investigation and enforcement by regulatory
agencies, and for related purposes
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline .............................................................................. 2
4
Dictionary .......................................................................................... 3
5
Binding the Crown ............................................................................. 6
Part 2--Monitoring
7
Division 1--Outline and operation of this Part
7
6
Simplified outline .............................................................................. 7
7
Purpose and operation of this Part ..................................................... 8
8
Provisions subject to monitoring ....................................................... 8
9
Information subject to monitoring ..................................................... 8
10
Related provisions ............................................................................. 9
11
Authorised applicant .......................................................................... 9
12
Authorised person ............................................................................ 10
13
Identity card ..................................................................................... 10
14
Issuing officer .................................................................................. 10
15
Relevant chief executive ................................................................... 11
16
Relevant court .................................................................................. 12
17
Privileges not abrogated ................................................................... 12
Division 2--Powers of authorised persons
14
Subdivision A--Monitoring powers
14
18
Entering premises by consent or under a warrant ............................ 14
19
General monitoring powers ............................................................. 14
20
Operating electronic equipment ....................................................... 15
21
Securing electronic equipment to obtain expert assistance .............. 16
22
Securing evidence of the contravention of a related provision ........ 17
23
Persons assisting authorised persons ............................................... 18
Subdivision B--Powers to ask questions and seek production of
documents
19
24
Asking questions and seeking production of documents ................. 19
Division 3--Obligations and incidental powers of authorised
persons
21
25
Consent ............................................................................................ 21
26
Announcement before entry under warrant ..................................... 21
27
Authorised person to be in possession of warrant ............................ 22
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Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
28
Details of warrant etc. to be given to occupier................................. 22
29
Compensation for damage to electronic equipment ......................... 22
Division 4--Occupier's rights and responsibilities
24
30
Right to observe execution of warrant ............................................. 24
31
Responsibility to provide facilities and assistance ........................... 24
Division 5--Monitoring warrants
25
32
Monitoring warrants ........................................................................ 25
Division 6--Extension of periods in which things secured
27
33
Extension of periods in which things secured .................................. 27
Division 7--Powers of issuing officers
28
34
Powers of issuing officers ................................................................ 28
Division 8--Identity cards
29
35
Identity cards ................................................................................... 29
Part 3--Investigation
30
Division 1--Outline and operation of this Part
30
36
Simplified outline ............................................................................ 30
37
Purpose and operation of this Part ................................................... 31
38
Provisions subject to investigation ................................................... 31
39
Evidential material .......................................................................... 31
40
Related provisions ........................................................................... 32
41
Authorised applicant ........................................................................ 32
42
Authorised person ............................................................................ 32
43
Identity card ..................................................................................... 33
44
Issuing officer .................................................................................. 33
45
Relevant chief executive ................................................................... 34
46
Relevant court .................................................................................. 34
47
Privileges not abrogated ................................................................... 35
Division 2--Powers of authorised persons
36
Subdivision A--Investigation powers
36
48
Entering premises by consent or under a warrant ............................ 36
49
General investigation powers ........................................................... 36
50
Operating electronic equipment ....................................................... 37
51
Securing electronic equipment to obtain expert assistance .............. 38
52
Seizing evidence of related provisions............................................. 40
53
Persons assisting authorised persons ............................................... 40
Subdivision B--Powers to ask questions and seek production of
documents
41
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
iii
54
Asking questions and seeking production of documents ................. 41
Division 3--Obligations and incidental powers of authorised
persons
43
55
Consent ............................................................................................ 43
56
Announcement before entry under warrant ..................................... 43
57
Authorised person to be in possession of warrant ............................ 44
58
Details of warrant etc. to be given to occupier................................. 44
59
Completing execution after temporary cessation ............................. 45
60
Completing execution of warrant stopped by court order ................ 46
61
Compensation for damage to electronic equipment ......................... 46
Division 4--Occupier's rights and responsibilities
48
62
Right to observe execution of warrant ............................................. 48
63
Responsibility to provide facilities and assistance ........................... 48
Division 5--General provisions relating to seizure
49
64
Copies of seized things to be provided ............................................ 49
65
Receipts for seized things ................................................................ 49
66
Return of seized things .................................................................... 49
67
Issuing officer may permit a thing to be retained ............................ 50
68
Disposal of things ............................................................................ 51
69
Compensation for acquisition of property ....................................... 52
Division 6--Investigation warrants
53
70
Investigation warrants ...................................................................... 53
71
Investigation warrants by telephone, fax etc. ................................... 54
72
Authority of warrant ........................................................................ 56
73
Offence relating to warrants by telephone, fax etc. ......................... 56
Division 7--Extension of periods in which things secured
58
74
Extension of periods in which things secured .................................. 58
Division 8--Powers of issuing officers
59
75
Powers of issuing officers ................................................................ 59
Division 9--Identity cards
60
76
Identity cards ................................................................................... 60
Part 4--Civil penalty provisions
61
Division 1--Outline and operation of this Part
61
77
Simplified outline ............................................................................ 61
78
Purposes and operation of this Part .................................................. 61
79
Enforceable civil penalty provisions ............................................... 61
80
Authorised applicant ........................................................................ 62
iv
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
81
Relevant court .................................................................................. 63
Division 2--Obtaining a civil penalty order
64
82
Civil penalty orders .......................................................................... 64
83
Civil enforcement of penalty ........................................................... 65
84
Conduct contravening more than one civil penalty provision .......... 65
85
Multiple contraventions ................................................................... 65
86
Proceedings may be heard together ................................................. 65
87
Civil evidence and procedure rules for civil penalty orders ............. 66
Division 3--Civil proceedings and criminal proceedings
67
88
Civil proceedings after criminal proceedings .................................. 67
89
Criminal proceedings during civil proceedings ............................... 67
90
Criminal proceedings after civil proceedings .................................. 67
91
Evidence given in civil proceedings not admissible in
criminal proceedings ........................................................................ 68
Division 4--Miscellaneous
69
92
Ancillary contravention of civil penalty provisions ......................... 69
93
Continuing contraventions of civil penalty provisions .................... 69
94
State of mind .................................................................................... 70
95
Mistake of fact ................................................................................. 70
96
Exceptions etc. to civil penalty provisions--burden of proof .......... 71
97
Civil penalty provisions contravened by employees, agents
or officers ......................................................................................... 71
Part 5--Infringement notices
72
Division 1--Outline and operation of this Part
72
98
Simplified outline ............................................................................ 72
99
Purpose and operation of this Part ................................................... 72
100
Provisions subject to infringement notices ....................................... 73
101
Infringement officer ......................................................................... 73
102
Relevant chief executive ................................................................... 73
Division 2--Infringement notices
75
103
When an infringement notice may be given .................................... 75
104
Matters to be included in an infringement notice ............................. 75
105
Extension of time to pay amount ..................................................... 77
106
Withdrawal of an infringement notice ............................................. 78
107
Effect of payment of amount ........................................................... 80
108
Effect of this Part ............................................................................. 81
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
v
Part 6--Enforceable undertakings
82
Division 1--Outline and operation of this Part
82
109
Simplified outline ............................................................................ 82
110
Purpose and operation of this Part ................................................... 82
111
Enforceable provisions .................................................................... 82
112
Authorised person ............................................................................ 83
113
Relevant court .................................................................................. 83
Division 2--Accepting and enforcing undertakings
84
114
Acceptance of undertakings ............................................................. 84
115
Enforcement of undertakings ........................................................... 84
Part 7--Injunctions
86
Division 1--Outline and operation of this Part
86
116
Simplified outline ............................................................................ 86
117
Purpose and operation of this Part ................................................... 86
118
Enforceable provisions .................................................................... 86
119
Authorised person ............................................................................ 86
120
Relevant court .................................................................................. 87
Division 2--Injunctions
88
121
Grant of injunctions ......................................................................... 88
122
Interim injunctions ........................................................................... 88
123
Discharging or varying injunctions .................................................. 89
124
Certain limits on granting injunctions not to apply .......................... 89
125
Other powers of a relevant court unaffected .................................... 89
Part 8--General provisions
90
126
Regulations ...................................................................................... 90
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
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 2014.
9
Part 1 Preliminary
Section 2
2
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
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 legislative
16
instrument have been, or are being, complied with;
17
Preliminary Part 1
Section 4
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
3
(b)
monitoring whether information given in compliance, or
1
purported compliance, with a provision of an Act or a
2
legislative instrument is correct;
3
(c)
gathering material that relates to the contravention of an
4
offence provision or a civil penalty provision;
5
(d)
the use of civil penalties to enforce provisions;
6
(e)
the use of infringement notices where there is a
7
reasonable belief that a provision has been contravened;
8
(f)
the acceptance and enforcement of undertakings relating
9
to compliance with provisions;
10
(g)
the use of injunctions to enforce provisions.
11
A provision of an Act or a legislative instrument is not subject to
12
monitoring, investigation or enforcement under this Act by force of
13
this Act. This Act must be triggered by another Act.
14
4 Dictionary
15
In this Act:
16
authorised applicant:
17
(a) in Part 2 (monitoring)--has the meaning given by section 11;
18
and
19
(b) in Part 3 (investigation)--has the meaning given by
20
section 41; and
21
(c) in Part 4 (civil penalty provisions)--has the meaning given
22
by section 80.
23
authorised person:
24
(a) in Part 2 (monitoring)--has the meaning given by section 12;
25
and
26
(b) in Part 3 (investigation)--has the meaning given by
27
section 42; and
28
(c) in Part 6 (enforceable undertakings)--has the meaning given
29
by section 112; and
30
(d) in Part 7 (injunctions)--has the meaning given by
31
section 119.
32
Part 1 Preliminary
Section 4
4
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
civil penalty order has the meaning given by subsection 82(4).
1
civil penalty provision has the meaning given by subsection 79(2).
2
conduct means:
3
(a) an act; or
4
(b) a failure to act.
5
damage, in relation to data, includes damage by erasure of data or
6
addition of other data.
7
enforceable:
8
(a) in Part 4 (civil penalty provisions)--has the meaning given
9
by section 79; and
10
(b) in Part 6 (enforceable undertakings)--has the meaning given
11
by section 111; and
12
(c) in Part 7 (injunctions)--has the meaning given by
13
section 118.
14
evidential burden, in relation to a matter, means the burden of
15
adducing or pointing to evidence that suggests a reasonable
16
possibility that the matter exists or does not exist.
17
evidential material has the meaning given by section 39.
18
identity card:
19
(a) in Part 2 (monitoring)--has the meaning given by section 13;
20
and
21
(b) in Part 3 (investigation)--has the meaning given by
22
section 43.
23
infringement officer has the meaning given by section 101.
24
investigation powers has the meaning given by sections 49, 50, 51
25
and 52.
26
investigation warrant means:
27
(a) a warrant issued by an issuing officer under section 70; or
28
(b) a warrant signed by an issuing officer under section 71.
29
issuing officer:
30
Preliminary Part 1
Section 4
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
5
(a) in Part 2 (monitoring)--has the meaning given by section 14;
1
and
2
(b) in Part 3 (investigation)--has the meaning given by
3
section 44.
4
judicial officer means:
5
(a) a magistrate; or
6
(b) a Judge of a court of a State or Territory; or
7
(c) a Federal Magistrate; or
8
(d) a Judge of the Federal Court of Australia.
9
monitoring powers has the meaning given by sections 19, 20, 21
10
and 22.
11
monitoring warrant means a warrant issued under section 32.
12
person assisting an authorised person:
13
(a) in Part 2 (monitoring)--has the meaning given by section 23;
14
and
15
(b) in Part 3 (investigation)--has the meaning given by
16
section 53.
17
premises includes the following:
18
(a) a structure, building, vehicle, vessel or aircraft;
19
(b) a place (whether or not enclosed or built on);
20
(c) a part of a thing referred to in paragraph (a) or (b).
21
related: a provision is related:
22
(a) in Part 2 (monitoring)--to another provision or information
23
in the circumstances set out in section 10; and
24
(b) in Part 3 (investigation)--to evidential material in the
25
circumstances set out in section 40.
26
relevant chief executive:
27
(a) in Part 2 (monitoring)--has the meaning given by section 15;
28
and
29
(b) in Part 3 (investigation)--has the meaning given by
30
section 45; and
31
Part 1 Preliminary
Section 5
6
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(c) in Part 5 (infringement notices)--has the meaning given by
1
section 102.
2
relevant court:
3
(a) in Part 2 (monitoring)--has the meaning given by section 16;
4
and
5
(b) in Part 3 (investigation)--has the meaning given by
6
section 46; and
7
(c) in Part 4 (civil penalty provisions)--has the meaning given
8
by section 81; and
9
(d) in Part 6 (enforceable undertakings)--has the meaning given
10
by section 113; and
11
(e) in Part 7 (injunctions)--has the meaning given by
12
section 120.
13
relevant data, in Part 2 (monitoring), has the meaning given by
14
subsection 20(3).
15
subject to an infringement notice, in relation to an offence
16
provision or civil penalty provision, has the meaning given by
17
section 100.
18
subject to investigation, in relation to an offence provision or a
19
civil penalty provision, has the meaning given by section 38.
20
subject to monitoring:
21
(a) in relation to a provision of an Act or a legislative
22
instrument--has the meaning given by section 8; and
23
(b) in relation to information given in compliance, or purported
24
compliance, with a provision of an Act or a legislative
25
instrument--has the meaning given by section 9.
26
5 Binding the Crown
27
This Act binds the Crown in each of its capacities.
28
Monitoring Part 2
Outline and operation of this Part Division 1
Section 6
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
7
Part 2--Monitoring
1
Division 1--Outline and operation of this Part
2
6 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.
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 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
Part 2 Monitoring
Division 1 Outline and operation of this Part
Section 7
8
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
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
7 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
8 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 provides that the provision is
21
subject to monitoring under this Part.
22
9 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 provides that the information
26
is subject to monitoring under this Part.
27
Monitoring Part 2
Outline and operation of this Part Division 1
Section 10
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
9
10 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 provides that
3
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 provides that the provision is related to the
6
information.
7
11 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 provides that the person is an authorised applicant in
14
relation to that provision or information for the purposes of this
15
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 may provide that a person
23
is an authorised applicant in relation to a provision or information
24
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
Part 2 Monitoring
Division 1 Outline and operation of this Part
Section 12
10
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
12 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 provides that the person is an authorised person in
7
relation to that provision or information for the purposes of this
8
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 may provide that a person
16
is an authorised person in relation to a provision or information for
17
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
13 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 35 by the relevant
28
chief executive in relation to that provision or information.
29
14 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
Monitoring Part 2
Outline and operation of this Part Division 1
Section 15
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
11
(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 provides that the judicial officer is an issuing officer in
4
relation to that provision or information for the purposes of this
5
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 may provide that a judicial
11
officer is an issuing officer in relation to a provision or information
12
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
15 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 provides that the person is the relevant chief
25
executive for the purposes of this Part in relation to the provision
26
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
Part 2 Monitoring
Division 1 Outline and operation of this Part
Section 16
12
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(3) Without limiting subsection (1), an Act may provide that a person
1
is the relevant chief executive in relation to a provision or
2
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
16 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 provides that the court is a relevant court in relation to
23
that provision or information for the purposes of this Part.
24
17 Privileges not abrogated
25
Self-incrimination
26
(1) Nothing in this Part affects the right of a person to refuse to answer
27
a question, give information, or produce a document, on the ground
28
that the answer to the question, the information, or the production
29
of the document, might tend to incriminate him or her or make him
30
or her liable to a penalty.
31
Monitoring Part 2
Outline and operation of this Part Division 1
Section 17
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
13
Legal professional privilege
1
(2) Nothing in this Part affects the right of a person to refuse to answer
2
a question, give information, or produce a document, on the ground
3
that:
4
(a) the answer to the question or the information would be
5
privileged from being given on the ground of legal
6
professional privilege; or
7
(b) the document would be privileged from being produced on
8
the ground of legal professional privilege.
9
Other legislation not affected
10
(3) The fact that this section is included in this Part does not imply that
11
the privilege against self-incrimination or legal professional
12
privilege is abrogated in any other Act.
13
Part 2 Monitoring
Division 2 Powers of authorised persons
Section 18
14
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Division 2--Powers of authorised persons
1
Subdivision A--Monitoring powers
2
18 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 19, 20, 21 and 22.
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 25).
17
19 General monitoring powers
18
The following are the monitoring powers that an authorised person
19
may exercise in relation to premises under section 18:
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 20
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
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 20(1) and (4), 21(2) and
4
22(1).
5
20 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 21
16
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(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 29.
5
21 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 22
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
17
(b) the equipment has been operated by the expert.
1
Note:
For compensation for damage to electronic equipment, see section 29.
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 33.
15
22 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 23
18
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
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 33.
15
23 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 empowers the authorised person 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 for the purposes of
28
assisting the authorised person to determine whether:
29
(i) a provision subject to monitoring under this Part has
30
been, or is being, complied with; or
31
Monitoring Part 2
Powers of authorised persons Division 2
Section 24
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
19
(ii) information subject to monitoring under this Part is
1
correct; and
2
(c) may exercise powers and perform functions and duties under
3
this Part that are incidental to the powers mentioned in
4
paragraph (b); and
5
(d) must do so in accordance with a direction given to the person
6
assisting by the authorised person.
7
(3) A power exercised by a person assisting the authorised person as
8
mentioned in subsection (2) is taken for all purposes to have been
9
exercised by the authorised person.
10
(4) A function or duty performed by a person assisting the authorised
11
person as mentioned in subsection (2) is taken for all purposes to
12
have been performed by the authorised person.
13
(5) If a direction is given under paragraph (2)(d) in writing, the
14
direction is not a legislative instrument.
15
Subdivision B--Powers to ask questions and seek production of
16
documents
17
24 Asking questions and seeking production of documents
18
Application
19
(1) This section applies if an authorised person enters premises for the
20
purposes of determining whether:
21
(a) a provision subject to monitoring under this Part has been, or
22
is being, complied with; or
23
(b) information subject to monitoring under this Part is correct.
24
Entry with consent
25
(2) If the entry is authorised because the occupier of the premises
26
consented to the entry, the authorised person may ask the occupier
27
to answer any questions, and produce any document, relating to:
28
(a) the operation of the provision; or
29
(b) the information.
30
Part 2 Monitoring
Division 2 Powers of authorised persons
Section 24
20
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Entry under a monitoring warrant
1
(3) If the entry is authorised by a monitoring warrant, the authorised
2
person may require any person on the premises to answer any
3
questions, and produce any document, relating to:
4
(a) the operation of the provision; or
5
(b) the information.
6
(4) A person is not subject to a requirement under subsection (3) if:
7
(a) the person does not possess the information or document
8
required; and
9
(b) the person has taken all reasonable steps available to the
10
person to obtain the information or document required and
11
has been unable to obtain it.
12
Offence
13
(5) A person commits an offence if:
14
(a) the person is subject to a requirement under subsection (3);
15
and
16
(b) the person fails to comply with the requirement.
17
Penalty for contravention of this subsection: 30 penalty units.
18
Monitoring Part 2
Obligations and incidental powers of authorised persons Division 3
Section 25
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
21
Division 3--Obligations and incidental powers of
1
authorised persons
2
25 Consent
3
(1) Before obtaining the consent of an occupier of premises for the
4
purposes of paragraph 18(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
26 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
Part 2 Monitoring
Division 3 Obligations and incidental powers of authorised persons
Section 27
22
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(b) show his or her identity card to the occupier of the premises,
1
or to another person who apparently represents the occupier,
2
if the occupier or other person is present at the premises; and
3
(c) give any person at the premises an opportunity to allow entry
4
to the premises.
5
27 Authorised person to be in possession of warrant
6
An authorised person executing a monitoring warrant must be in
7
possession of the warrant or a copy of the warrant.
8
28 Details of warrant etc. to be given to occupier
9
(1) An authorised person must comply with subsection (2) if:
10
(a) a monitoring warrant is being executed in relation to
11
premises; and
12
(b) the occupier of the premises, or another person who
13
apparently represents the occupier, is present at the premises.
14
(2) The authorised person must, as soon as practicable:
15
(a) make a copy of the warrant available to the occupier or other
16
person; and
17
(b) inform the occupier or other person in writing of the rights
18
and responsibilities of the occupier or other person under
19
Division 4.
20
29 Compensation for damage to electronic equipment
21
(1) This section applies if:
22
(a) as a result of electronic equipment being operated as
23
mentioned in this Part:
24
(i) damage is caused to the equipment; or
25
(ii) the data recorded on the equipment is damaged; or
26
(iii) programs associated with the use of the equipment, or
27
with the use of the data, are damaged or corrupted; and
28
(b) the damage or corruption occurs because:
29
(i) insufficient care was exercised in selecting the person
30
who was to operate the equipment; or
31
Monitoring Part 2
Obligations and incidental powers of authorised persons Division 3
Section 29
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
23
(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
Part 2 Monitoring
Division 4 Occupier's rights and responsibilities
Section 30
24
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Division 4--Occupier's rights and responsibilities
1
30 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
31 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
Monitoring Part 2
Monitoring warrants Division 5
Section 32
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
25
Division 5--Monitoring warrants
1
32 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 32
26
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(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 33
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
27
Division 6--Extension of periods in which things secured
1
33 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 21(5) or 22(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 21--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 22--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
Part 2 Monitoring
Division 7 Powers of issuing officers
Section 34
28
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Division 7--Powers of issuing officers
1
34 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
Monitoring Part 2
Identity cards Division 8
Section 35
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
29
Division 8--Identity cards
1
35 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
Part 3 Investigation
Division 1 Outline and operation of this Part
Section 36
30
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Part 3--Investigation
1
Division 1--Outline and operation of this Part
2
36 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 offence provisions and civil penalty
6
provisions.
7
For this Part to operate, an offence provision or a civil penalty
8
provision must be made subject to investigation under this Part.
9
This is to be done by another Act.
10
An authorised person may enter premises if the authorised person
11
suspects on reasonable grounds that there may be material on the
12
premises related to the contravention of an offence provision or a
13
civil penalty provision that is subject to investigation under this
14
Part.
15
Entry must be with the consent of the occupier of the premises or
16
under an investigation warrant.
17
An authorised person who enters premises may exercise
18
investigation powers. The authorised person may be assisted by
19
other persons if that assistance is necessary and reasonable and
20
another Act empowers the authorised person to do so.
21
An occupier's consent to an authorised person entering premises
22
for the purposes of investigation must be voluntary. Authorised
23
persons must abide by the terms of that consent.
24
An authorised person who enters premises under an investigation
25
warrant must give details of the warrant to the occupier of the
26
premises.
27
Investigation Part 3
Outline and operation of this Part Division 1
Section 37
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
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
37 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 offence
6
provisions and civil penalty provisions.
7
(2) However, for this Part to operate, an offence provision or a civil
8
penalty provision must be made subject to investigation under this
9
Part.
10
38 Provisions subject to investigation
11
(1) An offence against an Act or a legislative instrument is subject to
12
investigation under this Part if an Act provides that the offence is
13
subject to investigation under this Part.
14
(2) A civil penalty provision under an Act or a legislative instrument is
15
subject to investigation under this Part if an Act provides that the
16
civil penalty provision is subject to investigation under this Part.
17
39 Evidential material
18
Evidential material means any of the following:
19
(a) a thing with respect to which an offence provision or a civil
20
penalty provision subject to investigation under this Part has
21
been contravened or is suspected, on reasonable grounds, to
22
have 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
25
provision or 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 provision or a civil penalty provision.
29
Part 3 Investigation
Division 1 Outline and operation of this Part
Section 40
32
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
40 Related provisions
1
A provision is related to evidential material if an Act provides that
2
the provision is related to the evidential material for the purposes
3
of this Part.
4
41 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
7
provides that the person is an authorised applicant in relation to
8
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 may provide that a person
16
is an authorised applicant in relation to evidential material for the
17
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
42 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
28
provides that the person is an authorised person in relation to the
29
evidential material for the purposes of this Part.
30
Investigation Part 3
Outline and operation of this Part Division 1
Section 43
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
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 may provide that a person
7
is an authorised person in relation to evidential material for the
8
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
43 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 76 by the relevant chief
19
executive in relation to that evidential material.
20
44 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 provides that the judicial officer is an issuing officer in
24
relation to the evidential material for the purposes of this Part.
25
(2) A judicial officer who is an issuing officer for the purpose of
26
exercising powers mentioned in subsection (1) is also an issuing
27
officer for the purposes of exercising other powers under this Part
28
that are incidental to the powers mentioned in subsection (1).
29
(3) Without limiting subsection (1), an Act may provide that a judicial
30
officer is an issuing officer in relation to evidential material for the
31
purposes of this Part by:
32
Part 3 Investigation
Division 1 Outline and operation of this Part
Section 45
34
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(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
45 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 provides that the person is the relevant chief executive in
11
relation to the evidential material for the purposes of this Part.
12
(2) A person who is the relevant chief executive for the purpose of
13
exercising powers mentioned in subsection (1) is also the relevant
14
chief executive for the purposes of:
15
(a) exercising other powers under this Part; or
16
(b) performing functions or duties under this Part;
17
that are incidental to the powers mentioned in subsection (1).
18
(3) Without limiting subsection (1), an Act may provide that a person
19
is the relevant chief executive in relation to evidential material for
20
the purposes of this Part by:
21
(a) providing that a person who holds a specified office is the
22
relevant chief executive in relation to the evidential material
23
for those purposes; or
24
(b) authorising another person to specify that a person, or a
25
person who holds a specified office, is the relevant chief
26
executive in relation to the evidential material for those
27
purposes.
28
46 Relevant court
29
A court is a relevant court in relation to a matter that arises
30
because of:
31
(a) the exercise of powers by a person under this Part in relation
32
to evidential material; or
33
Investigation Part 3
Outline and operation of this Part Division 1
Section 47
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
35
(b) the exercise of powers, or the performance of functions or
1
duties, under this Part that are incidental to the powers
2
mentioned in paragraph (a);
3
if an Act provides that the court is a relevant court in relation to
4
that evidential material for the purposes of this Part.
5
47 Privileges not abrogated
6
Self-incrimination
7
(1) Nothing in this Part affects the right of a person to refuse to answer
8
a question, give information, or produce a document, on the ground
9
that the answer to the question, the information, or the production
10
of the document, might tend to incriminate him or her or make him
11
or her liable to a penalty.
12
Legal professional privilege
13
(2) Nothing in this Part affects the right of a person to refuse to answer
14
a question, give information, or produce a document, on the ground
15
that:
16
(a) the answer to the question or the information would be
17
privileged from being given on the ground of legal
18
professional privilege; or
19
(b) the document would be privileged from being produced on
20
the ground of legal professional privilege.
21
Other legislation not affected
22
(3) The fact that this section is included in this Part does not imply that
23
the privilege against self-incrimination or legal professional
24
privilege is abrogated in any other Act.
25
Part 3 Investigation
Division 2 Powers of authorised persons
Section 48
36
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Division 2--Powers of authorised persons
1
Subdivision A--Investigation powers
2
48 Entering premises by consent or under a warrant
3
(1) If an authorised person suspects on reasonable grounds that there
4
may be evidential material on any premises, the authorised person
5
may:
6
(a) enter the premises; and
7
(b) exercise the investigation powers.
8
Note:
The investigation powers are set out in sections 49, 50, 51 and 52.
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 55).
16
49 General investigation powers
17
The following are the investigation powers that an authorised
18
person may exercise in relation to premises under section 48:
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 suspects on
22
reasonable grounds 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
Investigation Part 3
Powers of authorised persons Division 2
Section 50
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
37
(c) the power to inspect, examine, take measurements of or
1
conduct tests on evidential material referred to in
2
paragraph (a) or (b);
3
(d) the power to make any still or moving image or any
4
recording of the premises or evidential material referred to in
5
paragraph (a) or (b);
6
(e) the power to take onto the premises such equipment and
7
materials as the authorised person requires for the purpose of
8
exercising powers in relation to the premises;
9
(f) the powers set out in subsections 50(1) and (2),
10
subsection 51(2) and section 52.
11
50 Operating electronic equipment
12
(1) The investigation powers include the power to:
13
(a) operate electronic equipment on the premises; and
14
(b) use a disk, tape or other storage device that:
15
(i) is on the premises; and
16
(ii) can be used with the equipment or is associated with it;
17
if an authorised person suspects on reasonable grounds that the
18
electronic equipment, disk, tape or other storage device is or
19
contains evidential material.
20
(2) The investigation powers include the following powers in relation
21
to evidential material found in the exercise of the power under
22
subsection (1):
23
(a) if entry to the premises is under an investigation warrant--
24
the power to seize the equipment and the disk, tape or other
25
storage device referred to in that subsection;
26
(b) the power to operate electronic equipment on the premises to
27
put the evidential material in documentary form and remove
28
the documents so produced from the premises;
29
(c) the power to operate electronic equipment on the premises to
30
transfer the evidential material to a disk, tape or other storage
31
device that:
32
(i) is brought to the premises for the exercise of the power;
33
or
34
Part 3 Investigation
Division 2 Powers of authorised persons
Section 51
38
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(ii) is on the premises and the use of which for that purpose
1
has been agreed in writing by the occupier of the
2
premises;
3
and remove the disk, tape or other storage device from the
4
premises.
5
(3) An authorised person may operate electronic equipment as
6
mentioned in subsection (1) or (2) only if the authorised person
7
believes on reasonable grounds that the operation of the equipment
8
can be carried out without damage to the equipment.
9
Note:
For compensation for damage to electronic equipment, see section 61.
10
(4) An authorised person may seize equipment or a disk, tape or other
11
storage device as mentioned in paragraph (2)(a) only if:
12
(a) it is not practicable to put the evidential material in
13
documentary form as mentioned in paragraph (2)(b) or to
14
transfer the evidential material as mentioned in
15
paragraph (2)(c); or
16
(b) possession of the equipment or the disk, tape or other storage
17
device by the occupier could constitute an offence against a
18
law of the Commonwealth.
19
51 Securing electronic equipment to obtain expert assistance
20
(1) This section applies if an authorised person enters premises under
21
an investigation warrant to search for evidential material.
22
Securing equipment
23
(2) The investigation powers include the power to secure any
24
electronic equipment that is on the premises if the authorised
25
person suspects on reasonable grounds that:
26
(a) there is evidential material of the kind specified in the
27
warrant on the premises; and
28
(b) the evidential material may be accessible by operating the
29
electronic equipment; and
30
(c) expert assistance is required to operate the equipment; and
31
Investigation Part 3
Powers of authorised persons Division 2
Section 51
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
39
(d) the evidential material may be destroyed, altered or otherwise
1
interfered with, if the authorised person does not take action
2
under this subsection.
3
The equipment may be secured by locking it up, placing a guard or
4
any other means.
5
(3) The authorised person must give notice to the occupier of the
6
premises, or another person who apparently represents the
7
occupier, of:
8
(a) the authorised person's intention to secure the equipment;
9
and
10
(b) the fact that the equipment may be secured for up to 24
11
hours.
12
Period equipment may be secured
13
(4) The equipment may be secured until the earlier of the following
14
happens:
15
(a) the 24-hour period ends;
16
(b) the equipment has been operated by the expert.
17
Note:
For compensation for damage to electronic equipment, see section 61.
18
Extensions
19
(5) The authorised person may apply to an issuing officer for an
20
extension of the 24-hour period, if the authorised person believes
21
on reasonable grounds that the equipment needs to be secured for
22
longer than that period.
23
(6) Before making the application, the authorised person must give
24
notice to the occupier of the premises, or another person who
25
apparently represents the occupier, of the authorised person's
26
intention to apply for an extension. The occupier or other person is
27
entitled to be heard in relation to that application.
28
(7) The 24-hour period may be extended more than once.
29
Note:
For the process by which an issuing officer may extend the period, see
30
section 74.
31
Part 3 Investigation
Division 2 Powers of authorised persons
Section 52
40
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
52 Seizing evidence of related provisions
1
(1) This section applies if an authorised person enters premises under
2
an investigation warrant to search for evidential material.
3
(2) The investigation powers include seizing a thing that is not
4
evidential material of the kind specified in the warrant if:
5
(a) in the course of searching for the kind of evidential material
6
specified in the warrant, the authorised person finds the
7
thing; and
8
(b) the authorised person believes on reasonable grounds that:
9
(i) the thing is evidential material of another kind; or
10
(ii) a related provision has been contravened with respect to
11
the thing; or
12
(iii) the thing is evidence of the contravention of a related
13
provision; or
14
(iv) the thing is intended to be used for the purpose of
15
contravening a related provision; and
16
(c) the authorised person believes on reasonable grounds that it
17
is necessary to seize the thing in order to prevent its
18
concealment, loss or destruction.
19
53 Persons assisting authorised persons
20
Authorised persons may be assisted by other persons
21
(1) An authorised person may be assisted by other persons in
22
exercising powers or performing functions or duties under this
23
Part, if:
24
(a) that assistance is necessary and reasonable; and
25
(b) another Act empowers the authorised person to be assisted.
26
A person giving such assistance is a person assisting the
27
authorised person.
28
Powers, functions and duties of a person assisting
29
(2) A person assisting the authorised person:
30
(a) may enter the premises; and
31
Investigation Part 3
Powers of authorised persons Division 2
Section 54
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
41
(b) may exercise powers under this Part in relation to evidential
1
material; and
2
(c) may exercise powers and perform functions and duties under
3
this Part that are incidental to the powers mentioned in
4
paragraph (b); and
5
(d) must do so in accordance with a direction given to the person
6
assisting by the authorised person.
7
(3) A power exercised by a person assisting the authorised person as
8
mentioned in subsection (2) is taken for all purposes to have been
9
exercised by the authorised person.
10
(4) A function or duty performed by a person assisting the authorised
11
person as mentioned in subsection (2) is taken for all purposes to
12
have been performed by the authorised person.
13
(5) If a direction is given under paragraph (2)(d) in writing, the
14
direction is not a legislative instrument.
15
Subdivision B--Powers to ask questions and seek production of
16
documents
17
54 Asking questions and seeking production of documents
18
Application
19
(1) This section applies if an authorised person enters premises to
20
search for evidential material.
21
Entry with consent
22
(2) If the entry is authorised because the occupier of the premises
23
consented to the entry, the authorised person may ask the occupier
24
to answer any questions, and produce any document, relating to
25
evidential material.
26
Entry under an investigation warrant
27
(3) If the entry is authorised by an investigation warrant, the
28
authorised person may require any person on the premises to
29
Part 3 Investigation
Division 2 Powers of authorised persons
Section 54
42
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
answer any questions, and produce any document, relating to
1
evidential material of the kind specified in the warrant.
2
(4) A person is not subject to a requirement under subsection (3) if:
3
(a) the person does not possess the information or document
4
required; and
5
(b) the person has taken all reasonable steps available to the
6
person to obtain the information or document required and
7
has been unable to obtain it.
8
Offence
9
(5) A person commits an offence if:
10
(a) the person is subject to a requirement under subsection (3);
11
and
12
(b) the person fails to comply with the requirement.
13
Penalty for contravention of this subsection: 30 penalty units.
14
Investigation Part 3
Obligations and incidental powers of authorised persons Division 3
Section 55
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
43
Division 3--Obligations and incidental powers of
1
authorised persons
2
55 Consent
3
(1) Before obtaining the consent of an occupier of premises for the
4
purposes of paragraph 48(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
56 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
Part 3 Investigation
Division 3 Obligations and incidental powers of authorised persons
Section 57
44
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(b) show his or her identity card to the occupier of the premises,
1
or to another person who apparently represents the occupier,
2
if the occupier or other person is present at the premises; and
3
(c) give any person at the premises an opportunity to allow entry
4
to the premises.
5
(2) However, an authorised person is not required to comply with
6
subsection (1) if the authorised person believes on reasonable
7
grounds that immediate entry to the premises is required:
8
(a) to ensure the safety of a person; or
9
(b) to ensure that the effective execution of the warrant is not
10
frustrated.
11
(3) If:
12
(a) an authorised person does not comply with subsection (1)
13
because of subsection (2); and
14
(b) the occupier of the premises, or another person who
15
apparently represents the occupier, is present at the premises;
16
the authorised person must, as soon as practicable after entering the
17
premises, show his or her identity card to the occupier or other
18
person.
19
57 Authorised person to be in possession of warrant
20
An authorised person executing an investigation warrant must be in
21
possession of:
22
(a) the warrant issued by the issuing officer under section 70, or
23
a copy of the warrant as so issued; or
24
(b) the form of warrant completed under subsection 71(6), or a
25
copy of the form as so completed.
26
58 Details of warrant etc. to be given to occupier
27
(1) An authorised person must comply with subsection (2) if:
28
(a) an investigation warrant is being executed in relation to
29
premises; and
30
(b) the occupier of the premises, or another person who
31
apparently represents the occupier, is present at the premises.
32
Investigation Part 3
Obligations and incidental powers of authorised persons Division 3
Section 59
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
45
(2) The authorised person executing the warrant must, as soon as
1
practicable:
2
(a) do one of the following:
3
(i) if the warrant was issued under section 70--make a
4
copy of the warrant available to the occupier or other
5
person (which need not include the signature of the
6
issuing officer who issued it);
7
(ii) if the warrant was signed under section 71--make a
8
copy of the form of warrant completed under
9
subsection 71(6) available to the occupier or other
10
person; and
11
(b) inform the occupier or other person in writing of the rights
12
and responsibilities of the occupier or other person under
13
Division 4.
14
59 Completing execution after temporary cessation
15
(1) This section applies if an authorised person, and all persons
16
assisting, who are executing an investigation warrant in relation to
17
premises temporarily cease its execution and leave the premises.
18
(2) The authorised person, and persons assisting, may complete the
19
execution of the warrant if:
20
(a) the warrant is still in force; and
21
(b) the authorised person and persons assisting are absent from
22
the premises:
23
(i) for not more than 1 hour; or
24
(ii) if there is an emergency situation, for not more than 12
25
hours or such longer period as allowed by an issuing
26
officer under subsection (5); or
27
(iii) for a longer period if the occupier of the premises
28
consents in writing.
29
Application for extension in emergency situation
30
(3) An authorised person, or person assisting, may apply to an issuing
31
officer for an extension of the 12-hour period mentioned in
32
subparagraph (2)(b)(ii) if:
33
(a) there is an emergency situation; and
34
Part 3 Investigation
Division 3 Obligations and incidental powers of authorised persons
Section 60
46
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(b) the authorised person or person assisting believes on
1
reasonable grounds that the authorised person and the
2
persons assisting will not be able to return to the premises
3
within that period.
4
(4) If it is practicable to do so, before making the application, the
5
authorised person or person assisting must give notice to the
6
occupier of the premises of his or her intention to apply for an
7
extension.
8
Extension in emergency situation
9
(5) An issuing officer may extend the period during which the
10
authorised person and persons assisting may be away from the
11
premises if:
12
(a) an application is made under subsection (3); and
13
(b) the issuing officer is satisfied, by information on oath or
14
affirmation, that there are exceptional circumstances that
15
justify the extension; and
16
(c) the extension would not result in the period ending after the
17
warrant ceases to be in force.
18
60 Completing execution of warrant stopped by court order
19
An authorised person, and any persons assisting, may complete the
20
execution of a warrant that has been stopped by an order of a court
21
if:
22
(a) the order is later revoked or reversed on appeal; and
23
(b) the warrant is still in force when the order is revoked or
24
reversed.
25
61 Compensation for damage to electronic equipment
26
(1) This section applies if:
27
(a) as a result of electronic equipment being operated as
28
mentioned in this Part:
29
(i) damage is caused to the equipment; or
30
(ii) the data recorded on the equipment is damaged; or
31
Investigation Part 3
Obligations and incidental powers of authorised persons Division 3
Section 61
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
47
(iii) programs associated with the use of the equipment, or
1
with the use of the data, are damaged or corrupted; and
2
(b) the damage or corruption occurs because:
3
(i) insufficient care was exercised in selecting the person
4
who was to operate the equipment; or
5
(ii) insufficient care was exercised by the person operating
6
the equipment.
7
(2) The Commonwealth must pay the owner of the equipment, or the
8
user of the data or programs, such reasonable compensation for the
9
damage or corruption as the Commonwealth and the owner or user
10
agree on.
11
(3) However, if the owner or user and the Commonwealth fail to
12
agree, the owner or user may institute proceedings in a relevant
13
court for such reasonable amount of compensation as the court
14
determines.
15
(4) In determining the amount of compensation payable, regard is to
16
be had to whether the occupier of the premises, or the occupier's
17
employees or agents, if they were available at the time, provided
18
any appropriate warning or guidance on the operation of the
19
equipment.
20
Part 3 Investigation
Division 4 Occupier's rights and responsibilities
Section 62
48
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Division 4--Occupier's rights and responsibilities
1
62 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
63 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
Investigation Part 3
General provisions relating to seizure Division 5
Section 64
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
49
Division 5--General provisions relating to seizure
1
64 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
65 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
66 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
Part 3 Investigation
Division 5 General provisions relating to seizure
Section 67
50
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(a) the reason for the thing's seizure no longer exists;
1
(b) it is decided that the thing is not to be used in evidence;
2
(c) the period of 60 days after the thing's seizure ends.
3
Note:
For exceptions to this rule, see subsections (2) and (3).
4
Exceptions
5
(2) Subsection (1):
6
(a) is subject to any contrary order of a court; and
7
(b) does not apply if the thing:
8
(i) is forfeited or forfeitable to the Commonwealth; or
9
(ii) is the subject of a dispute as to ownership.
10
(3) The relevant chief executive is not required to take reasonable
11
steps to return a thing because of paragraph (1)(c) if:
12
(a) proceedings in respect of which the thing may afford
13
evidence were instituted before the end of the 60 days and
14
those proceedings (and any appeal from those proceedings)
15
have not been completed; or
16
(b) the thing may continue to be retained because of an order
17
under section 67; or
18
(c) the Commonwealth or the relevant chief executive is
19
otherwise authorised (by a law, or an order of a court, of the
20
Commonwealth or of a State or Territory) to retain, destroy,
21
dispose of or otherwise deal with the thing.
22
Return of thing
23
(4) A thing that is required to be returned under this section must be
24
returned to the person from whom it was seized (or to the owner if
25
that person is not entitled to possess it).
26
67 Issuing officer may permit a thing to be retained
27
(1) The relevant chief executive may apply to an issuing officer for an
28
order permitting the retention of a thing seized under this Part for a
29
further period if proceedings in respect of which the thing may
30
afford evidence have not commenced before the end of:
31
(a) 60 days after the seizure; or
32
Investigation Part 3
General provisions relating to seizure Division 5
Section 68
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
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
provision or a civil penalty provision that is subject to
16
investigation 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
68 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 69
52
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(2) The relevant chief executive may dispose of the thing in such
1
manner as the relevant chief executive thinks appropriate.
2
69 Compensation for acquisition of property
3
(1) If the operation of section 68 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
13
paragraph 51(xxxi) of the Constitution.
14
just terms has the same meaning as in paragraph 51(xxxi) of the
15
Constitution.
16
Investigation Part 3
Investigation warrants Division 6
Section 70
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
53
Division 6--Investigation warrants
1
70 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 provision or offence provisions, or civil
18
penalty provision or civil penalty provisions, to which the
19
warrant relates; and
20
(b) describe the premises to which the warrant relates; and
21
(c) state that the warrant is issued under this Division; and
22
(d) specify the kinds of evidential material to be searched for
23
under the warrant; and
24
(e) state that evidential material of the kind specified may be
25
seized under the warrant; and
26
(f) state that the person executing the warrant may seize any
27
other thing found in the course of executing the warrant if the
28
person believes on reasonable grounds that:
29
Part 3 Investigation
Division 6 Investigation warrants
Section 71
54
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(i) the thing is evidential material of a kind not specified in
1
the warrant; or
2
(ii) a related provision has been contravened with respect to
3
the thing; or
4
(iii) the thing is evidence of the contravention of a related
5
provision; or
6
(iv) the thing is intended to be used for the purpose of
7
contravening a related provision; and
8
(g) name one or more authorised persons; and
9
(h) authorise the authorised persons named in the warrant:
10
(i) to enter the premises; and
11
(ii) to exercise the powers set out in this Part in relation to
12
the premises; and
13
(i) state whether entry is authorised to be made at any time of
14
the day or during specified hours of the day; and
15
(j) specify the day (not more than 1 week after the issue of the
16
warrant) on which the warrant ceases to be in force.
17
71 Investigation warrants by telephone, fax etc.
18
Application for warrant
19
(1) An authorised applicant may apply to an issuing officer by
20
telephone, fax or other electronic means for a warrant under
21
section 70 in relation to premises:
22
(a) in an urgent case; or
23
(b) if the delay that would occur if an application were made in
24
person would frustrate the effective execution of the warrant.
25
(2) The issuing officer:
26
(a) may require communication by voice to the extent that it is
27
practicable in the circumstances; and
28
(b) may make a recording of the whole or any part of any such
29
communication by voice.
30
(3) Before applying for the warrant, the authorised applicant must
31
prepare an information of the kind mentioned in subsection 70(2)
32
in relation to the premises that sets out the grounds on which the
33
Investigation Part 3
Investigation warrants Division 6
Section 71
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
55
warrant is sought. If it is necessary to do so, the authorised
1
applicant may apply for the warrant before the information is
2
sworn or affirmed.
3
Issuing officer may complete and sign warrant
4
(4) The issuing officer may complete and sign the same warrant that
5
would have been issued under section 70 if, after considering the
6
terms of the information and receiving such further information (if
7
any) that the issuing officer requires, the issuing officer is satisfied
8
that:
9
(a) the warrant should be issued urgently; or
10
(b) the delay that would occur if an application were made in
11
person would frustrate the effective execution of the warrant.
12
(5) After completing and signing the warrant, the issuing officer must
13
inform the authorised applicant, by telephone, fax or other
14
electronic means, of:
15
(a) the terms of the warrant; and
16
(b) the day on which, and the time at which, the warrant was
17
signed.
18
Obligations on authorised applicant
19
(6) The authorised applicant must then do the following:
20
(a) complete a form of warrant in the same terms as the warrant
21
completed and signed by the issuing officer;
22
(b) state on the form the following:
23
(i) the name of the issuing officer;
24
(ii) the day on which, and the time at which, the warrant
25
was signed;
26
(c) send the following to the issuing officer:
27
(i) the form of warrant completed by the authorised
28
applicant;
29
(ii) the information referred to in subsection (3), which
30
must have been duly sworn or affirmed.
31
(7) The authorised applicant must comply with paragraph (6)(c) by the
32
end of the day after the earlier of the following:
33
Part 3 Investigation
Division 6 Investigation warrants
Section 72
56
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(a) the day on which the warrant ceases to be in force;
1
(b) the day on which the warrant is executed.
2
Issuing officer to attach documents together
3
(8) The issuing officer must attach the documents provided under
4
paragraph (6)(c) to the warrant signed by the issuing officer.
5
72 Authority of warrant
6
(1) A form of warrant duly completed under subsection 71(6) is
7
authority for the same powers as are authorised by the warrant
8
signed by the issuing officer under subsection 71(4).
9
(2) In any proceedings, a court is to assume (unless the contrary is
10
proved) that an exercise of power was not authorised by a warrant
11
under section 71 if:
12
(a) it is material, in those proceedings, for the court to be
13
satisfied that the exercise of power was authorised by that
14
section; and
15
(b) the warrant signed by the issuing officer authorising the
16
exercise of the power is not produced in evidence.
17
73 Offence relating to warrants by telephone, fax etc.
18
An authorised applicant must not:
19
(a) state in a document that purports to be a form of warrant
20
under section 71 the name of an issuing officer unless that
21
issuing officer signed the warrant; or
22
(b) state on a form of warrant under that section a matter that, to
23
the authorised applicant's knowledge, departs in a material
24
particular from the terms of the warrant signed by the issuing
25
officer under that section; or
26
(c) purport to execute, or present to another person, a document
27
that purports to be a form of warrant under that section that
28
the authorised applicant knows departs in a material
29
particular from the terms of a warrant signed by an issuing
30
officer under that section; or
31
Investigation Part 3
Investigation warrants Division 6
Section 73
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
57
(d) purport to execute, or present to another person, a document
1
that purports to be a form of warrant under that section where
2
the authorised applicant knows that no warrant in the terms
3
of the form of warrant has been completed and signed by an
4
issuing officer; or
5
(e) give to an issuing officer a form of warrant under that section
6
that is not the form of warrant that the authorised applicant
7
purported to execute.
8
Penalty: Imprisonment for 2 years.
9
Part 3 Investigation
Division 7 Extension of periods in which things secured
Section 74
58
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Division 7--Extension of periods in which things secured
1
74 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 51(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
Investigation Part 3
Powers of issuing officers Division 8
Section 75
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
59
Division 8--Powers of issuing officers
1
75 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
Part 3 Investigation
Division 9 Identity cards
Section 76
60
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Division 9--Identity cards
1
76 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 77
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
61
Part 4--Civil penalty provisions
1
Division 1--Outline and operation of this Part
2
77 Simplified outline
3
The following is a simplified outline of this Part:
4
This Part creates a framework for the use of civil penalties to
5
enforce civil penalty provisions.
6
For this Part to operate for the purposes of that framework, a civil
7
penalty provision must be made enforceable under this Part. This is
8
done by another Act.
9
Civil penalty orders may be sought from a court in relation to
10
contraventions of civil penalty provisions.
11
This Part also contains some rules of general application in relation
12
to civil penalty provisions (such as the state of mind that must be
13
proved and the defence of mistake of fact).
14
78 Purposes and operation of this Part
15
(1) The principal purposes of this Part are to create a framework for
16
the use of civil penalties to enforce civil penalty provisions.
17
(2) However, for this Part to operate, a civil penalty provision must be
18
made enforceable under this Part.
19
79 Enforceable civil penalty provisions
20
(1) A provision is enforceable under this Part if:
21
(a) it is a civil penalty provision, as defined in subsection (2);
22
and
23
(b) an Act provides that the civil penalty provision is enforceable
24
under this Part.
25
Part 4 Civil penalty provisions
Division 1 Outline and operation of this Part
Section 80
62
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(2) A provision of an Act or a legislative instrument is a civil penalty
1
provision if:
2
(a) either:
3
(i) the provision sets out at its foot a pecuniary penalty, or
4
penalties, indicated by the words "Civil penalty"; or
5
(ii) another provision of an Act or a legislative instrument
6
provides that the provision is a civil penalty provision,
7
or that a person is liable to a civil penalty if the person
8
contravenes the provision; and
9
(b) the provision is:
10
(i) a subsection, or a section that is not divided into
11
subsections; or
12
(ii) a subregulation, or a regulation that is not divided into
13
subregulations; or
14
(iii) a subclause (however described) of a Schedule to an Act
15
or of a legislative instrument; or
16
(iv) a clause (however described) of a Schedule to an Act, or
17
of a legislative instrument, that is not divided into
18
subclauses.
19
80 Authorised applicant
20
(1) A person is an authorised applicant for the purposes of exercising
21
powers under this Part in relation to the contravention of a civil
22
penalty provision if an Act provides that the person is an
23
authorised applicant in relation to the civil penalty provision for the
24
purposes of this Part.
25
(2) A person who is an authorised applicant for the purpose of
26
exercising powers mentioned in subsection (1) is also an
27
authorised applicant for the purposes of:
28
(a) exercising other powers under this Part; or
29
(b) performing functions or duties under this Part;
30
that are incidental to the powers mentioned in subsection (1).
31
(3) Without limiting subsection (1), an Act may provide that a person
32
is an authorised applicant in relation to a civil penalty provision for
33
the purposes of this Part by:
34
Civil penalty provisions Part 4
Outline and operation of this Part Division 1
Section 81
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
63
(a) providing that a person of a specified class is an authorised
1
applicant in relation to the civil penalty provision for those
2
purposes; or
3
(b) authorising another person to specify that a person, or a
4
person of a specified class, is an authorised applicant in
5
relation to the civil penalty provision for those purposes.
6
81 Relevant court
7
A court is a relevant court for the purposes of exercising powers
8
under this Part in relation to the contravention of a civil penalty
9
provision, if an Act provides that the court is a relevant court in
10
relation to the civil penalty provision for the purposes of this Part.
11
Part 4 Civil penalty provisions
Division 2 Obtaining a civil penalty order
Section 82
64
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Division 2--Obtaining a civil penalty order
1
82 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 83
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
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
83 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
84 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
85 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 93.
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
86 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 87
66
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
87 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
Civil penalty provisions Part 4
Civil proceedings and criminal proceedings Division 3
Section 88
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
67
Division 3--Civil proceedings and criminal proceedings
1
88 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
89 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
90 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
Part 4 Civil penalty provisions
Division 3 Civil proceedings and criminal proceedings
Section 91
68
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
91 Evidence given in civil proceedings not admissible in criminal
1
proceedings
2
(1) Evidence of information given, or evidence of production of
3
documents, by an individual is not admissible in criminal
4
proceedings against the individual if:
5
(a) the individual previously gave the information or produced
6
the documents in proceedings for a civil penalty order against
7
the individual for an alleged contravention of a civil penalty
8
provision (whether or not the order was made); and
9
(b) the conduct alleged to constitute the offence is the same, or
10
substantially the same, as the conduct alleged to constitute
11
the contravention.
12
(2) However, subsection (1) does not apply to criminal proceedings in
13
relation to the falsity of the evidence given by the individual in the
14
proceedings for the civil penalty order.
15
Civil penalty provisions Part 4
Miscellaneous Division 4
Section 92
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
69
Division 4--Miscellaneous
1
92 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 94 (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
93 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 94
70
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
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
94 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 92(1) (which is about
14
ancillary contravention of civil penalty provisions).
15
(3) Subsection (1) does not affect the operation of section 95 (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
95 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
Civil penalty provisions Part 4
Miscellaneous Division 4
Section 96
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
71
(2) For the purposes of subsection (1), a person may be regarded as
1
having considered whether or not facts existed if:
2
(a) the person had considered, on a previous occasion, whether
3
those facts existed in the circumstances surrounding that
4
occasion; and
5
(b) the person honestly and reasonably believed that the
6
circumstances surrounding the present occasion were the
7
same, or substantially the same, as those surrounding the
8
previous occasion.
9
(3) A person who wishes to rely on subsection (1) or (2) in
10
proceedings for a civil penalty order bears an evidential burden in
11
relation to that matter.
12
96 Exceptions etc. to civil penalty provisions--burden of proof
13
If, in proceedings for a civil penalty order against a person for a
14
contravention of a civil penalty provision, the person wishes to rely
15
on any exception, exemption, excuse, qualification or justification
16
provided by the law creating the civil penalty provision, then the
17
person bears an evidential burden in relation to that matter.
18
97 Civil penalty provisions contravened by employees, agents or
19
officers
20
If an element of a civil penalty provision is done by an employee,
21
agent or officer of a body corporate acting within the actual or
22
apparent scope of his or her employment, or within his or her
23
actual or apparent authority, the element must also be attributed to
24
the body corporate.
25
Part 5 Infringement notices
Division 1 Outline and operation of this Part
Section 98
72
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Part 5--Infringement notices
1
Division 1--Outline and operation of this Part
2
98 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.
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
99 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 100
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
73
100 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 provides that the
4
provision is subject to an infringement notice under this Part.
5
101 Infringement officer
6
(1) A person is an infringement officer for the purposes of exercising
7
powers under this Part in relation to a contravention of a provision
8
if an Act provides that the person is an infringement officer in
9
relation to that provision for the purposes of this Part.
10
(2) A person who is an infringement officer for the purpose of
11
exercising powers mentioned in subsection (1) is also an
12
infringement officer for the purposes of:
13
(a) exercising other powers under this Part; or
14
(b) performing functions or duties under this Part;
15
that are incidental to the powers mentioned in subsection (1).
16
(3) Without limiting subsection (1), an Act may provide that a person
17
is an infringement officer in relation to a provision for the purposes
18
of this Part by:
19
(a) providing that a person of a specified class is an infringement
20
officer in relation to the provision for the purposes of this
21
Part; or
22
(b) authorising another person to specify that a person, or a
23
person of a specified class, is an infringement officer in
24
relation to the provision for the purposes of this Part.
25
102 Relevant chief executive
26
(1) A person is the relevant chief executive for the purposes of
27
exercising powers under this Part in relation to a contravention of a
28
provision if an Act provides that the person is the relevant chief
29
executive in relation to that provision for the purposes of this Part.
30
Part 5 Infringement notices
Division 1 Outline and operation of this Part
Section 102
74
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(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 may provide that a person
7
is the relevant chief executive in relation to a provision for the
8
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
Infringement notices Part 5
Infringement notices Division 2
Section 103
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
75
Division 2--Infringement notices
1
103 When an infringement notice may be given
2
(1) If an infringement officer believes on reasonable grounds 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 93 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
104 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 104
76
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(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 provision 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 provision that can also
20
constitute a civil penalty provision--the person is not
21
liable to be prosecuted in a court, and proceedings
22
seeking a civil penalty order will not be brought, in
23
relation to the 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 provision 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 105
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
77
(ii) if the provision is an offence provision and can also
1
constitute a civil penalty provision--the person may be
2
prosecuted in a court, or proceedings seeking a civil
3
penalty order may be brought, in relation to the alleged
4
contravention; 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 provision 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 provision and can also
14
constitute a civil penalty provision--the person may be
15
prosecuted in a court, or proceedings seeking a civil
16
penalty order may be brought, in relation to the alleged
17
contravention; 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
105 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 104(1)(h).
35
Part 5 Infringement notices
Division 2 Infringement notices
Section 106
78
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(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 104(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 104(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 104(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
106 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 106
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
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 provision 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 provision and can also
31
constitute a civil penalty provision--the person may be
32
prosecuted in a court, or proceedings seeking a civil
33
penalty order may be brought, in relation to the alleged
34
contravention; or
35
Part 5 Infringement notices
Division 2 Infringement notices
Section 107
80
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
(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
107 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
14
paragraph 104(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 provision and does not also
18
constitute a civil penalty provision--the person may not be
19
prosecuted in a court for the alleged contravention; and
20
(c) if the provision is an offence provision and can also
21
constitute a civil penalty provision--the person may not be
22
prosecuted in a court, and proceedings seeking a civil penalty
23
order may not be brought, in relation to the alleged
24
contravention; and
25
(d) if the provision is a civil penalty provision--proceedings
26
seeking a civil penalty order may not be brought in relation to
27
the alleged contravention; and
28
(e) the person is not regarded as having admitted guilt or liability
29
for the alleged contravention; and
30
(f) if the provision is an offence provision--the person is not
31
regarded as having been convicted of the alleged offence.
32
(2) Subsection (1) does not apply if the notice has been withdrawn.
33
Infringement notices Part 5
Infringement notices Division 2
Section 108
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
81
108 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
Part 6 Enforceable undertakings
Division 1 Outline and operation of this Part
Section 109
82
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Part 6--Enforceable undertakings
1
Division 1--Outline and operation of this Part
2
109 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.
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
110 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
111 Enforceable provisions
21
A provision of an Act or a legislative instrument is enforceable
22
under this Part if an Act provides that the provision is enforceable
23
under this Part.
24
Enforceable undertakings Part 6
Outline and operation of this Part Division 1
Section 112
No. , 2014
Regulatory Powers (Standard Provisions) Bill 2014
83
112 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 provides
3
that the person is an authorised person in relation to that provision
4
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 may provide that a person
12
is an authorised person in relation to a provision for the purposes of
13
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
113 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 provides that the
24
court is a relevant court in relation to that provision for the
25
purposes of this Part.
26
Part 6 Enforceable undertakings
Division 2 Accepting and enforcing undertakings
Section 114
84
Regulatory Powers (Standard Provisions) Bill 2014
No. , 2014
Division 2--Accepting and enforcing undertakings
1
114 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
115 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 114; 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
Enforceable undertakings Part 6
Accepting and enforcing undertakings Division 2
Section 115
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(2) If the relevant court is satisfied that the person has breached the
1
undertaking, the court may make any or all of the following orders:
2
(a) an order directing the person to comply with the undertaking;
3
(b) an order directing the person to pay to the Commonwealth an
4
amount up to the amount of any financial benefit that the
5
person has obtained directly or indirectly and that is
6
reasonably attributable to the breach;
7
(c) any order that the court considers appropriate directing the
8
person to compensate any other person who has suffered loss
9
or damage as a result of the breach;
10
(d) any other order that the court considers appropriate.
11
Part 7 Injunctions
Division 1 Outline and operation of this Part
Section 116
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Part 7--Injunctions
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Division 1--Outline and operation of this Part
2
116 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.
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
117 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
118 Enforceable provisions
18
A provision of an Act or a legislative instrument is enforceable
19
under this Part if an Act provides that the provision is enforceable
20
under this Part.
21
119 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
Injunctions Part 7
Outline and operation of this Part Division 1
Section 120
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enforceable under this Part, if an Act provides that the person is an
1
authorised person in relation to that provision for the purposes of
2
this Part.
3
(2) A person who is an authorised person for the purpose of
4
exercising powers mentioned in subsection (1) is also an
5
authorised person for the purposes of:
6
(a) exercising other powers under this Part; or
7
(b) performing functions or duties under this Part;
8
that are incidental to the powers mentioned in subsection (1).
9
(3) Without limiting subsection (1), an Act may provide that a person
10
is an authorised person in relation to a provision for the purposes of
11
this Part by:
12
(a) providing that a person of a specified class is an authorised
13
person in relation to the provision for the purposes of this
14
Part; or
15
(b) authorising another person to specify that a person, or a
16
person of a specified class, is an authorised person in relation
17
to the provision for the purposes of this Part.
18
120 Relevant court
19
A court is a relevant court for the purposes of exercising powers
20
under this Part in relation to the contravention of a provision
21
enforceable under this Part, if an Act provides that the court is a
22
relevant court in relation to that provision for the purposes of this
23
Part.
24
Part 7 Injunctions
Division 2 Injunctions
Section 121
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Division 2--Injunctions
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121 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
122 Interim injunctions
19
Grant of interim injunctions
20
(1) Before deciding an application for an injunction under section 121,
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 121 to give an undertaking as to damages as a condition of
27
granting an interim injunction.
28
Injunctions Part 7
Injunctions Division 2
Section 123
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123 Discharging or varying injunctions
1
A relevant court may discharge or vary an injunction granted by
2
that court under this Part.
3
124 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
125 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
Part 8 General provisions
Section 126
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Part 8--General provisions
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2
126 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