Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Regulatory Powers (Standardisation
Reform) Bill 2020
No. , 2020
(Attorney-General)
A Bill for an Act to amend the
Regulatory Powers
(Standard Provisions) Act 2014
and to apply that
Act to various Commonwealth Acts, and for related
purposes
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 7
Schedule 1--Amendment of the Regulatory Powers (Standard
Provisions) Act 2014
8
Regulatory Powers (Standard Provisions) Act 2014
8
Schedule 2--Amendment of the Defence Force Discipline Act
1982
19
Part 1--Main amendments
19
Division 1--Amendments
19
Defence Force Discipline Act 1982
19
Division 2--Application provision
24
Part 2--Amendments relating to the Federal Circuit and
Family Court of Australia Act 2020
25
Defence Force Discipline Act 1982
25
Schedule 3--Amendment of the Education Services for
Overseas Students Act 2000
26
Part 1--Main amendments
26
Division 1--Amendments
26
Education Services for Overseas Students Act 2000
26
Division 2--Application and saving provisions
39
Part 2--Amendments relating to the National Vocational
Education and Training Regulator Amendment
(Governance and Other Matters) Act 2020
43
Education Services for Overseas Students Act 2000
43
Part 3--Amendments relating to the Federal Circuit and
Family Court of Australia Act 2020
44
Education Services for Overseas Students Act 2000
44
Schedule 4--Amendment of the Fisheries Management Act
1991
45
ii
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Part 1--Amendments
45
Fisheries Management Act 1991
45
Part 2--Application and saving provisions
47
Schedule 5--Amendment of the Tertiary Education Quality
and Standards Agency Act 2011
48
Part 1--Main amendments
48
Division 1--Amendments
48
Tertiary Education Quality and Standards Agency Act 2011
48
Division 2--Application and saving provisions
61
Part 2--Amendments relating to the Education Legislation
Amendment (Up-front Payments Tuition Protection)
Act 2020
65
Tertiary Education Quality and Standards Agency Act 2011
65
Part 3--Amendments relating to the Federal Circuit and
Family Court of Australia Act 2020
73
Tertiary Education Quality and Standards Agency Act 2011
73
Schedule 6--Amendment of the Tobacco Advertising
Prohibition Act 1992
74
Part 1--Main amendments
74
Division 1--Amendments
74
Tobacco Advertising Prohibition Act 1992
74
Division 2--Application provisions
82
Part 2--Amendments relating to the Federal Circuit and
Family Court of Australia Act 2020
84
Tobacco Advertising Prohibition Act 1992
84
Schedule 7--Amendment of the Tobacco Plain Packaging Act
2011
85
Part 1--Main amendments
85
Division 1--Amendments
85
Tobacco Plain Packaging Act 2011
85
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
iii
Division 2--Application provisions
94
Part 2--Amendments relating to the Federal Circuit and
Family Court of Australia Act 2020
95
Tobacco Plain Packaging Act 2011
95
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
1
A Bill for an Act to amend the
Regulatory Powers
1
(Standard Provisions) Act 2014
and to apply that
2
Act to various Commonwealth Acts, and for related
3
purposes
4
The Parliament of Australia enacts:
5
1 Short title
6
This Act is the
Regulatory Powers (Standardisation Reform) Act
7
2020
.
8
2 Commencement
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
2
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after this Act receives the Royal
Assent.
3. Schedule 2,
Part 1
A single day to be fixed by Proclamation.
However, if the provisions 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.
4. Schedule 2,
Part 2
The later of:
(a) immediately after the commencement of
the provisions covered by table item 3;
and
(b) immediately after the commencement of
the
Federal Circuit and Family Court of
Australia Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
5. Schedule 3,
Part 1
A single day to be fixed by Proclamation.
However, if the provisions 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.
6. Schedule 3,
Part 2
The later of:
(a) immediately after the commencement of
the provisions covered by table item 5;
and
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
(b) immediately after the commencement of
Part 1 of Schedule 1 to the
National
Vocational Education and Training
Regulator Amendment (Governance and
Other Matters) Act 2020
.
7. Schedule 3,
Part 3
The later of:
(a) immediately after the commencement of
the provisions covered by table item 5;
and
(b) immediately after the commencement of
the
Federal Circuit and Family Court of
Australia Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
8. Schedule 4
A single day to be fixed by Proclamation.
However, if the provisions 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.
9. Schedule 5,
Part 1
A single day to be fixed by Proclamation.
However, if the provisions 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.
10. Schedule 5,
item 23
The later of:
(a) immediately after the commencement of
the provisions covered by table item 9;
and
(b) immediately after the commencement of
the
Education Legislation Amendment
(Up-front Payments Tuition Protection)
Act 2020
.
However, the provision does not commence
4
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
at all if the event mentioned in paragraph (b)
does not occur.
11. Schedule 5,
item 24
Immediately after the commencement of the
Education Legislation Amendment (Up-front
Payments Tuition Protection) Act 2020
.
However, the provision does not commence
at all if the
Education Legislation
Amendment (Up-front Payments Tuition
Protection) Act 2020
commences before the
day on which the provisions covered by
table item 9 commence.
12. Schedule 5,
item 25
The later of:
(a) immediately after the commencement of
the provisions covered by table item 9;
and
(b) immediately after the commencement of
the
Education Legislation Amendment
(Up-front Payments Tuition Protection)
Act 2020
.
However, the provision does not commence
at all if the event mentioned in paragraph (b)
does not occur.
13. Schedule 5,
items 26 and 27
Immediately after the commencement of the
provisions covered by table item 9.
However, the provisions do not commence
at all if the
Education Legislation
Amendment (Up-front Payments Tuition
Protection) Act 2020
commences before the
day on which the provisions covered by
table item 9 commence.
14. Schedule 5,
item 28
Immediately after the commencement of the
Education Legislation Amendment (Up-front
Payments Tuition Protection) Act 2020
.
However, the provision does not commence
at all if the
Education Legislation
Amendment (Up-front Payments Tuition
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
5
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
Protection) Act 2020
commences before the
day on which the provisions covered by
table item 9 commence.
15. Schedule 5,
items 29 to 36
The later of:
(a) immediately after the commencement of
the provisions covered by table item 9;
and
(b) immediately after the commencement of
the
Education Legislation Amendment
(Up-front Payments Tuition Protection)
Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
16. Schedule 5,
item 37
Immediately after the commencement of the
Education Legislation Amendment (Up-front
Payments Tuition Protection) Act 2020
.
However, the provision does not commence
at all if the
Education Legislation
Amendment (Up-front Payments Tuition
Protection) Act 2020
commences before the
day on which the provisions covered by
table item 9 commence.
17. Schedule 5,
items 38 to 43
The later of:
(a) immediately after the commencement of
the provisions covered by table item 9;
and
(b) immediately after the commencement of
the
Education Legislation Amendment
(Up-front Payments Tuition Protection)
Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
18. Schedule 5,
Part 3
The later of:
(a) immediately after the commencement of
6
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
the provisions covered by table item 9;
and
(b) immediately after the commencement of
the
Federal Circuit and Family Court of
Australia Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
19. Schedule 6,
Part 1
A single day to be fixed by Proclamation.
However, if the provisions 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.
20. Schedule 6,
Part 2
The later of:
(a) immediately after the commencement of
the provisions covered by table item 19;
and
(b) immediately after the commencement of
the
Federal Circuit and Family Court of
Australia Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
21. Schedule 7,
Part 1
A single day to be fixed by Proclamation.
However, if the provisions 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.
22. Schedule 7,
Part 2
The later of:
(a) immediately after the commencement of
the provisions covered by table item 21;
and
(b) immediately after the commencement of
the
Federal Circuit and Family Court of
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
7
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
Australia Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Schedule 1
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
8
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Schedule 1--Amendment of the Regulatory
1
Powers (Standard Provisions) Act 2014
2
3
Regulatory Powers (Standard Provisions) Act 2014
4
1 Section 3
5
After:
6
(b)
monitoring whether information given in compliance, or
7
purported compliance, with a provision of an Act or a
8
legislative instrument is correct;
9
insert:
10
(ba)
monitoring other matters to which an Act or legislative
11
instruments relates;
12
2 Section 4 (at the end of the definition of
subject to
13
monitoring
)
14
Add:
15
; and (c) in relation to a matter to which an Act or a legislative
16
instrument relates--has the meaning given by section 9A.
17
3 Section 6
18
Omit:
19
This Part creates a framework for monitoring whether the
20
provisions of an Act or a legislative instrument have been, or are
21
being, complied with.
22
It also creates a framework for monitoring whether information
23
given in compliance, or purported compliance, with a provision of
24
an Act or a legislative instrument is correct.
25
For this Part to operate, a provision or information must be made
26
subject to monitoring under this Part. This is to be done by another
27
Act.
28
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
Schedule 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
9
substitute:
1
This Part creates a framework for:
2
(a)
monitoring whether provisions of an Act or a legislative
3
instrument have been, or are being, complied with; and
4
(b)
monitoring whether information given in compliance, or
5
purported compliance, with a provision of an Act or a
6
legislative instrument is correct; and
7
(c)
monitoring other matters to which an Act or a legislative
8
instrument relates.
9
For this Part to operate, a provision, information or a matter must
10
be made subject to monitoring under this Part. This is to be done
11
by another Act.
12
4 Section 7
13
Repeal the section, substitute:
14
7 Purpose and operation of this Part
15
(1) The principal purpose of this Part is to create a framework for
16
monitoring:
17
(a) whether provisions of an Act or a legislative instrument have
18
been, or are being, complied with; and
19
(b) whether information given in compliance, or purported
20
compliance, with a provision of an Act or a legislative
21
instrument is correct; and
22
(c) other matters to which an Act or a legislative instrument
23
relates.
24
(2) However, for this Part to operate, one or more of the following
25
must apply:
26
(a) a provision of an Act or a legislative instrument must be
27
made subject to monitoring under this Part;
28
(b) information given in compliance, or purported compliance,
29
with a provision of an Act or a legislative instrument must be
30
made subject to monitoring under this Part;
31
(c) a matter to which an Act or a legislative instrument relates
32
must be made subject to monitoring under this Part.
33
Schedule 1
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
10
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
5 After section 9
1
Insert:
2
9A Matters subject to monitoring
3
A matter to which an Act or a legislative instrument relates is
4
subject to monitoring
under this Act if an Act provides that the
5
matter is subject to monitoring.
6
6 At the end of section 10
7
Add:
8
(3) A provision is
related
to a matter that is subject to monitoring
9
under this Part if an Act provides that the provision is related to the
10
matter.
11
7 Subsection 11(1)
12
Repeal the subsection, substitute:
13
(1) A person is an
authorised applicant
for the purposes of exercising
14
powers under this Part to determine:
15
(a) whether a provision subject to monitoring under this Part has
16
been, or is being, complied with; or
17
(b) whether information subject to monitoring under this Part is
18
correct; or
19
(c) a matter subject to monitoring under this Part;
20
if an Act provides that the person is an authorised applicant in
21
relation to that provision, information or matter for the purposes of
22
this Part.
23
8 Subsection 11(3)
24
Omit "a provision or information", substitute "a provision, information
25
or a matter".
26
9 Paragraphs 11(3)(a) and (b)
27
Omit "provision or information", substitute "provision, information or
28
matter".
29
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
Schedule 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
11
10 Subsection 12(1)
1
Repeal the subsection, substitute:
2
(1) A person is an
authorised person
for the purposes of exercising
3
powers under this Part to determine:
4
(a) whether a provision subject to monitoring under this Part has
5
been, or is being, complied with; or
6
(b) whether information subject to monitoring under this Part is
7
correct; or
8
(c) a matter subject to monitoring under this Part;
9
if an Act provides that the person is an authorised person in
10
relation to that provision, information or matter for the purposes of
11
this Part.
12
11 Subsection 12(3)
13
Omit "a provision or information", substitute "a provision, information
14
or a matter".
15
12 Paragraphs 12(3)(a) and (b)
16
Omit "provision or information", substitute "provision, information or
17
matter".
18
13 Section 13
19
Repeal the section, substitute:
20
13 Identity card
21
Identity card
, in relation to a person who is an authorised person in
22
relation to a provision, information or a matter for the purposes of
23
this Part, means a card issued to the person under section 35 by the
24
relevant chief executive in relation to that provision, information or
25
matter.
26
14 Subsection 14(1)
27
Repeal the subsection, substitute:
28
(1) A judicial officer is an
issuing officer
for the purposes of
29
exercising powers under this Part to determine:
30
Schedule 1
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
12
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(a) whether a provision subject to monitoring under this Part has
1
been, or is being, complied with; or
2
(b) whether information subject to monitoring under this Part is
3
correct; or
4
(c) a matter subject to monitoring under this Part;
5
if an Act provides that the judicial officer is an issuing officer in
6
relation to that provision, information or matter for the purposes of
7
this Part.
8
15 Subsection 14(3)
9
Omit "a provision or information", substitute "a provision, information
10
or a matter".
11
16 Paragraphs 14(3)(a) and (b)
12
Omit "provision or information", substitute "provision, information or
13
matter".
14
17 Subsection 15(1)
15
Repeal the subsection, substitute:
16
(1) A person is the
relevant chief executive
for the purposes of
17
exercising powers under this Part that relate to an authorised
18
person in relation to a provision, information or a matter for the
19
purposes of this Part, if an Act provides that the person is the
20
relevant chief executive for the purposes of this Part in relation to
21
the provision, information or matter.
22
18 Subsection 15(3)
23
Omit "a provision or information", substitute "a provision, information
24
or a matter".
25
19 Paragraphs 15(3)(a) and (b)
26
Omit "provision or information", substitute "provision, information or
27
matter".
28
20 Section 16
29
Repeal the section, substitute:
30
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
Schedule 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
13
16 Relevant court
1
A court is a
relevant court
in relation to a matter that arises
2
because of:
3
(a) the exercise of powers by a person under this Part to
4
determine:
5
(i) whether a provision subject to monitoring under this
6
Part has been, or is being, complied with; or
7
(ii) whether information subject to monitoring under this
8
Part is correct; or
9
(iii) a matter subject to monitoring under this Part; or
10
(b) the exercise of powers, or the performance of functions or
11
duties, under this Part that are incidental to the powers
12
mentioned in paragraph (a);
13
if an Act provides that the court is a relevant court in relation to
14
that provision, information or matter for the purposes of this Part.
15
21 Subsection 18(1)
16
Omit "either or both", substitute "one or more".
17
22 At the end of subsection 18(1)
18
Add:
19
; (c) determining a matter subject to monitoring under this Part.
20
23 Subsection 20(3)
21
Repeal the subsection, substitute:
22
(3)
Relevant data
means information relevant to determining:
23
(a) whether a provision that is subject to monitoring under this
24
Part has been, or is being, complied with; or
25
(b) whether information subject to monitoring under this Part is
26
correct; or
27
(c) a matter subject to monitoring under this Part.
28
24 Subparagraph 22(1)(b)(iv)
29
Repeal the subparagraph, substitute:
30
(iv) the thing affords evidence that information subject to
31
monitoring under this Part, or information given in
32
Schedule 1
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
14
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
compliance or purported compliance with a related
1
provision, is not correct; or
2
(v) the thing affords evidence in relation to a matter that is
3
subject to monitoring under this Part, or in relation to
4
compliance or purported compliance with a provision
5
that is related to the matter; and
6
25 Paragraph 23(2)(b)
7
Repeal the paragraph, substitute:
8
(b) may exercise powers under this Part for the purposes of
9
assisting the authorised person to determine:
10
(i) whether a provision subject to monitoring under this
11
Part has been, or is being, complied with; or
12
(ii) whether information subject to monitoring under this
13
Part is correct; or
14
(iii) a matter subject to monitoring under this Part; and
15
26 Subsection 24(1)
16
Repeal the subsection (not including the heading), substitute:
17
(1) This section applies if an authorised person enters premises for the
18
purposes of determining:
19
(a) whether a provision subject to monitoring under this Part has
20
been, or is being, complied with; or
21
(b) whether information subject to monitoring under this Part is
22
correct; or
23
(c) a matter subject to monitoring under this Part.
24
27 At the end of subsections 24(2) and (3)
25
Add:
26
; or (c) the matter.
27
28 Subsection 32(2)
28
Repeal the subsection (not including the heading), substitute:
29
(2) The issuing officer may issue the warrant if the issuing officer is
30
satisfied, by information on oath or affirmation, that it is
31
reasonably necessary that one or more authorised persons should
32
have access to the premises for the purposes of determining:
33
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
Schedule 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
15
(a) whether a provision that is subject to monitoring under this
1
Part has been, or is being, complied with; or
2
(b) whether information subject to monitoring under this Part is
3
correct; or
4
(c) a matter subject to monitoring under this Part.
5
29 Subsection 38(1)
6
Omit "offence against", substitute "offence provision of".
7
30 Subsection 38(1)
8
After "offence" (second occurring), insert "provision".
9
31 Subsection 41(1)
10
After "in relation to" (second occurring), insert "the".
11
32 Section 9
8 (paragraph beginning "A person can")
12
After "strict liability offence", insert "provision".
13
33 Section 100
14
Repeal the section, substitute:
15
100 Provisions subject to infringement notices
16
(1) A provision of an Act or a legislative instrument, contravention of
17
which constitutes an offence of strict liability, is
subject to an
18
infringement notice
under this Part if an Act provides that the
19
provision is subject to an infringement notice under this Part.
20
(2) A civil penalty provision of an Act or a legislative instrument is
21
subject to an infringement notice
under this Part if an Act
22
provides that the provision is subject to an infringement notice
23
under this Part.
24
34 Subsection 103(5)
25
Repeal the subsection, substitute:
26
(5) If an alleged contravention would, if proved, constitute both a
27
contravention of a civil penalty provision and of an offence
28
Schedule 1
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
16
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
provision, the infringement notice must relate to the alleged
1
contravention of the offence provision.
2
35 Subparagraphs 104(1)(h)(i) to (iii)
3
Repeal the subparagraphs, substitute:
4
(i) if the alleged contravention is of an offence provision
5
and would not also constitute a contravention of a civil
6
penalty provision--the person will not be liable to be
7
prosecuted in a court for the alleged contravention; or
8
(ii) if the alleged contravention is of an offence provision
9
and would also constitute a contravention of a civil
10
penalty provision--the person is not liable to be
11
prosecuted in a court, and proceedings seeking a
12
pecuniary penalty order will not be brought, in relation
13
to the alleged contravention; or
14
(iii) if the alleged contravention is of a civil penalty
15
provision--proceedings seeking a pecuniary penalty
16
order will not be brought in relation to the alleged
17
contravention; and
18
36 Subparagraphs 104(1)(k)(i) to (iii)
19
Repeal the subparagraphs, substitute:
20
(i) if the alleged contravention is of an offence provision
21
and would not also constitute a contravention of a civil
22
penalty provision--the person may be prosecuted in a
23
court for the alleged contravention; or
24
(ii) if the alleged contravention is of an offence provision
25
and would also constitute a contravention of a civil
26
penalty provision--the person may be prosecuted in a
27
court, or proceedings seeking a pecuniary penalty order
28
may be brought, in relation to the alleged contravention;
29
or
30
(iii) if the alleged contravention is of a civil penalty
31
provision--proceedings seeking a pecuniary penalty
32
order may be brought in relation to the alleged
33
contravention; and
34
37 Subparagraphs 104(1)(m)(i) to (iii)
35
Repeal the subparagraphs, substitute:
36
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
Schedule 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
17
(i) if the alleged contravention is of an offence provision
1
and would not also constitute a contravention of a civil
2
penalty provision--the person may be prosecuted in a
3
court for the alleged contravention; or
4
(ii) if the alleged contravention is of an offence provision
5
and would also constitute a contravention of a civil
6
penalty provision--the person may be prosecuted in a
7
court, or proceedings seeking a pecuniary penalty order
8
may be brought, in relation to the alleged contravention;
9
or
10
(iii) if the alleged contravention is of a civil penalty
11
provision--proceedings seeking a pecuniary penalty
12
order may be brought in relation to the alleged
13
contravention; and
14
38 Subparagraphs 106(4)(e)(i) to (iii)
15
Repeal the subparagraphs, substitute:
16
(i) if the alleged contravention is of an offence provision
17
and would not also constitute a contravention of a civil
18
penalty provision--the person may be prosecuted in a
19
court for the alleged contravention; or
20
(ii) if the alleged contravention is of an offence provision
21
and would also constitute a contravention of a civil
22
penalty provision--the person may be prosecuted in a
23
court, or proceedings seeking a pecuniary penalty order
24
may be brought, in relation to the alleged contravention;
25
or
26
(iii) if the alleged contravention is of a civil penalty
27
provision--proceedings seeking a pecuniary penalty
28
order may be brought in relation to the alleged
29
contravention.
30
39 Paragraphs 107(1)(b) to (d)
31
Repeal the paragraphs, substitute:
32
(b) if the alleged contravention is of an offence provision and
33
would not also constitute a contravention of a civil penalty
34
provision--the person will not be liable to be prosecuted in a
35
court for the alleged contravention; and
36
Schedule 1
Amendment of the Regulatory Powers (Standard Provisions) Act 2014
18
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(c) if the alleged contravention is of an offence provision and
1
would also constitute a contravention of a civil penalty
2
provision--the person is not liable to be prosecuted in a
3
court, and proceedings seeking a pecuniary penalty order will
4
not be brought, in relation to the alleged contravention; and
5
(d) if the alleged contravention is of a civil penalty provision--
6
proceedings seeking a pecuniary penalty order will not be
7
brought in relation to the alleged contravention; and
8
40 Paragraph 107(1)(f)
9
Repeal the paragraph, substitute:
10
(f) if the alleged contravention is of an offence provision--the
11
person is not regarded as having been convicted of the
12
offence.
13
Amendment of the Defence Force Discipline Act 1982
Schedule 2
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
19
Schedule 2--Amendment of the Defence
1
Force Discipline Act 1982
2
Part 1--Main amendments
3
Division 1
--Amendments
4
Defence Force Discipline Act 1982
5
1 Subsection 3(1)
6
Insert:
7
Regulatory Powers Act
means the
Regulatory Powers (Standard
8
Provisions) Act 2014
.
9
2 After Division 6 of Part VI
10
Insert:
11
Division 6A--Investigation under the Regulatory Powers
12
Act
13
101ZAA Simplified outline of this Division
14
•
The Regulatory Powers Act is triggered to allow appointed
15
members of the Australian Defence Force or APS employees
16
in the Department to enter premises under an investigation
17
warrant or with consent of the occupier and to exercise
18
investigation powers under that Act for the purposes of
19
gathering material relating to the contravention of service
20
offences.
21
Schedule 2
Amendment of the Defence Force Discipline Act 1982
Part 1
Main amendments
20
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
101ZAB Basic investigation powers under Part 3 of the Regulatory
1
Powers Act
2
Provisions subject to investigation
3
(1) A provision is subject to investigation under Part 3 of the
4
Regulatory Powers Act if it is a service offence.
5
Note:
Part 3 of the Regulatory Powers Act creates a framework for
6
investigating whether a provision has been contravened. It includes
7
powers of entry, search and seizure.
8
(2) For the purposes of Part 3 of the Regulatory Powers Act, as that
9
Part applies in relation to evidential material that relates to a
10
provision mentioned in subsection (1), there are no related
11
provisions.
12
Authorised applicant
13
(3) For the purposes of Part 3 of the Regulatory Powers Act, a person
14
appointed under subsection 101ZAD(1) is an authorised applicant
15
in relation to evidential material that relates to a provision
16
mentioned in subsection (1).
17
Authorised person
18
(4) For the purposes of Part 3 of the Regulatory Powers Act, a person
19
appointed under subsection 101ZAD(2) is an authorised person in
20
relation to evidential material that relates to a provision mentioned
21
in subsection (1).
22
Issuing officer
23
(5) For the purposes of Part 3 of the Regulatory Powers Act, each of
24
the following persons is an issuing officer in relation to evidential
25
material that relates to a provision mentioned in subsection (1):
26
(a) if a Judge of the Federal Court of Australia has consented to
27
act as an issuing officer for the purposes of this Act and that
28
consent is in force--the Judge;
29
(b) if a Judge of the Federal Circuit Court of Australia has
30
consented to act as an issuing officer for the purposes of this
31
Act and that consent is in force--the Judge;
32
(c) a magistrate.
33
Amendment of the Defence Force Discipline Act 1982
Schedule 2
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
21
Relevant chief executive
1
(6) For the purposes of Part 3 of the Regulatory Powers Act, each of
2
the following persons is a relevant chief executive in relation to
3
evidential material that relates to a provision mentioned in
4
subsection (1):
5
(a) the Chief of the Defence Force;
6
(b) the Inspector-General of the Australian Defence Force.
7
(7) A relevant chief executive may, in writing, delegate the powers and
8
functions mentioned in subsection (8) to:
9
(a) an APS employee who holds or performs the duties of an
10
Executive Level 1 position, or an equivalent or higher
11
position, in the Department; or
12
(b) an officer of the Navy who holds the rank of Commander or
13
a higher rank; or
14
(c) an officer of the Army who holds the rank of
15
Lieutenant-Colonel or a higher rank; or
16
(d) an officer of the Air Force who holds the rank of Wing
17
Commander or a higher rank.
18
(8) The powers and functions that may be delegated are:
19
(a) powers and functions under Part 3 of the Regulatory Powers
20
Act in relation to evidential material that relates to a
21
provision mentioned in subsection (1); and
22
(b) powers and functions under the Regulatory Powers Act that
23
are incidental to a power or function mentioned in
24
paragraph (a).
25
(9) A person exercising powers or performing functions under a
26
delegation under subsection (7) must comply with any directions of
27
the relevant chief executive.
28
Relevant court
29
(10) For the purposes of Part 3 of the Regulatory Powers Act, each of
30
the following courts is a relevant court
in relation to evidential
31
material that relates to a provision mentioned in subsection (1):
32
(a) the Federal Court of Australia;
33
(b) the Federal Circuit Court of Australia.
34
Schedule 2
Amendment of the Defence Force Discipline Act 1982
Part 1
Main amendments
22
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Person assisting
1
(11) An authorised person may be assisted by other persons in
2
exercising powers or performing functions or duties under Part 3 of
3
the Regulatory Powers Act in relation to evidential material that
4
relates to a provision mentioned in subsection (1).
5
Use of force in executing an investigation warrant
6
(12) In executing an investigation warrant under Part 3 of the
7
Regulatory Powers Act, as that Part applies in relation to evidential
8
material that relates to a provision mentioned in subsection (1):
9
(a) an authorised person may use such force against things as is
10
necessary and reasonable in the circumstances; and
11
(b) a person assisting the authorised person may use such force
12
against things as is necessary and reasonable in the
13
circumstances.
14
Extension to external Territories
15
(13) Part 3 of the Regulatory Powers Act, as that Part applies in relation
16
to a provision
mentioned in subsection (1), extends to every
17
external Territory.
18
101ZAC Modifications of Part 3 of the Regulatory Powers Act
19
Additional investigation power
20
(1) The additional power mentioned in subsection (2) is taken to be
21
included in the investigation powers under Part 3 of the Regulatory
22
Powers Act, as that Part applies in relation to evidential material
23
that relates to a provision mentioned in subsection 101ZAB(1).
24
(2) The additional investigation power is the power of an authorised
25
person to be accompanied by, and to make use of, an animal to
26
assist the person in entering premises, or in exercising powers,
27
under Part 3 of the Regulatory Powers Act, as that Part applies in
28
relation to evidential material that relates to a provision mentioned
29
in subsection 101ZAB(1).
30
Note:
Under subsection 101ZAB(4), a person appointed under
31
subsection 101ZAD(2) is an authorised person.
32
Amendment of the Defence Force Discipline Act 1982
Schedule 2
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
23
(3) Subsection (2) does not apply in relation to the entry of premises
1
under an investigation warrant unless the use of the animal by the
2
authorised person is authorised by the warrant.
3
Investigation warrant must deal with use of animals
4
(4) Subsection 70(4) of the Regulatory Powers Act applies in relation
5
to evidential material that relates to a provision mentioned in
6
subsection 101ZAB(1) of this Act as if subsection 70(4) of the
7
Regulatory Powers Act also required the warrant:
8
(a) to state whether authorised persons named in the warrant are
9
authorised to be accompanied by, and to make use of, an
10
animal; and
11
(b) if they are authorised, to specify the kind of animal.
12
101ZAD Appointment of persons under this Division
13
Authorised applicants
14
(1) The Chief of the Defence Force (the
appointer
), or the
15
Inspector-General of the Australian Defence Force (the
appointer
),
16
may, in writing, appoint the following to be an authorised applicant
17
for the purposes of this Division:
18
(a) a specified member of the Australian Defence Force;
19
(b) a specified APS employee in the Department;
20
(c) each member of the Australian Defence Force included in a
21
specified class of members of the Australian Defence Force;
22
(d) each APS employee in the Department included in a
23
specified class of APS employee in the Department.
24
Authorised persons
25
(2) The appointer may, in writing, appoint the following to be an
26
authorised person for the purposes of this Division:
27
(a) a specified member of the Australian Defence Force;
28
(b) a specified APS employee in the Department;
29
(c) each member of the Australian Defence Force included in a
30
specified class of members of the Australian Defence Force;
31
(d) each APS employee in the Department included in a
32
specified class of APS employee in the Department.
33
Schedule 2
Amendment of the Defence Force Discipline Act 1982
Part 1
Main amendments
24
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Appointees to have suitable qualifications, training or experience
1
(3) The appointer must not appoint a particular member of the
2
Australian Defence Force under paragraph (1)(a) or (2)(a), or a
3
particular APS employee in the Department under paragraph (1)(b)
4
or (2)(b), unless the appointer is satisfied that the member or
5
employee has suitable qualifications, training or experience.
6
(4) The appointer must not specify a class of members of the
7
Australian Defence Force under paragraph (1)(c) or (2)(c), or a
8
class of APS employees in the Department under paragraph (1)(d)
9
or (2)(d), unless the appointer is satisfied that members or
10
employees of that class have suitable qualifications, training or
11
experience.
12
101ZAE No limit on other powers
13
This Division does not limit a person's powers under any other
14
provision of this Act.
15
Division 2
--Application provision
16
3 Application provision
--investigation
17
Part 3 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
18
Part applies under Division 6A of Part VI of the
Defence Force
19
Discipline Act 1982
, applies in relation to evidential material that relates
20
to a provision mentioned in subsection 101ZAB(1) of the
Defence
21
Force Discipline Act 1982
, if the suspected contravention of the
22
provision occurred before, on or after the commencement of this Part.
23
Amendment of the Defence Force Discipline Act 1982
Schedule 2
Amendments relating to the Federal Circuit and Family Court of Australia Act 2020
Part 2
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
25
Part 2--Amendments relating to the Federal Circuit
1
and Family Court of Australia Act 2020
2
Defence Force Discipline Act 1982
3
4 Paragraph 101ZAB(5)(b)
4
Omit "a Judge of the Federal Circuit Court of Australia", substitute "a
5
Judge of the Federal Circuit and Family Court of Australia
6
(Division 2)".
7
5 Paragraph 101ZAB(10)(b)
8
Repeal the paragraph, substitute:
9
(b) the Federal Circuit and Family Court of Australia
10
(Division 2).
11
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 1
Main amendments
26
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Schedule 3--Amendment of the Education
1
Services for Overseas Students Act
2
2000
3
Part 1--Main amendments
4
Division 1
--Amendments
5
Education Services for Overseas Students Act 2000
6
1 Section 5
7
Repeal the following definitions:
8
(a) definition of
evidential material
;
9
(b) definition of
monitoring warrant
;
10
(c) definition of
occupier
.
11
2 Section 5
12
Insert:
13
Regulatory Powers Act
means the
Regulatory Powers (Standard
14
Provisions) Act 2014
.
15
3 Section 5 (definition of
search warrant
)
16
Repeal the definition.
17
4 Part 6 (heading)
18
Repeal the heading, substitute:
19
Part 6--Conditions, suspension and cancellation
20
etc.
21
5 Section 83A
22
Omit:
23
Amendment of the Education Services for Overseas Students Act 2000
Schedule 3
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
27
•
The ESOS agency for a registered provider may accept a
1
written undertaking under Division 4 relating to the provider's
2
compliance with a provision of this Act, the national code, the
3
ELICOS Standards, the Foundation Program Standards or a
4
condition of the provider's registration. The ESOS agency
5
may apply to a court to enforce the undertaking.
6
6 Section 106
7
Repeal the section.
8
7 Division 4 of Part 6
9
Repeal the Division.
10
8 Part 7 (heading)
11
Repeal the heading, substitute:
12
Part 7--Monitoring, investigation and enforcement
13
9 Section 111A
14
Repeal the section, substitute:
15
111A Guide to this Part
16
•
The ESOS agency for a registered provider can give a
17
production notice (requiring a person to give information or
18
documents) or an attendance notice (requiring a person to
19
attend and answer questions) under Division 2. The TPS
20
Director may also give a production notice under that
21
Division.
22
•
This Part also applies Parts 2, 3, 5 and 6 of the Regulatory
23
Powers Act. Those Parts deal with monitoring, investigation,
24
infringement notices and enforceable undertakings.
25
10 Division 1 of Part 7
26
Repeal the Division.
27
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 1
Main amendments
28
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
11 At the end of section 129
1
Add:
2
Power conferred personally
3
(3) The power in subsection (1) conferred on a magistrate is conferred
4
on the magistrate:
5
(a) in a personal capacity; and
6
(b) not as a court or a member of a court.
7
Power need not be accepted
8
(4) A magistrate need not accept the power conferred by
9
subsection (1).
10
Protection and immunity
11
(5) A magistrate exercising a power conferred by subsection (1) has
12
the same protection and immunity as if the magistrate were
13
exercising the power:
14
(a) as the court of which the magistrate is a member; or
15
(b) as a member of the court of which the magistrate is a
16
member.
17
12 Divisions 3 to 5 of Part 7
18
Repeal the Divisions, substitute:
19
Division 3--Monitoring
20
130 Monitoring powers
21
Provisions subject to monitoring
22
(1) A provision is subject to monitoring under Part 2 of the Regulatory
23
Powers Act if it is:
24
(a) a provision of this Act; or
25
(b) a provision of the national code; or
26
(c) a provision of the ELICOS Standards or Foundation Program
27
Standards; or
28
Amendment of the Education Services for Overseas Students Act 2000
Schedule 3
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
29
(d) an offence against the
Crimes Act 1914
or the
Criminal Code
1
that relates to this Act.
2
Note:
Part 2 of the Regulatory Powers Act creates a framework for
3
monitoring whether this Act has been complied with. It includes
4
powers of entry and inspection.
5
Information subject to monitoring
6
(2) Information given in compliance or purported compliance with one
7
or more of the following provisions is subject to monitoring under
8
Part 2 of the Regulatory Powers Act:
9
(a) a provision of this Act;
10
(b) a provision of the national code;
11
(c) a provision of the ELICOS Standards or Foundation Program
12
Standards.
13
Note:
Part 2 of the Regulatory Powers Act creates a framework for
14
monitoring whether the information is correct. It includes powers of
15
entry and inspection.
16
Matter subject to monitoring
17
(3) A matter is subject to monitoring under Part 2 of the Regulatory
18
Powers Act if it is determining whether a registered provider,
19
because of financial difficulty or any other reason, might not be
20
able to:
21
(a) provide courses to its accepted students; or
22
(b) refund amounts to its accepted students under Division 2 of
23
Part 5 of this Act.
24
Related provisions
25
(4) For the purposes of Part 2 of the Regulatory Powers Act:
26
(a) a provision covered by subsection 115(1) of the TEQSA Act
27
is related to the provisions mentioned in subsection (1) of this
28
section; and
29
(b) a provision covered by subsection 115(2) of the TEQSA Act
30
is related to the information mentioned in subsection (2) of
31
this section.
32
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 1
Main amendments
30
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Authorised applicant
1
(5) For the purposes of Part 2 of the Regulatory Powers Act, an
2
authorised officer of the ESOS agency for a registered provider is
3
an authorised applicant in relation to the provisions mentioned in
4
subsection (1), the information mentioned in subsection (2) and the
5
matter mentioned in subsection (3).
6
Authorised person
7
(6) For the purposes of Part 2 of the Regulatory Powers Act, an
8
authorised officer of the ESOS agency for a registered provider is
9
an authorised person in relation to the provisions mentioned in
10
subsection (1), the information mentioned in subsection (2) and the
11
matter mentioned in subsection (3).
12
Issuing officer
13
(7) For the purposes of Part 2 of the Regulatory Powers Act, a
14
magistrate is an issuing officer in relation to the provisions
15
mentioned in subsection (1), the information mentioned in
16
subsection (2) and the matter mentioned in subsection (3).
17
Relevant chief executive
18
(8) For the purposes of Part 2 of the Regulatory Powers Act, the
19
relevant chief executive in relation to the provisions mentioned in
20
subsection (1), the information mentioned in subsection (2) and the
21
matter mentioned in subsection (3) is:
22
(a) to the extent that Part relates to an authorised person who is
23
an authorised officer of TEQSA--the Chief Executive
24
Officer of TEQSA; or
25
(b) to the extent that Part relates to an authorised person who is
26
an authorised officer of the National VET Regulator--the
27
Chief Executive Officer of the National VET Regulator; or
28
(c) to the extent that Part relates to an authorised person who is
29
an authorised officer of the Secretary--the Secretary; or
30
(d) to the extent that Part relates to an authorised person who is
31
an authorised officer of any other entity--the head (however
32
described) of that entity.
33
Amendment of the Education Services for Overseas Students Act 2000
Schedule 3
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
31
(9) The relevant chief executive covered by paragraph (8)(a), (b) or (c)
1
may, in writing, delegate the powers and functions mentioned in
2
subsection (10) to:
3
(a) for the Chief Executive Officer of TEQSA--a member of the
4
staff of TEQSA (within the meaning of the TEQSA Act) who
5
is:
6
(i) an SES employee or an acting SES employee; or
7
(ii) an APS employee who holds or performs the duties of
8
an Executive Level 1 or 2 position or an equivalent
9
position; or
10
(b) for the Chief Executive Officer of the National VET
11
Regulator
--
a member of the staff of the Regulator (within
12
the meaning of the NVETR Act) who is:
13
(i) an SES employee or an acting SES employee; or
14
(ii) an APS employee who holds or performs the duties of
15
an Executive Level 1 or 2 position or an equivalent
16
position; or
17
(c) for the Secretary--an SES employee, or an acting SES
18
employee, in the Department.
19
(10) The powers and functions that may be delegated are:
20
(a) powers and functions under Part 2 of the Regulatory Powers
21
Act in relation to the provisions mentioned in subsection (1),
22
the information mentioned in subsection (2) and the matter
23
mentioned in subsection (3); and
24
(b) powers and functions under the Regulatory Powers Act that
25
are incidental to a power or function mentioned in
26
paragraph (a).
27
(11) A person exercising powers or performing functions under a
28
delegation under subsection (9) must comply with any directions of
29
the relevant chief executive.
30
Relevant court
31
(12) For the purposes of Part 2 of the Regulatory Powers Act, each of
32
the following courts is a relevant court
in relation to the provisions
33
mentioned in subsection (1), the information mentioned in
34
subsection (2) and the matter mentioned in subsection (3):
35
(a) the Federal Court of Australia;
36
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 1
Main amendments
32
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(b) the Federal Circuit Court of Australia.
1
Person assisting
2
(13) An authorised person may be assisted by other persons in
3
exercising powers or performing functions or duties under Part 2 of
4
the Regulatory Powers Act in relation to the provisions mentioned
5
in subsection (1), the information mentioned in subsection (2) and
6
the matter mentioned in subsection (3).
7
Use of force in executing a monitoring warrant
8
(14) In executing a monitoring warrant under Part 2 of the Regulatory
9
Powers Act, as that Part applies in relation to the provisions
10
mentioned in subsection (1), the information mentioned in
11
subsection (2) and the matter mentioned in subsection (3):
12
(a) an authorised person may use such force against things as is
13
necessary and reasonable in the circumstances; and
14
(b) a person assisting the authorised person may use such force
15
against things as is necessary and reasonable in the
16
circumstances.
17
Extension to external Territories
18
(15) Part 2 of the Regulatory Powers Act, as that Part applies in relation
19
to the provisions mentioned in subsection (1), the information
20
mentioned in subsection (2) and the matter mentioned in
21
subsection (3), extends to each external Territory mentioned in
22
subsection 4B(1) of this Act.
23
Division 4--Investigation
24
131 Investigation powers
25
Provisions subject to investigation
26
(1) A provision is subject to investigation under Part 3 of the
27
Regulatory Powers Act if it is:
28
(a) an offence against this Act; or
29
(b) an offence against the
Crimes Act 1914
or the
Criminal Code
30
that relates to this Act.
31
Amendment of the Education Services for Overseas Students Act 2000
Schedule 3
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
33
Note:
Part 3 of the Regulatory Powers Act creates a framework for
1
investigating whether a provision has been contravened. It includes
2
powers of entry, search and seizure.
3
Related provisions
4
(2) For the purposes of Part 3 of the Regulatory Powers Act, each of
5
the following provisions is related to evidential material that relates
6
to a provision mentioned in subsection (1):
7
(a) an offence against the TEQSA Act;
8
(b) a civil penalty provision of the TEQSA Act;
9
(c) an offence against the
Crimes Act 1914
or the
Criminal Code
10
that relates to the TEQSA Act.
11
Authorised applicant
12
(3) For the purposes of Part 3 of the Regulatory Powers Act, an
13
authorised officer of the ESOS agency for a registered provider is
14
an authorised applicant in relation to evidential material that relates
15
to a provision mentioned in subsection (1).
16
Authorised person
17
(4) For the purposes of Part 3 of the Regulatory Powers Act, an
18
authorised officer of the ESOS agency for a registered provider is
19
an authorised person in relation to evidential material that relates to
20
a provision mentioned in subsection (1).
21
Issuing officer
22
(5) For the purposes of Part 3 of the Regulatory Powers Act, a
23
magistrate is an issuing officer in relation to evidential material
24
that relates to a provision mentioned in subsection (1).
25
Relevant chief executive
26
(6) For the purposes of Part 3 of the Regulatory Powers Act, the
27
relevant chief executive in relation to evidential material that
28
relates to a provision mentioned in subsection (1) is:
29
(a) to the extent that Part relates to an authorised person who is
30
an authorised officer of TEQSA--the Chief Executive
31
Officer of TEQSA; or
32
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 1
Main amendments
34
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(b) to the extent that Part relates to an authorised person who is
1
an authorised officer of the National VET Regulator--the
2
Chief Executive Officer of the National VET Regulator; or
3
(c) to the extent that Part relates to an authorised person who is
4
an authorised officer of the Secretary--the Secretary; or
5
(d) to the extent that Part relates to an authorised person who is
6
an authorised officer of any other entity--the head (however
7
described) of that entity.
8
(7) The relevant chief executive covered by paragraph (6)(a), (b) or (c)
9
may, in writing, delegate the powers and functions mentioned in
10
subsection (8) to:
11
(a) for the Chief Executive Officer of TEQSA--a member of the
12
staff of TEQSA (within the meaning of the TEQSA Act) who
13
is:
14
(i) an SES employee or an acting SES employee; or
15
(ii) an APS employee who holds or performs the duties of
16
an Executive Level 1 or 2 position or an equivalent
17
position; or
18
(b) for the Chief Executive Officer of the National VET
19
Regulator
--
a member of the staff of the Regulator (within
20
the meaning of the NVETR Act) who is:
21
(i) an SES employee or an acting SES employee; or
22
(ii) an APS employee who holds or performs the duties of
23
an Executive Level 1 or 2 position or an equivalent
24
position; or
25
(c) for the Secretary--an SES employee, or an acting SES
26
employee, in the Department.
27
(8) The powers and functions that may be delegated are:
28
(a) powers and functions under Part 3 of the Regulatory Powers
29
Act in relation to evidential material that relates to a
30
provision mentioned in subsection (1); and
31
(b) powers and functions under the Regulatory Powers Act that
32
are incidental to a power or function mentioned in
33
paragraph (a).
34
(9) A person exercising powers or performing functions under a
35
delegation under subsection (7) must comply with any directions of
36
the relevant chief executive.
37
Amendment of the Education Services for Overseas Students Act 2000
Schedule 3
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
35
Relevant court
1
(10) For the purposes of Part 3 of the Regulatory Powers Act, each of
2
the following courts is a relevant court
in relation to evidential
3
material that relates to a provision mentioned in subsection (1):
4
(a) the Federal Court of Australia;
5
(b) the Federal Circuit Court of Australia.
6
Person assisting
7
(11) An authorised person may be assisted by other persons in
8
exercising powers or performing functions or duties under Part 3 of
9
the Regulatory Powers Act in relation to evidential material that
10
relates to a provision mentioned in subsection (1).
11
Use of force in executing an investigation warrant
12
(12) In executing an investigation warrant under Part 3 of the
13
Regulatory Powers Act, as that Part applies in relation to evidential
14
material that relates to a provision mentioned in subsection (1):
15
(a) an authorised person may use such force against things as is
16
necessary and reasonable in the circumstances; and
17
(b) a person assisting the authorised person may use such force
18
against things as is necessary and reasonable in the
19
circumstances.
20
Extension to external Territories
21
(13) Part 3 of the Regulatory Powers Act, as that Part applies in relation
22
to the provisions mentioned in subsection (1), extends to each
23
external Territory mentioned in subsection 4B(1) of this Act.
24
Division 5--Infringement notices
25
132 Infringement notices
26
Provisions subject to an infringement notice
27
(1) The following provisions of this Act are subject to an infringement
28
notice under Part 5 of the Regulatory Powers Act:
29
(a) subsection 19(5);
30
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 1
Main amendments
36
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(b) subsection 20(6);
1
(c) subsection 21(5);
2
(d) subsection 21A(1A);
3
(e) subsection 46E(1);
4
(f) subsection 47F(1);
5
(g) subsection 47G(1).
6
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
7
infringement notices in relation to provisions.
8
Infringement officer
9
(2) For the purposes of Part 5 of the Regulatory Powers Act, an
10
authorised officer of the ESOS agency for a registered provider is
11
an infringement officer in relation to the provisions mentioned in
12
subsection (1).
13
Relevant chief executive
14
(3) For the purposes of Part 5 of the Regulatory Powers Act, the
15
relevant chief executive in relation to the provisions mentioned in
16
subsection (1) is:
17
(a) to the extent that Part relates to an infringement officer who
18
is an authorised officer of TEQSA--the Chief Executive
19
Officer of TEQSA; or
20
(b) to the extent that Part relates to an infringement officer who
21
is an authorised officer of the National VET Regulator--the
22
Chief Executive Officer of the National VET Regulator; or
23
(c) to the extent that Part relates to an infringement officer who
24
is an authorised officer of the Secretary--the Secretary; or
25
(d) to the extent that Part relates to an infringement officer who
26
is an authorised officer of any other entity--the head
27
(however described) of that entity.
28
(4) The relevant chief executive covered by paragraph (3)(a), (b) or (c)
29
may, in writing, delegate the relevant chief executive's powers and
30
functions under Part 5 of the Regulatory Powers Act in relation to
31
the provisions mentioned in subsection (1) to:
32
(a) for the Chief Executive Officer of TEQSA--a member of the
33
staff of TEQSA (within the meaning of the TEQSA Act) who
34
is:
35
Amendment of the Education Services for Overseas Students Act 2000
Schedule 3
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
37
(i) an SES employee or an acting SES employee; or
1
(ii) an APS employee who holds or performs the duties of
2
an Executive Level 1 or 2 position or an equivalent
3
position; or
4
(b) for the Chief Executive Officer of the National VET
5
Regulator
--
a member of the staff of the Regulator (within
6
the meaning of the NVETR Act) who is:
7
(i) an SES employee or an acting SES employee; or
8
(ii) an APS employee who holds or performs the duties of
9
an Executive Level 1 or 2 position or an equivalent
10
position; or
11
(c) for the Secretary--an SES employee, or an acting SES
12
employee, in the Department.
13
(5) A person exercising powers or performing functions under a
14
delegation under subsection (4) must comply with any directions of
15
the relevant chief executive.
16
Extension to external Territories
17
(6) Part 5 of the Regulatory Powers Act, as that Part applies in relation
18
to
the provisions mentioned in subsection (1), extends to each
19
external Territory mentioned in subsection 4B(1) of this Act.
20
Division 6--Enforceable undertakings
21
133 Enforceable undertakings
22
Enforceable provisions
23
(1) A provision is enforceable under Part 6 of the Regulatory Powers
24
Act if it is:
25
(a) a provision of this Act; or
26
(b) a provision of the national code; or
27
(c) a provision of the ELICOS Standards or Foundation Program
28
Standards.
29
Note:
Part 6 of the Regulatory Powers Act creates a framework for
30
accepting and enforcing undertakings relating to compliance with
31
provisions.
32
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 1
Main amendments
38
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Authorised person
1
(2) For the purposes of Part 6 of the Regulatory Powers Act, an
2
authorised person in relation to the provisions mentioned in
3
subsection (1) is:
4
(a) in relation to an undertaking by a registered higher education
5
provider--the Chief Executive Officer of TEQSA; or
6
(b) in relation to an undertaking by a registered VET provider--
7
the Chief Executive Officer of the National VET Regulator;
8
or
9
(c) in relation to an undertaking by an approved school
10
provider--the Secretary; or
11
(d) in relation to an undertaking by any other registered
12
provider--the head (however described) of the ESOS agency
13
for the registered provider.
14
Relevant court
15
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of
16
the following courts is a relevant court in relation to the provisions
17
mentioned in subsection (1):
18
(a) the Federal Court of Australia;
19
(b) the Federal Circuit Court of Australia.
20
Other undertakings
21
(4) An authorised person covered by subsection (2) may accept a
22
written undertaking given by a registered provider that:
23
(a) the provider will take, or refrain from taking, specified action
24
in order for the provider to comply with a condition of the
25
provider's registration; or
26
(b) the provider will take specified action directed towards
27
ensuring that in the future the provider does not, or is
28
unlikely to, contravene a condition of the provider's
29
registration.
30
The undertaking must be expressed to be an undertaking under this
31
subsection.
32
(5) The power in subsection (4) is in addition to the power of an
33
authorised person under subsection 114(1) of the Regulatory
34
Powers Act.
35
Amendment of the Education Services for Overseas Students Act 2000
Schedule 3
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
39
(6) Part 6 of the Regulatory Powers Act, other than subsections 114(1)
1
and (2) of that Act, applies to an undertaking accepted under
2
subsection (4) of this section as if it were an undertaking accepted
3
under subsection 114(1) of the Regulatory Powers Act.
4
Extension to external Territories
5
(7) Part 6 of the Regulatory Powers Act, as that Part applies in relation
6
to
the provisions mentioned in subsection (1) and an undertaking
7
accepted under subsection (4), extends to each external Territory
8
mentioned in subsection 4B(1) of this Act.
9
Division 2
--Application and saving provisions
10
13 Saving provision
--identity cards
11
Despite the repeal of section 162 of the
Education Services for
12
Overseas Students Act 2000
made by this Part, that section, as in force
13
immediately before the commencement of this Part, continues to apply
14
on and after that commencement in relation to a person who ceased to
15
be an authorised officer of the ESOS agency for a registered provider
16
before that commencement.
17
14 Application and saving provisions
--monitoring
18
(1)
Part 2 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
19
Part applies under Division 3 of Part 7 of the
Education Services for
20
Overseas Students Act 2000
, applies in relation to:
21
(a) determining whether a provision mentioned in
22
subsection 130(1) of the
Education Services for Overseas
23
Students Act 2000
has been complied with before, on or after
24
the commencement of this Part; or
25
(b) determining whether information given in compliance, or
26
purported compliance, with a provision mentioned in
27
subsection 130(2) of the
Education Services for Overseas
28
Students Act 2000
before, on or after the commencement of
29
this Part is correct; or
30
(c) determining a matter mentioned in subsection 130(3) of the
31
Education Services for Overseas Students Act 2000
on or
32
after the commencement of this Part.
33
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 1
Main amendments
40
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(2)
Divisions 3 and 5 of Part 7 of the
Education Services for Overseas
1
Students Act 200
, as in force immediately before the commencement of
2
this Part, continue to apply on and after that commencement in relation
3
to the following:
4
(a) an application for a monitoring warrant made, but not
5
decided, under section 137 or 164 of that Act before that
6
commencement;
7
(b) a monitoring warrant issued under section 138 or
8
subsection 165(2) of that Act before, on or after that
9
commencement as a result of an application made before that
10
commencement;
11
(c) powers exercised, rights created and duties imposed under
12
those Divisions before, on or after that commencement as a
13
result of:
14
(i) an entry onto premises before that commencement with
15
the consent of the occupier of the premises; or
16
(ii) an entry onto premises before, on or after that
17
commencement as a result of a monitoring warrant
18
referred to in paragraph (b);
19
(d) things secured or seized under those Divisions before, on or
20
after that commencement;
21
(e) a requirement made under section 133 of that Act before, on
22
or after that commencement.
23
15 Application and saving provisions
--investigation
24
(1)
Part 3 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
25
Part applies under Division 4 of Part 7 of the
Education Services for
26
Overseas Students Act 2000
, applies in relation to evidential material
27
that relates to a provision mentioned in subsection 131(1) of the
28
Education Services for Overseas Students Act 2000
, if the suspected
29
contravention of the provision occurred before, on or after the
30
commencement of this Part.
31
(2)
Divisions 4 and 5 of Part 7 of the
Education Services for Overseas
32
Students Act 2000
, as in force immediately before the commencement
33
of this Part, continue to apply on and after that commencement in
34
relation to the following:
35
Amendment of the Education Services for Overseas Students Act 2000
Schedule 3
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
41
(a) an application for a search warrant made, but not decided,
1
under section 143 or section 164 of that Act before that
2
commencement;
3
(b) a search warrant issued under section 144 or
4
subsection 165(3) of that Act before, on or after that
5
commencement as a result of an application made before that
6
commencement;
7
(c) powers exercised, rights created and duties imposed under
8
those Divisions before, on or after that commencement as a
9
result of:
10
(i) an entry onto premises before that commencement with
11
the consent of the occupier of the premises; or
12
(ii) an entry onto premises before, on or after that
13
commencement as a result of a search warrant referred
14
to in paragraph (b);
15
(d) things secured or seized under those Divisions before, on or
16
after that commencement.
17
16 Application and saving provisions
--infringement notices
18
(1)
Part 5 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
19
Part applies under Division 5 of Part 7 of the
Education Services for
20
Overseas Students Act 2000
, applies in relation to alleged
21
contraventions of provisions referred to in subsection 132(1) of the
22
Education Services for Overseas Students Act 2000
occurring on or
23
after the commencement of this Part.
24
(2)
Section 106 of the
Education Services for Overseas Students Act 2000
25
and the regulations made for the purposes of that section, as in force
26
immediately before the commencement of this Part, continue to apply
27
on and after that commencement in relation to alleged contraventions of
28
provisions referred to in subsection 106(1A) of that Act occurring
29
before that commencement.
30
17 Application and saving provisions
--enforceable
31
undertakings
32
(1)
Part 6 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
33
Part applies under Division 6 of Part 7 of the
Education Services for
34
Overseas Students Act 2000
, applies in relation to undertakings given
35
on or after the commencement of this Part.
36
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 1
Main amendments
42
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(2)
Division 4 of Part 6 of the
Education Services for Overseas Students
1
Act 2000
, as in force immediately before the commencement of this
2
Part, continues to apply on and after that commencement in relation to
3
the following:
4
(a) an undertaking given under section 110A of that Act before
5
that commencement;
6
(b) an application for an order made, but not decided, under
7
subsection 110B(1) of that Act before that commencement;
8
(c) an order made under subsection 110B(2) of that Act before,
9
on or after that commencement as a result of an application
10
made before that commencement.
11
Amendment of the Education Services for Overseas Students Act 2000
Schedule 3
Amendments relating to the National Vocational Education and Training Regulator
Amendment (Governance and Other Matters) Act 2020
Part 2
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
43
Part 2--Amendments relating to the National
1
Vocational Education and Training
2
Regulator Amendment (Governance and
3
Other Matters) Act 2020
4
Education Services for Overseas Students Act 2000
5
18 Paragraphs 130(8)(b) and (9)(b)
6
Omit "Chief Executive Officer of the".
7
19 Paragraphs 131(6)(b) and (7)(b)
8
Omit "Chief Executive Officer of the".
9
20 Paragraphs 132(3)(b) and (4)(b)
10
Omit "Chief Executive Officer of the".
11
21 Paragraph 133(2)(b)
12
Omit "Chief Executive Officer of the".
13
Schedule 3
Amendment of the Education Services for Overseas Students Act 2000
Part 3
Amendments relating to the Federal Circuit and Family Court of Australia Act
2020
44
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Part 3--Amendments relating to the Federal Circuit
1
and Family Court of Australia Act 2020
2
Education Services for Overseas Students Act 2000
3
22 Paragraph 130(12)(b)
4
Repeal the paragraph, substitute:
5
(b) the Federal Circuit and Family Court of Australia
6
(Division 2).
7
23 Paragraph 131(10)(b)
8
Repeal the paragraph, substitute:
9
(b) the Federal Circuit and Family Court of Australia
10
(Division 2).
11
24 Paragraph 133(3)(b)
12
Repeal the paragraph, substitute:
13
(b) the Federal Circuit and Family Court of Australia
14
(Division 2).
15
Amendment of the Fisheries Management Act 1991
Schedule 4
Amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
45
Schedule 4--Amendment of the Fisheries
1
Management Act 1991
2
Part 1--Amendments
3
Fisheries Management Act 1991
4
1 Subsection 4(1)
5
Insert:
6
Regulatory Powers Act
means the
Regulatory Powers (Standard
7
Provisions) Act 2014
.
8
2 Subsection 93(1) (penalty)
9
Repeal the penalty, substitute:
10
Penalty: 30 penalty units.
11
3 Subsections 93(2) and (3)
12
Repeal the subsections (including the notes), substitute:
13
(2) Subsection (1) is an offence of strict liability.
14
4 At the end of Division 4 of Part 6
15
Add:
16
98A Infringement notices
17
Provisions subject to an infringement notice
18
(1) The following provisions of this Act are subject to an infringement
19
notice under Part 5 of the Regulatory Powers Act:
20
(a) subsection 93(1);
21
(b) subsection 95(5).
22
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
23
infringement notices in relation to provisions.
24
Schedule 4
Amendment of the Fisheries Management Act 1991
Part 1
Amendments
46
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Infringement officer
1
(2) For the purposes of Part 5 of the Regulatory Powers Act, an
2
AFMA staff member appointed under section 83 of this Act to be
3
an officer for the purposes of this Act is an infringement officer in
4
relation to the provisions mentioned in subsection (1).
5
Relevant chief executive
6
(3) For the purposes of Part 5 of the Regulatory Powers Act, the CEO
7
is the relevant chief executive in relation to the provisions
8
mentioned in subsection (1).
9
(4) The CEO may, in writing, delegate to an AFMA staff member who
10
is an SES employee or acting SES employee the CEO's powers
11
and functions under Part 5 of the Regulatory Powers Act as the
12
relevant chief executive in relation to the provisions mentioned in
13
subsection (1).
14
(5) A person exercising powers or performing functions under a
15
delegation under subsection (4) must comply with any directions of
16
the CEO.
17
Extra-territorial operation
18
(6) Part 5 of the Regulatory Powers Act, as that Part applies in relation
19
to
the provisions mentioned in subsection (1), extends to every
20
external Territory, and each other area, to which those provisions
21
extend under section 7 or 8 of this Act.
22
5 Paragraph 168(2)(i)
23
Repeal the paragraph.
24
Amendment of the Fisheries Management Act 1991
Schedule 4
Application and saving provisions
Part 2
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
47
Part 2--Application and saving provisions
1
6 Application and saving provisions
--infringement notices
2
(1)
Part 5 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
3
Part applies under section 98A of the
Fisheries Management Act 1991
,
4
applies in relation to alleged contraventions of provisions referred to in
5
subsection 98A(1) of the
Fisheries Management Act 1991
occurring on
6
or after the commencement of this Part.
7
(2)
Paragraph 168(2)(i) of the
Fisheries Management Act 1991
and the
8
regulations made for the purposes of that paragraph, as in force
9
immediately before the commencement of this Part, continue to apply
10
on and after that commencement in relation to alleged contraventions of
11
provisions referred to in that paragraph occurring before that
12
commencement.
13
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 1
Main amendments
48
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Schedule 5--Amendment of the Tertiary
1
Education Quality and Standards
2
Agency Act 2011
3
Part 1--Main amendments
4
Division 1
--Amendments
5
Tertiary Education Quality and Standards Agency Act 2011
6
1 Section 5 (definition of
civil penalty order
)
7
Repeal the definition.
8
2 Section 5 (definition of
civil penalty provision
)
9
Repeal the definition, substitute:
10
civil penalty provision
has the same meaning as in the Regulatory
11
Powers Act.
12
3 Section 5
13
Repeal the following definitions:
14
(a) definition of
enforcement powers
;
15
(b) definition of
enforcement warrant
;
16
(c) definition of
evidential materia
l
;
17
(d) definition of
issuing officer
;
18
(e) definition of
monitoring powers
;
19
(f) definition of
monitoring warrant
;
20
(g) definition of
person assisting
;
21
(h) definition of
warrant
.
22
4 Part 6 (heading)
23
Repeal the heading, substitute:
24
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
49
Part 6--Information gathering and authorised
1
officers
2
5 Divisions 2 to 6 of Part 6
3
Repeal the Divisions.
4
6 Division 7 of Part 6 (heading)
5
Repeal the heading, substitute:
6
Division 7--Authorised officers
7
7 Section 95
8
Repeal the section.
9
8 Division 8 of Part 6
10
Repeal the Division.
11
9 Before Division 1 of Part 7
12
Insert:
13
Division 1A--Simplified outline
14
97 Simplified outline of this Part
15
•
There are administrative sanctions for non-compliant
16
registered higher education providers.
17
•
There are a range of offences and civil penalties for
18
contraventions of this Act.
19
•
The Regulatory Powers Act is triggered to allow a range of
20
enforcement actions in relation to this Act.
21
•
Authorised officers are permitted to enter premises under a
22
monitoring warrant or with consent of the occupier and to
23
exercise monitoring powers under that Act for the purposes of
24
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 1
Main amendments
50
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
determining whether various provisions of this Act or
1
instruments under this Act have been complied with.
2
•
Authorised officers may enter premises and exercise
3
investigation powers to determine whether there has been a
4
contravention of provisions of this Act or an offence against
5
the
Crimes Act 1914
or the
Criminal Code
that relates to this
6
Act.
7
•
A relevant court can order the payment of a civil penalty for a
8
contravention of a civil penalty provision.
9
•
Infringement notices can be issued for an alleged
10
contravention of a civil penalty provision.
11
•
Undertakings to comply with this Act may be accepted and
12
enforced under the Regulatory Powers Act. If a person gives
13
an undertaking, the undertaking may be enforced by a court
14
order.
15
•
A court can grant an injunction restraining a person from
16
contravening a provision of this Act or requiring a person to
17
comply with a provision of this Act. A court can also grant an
18
injunction relating to online locations that facilitate provision
19
of, or advertising of, academic cheating services.
20
10 Subdivision A of Division 2 of Part 7 (heading)
21
Repeal the heading.
22
11 Subdivisions B and C of Division 2 of Part 7
23
Repeal the Subdivisions.
24
12 Division 3 of Part 7
25
Repeal the Division, substitute:
26
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
51
Division 3--Monitoring
1
115 Monitoring powers
2
Provisions subject to monitoring
3
(1) A provision is subject to monitoring under Part 2 of the Regulatory
4
Powers Act if it is:
5
(a) a provision of this Act; or
6
(b) a provision of an instrument made under subsection 58(1); or
7
(c) an offence against the
Crimes Act 1914
or the
Criminal Code
8
that relates to this Act.
9
Note:
Part 2 of the Regulatory Powers Act creates a framework for
10
monitoring whether this Act has been complied with. It includes
11
powers of entry and inspection.
12
Information subject to monitoring
13
(2) Information given in compliance or purported compliance with a
14
provision of this Act is subject to monitoring under Part 2 of the
15
Regulatory Powers Act.
16
Note:
Part 2 of the Regulatory Powers Act creates a framework for
17
monitoring whether the information is correct. It includes powers of
18
entry and inspection.
19
Related provisions
20
(3) For the purposes of Part 2 of the Regulatory Powers Act:
21
(a) a provision covered by subsection 130(1) of the
Education
22
Services for Overseas Students Act 2000
is related to the
23
provisions mentioned in subsection (1) of this section; and
24
(b) a provision covered by subsection 130(2) of the
Education
25
Services for Overseas Students Act 2000
is related to the
26
information mentioned in subsection (2) of this section.
27
Authorised applicant
28
(4) For the purposes of Part 2 of the Regulatory Powers Act, each of
29
the following persons is an authorised applicant in relation to the
30
provisions mentioned in subsection (1)
and the information
31
mentioned in subsection (2):
32
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 1
Main amendments
52
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(a) a Commissioner;
1
(b) the Chief Executive Officer;
2
(c) an authorised officer.
3
Authorised person
4
(5) For the purposes of Part 2 of the Regulatory Powers Act, an
5
authorised officer is an authorised person in relation to the
6
provisions mentioned in subsection (1)
and the information
7
mentioned in subsection (2).
8
Issuing officer
9
(6) For the purposes of Part 2 of the Regulatory Powers Act, a
10
magistrate is an issuing officer in relation to the provisions
11
mentioned in subsection (1) and the information mentioned in
12
subsection (2).
13
Relevant chief executive
14
(7) For the purposes of Part 2 of the Regulatory Powers Act, the Chief
15
Executive Officer is the relevant chief executive in relation to the
16
provisions mentioned in subsection (1) and the information
17
mentioned in subsection (2).
18
(8) The Chief Executive Officer may, in writing, delegate the powers
19
and functions mentioned in subsection (9) to a member of the staff
20
of TEQSA who is:
21
(a) an SES employee or an acting SES employee; or
22
(b) an APS employee who holds or performs the duties of an
23
Executive Level 1 or 2 position or an equivalent position.
24
(9) The powers and functions that may be delegated are:
25
(a) powers and functions under Part 2 of the Regulatory Powers
26
Act in relation to the provisions mentioned in subsection (1)
27
and information mentioned in subsection (2); and
28
(b) powers and functions under the Regulatory Powers Act that
29
are incidental to a power or function mentioned in
30
paragraph (a).
31
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
53
(10) A person exercising powers or performing functions under a
1
delegation under subsection (8) must comply with any directions of
2
the Chief Executive Officer.
3
Relevant court
4
(11) For the purposes of Part 2 of the Regulatory Powers Act, each of
5
the following courts is a relevant court in relation to the provisions
6
mentioned in subsection (1) and the information mentioned in
7
subsection (2):
8
(a) the Federal Court;
9
(b) the Federal Circuit Court.
10
Person assisting
11
(12) An authorised person may be assisted by other persons in
12
exercising powers or performing functions or duties under Part 2 of
13
the Regulatory Powers Act in relation to the provisions mentioned
14
in subsection (1) and the information mentioned in subsection (2).
15
Extension to external Territories
16
(13) Part 2 of the Regulatory Powers Act, as that Part applies in relation
17
to the provisions mentioned in subsection (1) and the information
18
mentioned in subsection (2), extends to every external Territory.
19
Division 4--Investigation
20
116 Investigation powers
21
Provisions subject to investigation
22
(1) A provision is subject to investigation under Part 3 of the
23
Regulatory Powers Act if it is:
24
(a) an offence against this Act; or
25
(b) a civil penalty provision of this Act; or
26
(c) an offence against the
Crimes Act 1914
or the
Criminal Code
27
that relates to this Act.
28
Note:
Part 3 of the Regulatory Powers Act creates a framework for
29
investigating whether a provision has been contravened. It includes
30
powers of entry, search and seizure.
31
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 1
Main amendments
54
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Related provisions
1
(2) For the purposes of Part 3 of the Regulatory Powers Act, each of
2
the following provisions is related to evidential material that relates
3
to a provision mentioned in subsection (1):
4
(a) an offence against the
Education Services for Overseas
5
Students Act 2000
;
6
(b) an offence against the
Crimes Act 1914
or the
Criminal Code
7
that relates to the
Education Services for Overseas Students
8
Act 2000
.
9
Authorised applicant
10
(3) For the purposes of Part 3 of the Regulatory Powers Act, each of
11
the following persons is an authorised applicant in relation to
12
evidential material that relates to a provision mentioned in
13
subsection (1):
14
(a) a Commissioner;
15
(b) the Chief Executive Officer;
16
(c) an authorised officer.
17
Authorised person
18
(4) For the purposes of Part 3 of the Regulatory Powers Act, an
19
authorised officer is an authorised person in relation to evidential
20
material that relates to a provision mentioned in subsection (1).
21
Issuing officer
22
(5) For the purposes of Part 3 of the Regulatory Powers Act, a
23
magistrate is an issuing officer in relation to evidential material
24
that relates to a provision mentioned in subsection (1).
25
Relevant chief executive
26
(6) For the purposes of Part 3 of the Regulatory Powers Act, the Chief
27
Executive Officer is the relevant chief executive in relation to
28
evidential material that relates to a provision mentioned in
29
subsection (1).
30
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
55
(7) The Chief Executive Officer may, in writing, delegate the powers
1
and functions mentioned in subsection (8) to a member of the staff
2
of TEQSA who is:
3
(a) an SES employee or an acting SES employee; or
4
(b) an APS employee who holds or performs the duties of an
5
Executive Level 1 or 2 position or an equivalent position.
6
(8) The powers and functions that may be delegated are:
7
(a) powers and functions under Part 3 of the Regulatory Powers
8
Act in relation to evidential material that relates to a
9
provision mentioned in subsection (1); and
10
(b) powers and functions under the Regulatory Powers Act that
11
are incidental to a power or function mentioned in
12
paragraph (a).
13
(9) A person exercising powers or performing functions under a
14
delegation under subsection (7) must comply with any directions of
15
the Chief Executive Officer.
16
Relevant court
17
(10) For the purposes of Part 3 of the Regulatory Powers Act, each of
18
the following courts is a relevant court
in relation to evidential
19
material that relates to a provision mentioned in subsection (1):
20
(a) the Federal Court;
21
(b) the Federal Circuit Court.
22
Person assisting
23
(11) An authorised person may be assisted by other persons in
24
exercising powers or performing functions or duties under Part 3 of
25
the Regulatory Powers Act in relation to evidential material that
26
relates to a provision mentioned in subsection (1).
27
Extension to external Territories
28
(12) Part 3 of the Regulatory Powers Act, as that Part applies in relation
29
to the provisions mentioned in subsection (1), extends to every
30
external Territory.
31
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 1
Main amendments
56
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Division 5--Civil penalty provisions
1
117 Civil penalty provisions
2
Enforceable civil penalty provisions
3
(1) Each civil penalty provision of this Act is enforceable under Part 4
4
of the Regulatory Powers Act.
5
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
6
be enforced by obtaining an order for a person to pay a pecuniary
7
penalty for the contravention of the provision.
8
Authorised applicant
9
(2) For the purposes of Part 4 of the Regulatory Powers Act, each of
10
the following persons is an authorised applicant in relation to the
11
civil penalty provisions of this Act:
12
(a) a Commissioner;
13
(b) the Chief Executive Officer.
14
(3) The Chief Executive Officer may, in writing, delegate the Chief
15
Executive Officer's powers under Part 4 of the Regulatory Powers
16
Act in relation to the civil penalty provisions of this Act to a
17
member of the staff of TEQSA who is:
18
(a) an SES employee or an acting SES employee; or
19
(b) an APS employee who holds or performs the duties of an
20
Executive Level 2 position or an equivalent position.
21
(4) A person exercising powers under a delegation under
22
subsection (3) must comply with any directions of the Chief
23
Executive Officer.
24
Relevant court
25
(5) For the purposes of Part 4 of the Regulatory Powers Act, each of
26
the following courts is a relevant court in relation to the civil
27
penalty provisions of this Act:
28
(a) the Federal Court;
29
(b) the Federal Circuit Court.
30
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
57
Maximum penalties
1
(6) Despite subsection 82(5) of the Regulatory Powers Act, the
2
pecuniary penalty in relation to a contravention of a civil penalty
3
provision of this Act (except subsection 114A(3) or 114B(2)) must
4
not be more than the applicable pecuniary penalty specified for the
5
provision.
6
Note:
If a court is satisfied that a body corporate has contravened
7
subsection 114A(3) or 114B(2) of this Act (about academic cheating
8
services), under subsection 82(5) of the Regulatory Powers Act the
9
court may determine a pecuniary penalty not exceeding an amount
10
equal to 5 times the pecuniary penalty specified for the civil penalty
11
provision.
12
Extension to external Territories
13
(7) Part 4 of the Regulatory Powers Act, as that Part applies in relation
14
to the civil penalty provisions of this Act, extends to every external
15
Territory.
16
Division 6--Infringement notices
17
118 Infringement notices
18
Provisions subject to an infringement notice
19
(1) A civil penalty provision of this Act is subject to an infringement
20
notice under Part 5 of the Regulatory Powers Act.
21
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
22
infringement notices in relation to provisions.
23
Infringement officer
24
(2) For the purposes of Part 5 of the Regulatory Powers Act, an
25
authorised officer is an infringement officer in relation to the
26
provisions mentioned in subsection (1).
27
Relevant chief executive
28
(3) For the purposes of Part 5 of the Regulatory Powers Act, the Chief
29
Executive Officer is the relevant chief executive in relation to the
30
provisions mentioned in subsection (1).
31
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 1
Main amendments
58
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(4) The Chief Executive Officer may, in writing, delegate the Chief
1
Executive Officer's powers and functions under Part 5 of the
2
Regulatory Powers Act as the relevant chief executive in relation to
3
the provisions mentioned in subsection (1) to a member of the staff
4
of TEQSA who is:
5
(a) an SES employee or an acting SES employee; or
6
(b) an APS employee who holds or performs the duties of an
7
Executive Level 1 or 2 position or an equivalent position.
8
(5) A person exercising powers or performing functions under a
9
delegation under subsection (4) must comply with any directions of
10
the Chief Executive Officer.
11
Extension to external Territories
12
(6) Part 5 of the Regulatory Powers Act, as that Part applies in relation
13
to
the provisions mentioned in subsection (1), extends to every
14
external Territory.
15
Division 7--Enforceable undertakings
16
119 Enforceable undertakings
17
Enforceable provisions
18
(1) The provisions of this Act are enforceable under Part 6 of the
19
Regulatory Powers Act.
20
Note:
Part 6 of the Regulatory Powers Act creates a framework for
21
accepting and enforcing undertakings relating to compliance with
22
provisions.
23
Authorised person
24
(2) For the purposes of Part 6 of the Regulatory Powers Act, each of
25
the following persons is an authorised person in relation to the
26
provisions mentioned in subsection (1):
27
(a) a Commissioner;
28
(b) the Chief Executive Officer.
29
(3) The Chief Executive Officer may, in writing, delegate the Chief
30
Executive Officer's powers under Part 6 of the Regulatory Powers
31
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
59
Act in relation to the provisions mentioned in subsection (1) to a
1
member of the staff of TEQSA who is:
2
(a) an SES employee or an acting SES employee; or
3
(b) an APS employee who holds or performs the duties of an
4
Executive Level 2 position or an equivalent position.
5
(4) A person exercising powers under a delegation under
6
subsection (3) must comply with any directions of the Chief
7
Executive Officer.
8
Relevant court
9
(5) For the purposes of Part 6 of the Regulatory Powers Act, each of
10
the following courts is a relevant court in relation to the provisions
11
mentioned in subsection (1):
12
(a) the Federal Court;
13
(b) the Federal Circuit Court.
14
Publication of undertakings
15
(6) An authorised person in relation to a provision mentioned in
16
subsection (1) may publish an undertaking, given in relation to the
17
provision by a regulated entity, on the Register.
18
Extension to external Territories
19
(7) Part 6 of the Regulatory Powers Act, as that Part applies in relation
20
to
the provisions mentioned in subsection (1), extends to every
21
external Territory.
22
13 Division 4 of Part 7 (heading)
23
Repeal the heading, substitute:
24
Division 8--Injunctions
25
14 Section 127
26
Repeal the section, substitute:
27
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 1
Main amendments
60
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
127 Injunctions--general
1
Enforceable provisions
2
(1) The provisions of this Act are enforceable under Part 7 of the
3
Regulatory Powers Act.
4
Note:
Part 7 of the Regulatory Powers Act creates a framework for using
5
injunctions to enforce provisions.
6
Authorised person
7
(2) For the purposes of Part 7 of the Regulatory Powers Act, each of
8
the following persons is an authorised person in relation to the
9
provisions mentioned in subsection (1):
10
(a) a Commissioner;
11
(b) the Chief Executive Officer.
12
(3) The Chief Executive Officer may, in writing, delegate the Chief
13
Executive Officer's powers under Part 7 of the Regulatory Powers
14
Act in relation to the provisions mentioned in subsection (1) to a
15
member of the staff of TEQSA who is:
16
(a) an SES employee or an acting SES employee; or
17
(b) an APS employee who holds or performs the duties of an
18
Executive Level 2 position or an equivalent position.
19
(4) A person exercising powers under a delegation under
20
subsection (3) must comply with any directions of the Chief
21
Executive Officer.
22
Relevant court
23
(5) For the purposes of Part 7 of the Regulatory Powers Act, each of
24
the following courts is a relevant court in relation to the provisions
25
mentioned in subsection (1):
26
(a) the Federal Court;
27
(b) the Federal Circuit Court.
28
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
61
Extension to external Territories
1
(6) Part 7 of the Regulatory Powers Act, as that Part applies in relation
2
to
the provisions mentioned in subsection (1), extends to every
3
external Territory.
4
15 At the end of section 127A
5
Add:
6
Application of the Regulatory Powers Act
7
(13) Sections 122 to 125 of the Regulatory Powers Act apply in relation
8
to an application under this section for the grant of an injunction,
9
or to the grant of an injunction under this section, in a
10
corresponding way to the way in which they apply to an
11
application under section 121 of that Act for the grant of an
12
injunction or to the grant of an injunction under section 121 of that
13
Act.
14
16 Sections 128 to 131
15
Repeal the sections.
16
Division 2
--Application and saving provisions
17
17 Saving provision
--identity cards
18
Despite the repeal of section 95 of the
Tertiary Education Quality and
19
Standards Agency Act 2011
made by this Part, that section, as in force
20
immediately before the commencement of this Part, continues to apply
21
on and after that commencement in relation to a person who ceased to
22
be an authorised officer before that commencement.
23
18 Application and saving provisions
--monitoring and
24
investigation
25
(1)
Part 2 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
26
Part applies under Division 3 of Part 7 of the
Tertiary Education
27
Quality and Standards Agency Act 2011
, applies in relation to the
28
following:
29
(a) determining whether a provision mentioned in
30
subsection 115(1) of the
Tertiary Education Quality and
31
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 1
Main amendments
62
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Standards Agency Act 2011
has been complied with before,
1
on or after the commencement of this Part;
2
(b) determining whether information given in compliance, or
3
purported compliance, with a provision of the
Tertiary
4
Education Quality and Standards Agency Act 2011
before,
5
on or after the commencement of this Part is correct.
6
(2)
Part 3 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
7
Part applies under Division 4 of Part 7 of the
Tertiary Education
8
Quality and Standards Agency Act 2011
, applies in relation to evidential
9
material that relates to a provision mentioned in subsection 116(1) of
10
the
Tertiary Education Quality and Standards Agency Act 2011
, if the
11
suspected contravention of the provision occurred before, on or after the
12
commencement of this Part.
13
(3)
Divisions 2 to 8 of Part 6 of the
Tertiary Education Quality and
14
Standards Agency Act 2011
, as in force immediately before the
15
commencement of this Part, continue to apply on and after that
16
commencement in relation to the following:
17
(a) an application for a warrant made, but not decided, under
18
Division 6 of that Part before that commencement;
19
(b) a warrant issued, or completed and signed, under Division 6
20
of that Part before, on or after that commencement as a result
21
of an application made before that commencement;
22
(c) powers exercised, rights created and duties imposed, under
23
those Divisions before, on or after that commencement as a
24
result of:
25
(i) an entry onto premises before that commencement with
26
the consent of the occupier of the premises; or
27
(ii) an entry onto premises before, on or after that
28
commencement as a result of a warrant referred to in
29
paragraph (b);
30
(d) things secured or seized under those Divisions before, on or
31
after that commencement;
32
(e) a requirement made under subsection 75(2) of that Act
33
before, on or after that commencement.
34
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
63
19 Application and saving provisions
--civil penalties
1
(1)
Part 4 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
2
Part applies under Division 5 of Part 7 of the
Tertiary Education
3
Quality and Standards Agency Act 2011
, applies in relation to
4
contraventions of civil penalty provisions of the
Tertiary Education
5
Quality and Standards Agency Act 2011
occurring on or after the
6
commencement of this Part.
7
(2)
Subdivisions B and C of Division 2 of Part 7 of the
Tertiary Education
8
Quality and Standards Agency Act 2011
, as in force immediately before
9
the commencement of this Part, continue to apply on and after that
10
commencement in relation to contraventions of civil penalty provisions
11
of that Act occurring before that commencement.
12
20 Application provision
--infringement notices
13
Part 5 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
14
Part applies under Division 6 of Part 7 of the
Tertiary Education
15
Quality and Standards Agency Act 2011
, applies in relation to alleged
16
contraventions of civil penalty provisions of the
Tertiary Education
17
Quality and Standards Agency Act 2011
occurring on or after the
18
commencement of this Part.
19
21 Application and saving provisions
--enforceable
20
undertakings
21
(1)
Part 6 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
22
Part applies under Division 7 of Part 7 of the
Tertiary Education
23
Quality and Standards Agency Act 2011
, applies in relation to
24
undertakings given on or after the commencement of this Part.
25
(2)
Division 3 of Part 7 of the
Tertiary Education Quality and Standards
26
Agency Act 2011
, as in force immediately before the commencement of
27
this Part, continues to apply on and after that commencement in relation
28
to the following:
29
(a) an undertaking given under that Division before that
30
commencement;
31
(b) an application for an order made, but not decided, under that
32
Division before that commencement;
33
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 1
Main amendments
64
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(c) an order made under that Division before, on or after that
1
commencement as a result of an application made before that
2
commencement.
3
22 Application and saving provisions
--injunctions
4
(1)
Part 7 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
5
Part applies under section 127 of the
Tertiary Education Quality and
6
Standards Agency Act 2011
, applies in relation to contraventions
7
occurring on or after the commencement of this Part.
8
(2)
Sections 127 and 128 to 131 of the
Tertiary Education Quality and
9
Standards Agency Act 2011
, as in force immediately before the
10
commencement of this Part, continue to apply on and after that
11
commencement in relation to the following:
12
(a) contraventions referred to in section 127 of that Act
13
occurring before that commencement;
14
(b) an application made, but not decided, under section 127 of
15
that Act before that commencement;
16
(c) an injunction granted under section 127 or 128 of that Act
17
before, on or after that commencement as a result of an
18
application made under section 127 of that Act before that
19
commencement.
20
(3)
Sections 128 to 131 of the
Tertiary Education Quality and Standards
21
Agency Act 2011
, as in force immediately before the commencement of
22
this Part, continue to apply on and after that commencement in relation
23
to the following:
24
(a) an application made, but not decided, under section 127A of
25
that Act before that commencement;
26
(b) an injunction granted under section 127A or 128 of that Act
27
before, on or after that commencement as a result of an
28
application made under section 127A of that Act before that
29
commencement.
30
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Amendments relating to the Education Legislation Amendment (Up-front Payments
Tuition Protection) Act 2020
Part 2
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
65
Part 2--Amendments relating to the Education
1
Legislation Amendment (Up-front Payments
2
Tuition Protection) Act 2020
3
Tertiary Education Quality and Standards Agency Act 2011
4
23 Section 5 (definition of
applicable court
)
5
Repeal the definition.
6
24 Section 5 (definition of
civil penalty provision
)
7
Repeal the definition, substitute:
8
civil penalty provision
has the same meaning as in the Regulatory
9
Powers Act.
10
25 Section 5 (definition of
judicial officer
)
11
Repeal the definition.
12
26 Section 5
13
Insert:
14
Regulatory Powers Act
means the
Regulatory Powers (Standard
15
Provisions) Act 2014
.
16
27 Section 104
17
Repeal the section.
18
28 Subsection 115(1) (note) (the note inserted by item 11 of
19
Schedule 1 to the
Education Legislation Amendment
20
(Up-front Payments Tuition Protection) Act 2020
)
21
Repeal the note.
22
29 Subsection 115(2)
23
Repeal the subsection, substitute:
24
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 2
Amendments relating to the Education Legislation Amendment (Up-front
Payments Tuition Protection) Act 2020
66
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Information subject to monitoring
1
(2) Information given in compliance or purported compliance with a
2
provision of this Act, or of the Up-front Payments Guidelines, is
3
subject to monitoring under Part 2 of the Regulatory Powers Act.
4
Note:
Part 2 of the Regulatory Powers Act creates a framework for
5
monitoring whether the information is correct. It includes powers of
6
entry and inspection.
7
30 Subsections 115(4) and (5)
8
Repeal the subsections, substitute:
9
Authorised applicant
10
(4) For the purposes of Part 2 of the Regulatory Powers Act:
11
(a) the Chief Executive Officer and each Commissioner and
12
authorised officer is an authorised applicant in relation to:
13
(i) a provision of this Act (except Part 5A); and
14
(ii) a provision of an instrument made under
15
subsection 58(1); and
16
(iii) an offence against the
Crimes Act 1914
or the
Criminal
17
Code
that relates to a provision of this Act (except
18
Part 5A); and
19
(iv) information given in compliance or purported
20
compliance with a provision of this Act (except
21
Part 5A) or of the Up-front Payments Guidelines; and
22
(b) each HESA investigator and authorised officer is an
23
authorised applicant in relation to:
24
(i) a provision of Part 5A; and
25
(ii) an offence against the
Crimes Act 1914
or the
Criminal
26
Code
that relates to a provision of Part 5A; and
27
(iii) information given in compliance or purported
28
compliance with a provision of Part 5A.
29
Authorised person
30
(5) For the purposes of Part 2 of the Regulatory Powers Act:
31
(a) an authorised officer is an authorised person in relation to:
32
(i) a provision of this Act (except Part 5A); and
33
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Amendments relating to the Education Legislation Amendment (Up-front Payments
Tuition Protection) Act 2020
Part 2
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
67
(ii) a provision of an instrument made under
1
subsection 58(1); and
2
(iii) an offence against the
Crimes Act 1914
or the
Criminal
3
Code
that relates to a provision of this Act (except
4
Part 5A); and
5
(iv) information given in compliance or purported
6
compliance with a provision of this Act (except
7
Part 5A) or of the Up-front Payments Guidelines; and
8
(b) each HESA investigator and authorised officer is an
9
authorised person in relation to:
10
(i) a provision of Part 5A; and
11
(ii) an offence against the
Crimes Act 1914
or the
Criminal
12
Code
that relates to a provision of Part 5A; and
13
(iii) information given in compliance or purported
14
compliance with a provision of Part 5A.
15
31 Subsections 115(7) to (10)
16
Repeal the subsections, substitute:
17
Relevant chief executive
18
(7) For the purposes of Part 2 of the Regulatory Powers Act:
19
(a) the Chief Executive Officer is a relevant chief executive in
20
relation to the provisions mentioned in subsection (1)
and the
21
information mentioned in subsection (2); and
22
(b) the Secretary is also a relevant chief executive in relation to:
23
(i) a provision of Part 5A; and
24
(ii) an offence against the
Crimes Act 1914
or the
Criminal
25
Code
that relates to a provision of Part 5A; and
26
(iii) information given in compliance or purported
27
compliance with a provision of Part 5A.
28
Note:
For delegation by the Chief Executive Officer, see
29
subsection 154L(2). For delegation by the Secretary, see
30
section 201A.
31
32 Subsections 116(3) and (4)
32
Repeal the subsections, substitute:
33
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 2
Amendments relating to the Education Legislation Amendment (Up-front
Payments Tuition Protection) Act 2020
68
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Authorised applicant
1
(3) For the purposes of Part 3 of the Regulatory Powers Act:
2
(a) the Chief Executive Officer and each Commissioner and
3
authorised officer is an authorised applicant in relation to
4
evidential material that relates to:
5
(i) an offence against this Act (except Part 5A); or
6
(ii) a civil penalty provision of this Act (except Part 5A); or
7
(iii) an offence against the
Crimes Act 1914
or the
Criminal
8
Code
that relates to a provision of this Act (except
9
Part 5A); and
10
(b) each HESA investigator and authorised officer is an
11
authorised applicant in relation to evidential material that
12
relates to:
13
(i) an offence against Part 5A; or
14
(ii) a civil penalty provision of Part 5A; or
15
(iii) an offence against the
Crimes Act 1914
or the
Criminal
16
Code
that relates to a provision of Part 5A.
17
Authorised person
18
(4) For the purposes of Part 3 of the Regulatory Powers Act:
19
(a) an authorised officer is an authorised person in relation to
20
evidential material that relates to:
21
(i) an offence against this Act (except Part 5A); or
22
(ii) a civil penalty provision of this Act (except Part 5A); or
23
(iii) an offence against the
Crimes Act 1914
or the
Criminal
24
Code
that relates to a provision of this Act (except
25
Part 5A); and
26
(b) each HESA investigator and authorised officer is an
27
authorised person in relation to evidential material that
28
relates to:
29
(i) an offence against Part 5A; or
30
(ii) a civil penalty provision of Part 5A; or
31
(iii) an offence against the
Crimes Act 1914
or the
Criminal
32
Code
that relates to a provision of Part 5A.
33
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Amendments relating to the Education Legislation Amendment (Up-front Payments
Tuition Protection) Act 2020
Part 2
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
69
33 Subsections 116(6) to (9)
1
Repeal the subsections, substitute:
2
Relevant chief executive
3
(6) For the purposes of Part 3 of the Regulatory Powers Act:
4
(a) the Chief Executive Officer is a relevant chief executive in
5
relation to evidential material that relates to a provision
6
mentioned in subsection (1); and
7
(b) the Secretary is also a relevant chief executive in relation to
8
evidential material that relates to:
9
(i) an offence against Part 5A; or
10
(ii) a civil penalty provision of Part 5A; or
11
(iii) an offence against the
Crimes Act 1914
or the
Criminal
12
Code
that relates to a provision of Part 5A.
13
Note:
For delegation by the Chief Executive Officer, see
14
subsection 154L(2). For delegation by the Secretary, see
15
section 201A.
16
34 Subsections 117(2) to (4)
17
Repeal the subsections, substitute:
18
Authorised applicant
19
(2) For the purposes of Part 4 of the Regulatory Powers Act:
20
(a) each of the following persons is an authorised applicant in
21
relation to the civil penalty provisions of this Act (except a
22
civil penalty provision of Part 5A):
23
(i) a Commissioner;
24
(ii) the Chief Executive Officer; and
25
(b) the Higher Education Tuition Protection Director is an
26
authorised applicant in relation to the civil penalty provisions
27
of Part 5A.
28
Note:
For delegation by the Chief Executive Officer, see
29
subsection 154L(2).
30
35 Subsections 118(2) to (6)
31
Repeal the subsections, substitute:
32
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 2
Amendments relating to the Education Legislation Amendment (Up-front
Payments Tuition Protection) Act 2020
70
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Infringement officer
1
(2) For the purposes of Part 5 of the Regulatory Powers Act:
2
(a) an authorised officer is an infringement officer in relation to
3
the provisions mentioned in subsection (1) (except a
4
provision of Part 5A); and
5
(b) the Higher Education Tuition Protection Director is an
6
infringement officer in relation to a civil penalty provision of
7
Part 5A.
8
Relevant chief executive
9
(3) For the purposes of Part 5 of the Regulatory Powers Act:
10
(a) the Chief Executive Officer is the relevant chief executive in
11
relation to the provisions mentioned in subsection (1) (except
12
a provision of Part 5A); and
13
(b) the Higher Education Tuition Protection Director is the
14
relevant chief executive in relation to a civil penalty
15
provision of Part 5A.
16
Note:
For delegation by the Chief Executive Officer, see
17
subsection 154L(2).
18
36 Subsections 119(2) to (4)
19
Repeal the subsections, substitute:
20
Authorised person
21
(2) For the purposes of Part 6 of the Regulatory Powers Act:
22
(a) each of the following persons is an authorised person in
23
relation to a provision of this Act (except Part 5A):
24
(i) a Commissioner;
25
(ii) the Chief Executive Officer; and
26
(b) the Secretary is an authorised person in relation to a
27
provision of Part 5A.
28
Note:
For delegation by the Chief Executive Officer, see
29
subsection 154L(2). For delegation by the Secretary, see
30
section 201A.
31
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Amendments relating to the Education Legislation Amendment (Up-front Payments
Tuition Protection) Act 2020
Part 2
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
71
37 Subsection 127(1) (note) (the note inserted by item 14 of
1
Schedule 1 to the
Education Legislation Amendment
2
(Up-front Payments Tuition Protection) Act 2020
)
3
Repeal the note.
4
38 Subsections 127(2) to (4)
5
Repeal the subsections, substitute:
6
Authorised person
7
(2) For the purposes of Part 7 of the Regulatory Powers Act:
8
(a) each of the following persons is an authorised person in
9
relation to a provision of this Act (except Part 5A):
10
(i) a Commissioner;
11
(ii) the Chief Executive Officer; and
12
(b) the Secretary is an authorised person in relation to a
13
provision of Part 5A.
14
Note:
For delegation by the Chief Executive Officer, see
15
subsection 154L(2). For delegation by the Secretary, see
16
section 201A.
17
39 Division 5 of Part 7 (the Division inserted by item 15 of
18
Schedule 1 to the
Education Legislation Amendment
19
(Up-front Payments Tuition Protection) Act 2020
)
20
Repeal the Division.
21
40 Subsection 154L(1)
22
Omit "(other than the functions and powers referred to in
23
subsection (2))".
24
41 Subsection 154L(2)
25
Omit "Part 5A of".
26
42 Paragraph 154L(2)(b)
27
After "Executive Level", insert "1 or".
28
Schedule 5
Amendment of the Tertiary Education Quality and Standards Agency Act
2011
Part 2
Amendments relating to the Education Legislation Amendment (Up-front
Payments Tuition Protection) Act 2020
72
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
43 Subsection 201A(1)
1
Omit "or Division 5 of Part 7".
2
Amendment of the Tertiary Education Quality and Standards Agency Act 2011
Schedule 5
Amendments relating to the Federal Circuit and Family Court of Australia Act 2020
Part 3
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
73
Part 3--Amendments relating to the Federal Circuit
1
and Family Court of Australia Act 2020
2
Tertiary Education Quality and Standards Agency Act 2011
3
44 Paragraph 115(11)(b)
4
Repeal the paragraph, substitute:
5
(b) the Federal Circuit and Family Court of Australia
6
(Division 2).
7
45 Paragraph 116(10)(b)
8
Repeal the paragraph, substitute:
9
(b) the Federal Circuit and Family Court of Australia
10
(Division 2).
11
46 Paragraph 117(5)(b)
12
Repeal the paragraph, substitute:
13
(b) the Federal Circuit and Family Court of Australia
14
(Division 2).
15
47 Paragraph 119(5)(b)
16
Repeal the paragraph, substitute:
17
(b) the Federal Circuit and Family Court of Australia
18
(Division 2).
19
48 Paragraph 127(5)(b)
20
Repeal the paragraph, substitute:
21
(b) the Federal Circuit and Family Court of Australia
22
(Division 2).
23
Schedule 6
Amendment of the Tobacco Advertising Prohibition Act 1992
Part 1
Main amendments
74
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Schedule 6--Amendment of the Tobacco
1
Advertising Prohibition Act 1992
2
Part 1--Main amendments
3
Division 1
--Amendments
4
Tobacco Advertising Prohibition Act 1992
5
1 Section 8
6
Insert:
7
authorised officer
means a person appointed under section 25G as
8
an authorised officer.
9
Regulatory Powers Act
means the
Regulatory Powers (Standard
10
Provisions) Act 2014
.
11
Secretary
means the Secretary of the Department.
12
2 After Part 3
13
Insert:
14
Part 3A--Enforcement
15
Division 1--Simplified outline
16
25A Simplified outline of this Part
17
•
The Regulatory Powers Act is triggered to allow a range of
18
enforcement actions in relation to this Act.
19
•
Authorised officers are permitted to enter premises under a
20
monitoring warrant or with consent of the occupier and to
21
exercise monitoring powers under that Act for the purposes of
22
determining whether provisions of this Act have been
23
complied with.
24
Amendment of the Tobacco Advertising Prohibition Act 1992
Schedule 6
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
75
•
Authorised officers are permitted to enter premises under an
1
investigation warrant or with consent of the occupier and to
2
exercise investigation powers under that Act for the purposes
3
of gathering material relating to the contravention of offences
4
in this Act.
5
•
Undertakings to comply with this Act may be accepted and
6
enforced under that Act. If a person gives an undertaking, the
7
undertaking may be enforced by a court order.
8
•
A court can grant an injunction restraining a person from
9
contravening provisions of this Act.
10
•
The Secretary may appoint authorised officers for the
11
purposes of those officers exercising powers under that Act.
12
Division 2--Monitoring powers
13
25B Monitoring powers
14
Provisions subject to monitoring
15
(1) A provision is subject to monitoring under Part 2 of the Regulatory
16
Powers Act if it is:
17
(a) an offence against this Act; or
18
(b) an offence against the
Crimes Act 1914
or the
Criminal Code
19
that relates to this Act.
20
Note:
Part 2 of the Regulatory Powers Act creates a framework for
21
monitoring whether this Act has been complied with. It includes
22
powers of entry and inspection.
23
Related provisions
24
(2) For the purposes of Part 2 of the Regulatory Powers Act, as that
25
Part applies in relation to the provisions mentioned in
26
subsection (1), there are no related provisions.
27
Schedule 6
Amendment of the Tobacco Advertising Prohibition Act 1992
Part 1
Main amendments
76
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Authorised applicant
1
(3) For the purposes of Part 2 of the Regulatory Powers Act, each of
2
the following persons is an authorised applicant in relation to the
3
provisions mentioned in subsection (1):
4
(a) the Secretary;
5
(b) an SES employee, or acting SES employee, in the
6
Department.
7
Authorised person
8
(4) For the purposes of Part 2 of the Regulatory Powers Act, an
9
authorised officer is an authorised person in relation to the
10
provisions mentioned in subsection (1).
11
Issuing officer
12
(5) For the purposes of Part 2 of the Regulatory Powers Act, a
13
magistrate is an issuing officer in relation to the provisions
14
mentioned in subsection (1).
15
Relevant chief executive
16
(6) For the purposes of Part 2 of the Regulatory Powers Act, the
17
Secretary is the relevant chief executive in relation to the
18
provisions mentioned in subsection (1).
19
(7) The Secretary may, in writing, delegate the powers and functions
20
mentioned in subsection (8) to an SES employee, or acting SES
21
employee, in the Department.
22
(8) The powers and functions that may be delegated are:
23
(a) powers and functions under Part 2 of the Regulatory Powers
24
Act in relation to the provisions mentioned in subsection (1);
25
and
26
(b) powers and functions under the Regulatory Powers Act that
27
are incidental to a power or function mentioned in
28
paragraph (a).
29
(9) A person exercising powers or performing functions under a
30
delegation under subsection (7) must comply with any directions of
31
the Secretary.
32
Amendment of the Tobacco Advertising Prohibition Act 1992
Schedule 6
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
77
Relevant court
1
(10) For the purposes of Part 2 of the Regulatory Powers Act, each of
2
the following courts is a relevant court
in relation to the provisions
3
mentioned in subsection (1):
4
(a) the Federal Court of Australia;
5
(b) the Federal Circuit Court of Australia.
6
Person assisting
7
(11) An authorised person may be assisted by other persons in
8
exercising powers or performing functions or duties under Part 2 of
9
the Regulatory Powers Act in relation to the provisions mentioned
10
in subsection (1).
11
Extension to external Territories
12
(12) Part 2 of the Regulatory Powers Act, as that Part applies in relation
13
to the provisions mentioned in subsection (1), extends to every
14
external Territory.
15
Division 3--Investigation powers
16
25C Investigation powers
17
Provisions subject to investigation
18
(1) A provision is subject to investigation under Part 3 of the
19
Regulatory Powers Act if it is:
20
(a) an offence against this Act; or
21
(b) an offence against the
Crimes Act 1914
or the
Criminal Code
22
that relates to this Act.
23
Note:
Part 3 of the Regulatory Powers Act creates a framework for
24
investigating whether a provision has been contravened. It includes
25
powers of entry, search and seizure.
26
Related provisions
27
(2) For the purposes of Part 3 of the Regulatory Powers Act, as that
28
Part applies in relation to evidential material that relates to a
29
Schedule 6
Amendment of the Tobacco Advertising Prohibition Act 1992
Part 1
Main amendments
78
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
provision mentioned in subsection (1), there are no related
1
provisions.
2
Authorised applicant
3
(3) For the purposes of Part 3 of the Regulatory Powers Act, each of
4
the following persons is an authorised applicant in relation to
5
evidential material that relates to a provision mentioned in
6
subsection (1):
7
(a) the Secretary;
8
(b) an SES employee, or acting SES employee, in the
9
Department.
10
Authorised person
11
(4) For the purposes of Part 3 of the Regulatory Powers Act, an
12
authorised officer is an authorised person in relation to evidential
13
material that relates to a provision mentioned in subsection (1).
14
Issuing officer
15
(5) For the purposes of Part 3 of the Regulatory Powers Act, a
16
magistrate is an issuing officer in relation to evidential material
17
that relates to a provision mentioned in subsection (1).
18
Relevant chief executive
19
(6) For the purposes of Part 3 of the Regulatory Powers Act, the
20
Secretary is the relevant chief executive in relation to evidential
21
material that relates to a provision mentioned in subsection (1).
22
(7) The Secretary may, in writing, delegate the powers and functions
23
mentioned in subsection (8) to an SES employee, or acting SES
24
employee, in the Department.
25
(8) The powers and functions that may be delegated are:
26
(a) powers and functions under Part 3 of the Regulatory Powers
27
Act in relation to evidential material that relates to a
28
provision mentioned in subsection (1); and
29
(b) powers and functions under the Regulatory Powers Act that
30
are incidental to a power or function mentioned in
31
paragraph (a).
32
Amendment of the Tobacco Advertising Prohibition Act 1992
Schedule 6
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
79
(9) A person exercising powers or performing functions under a
1
delegation under subsection (7) must comply with any directions of
2
the Secretary.
3
Relevant court
4
(10) For the purposes of Part 3 of the Regulatory Powers Act, each of
5
the following courts is a relevant court in relation to evidential
6
material that relates to a provision mentioned in subsection (1):
7
(a) the Federal Court of Australia;
8
(b) the Federal Circuit Court of Australia.
9
Person assisting
10
(11) An authorised person may be assisted by other persons in
11
exercising powers or performing functions or duties under Part 3 of
12
the Regulatory Powers Act in relation to evidential material that
13
relates to a provision mentioned in subsection (1).
14
Extension to external Territories
15
(12) Part 3 of the Regulatory Powers Act, as that Part applies in relation
16
to a provision
mentioned in subsection (1), extends to every
17
external Territory.
18
25D Modifications of Part 3 of the Regulatory Powers Act
19
Part 3 of the Regulatory Powers Act applies in relation to
20
evidential material that relates to a provision mentioned in
21
subsection 25C(1) of this Act as if a reference in paragraphs
22
66(1)(c) and 67(1)(a) of the Regulatory Powers Act to 60 days
23
were a reference to 90 days.
24
Note:
Those paragraphs relate to the period for returning things seized under
25
Part 3 of the Regulatory Powers Act.
26
Schedule 6
Amendment of the Tobacco Advertising Prohibition Act 1992
Part 1
Main amendments
80
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Division 4--Enforceable undertakings
1
25E Enforceable undertakings
2
Enforceable provisions
3
(1) A provision is enforceable under Part 6 of the Regulatory Powers
4
Act if it is an offence against this Act.
5
Note:
Part 6 of the Regulatory Powers Act creates a framework for
6
accepting and enforcing undertakings relating to compliance with
7
provisions.
8
Authorised person
9
(2) For the purposes of Part 6 of the Regulatory Powers Act, the
10
Secretary is an authorised person in relation to the provisions
11
mentioned in subsection (1).
12
(3) The Secretary may, in writing, delegate to an SES employee, or
13
acting SES employee, in the Department the Secretary's powers
14
under Part 6 of the Regulatory Powers Act in relation to the
15
provisions mentioned in subsection (1).
16
Relevant court
17
(4) For the purposes of Part 6 of the Regulatory Powers Act, each of
18
the following courts is a relevant court in relation to the provisions
19
mentioned in subsection (1:
20
(a) the Federal Court of Australia;
21
(b) the Federal Circuit Court of Australia.
22
Extension to external Territories
23
(5) Part 6 of the Regulatory Powers Act, as that Part applies in relation
24
to the provisions mentioned in subsection (1), extends to every
25
external Territory.
26
Amendment of the Tobacco Advertising Prohibition Act 1992
Schedule 6
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
81
Division 5--Injunctions
1
25F Injunctions
2
Enforceable provisions
3
(1) A provision is enforceable under Part 7 of the Regulatory Powers
4
Act if it is an offence against this Act.
5
Note:
Part 7 of the Regulatory Powers Act creates a framework for using
6
injunctions to enforce provisions.
7
Authorised person
8
(2) For the purposes of Part 7 of the Regulatory Powers Act, the
9
Secretary is an authorised person in relation to the provisions
10
mentioned in subsection (1).
11
(3) The Secretary may, in writing, delegate to an SES employee, or
12
acting SES employee, in the Department the Secretary's powers
13
under Part 7 of the Regulatory Powers Act in relation to the
14
provisions mentioned in subsection (1).
15
Relevant court
16
(4) For the purposes of Part 7 of the Regulatory Powers Act, each of
17
the following courts is a relevant court in relation to the provisions
18
mentioned in subsection (1):
19
(a) the Federal Court of Australia;
20
(b) the Federal Circuit Court of Australia;
21
Extension to external Territories
22
(5) Part 7 of the Regulatory Powers Act, as it applies in relation to
the
23
provisions mentioned in subsection (1), extends to every external
24
Territory.
25
Schedule 6
Amendment of the Tobacco Advertising Prohibition Act 1992
Part 1
Main amendments
82
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Division 6--Appointment of authorised officers
1
25G Appointment of authorised officers
2
(1) The Secretary may, in writing, appoint the following persons as
3
authorised officers for the purposes of this Part:
4
(a) a person who is appointed or engaged under the
Public
5
Service Act 1999
;
6
(b) a person who is appointed or engaged otherwise than under
7
the
Public Service Act 1999
by the Commonwealth or by a
8
Commonwealth entity within the meaning of the
Public
9
Governance, Performance and Accountability Act 2013
;
10
(c) a member or special member of the Australian Federal
11
Police.
12
(2) The Secretary may appoint a person as an authorised officer only if
13
the Secretary is satisfied that the person has suitable qualifications,
14
training or experience.
15
(3) An authorised officer is appointed for the period specified in the
16
instrument of appointment.
17
Note:
An authorised officer is eligible for reappointment (see section 33AA
18
of the
Acts Interpretation Act 1901
).
19
Division 2
--Application provisions
20
3 Application provision
--monitoring
21
Part 2 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
22
Part applies under Division 2 of Part 3A of the
Tobacco Advertising
23
Prohibition Act 1992
, applies in relation to determining whether a
24
provision mentioned in subsection 25B(1) of the
Tobacco Advertising
25
Prohibition Act 1992
has been complied with on or after the
26
commencement of this Part.
27
Amendment of the Tobacco Advertising Prohibition Act 1992
Schedule 6
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
83
4 Application provision
--investigation
1
Part 3 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
2
Part applies under Division 3 of Part 3A of the
Tobacco Advertising
3
Prohibition Act 1992
, applies in relation to evidential material that
4
relates to a provision mentioned in subsection 25C(1) of the
Tobacco
5
Advertising Prohibition Act 1992
, if the suspected contravention of the
6
provision occurred on or after the commencement of this Part.
7
5 Application provision
--enforceable undertakings
8
Part 6 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
9
Part applies under Division 4 of Part 3A of the
Tobacco Advertising
10
Prohibition Act 1992
, applies in relation to undertakings given on or
11
after the commencement of this Part.
12
6 Application provision
--injunctions
13
Part 7 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
14
Part applies under Division 5 of Part 3A of the
Tobacco Advertising
15
Prohibition Act 1992
, applies in relation to contraventions occurring on
16
or after the commencement of this Part.
17
Schedule 6
Amendment of the Tobacco Advertising Prohibition Act 1992
Part 2
Amendments relating to the Federal Circuit and Family Court of Australia Act
2020
84
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Part 2--Amendments relating to the Federal Circuit
1
and Family Court of Australia Act 2020
2
Tobacco Advertising Prohibition Act 1992
3
7 Paragraph 25B(10)(b)
4
Repeal the paragraph, substitute:
5
(b) the Federal Circuit and Family Court of Australia
6
(Division 2).
7
8 Paragraph 25C(10)(b)
8
Repeal the paragraph, substitute:
9
(b) the Federal Circuit and Family Court of Australia
10
(Division 2).
11
9 Paragraph 25E(4)(b)
12
Repeal the paragraph, substitute:
13
(b) the Federal Circuit and Family Court of Australia
14
(Division 2).
15
10 Paragraph 25F(4)(b)
16
Repeal the paragraph, substitute:
17
(b) the Federal Circuit and Family Court of Australia
18
(Division 2).
19
Amendment of the Tobacco Plain Packaging Act 2011
Schedule 7
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
85
Schedule 7--Amendment of the Tobacco Plain
1
Packaging Act 2011
2
Part 1--Main amendments
3
Division 1
--Amendments
4
Tobacco Plain Packaging Act 2011
5
1 Subsection 4(1)
6
Repeal the following definitions:
7
(a) definition of
Deputy President
;
8
(b) definition of
non-presidential member
.
9
2 Chapter 4 (heading)
10
Repeal the heading, substitute:
11
Chapter 4--Powers to monitor compliance
12
with and investigate contraventions of
13
this Act
14
3 Section 51
15
Omit:
16
This Chapter applies the Regulatory Powers Act to enable
17
authorised officers to enter premises and exercise investigation
18
powers to determine whether there has been a contravention of any
19
of the provisions of this Act or an offence against the
Crimes Act
20
1914
or the
Criminal Code
that relates to this Act.
21
Entry must be with the consent of the occupier of the premises or
22
under an investigation warrant.
23
An authorised officer exercising investigation powers may be
24
assisted by other persons if that assistance is necessary and
25
reasonable.
26
Schedule 7
Amendment of the Tobacco Plain Packaging Act 2011
Part 1
Main amendments
86
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
substitute:
1
The Regulatory Powers Act is triggered to allow the monitoring of
2
compliance with, and the investigation of contraventions of, this
3
Act.
4
Authorised officers may enter premises and exercise monitoring
5
powers to determine whether there has been compliance with
6
provisions of this Act or an offence against the
Crimes Act 1914
or
7
the
Criminal Code
that relates to this Act.
8
Authorised officers may enter premises and exercise investigation
9
powers to determine whether there has been a contravention of
10
provisions of this Act or an offence against the
Crimes Act 1914
or
11
the
Criminal Code
that relates to this Act.
12
Entry must be with the consent of the occupier of the premises or
13
under a monitoring warrant or investigation warrant.
14
An authorised officer exercising monitoring or investigation
15
powers may be assisted by other persons if that assistance is
16
necessary and reasonable.
17
4 After Part 1 of Chapter 4
18
Insert:
19
Part 1A--Monitoring
20
21
51A Monitoring powers
22
Provisions subject to monitoring
23
(1) A provision is subject to monitoring under Part 2 of the Regulatory
24
Powers Act if it is:
25
(a) an offence against this Act; or
26
(b) a civil penalty provision of this Act; or
27
(c) an offence against the
Crimes Act 1914
or the
Criminal Code
28
that relates to this Act.
29
Amendment of the Tobacco Plain Packaging Act 2011
Schedule 7
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
87
Note:
Part 2 of the Regulatory Powers Act creates a framework for
1
monitoring whether this Act has been complied with. It includes
2
powers of entry and inspection.
3
Related provisions
4
(2) For the purposes of Part 2 of the Regulatory Powers Act, as that
5
Part applies in relation to the provisions mentioned in
6
subsection (1), there are no related provisions.
7
Authorised applicant and authorised person
8
(3) For the purposes of Part 2 of the Regulatory Powers Act, an
9
authorised officer is both an authorised applicant and an authorised
10
person in relation to the provisions mentioned in subsection (1).
11
Issuing officer
12
(4) For the purposes of Part 2 of the Regulatory Powers Act, a
13
magistrate is an issuing officer in relation to the provisions
14
mentioned in subsection (1).
15
Relevant chief executive
16
(5) For the purposes of Part 2 of the Regulatory Powers Act, the
17
Secretary is the relevant chief executive in relation to the
18
provisions mentioned in subsection (1).
19
(6) The Secretary may, in writing, delegate to an SES employee, or
20
acting SES employee, in the Department the Secretary's powers
21
and functions under Part 2 of the Regulatory Powers Act in relation
22
to the provisions mentioned in subsection (1).
23
(7) In exercising powers or performing functions delegated under
24
subsection (6), the delegate must comply with any directions of the
25
Secretary.
26
Relevant court
27
(8) For the purposes of Part 2 of the Regulatory Powers Act, each of
28
the following courts is a relevant court in relation to the provisions
29
mentioned in subsection (1):
30
(a) the Federal Court of Australia;
31
Schedule 7
Amendment of the Tobacco Plain Packaging Act 2011
Part 1
Main amendments
88
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
(b) the Federal Circuit Court of Australia.
1
Additional monitoring powers
2
(9) For the purposes of determining whether a provision mentioned in
3
subsection (1) has been, or is being, complied with, the additional
4
monitoring powers mentioned in subsection (10) are taken to be
5
included in the monitoring powers under Part 2 of the Regulatory
6
Powers Act.
7
(10) The additional monitoring powers are the powers to take, test and
8
analyse samples of any thing on premises entered under Part 2 of
9
the Regulatory Powers Act.
10
Use of force in executing a warrant
11
(11) In executing a monitoring warrant under Part 2 of the Regulatory
12
Powers Act as that Part applies in relation to the provisions
13
mentioned in subsection (1):
14
(a) an authorised person may use such force against things as is
15
necessary and reasonable in the circumstances; and
16
(b) a person assisting the authorised person may use such force
17
against things as is necessary and reasonable in the
18
circumstances.
19
Person assisting
20
(12) An authorised person may be assisted by other persons in
21
exercising powers or performing functions or duties under Part 2 of
22
the Regulatory Powers Act in relation to the provisions mentioned
23
in subsection (1).
24
Self-incrimination etc.
25
(13) Despite section 17 of the Regulatory Powers Act, an individual is
26
not excused from answering a question, or producing a document,
27
under subsection 24(3) of that Act, as Part 2 of that Act applies in
28
relation to this Act, on the ground that answering the question, or
29
producing the document, might tend to incriminate the individual
30
in relation to an offence.
31
Note:
A body corporate is not entitled to claim the privilege against
32
self-incrimination.
33
Amendment of the Tobacco Plain Packaging Act 2011
Schedule 7
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
89
(14) However:
1
(a) the answer given or document produced; and
2
(b) the answering of the question or the production of the
3
document; and
4
(c) any information, document or thing obtained as a direct or
5
indirect consequence of the answering of the question or the
6
production of the document;
7
are not admissible in evidence against the individual in criminal
8
proceedings, other than proceedings for an offence against:
9
(d) section 137.1 or 137.2 of the
Criminal Code
(which deals
10
with false or misleading information or documents) that
11
relates to this Act; or
12
(e) section 149.1 of the
Criminal Code
(which deals with
13
obstruction of Commonwealth public officials) that relates to
14
this Act.
15
(15) If, at general law, an individual would otherwise be able to claim
16
the privilege against self-exposure to a penalty (other than a
17
penalty for an offence) in relation to answering a question, or
18
producing a document, under subsection 24(3) of the Regulatory
19
Powers Act, as Part 2 of that Act applies in relation to this Act, the
20
individual is not excused from answering the question or producing
21
the document under that subsection on that ground.
22
Note:
A body corporate is not entitled to claim the privilege against
23
self-exposure to a penalty.
24
Extension to external Territories
25
(16) Part 2 of the Regulatory Powers Act, as that Part applies in relation
26
to the provisions mentioned in subsection (1), extends to every
27
external Territory.
28
5 Subsections 52(4) and (5)
29
Repeal the subsections, substitute:
30
Issuing officer
31
(4) For the purposes of Part 3 of the Regulatory Powers Act, a
32
magistrate is an issuing officer in relation to evidential material
33
that relates to a provision mentioned in subsection (1).
34
Schedule 7
Amendment of the Tobacco Plain Packaging Act 2011
Part 1
Main amendments
90
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
6 Subsection 52(10)
1
Omit "additional power mentioned in subsection (11) is", substitute
2
"additional powers mentioned in subsection (11) are".
3
7 Subsection 52(11)
4
Omit "investigation power is the power to take samples", substitute
5
"investigation powers are the powers to take, test and analyse samples".
6
8 Subsections 52(14) and (15)
7
Repeal the subsections, substitute:
8
Self-incrimination etc.
9
(14) Despite section 47 of the Regulatory Powers Act, an individual is
10
not excused from answering a question, or producing a document,
11
under subsection 54(3) of that Act, as Part 3 of that Act applies in
12
relation to this Act, on the ground that answering the question, or
13
producing the document, might tend to incriminate the individual
14
in relation to an offence.
15
Note:
A body corporate is not entitled to claim the privilege against
16
self-incrimination.
17
(15) However:
18
(a) the answer given or document produced; and
19
(b) the answering of the question or the production of the
20
document; and
21
(c) any information, document or thing obtained as a direct or
22
indirect consequence of the answering of the question or the
23
production of the document;
24
are not admissible in evidence against the individual in criminal
25
proceedings, other than proceedings for an offence against:
26
(d) section 137.1 or 137.2 of the
Criminal Code
(which deals
27
with false or misleading information or documents) that
28
relates to this Act; or
29
(e) section 149.1 of the
Criminal Code
(which deals with
30
obstruction of Commonwealth public officials) that relates to
31
this Act.
32
(15A) If, at general law, an individual would otherwise be able to claim
33
the privilege against self-exposure to a penalty (other than a
34
Amendment of the Tobacco Plain Packaging Act 2011
Schedule 7
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
91
penalty for an offence) in relation to answering a question, or
1
producing a document, under subsection 54(3) of the Regulatory
2
Powers Act, as Part 3 of that Act applies in relation to this Act, the
3
individual is not excused from answering the question or producing
4
the document under that subsection on that ground.
5
Note:
A body corporate is not entitled to claim the privilege against
6
self-exposure to a penalty.
7
9 At the end of Part 2 of Chapter 4
8
Add:
9
53 Modifications of Part 3 of the Regulatory Powers Act
10
Part 3 of the Regulatory Powers Act applies in relation to
11
evidential material that relates to a provision mentioned in
12
subsection 52(1) of this Act as if a reference in paragraphs 66(1)(c)
13
and 67(1)(a) of the Regulatory Powers Act to 60 days were a
14
reference to 90 days.
15
Note:
Those paragraphs relate to the period for returning things seized under
16
Part 3 of the Regulatory Powers Act.
17
10 Section 84
18
Omit "and for infringement notices", substitute ", for infringement
19
notices, for enforceable undertakings and for injunctions".
20
11 At the end of section 84
21
Add:
22
•
Undertakings to comply with this Act may be accepted and
23
enforced under Part 6 of the Regulatory Powers Act. If a
24
person gives an undertaking, the undertaking may be enforced
25
by a court order.
26
•
A court can grant an injunction under Part 7 of the Regulatory
27
Powers Act restraining a person from contravening a
28
provision of this Act or requiring a person to comply with a
29
provision of this Act.
30
Schedule 7
Amendment of the Tobacco Plain Packaging Act 2011
Part 1
Main amendments
92
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
12 Part 2 of Chapter 5 (heading)
1
Repeal the heading, substitute:
2
Part 2--Civil penalties, infringement notices,
3
enforceable undertakings and injunctions
4
13 At the end of Part 2 of Chapter 5
5
Add:
6
87 Enforceable undertakings
7
Enforceable provisions
8
(1) A provision is enforceable under Part 6 of the Regulatory Powers
9
Act if it is:
10
(a) an offence against this Act; or
11
(b) a civil penalty provision of this Act.
12
Note:
Part 6 of the Regulatory Powers Act creates a framework for
13
accepting and enforcing undertakings relating to compliance with
14
provisions.
15
Authorised person
16
(2) For the purposes of Part 6 of the Regulatory Powers Act, the
17
Secretary is an authorised person in relation to the provisions
18
mentioned in subsection (1).
19
(3) The Secretary may, in writing, delegate to an SES employee, or
20
acting SES employee, in the Department the Secretary's powers
21
under Part 6 of the Regulatory Powers Act in relation to the
22
provisions mentioned in subsection (1).
23
Relevant court
24
(4) For the purposes of Part 6 of the Regulatory Powers Act, each of
25
the following courts is a relevant court in relation to the provisions
26
mentioned in subsection (1):
27
(a) the Federal Court of Australia;
28
(b) the Federal Circuit Court of Australia.
29
Amendment of the Tobacco Plain Packaging Act 2011
Schedule 7
Main amendments
Part 1
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
93
Extension to external Territories
1
(5) Part 6 of the Regulatory Powers Act, as that Part applies in relation
2
to the provisions mentioned in subsection (1), extends to every
3
external Territory.
4
88 Injunctions
5
Enforceable provisions
6
(1) A provision is enforceable under Part 7 of the Regulatory Powers
7
Act if it is:
8
(a) an offence against this Act; or
9
(b) a civil penalty provision of this Act.
10
Note:
Part 7 of the Regulatory Powers Act allows a provision to be enforced
11
by obtaining an injunction.
12
Authorised person
13
(2) For the purposes of Part 7 of the Regulatory Powers Act, the
14
Secretary is an authorised person in relation to the provisions
15
mentioned in subsection (1).
16
(3) The Secretary may, in writing, delegate to an SES employee, or
17
acting SES employee, in the Department the Secretary's powers
18
under Part 7 of the Regulatory Powers Act in relation to the
19
provisions mentioned in subsection (1).
20
Relevant court
21
(4) For the purposes of Part 7 of the Regulatory Powers Act, each of
22
the following courts is a relevant court in relation to the provisions
23
mentioned in subsection (1):
24
(a) the Federal Court of Australia;
25
(b) the Federal Circuit Court of Australia.
26
Extension to external Territories
27
(5) Part 7 of the Regulatory Powers Act, as that Part applies in relation
28
to the provisions mentioned in subsection (1), extends to every
29
external Territory.
30
Schedule 7
Amendment of the Tobacco Plain Packaging Act 2011
Part 1
Main amendments
94
Regulatory Powers (Standardisation Reform) Bill 2020
No. , 2020
Division 2
--Application provisions
1
14 Application provision
--monitoring
2
Part 2 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
3
Part applies under Part 1A of Chapter 4 of the
Tobacco Plain
4
Packaging Act 2011
, applies in relation to determining whether a
5
provision mentioned in subsection 51A(1) of the
Tobacco Plain
6
Packaging Act 2011
has been complied with on or after the
7
commencement of this Part.
8
15 Application provisions
--investigation
9
(1)
The amendments of section 52 of the
Tobacco Plain Packaging Act
10
2011
made by this Part apply in relation to entries to premises that
11
occur on or after the commencement of this Part.
12
(2)
Section 53 of the
Tobacco Plain Packaging Act 2011
, as added by this
13
Part, applies in relation to entries to premises that occur on or after the
14
commencement of this Part.
15
16 Application provision
--enforceable undertakings
16
Part 6 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
17
Part applies under section 87 of the
Tobacco Plain Packaging Act 2011
,
18
applies in relation to undertakings given on or after the commencement
19
of this Part.
20
17 Application provision
--injunctions
21
Part 7 of the
Regulatory Powers (Standard Provisions) Act 2014
, as that
22
Part applies under section 88 of the
Tobacco Plain Packaging Act 2011
,
23
applies in relation to contraventions occurring on or after the
24
commencement of this Part.
25
Amendment of the Tobacco Plain Packaging Act 2011
Schedule 7
Amendments relating to the Federal Circuit and Family Court of Australia Act 2020
Part 2
No. , 2020
Regulatory Powers (Standardisation Reform) Bill 2020
95
Part 2--Amendments relating to the Federal Circuit
1
and Family Court of Australia Act 2020
2
Tobacco Plain Packaging Act 2011
3
18 Paragraph 51A(8)(b)
4
Repeal the paragraph, substitute:
5
(b) the Federal Circuit and Family Court of Australia
6
(Division 2).
7
19 Paragraph 87(4)(b)
8
Repeal the paragraph, substitute:
9
(b) the Federal Circuit and Family Court of Australia
10
(Division 2).
11
20 Paragraph 88(4)(b)
12
Repeal the paragraph, substitute:
13
(b) the Federal Circuit and Family Court of Australia
14
(Division 2).
15