Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
REGULATORY POWERS (STANDARD PROVISIONS) BILL 2012
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus QC MP)
THIS MEMORANDUM TAKES ACCOUNT OF RECOMMENDATIONS MADE BY THE
SENATE LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
REPORT TABLED ON 18 MARCH 2013
REGULATORY POWERS (STANDARD PROVISIONS) BILL 2012
OUTLINE
The Regulatory Powers (Standard Provisions) Bill 2012 provides for a framework of standard
regulatory powers exercised by agencies across the Commonwealth. The Bill would only
apply to regulatory schemes that trigger its provisions through amendment of existing
legislation or the introduction of new legislation. The key features of the Bill include
monitoring and investigation powers as well as enforcement provisions through use of civil
penalty, infringement notices, enforceable undertakings and injunctions.
The proposed government amendment will ensure that the Bill's provisions can only be
triggered by an Act or amending Act and not by regulation or instrument.
FINANCIAL IMPACT STATEMENT
There is no financial impact associated with this Bill. However, this Bill will reduce drafting
and scrutiny time for future Commonwealth laws.
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NOTES ON CLAUSES
Part 1--Preliminary
Clause 3: Simplified outline
1. Clause 3 provides an overview of the Act, broadly outlining the objects of the Act and
the means by which they are achieved, as well as introducing the issues covered in each Part
of the Act. Clause 3 also makes clear that the monitoring, investigation and enforcement
powers outlined in the Act do not stand alone and must be activated by another Act for the
provisions in this Act to apply.
2. Amendment (1) will omit the words "by a regulation" at lines 16 and 17 and the
words "The power to make a regulation triggering this Act must be found in another Act" at
lines 18 and 19 of Clause 3. The proposed amendment will ensure that the Bill's provisions
will only be triggered by an Act of Parliament.
Part 2--Monitoring
Division 1--Outline and operation of this Part
Clause 7: Simplified outline
3. Clause 7 provides an outline of Part 2 of the Act, which provides the powers and
processes by which compliance with the Act may be investigated.
4. Amendments (3) and ((4) omit the words "or a regulation" at lines 13 and 21 so that
only a triggering Act can make a provision or information subject to monitoring under this
Part.
Clause 9: Provisions subject to monitoring
5. Clause 9 clarifies that a provision of an Act or legislative instrument is subject to
monitoring under this Part if a triggering Act provides so.
6. Amendment (5) omits the words "or a regulation" at line 21.
Clause 10: Information subject to monitoring
7. Clause 10 clarifies that information given in compliance, or purported compliance,
with a provision of an Act or legislative instrument is subject to monitoring if a triggering Act
provides so.
8. Amendment (6) omits the words "or a regulation" at line 26.
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Clause 11: Related provisions
9. Clause 11 provides that a provision is related to an information or a monitored
provision, if a triggering Act provides that the provision is so related.
10. Amendments (7) and (8) omit the words "or a regulation" at lines 3 and 6.
Clause 12: Authorised applicant
11. Clause 12 provides that an applicant for the purpose of exercising powers or
performing incidental functions or duties is authorised if a triggering Act provides that the
person is an authorised applicant in relation to that provision.
12. Subclause 12(3) provides that a triggering Act may nominate a specified class, or
provide authority to another person to specify that a person or specific class, is an authorised
applicant for the purposes of this Part.
13. Amendments (9) and (10) omit the words "or a regulation" at lines 14 and 23.
Clause 13: Authorised person
14. Clause 13 clarifies that a person is an authorised person for the purpose of exercising
various powers or performing incidental functions or duties under this Part if a triggering Act
provides that the person is an authorised person in relation to that provision.
15. Subclause 13(3) provides that a triggering Act may nominate a specified class, or
provide authority to another person to specify that a person or specific class, is an authorised
person for the purposes of this Part.
16. The Drafting Direction further stipulates that a person should not be specified as an
authorised person unless the person is an APS employee, statutory office holder, State or
Territory officer, a member or employee of a prescribed Agency for the purposes of the
Financial Management and Accountability Act 1997 or a Commonwealth authority for the
purposes of the Commonwealth Authorities and Companies Act 1997.
17. Amendments (11) and (12) omit the words "or a regulation" at lines 7 and 16.
Clause 15: Issuing officer
18. Clause 15 provides that a judicial officer is an issuing officer for the purposes of
exercising various powers, performing incidental functions or duties under this Part if a
triggering Act provides that the judicial officer is an issuing officer in relation to that
provision.
19. Subclause 15(3) provides that an Act may nominate a specified class, or provide
authority to another person to specify that a person or specific class, is an issuing officer for
the purposes of this Part.
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20. Amendments (13) and (14) omit the words "or a regulation" at lines 4 and 11.
Clause 16: Relevant chief executive
21. Clause 16 provides that a person is the relevant chief executive for the purpose of
exercising various powers, performing incidental functions or duties under this Part if a
triggering Act provides so.
22. Subclause 16(3) provides that an Act may nominate a specified class, or provide
authority to another person to specify that a person or specific class, is the relevant chief
executive for the purposes of this Part.
23. Amendments (15) and (16) omit the words "or a regulation" at lines 25 and 1.
Clause 17: Relevant court
24. Clause 17 provides that the relevant court is the court that is relevant in relation to
matters arising under the exercise of these powers if the triggering Act provides so.
25. Amendment (17) omits the words "or a regulation" at line 23.
Clause 18: Matters provided for by legislative instrument
26. Clause 18 provides that, only if the power to do so is given under another Act, can a
legislative instrument provide that a provision is enforceable under this Part or that a person is
an authorised person or a relevant chief executive under this Part.
27. Amendment (18) omits the words "or a regulation" at lines 26 to 29.
Division 2--Powers of authorised persons
Subdivision A--Monitoring powers
Clause 24: Persons assisting authorised persons
28. Authorised persons may require assistance when carrying out their functions and
clause 24 establishes clear legislative basis for such assistance. A person assisting an
authorised person has the power to enter premises and assist an authorised person with any
duties or powers to determine whether the Act is complied with. Any action validly taken in
respect of this power is taken under clause 24 to be done by the authorised person.
29. Amendment (19) omits the words "or a regulation" at line 22.
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Part 3--Investigation
Division 1--Outline and operation of this Part
Clause 37: Simplified outline
30. Clause 37 provides a simplified outline of Part 3 which creates a framework for
gathering material relating to the contravention of offences and civil penalty provisions and
addresses investigation and entry into premises.
31. This clause also requires that a triggering Act must make an offence or civil penalty
provision subject to investigation under this Part for this Part to operate.
32. Amendments (20) and (21) omit the words "or a regulation" at lines 9 and 19.
Clause 39: Provisions subject to investigation
33. Clause 39 provides that an offence or civil penalty provision under a triggering Act is
subject to investigation under this Part if the triggering Act provides so.
34. Amendments (22) and (23) omit the words "or a regulation" at lines 12 and 15.
Clause 41: Related provisions
35. Clause 41 provides that, for the purposes of this Part, a provision is related to
evidential material if a triggering Act provides so.
36. Amendment (24) omits the words "or a regulation" at lines 2 and3.
Clause 42: Authorised applicant
37. Clause 42 clarifies that a person is an authorised applicant for the purpose of
exercising various powers, performing incidental functions or duties under this Part if a
triggering Act provides so.
38. Subclause 42(3) provides that a triggering Act may nominate a specified class, or
provide authority to another person to specify that a person or specific class, is an authorised
applicant for the purposes of this Part.
39. Amendments (25) and (26) omit the words "or a regulation" at lines 7, 8 and 16.
Clause 43: Authorised person
40. Clause 43 clarifies that a person is an authorised person for the purpose of exercising
various powers, performing incidental functions or duties under this Part if a triggering Act
provides that the person is an authorised person in relation to that provision.
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41. Subclause 43(3) provides that a triggering Act may nominate a specified class, or
provide authority to another person to specify that a person or specific class, is an authorised
person for the purposes of this Part.
42. Amendments (27) and (28) omit the words "or a regulation" at lines 28, 29 and 7.
Clause 45: Issuing officer
43. Clause 45 clarifies that a person is an issuing officer for the purpose of exercising
various powers under this Part if a triggering Act provides so.
44. Subclause 45(3) provides that a triggering Act may nominate a specified class, or
provide authority to another person to specify that a person or specific class, is an issuing
officer for the purposes of this Part.
45. Amendments (29) and (30) omit the words "or a regulation" at lines 24 and 31.
Clause 46: Relevant chief executive
46. Clause 46 clarifies that a person is the relevant chief executive for the purpose of
exercising various powers, performing incidental functions or duties under this Part if a
triggering Act provides so.
47. Subclause 46(3) provides that an Act may nominate a specified class, or provide
authority to another person to specify that a person or specific class, is the relevant chief
executive for the purposes of this Part.
48. Amendments (31) and (32) omit the words "or a regulation" at lines 11 and 20.
Clause 47: Relevant court
49. Clause 47 provides that the relevant court is the court that is relevant in relation to
matters arising under the exercise of these powers provided that a triggering Act provides so.
50. Amendment (33) omits the words "or a regulation" at line 6.
Clause 48: Matters provided for by legislative instrument
51. Clause 48 provided that, only if the power to do so is given under another Act, can a
legislative instrument provide that a provision is enforceable under this Part or that a person is
an authorised person, a relevant chief executive or issuing officer under this Part.
52. Amendment (34) omits the clause.
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Division 2--Powers of authorised persons
Subdivision A--Investigation powers
Clause 54: Persons assisting authorised persons
53. Clause 54 provides that an authorised person can exercise investigation powers with
an assistant.
54. Subclause 54(5) states that a direction under paragraph 54(2)(c) is not a legislative
instrument. This is to assist readers to understand the status of directions under paragraph
54(2)(c), which do not meet the meaning of legislative instrument under section 5 of the
Legislative Instruments Act 2003, and is not intended as an exemption from that Act.
55. Amendment (35) omits the words "or a regulation" at line 21.
Part 4--Civil Penalty Provisions
Division 1--Outline and operation of this Part
Clause 78: Simplified outline
56. Clause 78 provides that Part 4 defines civil penalty provision, some rules of general
application in relation to civil penalty provision and a framework for their use in enforcing
civil penalty provisions. Civil penalty orders may be sought from a court in relation to
contraventions of civil penalty provisions.
57. Part 4 provides that a triggering Act must make this Part enforceable in order for the
Part to operate.
58. Amendments (36) and (37) omit the words "or a regulation" at lines 7 and 12.
Clause 81: Enforceable civil penalty provisions
59. Clause 81 provides the basis for enforcing civil penalty provisions under this Part if a
triggering Act provides so.
60. Amendment (38) omits the words "or a regulation" at lines 24 and 25.
Clause 82: Authorised applicant
61. Clause 82 provides that a person is an authorised applicant for the purpose of
exercising various powers, performing incidental functions or duties under this Part if a
triggering Act provides so.
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62. Subclause 82(3) provides that a triggering Act may nominate a specified class, or
provide authority to another person to specify that a person or specific class, is an authorised
applicant for the purposes of this Part.
63. Amendments (39) and (40) omit the words "or a regulation" at lines 30 and 7.
Clause 84: Matters to be provided by legislative instrument
64. Clause 84 outlines that a legislative instrument may provide that a civil penalty
provision is enforceable under this Part or that a person is an authorised applicant or a
relevant chief executive under this Part only if the power to do so is given under another Act.
65. Amendment (42) omits the words "or a regulation" at lines 22 to 25.
Part 5--Infringement notices
Division 1--Outline and operation of this Part
66. An infringement notice is a notice of a pecuniary penalty imposed on a person by
statute setting out particulars of an alleged offence. It gives the person to whom the notice is
issued the option of either paying the penalty set out in the notice to expiate the offence or
electing to have the matter dealt with by a court. The notice also specifies the time and
method for payment and the consequences if the person to whom the notice is issued fails to
respond to the notice either by making payment or electing to contest the alleged offence.
67. Infringement notices are administrative methods for dealing with certain breaches of
the law and are typically used for low-level offences and where a high volume of uncontested
contraventions is likely. Offences subject to infringement notices are generally of strict or
absolute liability and with a clear physical element. Infringement notices are often used as a
low cost and efficient means by which regulators can deal with minor offences and for
wrongdoers to discharge their obligation without appearing before a court.
Clause 101: Simplified outline
68. Clause 101 provides a framework for the use of infringement notices in the
enforcement of provisions. Infringement notices can be issued in relation to a breach of an
offence provision or a civil penalty provision and a person who is given an infringement
notice can choose to pay a specified amount. If the person chooses otherwise, proceedings
can be brought against the person in relation to the contravention.
69. Part 5 provides that a triggering Act must make this Part enforceable in order for the
Part to operate.
70. Amendment (43) omits the words "or a regulation" at line 10.
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Clause 103: Enforceable provisions
71. Clause 103 provides the basis for enforcing offence provisions and civil penalty
provisions with infringement notices if a triggering Act provides so.
72. Amendment (44) omits the words "or a regulation" at line 4.
Clause 104: Infringement officer
73. Clause 104 provides that a person is an infringement officer for the purpose of
exercising various powers, performing incidental functions or duties under this Part if a
triggering Act or regulation provides that the person is an infringement officer in relation to
that provision.
74. Subclause 104(3) provides that a triggering Act may nominate a specified class, or
provide authority to another authorised person to specify that an officer or specific class, is an
infringement officer for the purposes of this Part.
75. The Drafting Direction provides that an authorised person means an APS employee or
an officer of a State or Territory.
76. Amendments (45) and (46) omit the words "or a regulation" at lines 10 and 18.
Clause 105: Relevant chief executive
77. Clause 105 provides that a person is the relevant chief executive for the purpose of
exercising various powers, performing incidental functions or duties under this Part if a
triggering Act provides so.
78. Subclause 105(3) provides that a triggering Act may nominate a specified class, or
provide authority to another person to specify that a person or specific class, is the relevant
chief executive for the purposes of this Part.
79. Amendments (47) and (48) omit the words "or a regulation" at lines 30 and 7.
Clause 106: Matters provided for by legislative instrument
80. Clause 106 provides that, only if the power to do so is given under another Act, can a
legislative instrument provide that a provision is enforceable under this Part or that a person is
an authorised person or a relevant chief executive under this Part.
81. Amendment (49) omits the clause.
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Part 6--Enforceable Undertakings
Division 1--Outline and operation of this Part
Clause 113: Simplified outline
82. Clause 113 permits offence provisions and civil penalty provisions to be enforced by
way of undertakings under Division 4, Part 8 of the Act. This contrasts with infringement
notices, which only may be used to enforce civil penalty provisions.
83. Part 6 provides that a triggering Act must make this Part enforceable in order for the
Part to operate.
84. Amendment (50) omits the words "or a regulation" at line 8.
Clause 115: Enforceable provisions
85. Clause 115 provides the basis for enforcing a provision with undertakings if a
triggering Act provides that the provision is enforceable.
86. Amendments (51) omits the words "or a regulation" at line 23.
Clause 116: Authorised person
87. Clause 116 clarifies that a person is an authorised person for the purpose of exercising
various powers, performing incidental functions or duties under this Part if a triggering Act
provides so.
88. Subclause 116(3) provides that a triggering Act may nominate a specified class, or
provide authority to another person to specify that a person or specific class, is an authorised
person for the purposes of this Part.
89. Amendments (52) and (53) omit the words "or a regulation" at lines 3,4, and 12.
Clause 117: Relevant court
90. Clause 117 clarifies that a court is a relevant court for the purposes of exercising
powers under this Part if a triggering Act provides so.
91. Amendment (54) omits the words "or a regulation" at line 24.
Clause 118: Matters provided for by legislative instrument
92. Clause 118 provides that, only if the power to do so is given under another Act, can a
legislative instrument provide that a provision is enforceable under this Part or that a person is
an authorised person or a relevant chief executive under this Part.
93. Amendment (55) omits the clause.
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Part 7--Injunctions
Division 1--Outline and operation of this Part
Clause 121: Simplified outline
94. Clause 121 provides that both offence provisions and civil penalty provisions in Parts
3 and 5 of the Act are enforceable by way of injunctions.
95. Part 7 provides that a triggering Act must make this Part enforceable in order for the
Part to operate.
96. Amendment (56) omits the words "or a regulation" at line 8.
Clause 123: Enforceable provisions
97. Clause 123 provides the basis for enforcing a provision with injunctions if a triggering
Act provides that the provision is enforceable.
98. Amendment (57) omits the words "or a regulation" at line 20.
Clause 124: Authorised person
99. Clause 124 explains that a person is an authorised person for the purpose of exercising
various powers, performing incidental functions or duties under this Part if a triggering Act
provides so.
100. Subclause 124(3) provides that a triggering Act may nominate a specified class, or
provide authority to another person to specify that a person or specific class, is an authorised
person for the purposes of this Part.
101. Amendments (58) and (59) omit the words "or a regulation" at lines 25 and 9.
Clause 125: Relevant court
102. Clause 125 provides that a court is a relevant court for the purposes of exercising
powers under this Part if a triggering Act provides so.
103. Amendment (60) omits the words "or a regulation" at line 21.
Clause 126: Matters provided for by legislative instrument
104. Clause 126 provides that, only if the power to do so is given under another Act, can a
legislative instrument provide that a provision is enforceable under this Part or that a person is
an authorised person or a relevant chief executive under this Part.
105. Amendment (61) omits the words "or a regulation" at lines 24 to 27.
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