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2010 - 2011 - 2012 - 2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
REGULATORY POWERS (STANDARD PROVISIONS) BILL 2012
REVISED EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Hon. Mark Dreyfus QC MP)
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 monitoring powers in the Bill are based on standard powers that can
already be found across Commonwealth laws. The Bill provides for monitoring
whether legislation is being complied with, or that information given to
the Commonwealth in compliance, or purported compliance, is correct.
The investigation powers contained in the Bill are also commonly found
across the statute book. The powers allow investigation of suspected
contraventions of offences and civil penalty provisions. Investigation
powers provided in the Bill include powers to search and seize evidential
material as well as inspect, examine, measure and test any thing on the
premises. The Bill also provides for the use of civil penalty provisions,
infringement notices and injunctions to enforce provisions, and the
acceptance and enforcement of undertakings relating to compliance with
provisions.
Once enacted the Act will be rolled out progressively. Following passage
of the Bill, new Acts that require investigation or enforcement powers of
the kind available under the Regulatory Powers Bill would be drafted to
trigger the relevant provisions.
Overtime, where substantial amendment is required to existing investigation
and enforcement regimes in current Acts, those regimes will be reviewed
and, if appropriate, amended to instead trigger the relevant provisions in
the Regulatory Powers Bill.
For the regulatory provisions in the Bill to be activated, new or existing
legislation would need to be amended to remove existing regulatory powers
and incorporate the Regulatory Powers Bill's provisions. This also will
mean that future legislation incorporating provisions in this Bill will be
subject to Parliamentary scrutiny. This ensures that distinct assessments
of human rights engagement and compatibility will be apparent in the
drafting and scrutiny process.
In some cases the powers contained in this Bill will not be appropriate
and/or sufficient for some regulatory agencies requirements. For example,
law enforcement agencies that deal with national security will still
require their own specialised powers. Similarly, some regulatory agencies
may have specific requirements not met in this Bill and consequently may
decide to not trigger the Bill's provisions. Alternatively, agencies may
choose to only trigger certain provisions that are relevant to carrying out
their regulatory functions. The provisions of the Bill deal with:
a) general introductory provisions (Part 1)
b) monitoring whether provisions of an Act have been, or are being
complied with and monitoring whether information given in compliance,
or purported compliance, with provisions of an Act is correct (Part 2)
c) gathering evidence that relates to offences and civil penalty
provisions (Part 3)
d) the use of civil penalties to enforce provisions (Part 4)
e) the use of infringement notices to enforce provisions (Part 5)
f) the acceptance and enforcement of undertakings relating to compliance
with provisions (Part 6)
g) the use of injunctions to enforce provisions (Part 7), and
h) general provisions relating to regulations (Part 8)
First Parliamentary Counsel has issued a Drafting Direction in respect of
the Regulatory Powers (Standard Provisions) Bill 2012 to Parliamentary
Drafters. It covers a wide range of topics related to drafting regulatory
powers. All drafters are required to comply with the drafting directions
to ensure a consistent approach is taken to amendments. It is recommended
that the Bill be read in association with its Drafting Direction.
Commonwealth departments and agencies that make and administer laws with
regulatory powers were consulted on the terms of this Bill in early July
2012.
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.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Regulatory Powers (Standard Provisions) Bill 2012 (the Bill) provides a
framework of standard regulatory powers which, when enacted, would be
applied to Commonwealth Acts in a staged approach. To activate the Bill's
provisions, new or existing Commonwealth laws must expressly apply the
relevant provisions and specify other requisite information such as persons
who are authorised to exercise the applicable powers.
This Bill arises out of the Australian Government's Clearer Laws project,
which aims to reduce complexity on Commonwealth legislation by reducing its
volume and increasing the consistency and coherence of laws across the
statute book.
The provisions of the Bill predominantly deal with monitoring and gathering
evidence powers designed to determine compliance with provisions of an Act
or regulation. The Bill also provides for the use of civil penalties,
infringement notices and injunctions to enforce provisions and the
acceptance and enforcement of undertakings relating to compliance with
provisions.
Human rights implications
As a law of general application, the human rights implications of its
provisions will need to be addressed on a case-by-case basis whenever the
provisions are activated.
The Bill engages the following human rights:
. The protection against arbitrary interference with privacy; and
. The right to a fair trial.
The right to privacy and reputation
Article 17 of the ICCPR prohibits arbitrary or unlawful interference with
an individual's privacy, family, home or correspondence, and protects a
person's honour and reputation from unlawful attacks. This right may be
subject to permissible limitations where those limitations are provided by
law and non-arbitrary. In order for limitations not to be arbitrary, they
must be aimed at a legitimate objective and are reasonable, necessary and
proportionate to that objective.
The obligations placed on participants in Commonwealth regulatory schemes
provided in the Bill relate to:
. monitoring and investigation powers (including entry, search and
seizure)
. civil penalty provisions
. infringement notices
. enforceable undertakings
. injunctions, and
. general provisions relating to regulations.
The Bill protects against arbitrary abuses of power as the entry,
monitoring, search, seizure and information gathering powers provided in it
are conditional upon consent being given by the occupier of the premises or
prior judicial authorisation. Where entry is based on the consent of the
occupier, consent must be informed and voluntary and the occupier of
premises can restrict entry by authorised persons to a particular period.
Additional safeguards are provided through provisions requiring authorised
persons and any persons assisting them to leave the premises if the
occupier withdraws their consent.
The Bill specifies that an issuing officer of a warrant to enter premises
for the purpose of monitoring or investigation must be a judicial officer.
The Bill also provides limits on the issuing of a monitoring or
investigation warrant. In the case of an investigation warrant, for
example, an issuing officer may issue an investigation warrant only when
satisfied, by oath or affirmation, that there are reasonable grounds for
suspecting that there is, or may be within the 72 hours, evidential
material on the premises. An issuing officer must not issue a warrant
unless the issuing officer has been provided, either orally or by
affidavit, with such further information as they require concerning the
grounds on which the issue of the warrant is being sought. Such constraints
on this power ensure adequate safeguards against arbitrary limitations on
the right to privacy in the issuing of warrants.
An authorised person cannot enter premises unless their identity card or a
copy of the warrant under which they are entering is shown to the occupier
of the premises. This provides for the transparent utilisation of the
Bill's powers and mitigates arbitrariness and risk of abuse.
These powers are reasonable, necessary and proportionate to achieve a
legitimate objective. Adequate safeguards and limitations on the use of
regulatory powers in the Bill ensures that such lawful interferences are
not arbitrary or at risk of abuse.
The right to a fair and public hearing
Article 14 of the ICCPR ensures that everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal
established by law.
The Bill engages the right to a fair and public hearing through the
creation of an infringement notice scheme. An infringement notice can be
issued by an infringement officer for contraventions of a strict liability
offence provision or a civil penalty provision that is enforceable under
the Bill. The Bill ensures against arbitrariness or abuses of power through
limitations as to who can issue an infringement notice. The Bill limits
this exercise of power to an infringement officer who must be an APS
employee or an officer of a State or Territory.
The right of a person to a fair and public hearing by a competent,
independent and impartial tribunal is preserved by the Bill as its
provisions allow a person to elect to have the matter heard by a court
rather than pay the amount specified in the notice. Additionally, the Bill
outlines that this right must be stated in an infringement notice issued to
a person, ensuring that a person issued with an infringement notice is
aware of their right to have the matter heard by a court.
These powers are reasonable, necessary and proportionate. The Bill ensures
that relevant courts have sufficient oversight to ensure against
arbitrariness or abuses of power. Regulatory functions and powers in the
issuing of infringement notices are limited to government officers and a
person can elect to have the matter heard by a court.
Conclusion
The Bill is compatible with human rights because to the extent that it may
limit human rights, those limitations are reasonable, necessary and
proportionate. Furthermore, as the Bill is a Bill of general application,
it will not engage any limitations on human rights until the Bill's
provisions are activated. When this occurs, new or existing legislation
will need to include its own assessment of its engagement with human rights
to ensure its compatibility. This therefore provides additional protections
to human rights and freedoms and ensures that those clauses that new or
existing legislation trigger in the Bill are necessary, reasonable and
proportionate for that agency to carry out its functions.
NOTES ON CLAUSES
Part 1-Preliminary
Clause 1: Short title
1. Clause 1 establishes the short title of the Act, the Regulatory Powers
(Standard Provisions) Act 2012.
Clause 2: Commencement
2. Clause 2 sets the commencement dates for various sections of the Bill.
Clause 3: Simplified outline
3. Clause 3 provides an overview of the Bill, broadly outlining the objects
of the Bill and the means by which they are achieved, as well as
introducing the issues covered in each Part of the Bill. Clause 3 also
makes clear that the monitoring, investigation and enforcement powers
outlined in the Bill do not stand alone and must be activated by another
Act for the provisions in this Bill to apply.
Clause 4: Dictionary
4. Clause 4 contains a dictionary to assist interpretation and
implementation of the Bill by defining the meaning of certain terms used
in the Bill.
Clause 5: Contravening offence and civil penalty provisions
5. Clause 5 clarifies that, for an Act or regulation, a person is liable
for criminal or civil penalties if the person contravenes the obligations
set out in the Act of regulation.
6. To remove any doubt, clause 5 provides that breaching these obligations
constitutes a criminal offence or gives rise to civil liability.
Clause 6: Binding the Crown
7. Clause 6 ensures that this Bill binds the Crown in its various
capacities.
Part 2-Monitoring
Division 1-Outline and operation of this Part
Clause 7: Simplified outline
8. Clause 7 provides an outline of Part 2 of the Bill, which provides the
powers and processes by which compliance with the Bill may be
investigated.
9. Part 2 provides also that a triggering Act must make a provision or
information subject to monitoring under this Part for this Part to
operate.
Clause 8: Purpose and operation of this Part
10. Clause 8 outlines the purpose of this Part which is to create a
framework for monitoring compliance of provisions of an Act or
legislative instrument and whether information given in compliance, or
purported compliance, with a provision of an Act or legislative
instrument is correct.
11. Subclause 8(2) clarifies that an Act or legislative instrument must
either make a provision or information subject to monitoring under this
Part for this Part to operate.
Clause 9: Provisions subject to monitoring
12. 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.
Clause 10: Information subject to monitoring
13. 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.
Clause 11: Related provisions
14. Clause 11 provides that a provision is related to an information or a
monitoring provision, if a triggering Act provides that the provision is
so related.
Clause 12: Authorised applicant
15. 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.
16. 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.
Clause 13: Authorised person
17. 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.
18. 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.
19. 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.
Clause 14: Identity card
20. An authorised person must be able to identify themselves at all times
when carrying out powers under this Bill (clause 36). Clause 14 provides
that an identity card is one issued to an authorised person under clause
36 by the relevant chief executive in relation to that provision or
information.
Clause 15: Issuing officer
21. 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.
22. 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.
Clause 16: Relevant chief executive
23. 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.
24. 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.
Clause 17: Relevant court
25. 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.
Division 2-Powers of authorised persons
Subdivision A-Monitoring powers
Clause 18: Authorised person may enter premises by consent or under
warrant
26. In addition to inspection powers, Clause 18 provides that authorised
persons have additional monitoring powers that may be exercised with
consent or under a monitoring warrant. The occupier of premises (defined
by clause 4) is not required to give consent to an authorised person's
entry or exercise of monitoring powers. If consent is granted, the
occupier remains free to subsequently withdraw that consent at any time
and an authorised person must leave the premises if consent is withdrawn,
or otherwise ceases to have effect.
Clause 19: Monitoring powers of authorised persons
27. Clause 19 sets out the authorised person's monitoring powers under a
warrant or consent, which permit an authorised person to, among other
things, search premises, bring equipment and materials onto the premises,
measure or test any thing on the premises, photograph things or make
copies of documents, or operate electronic equipment.
Clause 20: Operating electronic equipment
28. Clause 20 provides detail about an authorised person's power to operate
electronic equipment when entering premises with consent or under
warrant. In this context, electronic equipment primarily refers to, but
is not limited to, data storage equipment such as computers that may have
information relevant to monitoring compliance with the Bill. This power
is necessary to ensure an authorised person can obtain access to
electronic records that may indicate whether the Act or regulation is
being complied with or whether information provided under the Act or
regulation is correct.
29. An authorised person's power to operate electronic equipment extends to
copying data from the electronic equipment onto storage devices. However,
an authorised person may only operate electronic equipment if he or she
reasonably believes this can occur without damaging the equipment.
Nothing in clause 20 affects any liability or indemnity a court may find
for damage to electronic equipment.
Clause 21: Securing electronic equipment to obtain expert assistance
30. Clause 21 permits an authorised person to secure electronic equipment
under a monitoring warrant for up to 24 hours to provide the authorised
person time to engage expert assistance to operate electronic equipment.
As an authorised person may not be accompanied by an expert assistant
when exercising monitoring powers, clause 21 permits an authorised person
to secure equipment for up to 24 hours in order to engage assistance.
31. An authorised person may only secure equipment if the authorised person
has reasonable grounds to believe relevant data on the equipment may be
destroyed or altered if the equipment is not secured. Subclause 21(5)
provides for an extension of time in these circumstances.
32. Clause 21(6) ensures that occupiers of premises, or their apparent
representatives, are informed of an authorised person's intention to
apply for an extension in the securing of equipment. This provides a
means by which an occupier can challenge an application for extension if
they so choose.
Clause 22: Securing evidence of the contravention of a related provision
33. The powers of an authorised person under a monitoring warrant do not
extend to seizing evidence. Monitoring powers are available for the
purpose of determining whether an Act or regulation is being complied
with, whereas seizing evidence is a more coercive power and should be
exercisable only where a issuing officer is satisfied that an authorised
person has in fact located evidence of a breach of the Act or regulation.
34. However, to ensure that evidence located during an inspection is not
disposed of before an authorised person has the opportunity to authorise
seizure, clause 22 grants an authorised person the power to secure any
thing she or he reasonably believes provides evidence of a contravention
of an Act or regulation for up to 24 hours. An issuing officer may extend
the period beyond 24 hours.
Clause 23: Persons assisting authorised persons
35. Authorised persons may require assistance when carrying out their
functions and clause 23 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 23 to be done by the
authorised person.
Subdivision B-Powers of authorised persons to ask questions and seek
production of documents
Clause 24: Authorised persons may ask questions and seek production of
documents
36. Clause 24 provides that when an authorised person enters premises with
the consent of the occupier, an authorised person may ask the occupier to
answer any questions or produce documents relating to the operation of
the provision or the information.
37. If entry is by way of a monitoring warrant, subclause 24(3) provides
that an authorised person may require any person on the premises to
answer any questions or produce documents relating to the operation of
the provision or the information.
38. Subclause 24(4) provides a defence of non-possession of the documents
or the occupier having taken reasonable steps to locate the required
documents without success.
39. Subclause 24(5) clarifies that failure to comply with a requirement
under subclause 24(3) carries a penalty of 30 penalty units. This clause
is not intended as an abrogation of the privilege against self-
incrimination.
Division 3-Obligations and incidental powers of authorised persons
Clause 25: Consent
40. Entry into premises to exercise various powers under Part 2 Division 2
may be exercised with the consent of the occupier. Clause 25 sets out the
parameters for valid consent, noting that consent must be informed and
voluntary and that an occupier remains free to withdraw consent at any
time or to consent to entry only during a certain time period.
41. Clause 25(6) provides that, while it is preferable that an authorised
person show their identity card before entering premises, an identity
card must be presented to the occupier of the premises upon entry, or as
soon as is reasonably practical, after entering the premises.
Clause 26: Announcement before entry under warrant
42. While certain powers to inspect public premises may be exercised
without announcement or identification, clause 26 requires an authorised
person to identify him or herself in most circumstances and announce the
purpose of the visit before entering under a warrant if the occupier of
the premises or that person's apparent representative is present. This
ensures that an occupier of premises who is present is made aware before
an authorised person exercises monitoring or investigation powers under
warrant.
Clause 27: Authorised person to be in possession of warrant
43. Clause 27 requires an authorised person to be in possession of the
warrant or a copy of the warrant whilst executing a monitoring warrant.
Clause 28: Details of the warrant etc. to be given to the occupier
44. Clause 28 requires an authorised person to provide a copy of a warrant
to the occupier of premises entered under warrant, or an occupier's
apparent representative, if either are present, and to inform the person
of their rights and obligations in relation to a warrant. This obligation
ensures that occupiers and representatives that are present when a
warrant is executed are granted an opportunity to examine the warrant and
are explicitly informed about their rights and obligations.
Clause 29: Compensation for damage to electronic equipment
45. Clause 29 provides that a person is entitled to compensation for damage
to electronic equipment operated during the course of an inspection. It
recognises the fact that powers to operate electronic equipment do not
excuse damage caused by a lack of care.
Division 4-Occupier's rights and responsibilities
Clause 30: Right to observe execution of warrant
46. Clause 30 provides the right for occupiers of premises and their
apparent representatives, who are present when a warrant is executed, to
observe the execution of any warrant on their premises. This right does
not limit how the warrant may be executed or require an occupier to
witness all of an authorised person's activities, but it does recognise
that a person should not be excluded during the execution of a warrant
unless they attempt to obstruct the inspection.
47. Occupiers and representatives that are present when a warrant is
executed must be made aware of their rights under clause 30.
Clause 31: Responsibility to provide facilities and assistance
48. Clause 31 imposes an obligation on occupiers of premises, and their
apparent representatives, to provide reasonable facilities and assistance
required to effectively carry out warrant powers. This obligation
recognises that monitoring and investigation powers are authorised by
issuing officers for the purpose of determining whether laws are being
complied with and should not be obstructed. Failure to provide reasonable
assistance and facilities when requested carries a penalty of 30 penalty
units.
49. Occupiers and representatives that are present when a warrant is
executed must be made aware of their obligations under clause 30.
Division 5-Monitoring warrants
Clause 32: Monitoring warrants
50. An authorised applicant's monitoring powers are exercisable with
consent or under a monitoring warrant obtainable under clause 32.
51. To ensure warrants are issued and exercised only in appropriate
situations, clause 32 details the procedure by which an authorised
applicant may obtain a warrant from an issuing officer. Subclause 32(4)
also sets out the mandatory content of a monitoring warrant.
Division 6-Extension of periods in which things secured
Clause 33: Extension of periods in which things secured
52. Clause 33 outlines the situations in which an issuing officer may grant
an extension to the 24 hour period in which things can be secured by
authorised persons. An extension of the period may, by order, be granted
if further information is provided to the issuing officer demonstrating
that an extension is necessary to avoid a thing being destroyed, altered,
lost, concealed, altered or interfered with.
53. Clause 33(4) outlines what must be included in an order extending the
period in which a thing is secured.
Division 7 - Powers of issuing officers
Clause 34: Powers of issuing officers
54. Clause 34 provides that the power to issue warrants or exercise other
powers under the Ac is conferred on an issuing officer who exercises the
power in their personal capacity and not as a representative of the
court. However, issuing officers are granted immunities of the court and
members of the court when exercising these powers. This recognises that
issuing a warrant is an executive function and not an exercise of
judicial power.
Division 8 - Identity cards
Clause 35: Identity Cards
55. Authorised persons are required to return identity cards when they
cease their role as authorised persons. Clause 35 requires the relevant
chief executive to issue all authorised persons with photo identity cards
an identity card to an authorised person in the form provided under
subclause 35(2). The identity cards must be carried by authorised
persons at all times they are acting in that official capacity (subclause
35(6)).
56. Clause 35(3) requires authorised persons to return identity cards when
they cease their role as authorised persons. This obligation is
supported by an offence of strict liability punishable by one penalty
unit for authorised persons who fail to return identity cards within 14
days after ceasing that role unless the identity card is lost or
destroyed.
Part 3-Investigation
Division 1-Outline and operation of this Part
Clause 36: Simplified outline
57. Clause 36 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.
58. 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.
Clause 37: Purpose and operation of this Part
59. Clause 37 outlines the purpose of this Part which is to create a
framework for gathering material relating to the contravention of
offences and civil penalty provisions.
60. Subclause 37(2) requires that an offence or civil penalty provision
must be made subject to investigation under this Part for this Part to
operate.
Clause 38: Provisions subject to investigation
61. Clause 38 provides that an offence or civil penalty provision under a
triggering Act or regulation is subject to investigation under this Part
if the triggering Act provides so.
Clause 39: Evidential material
62. Clause 39 clarifies what constitutes evidential material. This removes
doubt about the nature of evidential material that may be searched for or
seized when authorised persons enter premises.
Clause 40: Related provisions
63. Clause 40 provides that, for the purposes of this Part, a provision is
related to evidential material if a triggering Act provides so.
Clause 41: Authorised applicant
64. Clause 41 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.
65. Subclause 41(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.
Clause 42: Authorised person
66. Clause 42 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.
67. 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 person for the purposes of this Part.
Clause 43: Identity card
68. An authorised person must be able to identify themselves at all times
when carrying out powers under this Bill (clause 35). Clause 43 provides
that an identity card is one issued to an authorised person under clause
35 by the relevant chief executive in relation to that evidential
material.
Clause 44: Issuing officer
69. Clause 44 clarifies that a person is an issuing officer for the purpose
of exercising various powers under this Part if a triggering Act provides
so.
70. Subclause 44(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.
Clause 45: Relevant chief executive
71. Clause 45 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.
72. Subclause 45(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.
Clause 46: Relevant court
73. Clause 46 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.
Division 2-Powers of authorised persons
Subdivision A-Investigation powers
Clause 47: Entering premises by consent or under a warrant
74. Similarly to monitoring powers, an authorised person may enter premises
to exercise investigation powers by consent or under a warrant. However,
an authorised person may only enter premises to exercise investigation
powers if the authorised person has reasonable grounds to suspect the
premises contain evidence of a contravention of the Act or legislative
material (evidential material), even if the occupier of the premises
consents to entry. An authorised person must identify herself or himself
to the occupier of the premises before entering premises under warrant.
Clause 48: General investigation powers
75. If an authorised person enters premises by way of an occupier's
consent, clause 48 permits the authorised person to search the premises
for the evidential material the authorised person suspects is on the
premises.
76. If an authorised person enters premises under an investigation warrant,
investigation powers extend to seizing evidential material; inspecting,
testing and copying evidential material; and the power to take equipment
necessary to exercise investigation powers onto the premises, or operate
electronic equipment found of the premises. It is appropriate to limit
the extended range of investigation powers to cases where a warrant is
issued to ensure the judiciary maintains oversight of these investigation
powers.
Clause 49: Operating electronic equipment
77. To ensure an authorised person is able to obtain access to electronic
records that may contain evidential material, clause 49 empowers an
authorised person to operate any electronic equipment on premises that
the authorised person suspects contains evidential material, including
computers and other electronic storage devices. These powers are
available whether the authorised person enters under consent or an
investigation warrant.
78. In addition to the power to operate electronic equipment, clause 49
grants an authorised person the power to put the evidential material in
documentary form (i.e. print the material) and to make electronic copies
of the evidential material, and the power to remove the documents or
copies from the premises. These powers are available whether the
authorised person enters under consent or an investigation warrant. If an
authorised person enters the premises under a warrant, he or she may also
seize electronic equipment and storage devices that are found to contain
evidential material, but only if it is not practical to make electronic
copies or put the evidence in documentary or if possessing the electronic
equipment or storage device would constitute an offence by the occupier
of premises.
79. Electronic equipment and storage devices may only be operated if the
authorised person reasonably believes this can be done without damaging
the equipment or device.
Clause 50: Securing electronic equipment to obtain expert assistance
80. Clause 50 permits an authorised person to secure electronic equipment
for up to 24 hours to provide the authorised person time to engage expert
assistance to operate electronic equipment.
81. Clause 50 supports an authorised person's powers to operate electronic
equipment by permitting an authorised person to secure electronic
equipment in order to engage expert assistance to operate the electronic
equipment - where she or he believes that expert assistance is required.
As an authorised person may not be accompanied by an expert assistant
when exercising monitoring powers, clause 50 permits an authorised person
to secure equipment for up to 24 hours (longer on application - see
subclause 50(5) in order to engage assistance.
82. An authorised person may only secure equipment if the authorised person
has reasonable grounds to believe relevant data on the equipment may be
destroyed or altered if the equipment is not secured. Subclause 50(5)
provides for an extension of time in these circumstances.
83. Clause 50(6) ensures that occupiers of premises, or their apparent
representatives, are informed of an authorised person's intention to
apply for an extension in the securing of equipment. This provides a
means by which an occupier can challenge an application for extension if
they so choose.
Clause 51: Seizing evidence of related provisions
84. Investigation warrants must specify the evidential material the
authorised person reasonably suspects is located on premises. This is
appropriate to ensure seizure powers are used in a targeted and
considered manner.
85. However, clause 51 permits an authorised person to seize evidential
material, when entering premises under an investigation warrant, of a
kind not specified in the warrant if it is found during a search and it
provides evidence of a contravention of the Act or legislative
instrument. This is to ensure that the appropriate requirement to target
search and seizure warrants does not unduly prevent the gathering of
evidence of related offences that were not anticipated when the warrant
was issued. Warrants should only be available where there are reasonable
grounds to suspect an offence has been or will be committed but this
requirement does not exclude evidence of other offences that is
discovered during a search.
Clause 52: Persons assisting authorised persons
86. Clause 52 provides that an authorised person can exercise investigation
powers with an assistant.
87. Subclause 52(5) states that a direction under paragraph 52(2)(c) is not
a legislative instrument. This is to assist readers to understand the
status of directions under paragraph 52(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.
Subdivision B-Powers to ask questions and seek production of documents
Clause 53: Asking questions and seeking production of documents
88. Clause 53 provides an authorised person with powers, additional to
those previously described as monitoring or investigation powers, to
request information or documents relevant to the authorised person's
entry to the premises to search for evidential material.
89. An authorised person who enters premises with the consent of the
occupier is entitled to request information or documents from the
occupier, although there is no obligation for the occupier to grant the
request.
90. An authorised person who enters premises under a warrant may require
any person on the premises to provide information or documents. Failure
to comply with a requirement to provide information or documents without
reasonable excuse (e.g. requested information or documents are not in the
person's possession, or would tend to incriminate the person) is an
offence that carries a penalty of 30 penalty units. Clause 53 does not
impinge on the privilege against self-incrimination and a person is not
required to answer questions or produce documents if the material would
tend to incriminate them.
Division 3-Obligations and incidental powers of authorised persons
Clause 54: Consent
91. Entry into premises to exercise investigation powers may be exercised
with the consent of the occupier. Clause 54 sets out the parameters for
valid consent, noting that consent must be informed and voluntary and
that an occupier remains free to withdraw consent at any time or to
consent to entry only during a certain time period.
Clause 55: Announcement before entry under warrant
92. While certain powers to inspect public premises may be exercised
without announcement or identification, clause 55 requires an authorised
person to identify him or herself in most circumstances and announce the
purpose of the visit before entering under a warrant if the occupier of
the premises or that person's apparent representative is present. This
ensures that an occupier of premises who is present is made aware before
an authorised person exercises investigation powers under warrant.
93. In some situations, the requirement to identify and announce the
purpose of the visit could result in serious detriment. Clause 55
therefore permits an authorised person to enter without identifying
himself or herself or announcing their purpose in specific circumstances
where immediate entry is necessary to ensure human safety or effective
execution of the warrant. This allows flexibility in serious situations
but does not undermine the importance of identification and the
authorised person still is obliged to provide identification as soon as
practicable after entry, if an occupier or their representative is
present.
Clause 56: Authorised person to be in possession of warrant
94. Clause 56 requires an authorised person to possess the warrant issued
by the issuing officer, or the form of the warrant completed by the
authorised person, permitting entry to premises. An authorised person who
does not possess a warrant or copy of the warrant is not permitted to
enter premises as authorised by the warrant, and is not permitted to
exercise warrant powers.
Clause 57: Details of warrant etc. to be given to occupier
95. Clause 57 requires an authorised person to provide a copy of a warrant
to the occupier of premises entered under warrant, or an occupier's
apparent representative, if either is present, and to inform the person
about their rights and obligations in relation to a warrant. This
obligation ensures that occupiers and representatives that are present
when a warrant is executed are granted an opportunity to examine the
warrant and are explicitly informed about their rights and obligations.
Clause 58: Completing execution after temporary cessation
96. An investigation warrant usually will cease to have effect if the
authorised person and all persons assisting the execution of the warrant
cease the execution and leave the premises. This ensures that a search is
conducted in a timely fashion and that a warrant does not authorise an
authorised person to search a premises on multiple occasions from time to
time.
97. However, some flexibility is required to ensure that an authorised
person can leave the premises if required, for example to fetch necessary
equipment or avoid a dangerous situation. Clause 58 therefore provides
that an investigation warrant, which is still in force according to the
terms of the warrant, does not cease to have effect if the authorised
person and all persons assisting are absent from the premises for:
a. one hour or less in any situation other than an emergency
b. for twelve hours in an emergency situation
c. for longer than 12 hours where the occupier consents in writing; or
d. where an issuing officer considers there are exceptional
circumstances that justify authorising a longer period than 12
hours (e.g. the emergency preventing the execution of the warrant
continues for more than 12 hours).
Clause 59: Completing execution of warrant stopped by court order
98. Clause 59 provides that a warrant that is stopped by court order and if
later revoked or reversed may be executed without a new warrant needing
to be issued if still in force.
Clause 60: Compensation for damage to electronic equipment
99. Clause 60 clarifies that a person is entitled to compensation for
damage to electronic equipment operated during the course of an
inspection. It recognises the fact that powers to operate electronic
equipment under Division 3 do not excuse damage caused by a lack of care.
Division 4-Occupier's rights and responsibilities
Clause 61: Right to observe execution of warrant
100. Clause 61 clarifies the right for occupiers of premises and their
apparent representatives, who are present when a warrant is executed, to
observe the execution of any warrant on their premises. This right does
not limit how the warrant may be executed or require an occupier to
witness all of an authorised person's activities, but does recognise that
a person should not be excluded during the execution of a warrant unless
they attempt to obstruct the inspection.
101. Occupiers and representatives that are present when a warrant is
executed must be made aware of their rights under clause 57.
Clause 62: Responsibility to provide facilities and assistance
102. Clause 62 imposes an obligation on occupiers of premises, and their
apparent representatives, to provide reasonable facilities and assistance
required to effectively carry out warrant powers. This obligation
recognises that investigation powers are authorised by issuing officers
for the purpose of determining whether laws are being complied with and
should not be obstructed. Failure to provide reasonable assistance and
facilities when requested carries a penalty of 30 penalty units.
103. Occupiers and representatives that are present when a warrant is
executed must be made aware of their obligations under clause 57.
Division 5-General provisions relating to seizure
Clause 63: Copies of seized things to be provided
104. If an authorised person seizes a storage device, document or other
thing that can be readily copied while exercising investigation powers,
clause 63 permits the occupier of premises, or a person who represents
the occupier, to request a copy of the seized thing. Clause 63 ensures
that a person can, for example, retain a copy of seized material for
their own records or use.
Clause 64: Receipts for seized things
105. To ensure a record of seizure is maintained and available to the
person from whom material is seized, clause 64 requires an authorised
person to give a receipt for any thing that is seized when exercising
investigation powers.
Clause 65: Return of seized things
106. The Bill authorises seizure of material only for specific reasons and
does not permit material to be retained indefinitely. Clause 65 therefore
requires the relevant chief executive to take reasonable steps to return
to the owner, or the person from whom it was seized, any thing seized
under the Bill. The relevant chief executive must act on this obligation
within 60 days, or before 60 days if the seized thing is not required for
evidence or the reason the thing was seized is no longer relevant.
107. The obligation to return seized material may at times conflict with
other priorities, so clause 65 clarifies that the requirement to return
seized material does not apply in certain circumstances including where a
court has ruled to the contrary, where seized material is subject to
forfeiture or a dispute over ownership, or where the material is being
used as evidence in unfinished legal proceedings.
Clause 66: Issuing officer may permit a thing to be retained
108. To ensure the sixty-day limit for retaining seized material does not
prejudice ongoing investigations or legal proceedings, clause 66 permits
an issuing officer to issue an order extending the period a thing may be
retained, up to a maximum period of three years. Clause 66 requires the
relevant chief executive to make reasonable attempts to identify all
persons with an interest in the items that may be retained, and notify
them of the application wherever practicable, to ensure that persons with
an interest in seized material have an opportunity to respond to the
proposal to retain the item(s) for more than 60 days.
Clause 67: Disposal of things
109. If the relevant chief executive is unable to return seized material as
required by clause 65 because return is refused or the person to whom the
item should be returned cannot be located, clause 67 permits the relevant
chief executive to dispose of the seized material.
Clause 68: Compensation for acquisition of property
110. To ensure constitutional validity of acquisition powers, and to
protect people against unjust acquisitions under this Part, clause 68
requires the Commonwealth to pay reasonable compensation if the operation
of the Part would result in an acquisition of property otherwise than on
just terms. Where the Commonwealth and a person disagree over the amount
of the compensation, the person may take the matter to the Federal Court,
or another court of competent jurisdiction, to determine reasonable
compensation.
Division 6-Investigation warrants
Clause 69: Investigation warrants
111. While monitoring powers under Part 1 are available to determine
whether the Bill is being complied with, investigation powers are
available where an authorised person has reasonable grounds to suspect
that premises contain evidence of contravention of the Bill. Clause 69
sets out the procedure for obtaining an investigation warrant and the
mandatory content of such warrants.
Clause 70: Investigation warrants by telephone, fax etc.
112. In some circumstances an authorised person may urgently require an
investigation warrant, for example, where the authorised person has
secured material for 24 hours under this Bill or where the time taken to
obtain a warrant may result in evidential material being altered or
disposed of. Clause 70 therefore sets out the procedures by which an
investigation warrant may be obtained from an issuing officer by means of
electronic communication and a number of controls to ensure this form of
warrant is valid and not misused.
Clause 71: Authority of warrant
113. The copy of a warrant made in accordance with clause 69 is not
physically the warrant made by an issuing officer. Clause 71 ensures that
the form of warrant completed by an authorised person has the same
authority as a warrant completed by the issuing officer (if all legal
requirements are complied with). This is to prevent any argument over the
validity of a form of warrant completed and presented by an authorised
person. Also to prevent arguments over validity, clause 71 directs a
court to assume that a warrant completed by an authorised person is not
authorised if the counterpart warrant signed by the issuing officer
cannot be produced in legal proceedings.
Clause 72: Offence relating to warrants by telephone, fax etc.
114. To discourage and punish any misuse of warrants obtained by electronic
communication, clause 72 establishes an offence punishable by two years'
imprisonment for a range of conduct by an authorised applicant in respect
of investigation warrants.
Division 7-Extension of periods in which things secured
Clause 73: Extension of periods in which things secured
115. Clause 73 provides the situations in which an issuing officer may
grant an extension to the 24 hour period in which a thing can be secured
by authorised persons. An extension of the period may be ordered if
further information is provided to the issuing officer demonstrating that
the extension is necessary to prevent evidential material being
destroyed, altered or interfered with.
116. Clause 73(4) outlines what must be included in an order for extending
the period in which a thing is secured.
Division 8 - Powers of issuing officers
Clause 74: Powers of issuing officers
117. Clause 74 provides that the officers empowered to issue warrants or
exercise other powers under the Bill, defined as 'issuing officers' in
clause 4, act in their personal capacity and do not represent the court
when deciding applications under the Bill. Issuing officers are granted
the protection and immunities of the court and members of the court when
exercising these powers. This recognises that issuing a warrant is an
executive function and not an exercise of judicial power.
Division 9 - Identity Cards
Clause 75: Identity Cards
118. Authorised persons are required to return identity cards when they
cease their role as authorised persons. Clause 75 requires the relevant
chief executive to issue all authorised persons with photo identity cards
an identity card to an authorised person in the form provided under
subclause 75(2). The identity cards must be carried by authorised
persons at all times they are acting in that official capacity (subclause
75(6)).
119. Clause 75(3) requires authorised persons to return identity cards when
they cease their role as authorised persons. This obligation is
supported by an offence of strict liability punishable by one penalty
unit for authorised persons who fail to return identity cards within 14
days after ceasing that role unless the identity card is lost or
destroyed.
Part 4-Civil Penalty Provisions
Division 1-Outline and operation of this Part
Clause 76: Simplified outline
120. Clause 76 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.
121. Part 4 provides that a triggering Act must make this Part enforceable
in order for the Part to operate.
Clause 77: Purpose and operation of this Part
122. Clause 77 provides a simplified outline of Part 8 of the Bill, which
governs enforcement of the Bill by way of civil and criminal proceedings,
infringement notices, publicising contraventions, enforceable
undertakings, and injunctions.
123. Subclause 77(2) clarifies that a civil penalty provision must be made
enforceable under this Part for this Part to operate.
Clause 78: Civil penalty provisions
124. Clause 78 describes which clauses of an Act or regulation are civil
penalty provisions. These are enforceable by civil penalty orders and
certain other remedies under the Act.
Clause 79: Enforceable civil penalty provisions
125. Clause 79 provides the basis for enforcing civil penalty provisions
under this Part if a triggering Act provides so.
Clause 80: Authorised applicant
126. Clause 80 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.
127. Subclause 80(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.
Clause 81: Relevant court
128. Clause 81 clarifies that a court is a relevant court for the purposes
of exercising powers under this Part only if a triggering Act provides
so.
Division 2-Obtaining a civil penalty order
Clause 82: Civil penalty orders
129. Clause 82 provides for an authorised applicant to apply for a civil
penalty order to remedy an alleged breach of an Act or regulation's civil
penalty provisions, and sets out the procedures for the authorised
applicant applying for, and the court issuing, civil penalty orders.
Clause 83: Civil enforcement of penalty
130. Clause 83 provides that a civil penalty order is a debt owed to the
Commonwealth, enforceable through civil debt proceedings and can be a
judgment debt. Where a person fails to pay the amount specified in the
order, the agency may commence legal proceedings against the person named
in the order to recover the amount owed.
Clause 84: Conduct contravening more than one civil penalty provisions
131. Clause 84 clarifies that a person's conduct may contravene more than
one provision under the Act or regulation. An authorised applicant may
institute proceedings relating to any or all provisions allegedly
contravened by a person's conduct, although a person may only be held
liable for one pecuniary penalty for the same conduct.
Clause 85: Multiple contraventions
132. Clause 85 clarifies that a relevant court may issue a single penalty
for multiple contraventions of the civil penalty provisions of the Bill
and is not required to issue separate penalty instruments. This provision
is intended to minimise court administration and consolidate legal
proceedings.
Clause 86: Proceedings may be heard together
133. Clause 86 clarifies that a court may hear two or more proceedings for
civil penalty orders simultaneously. This will streamline the process for
civil proceedings, remove the need for a person to be subject to multiple
proceedings, and thereby reduce legal costs for the person and the
Commonwealth.
Clause 87: Civil evidence and procedure rules for civil penalty orders
134. Clause 87 clarifies that civil rules of evidence and procedure apply
when hearing proceedings for civil penalty orders. This clause ensures
that criminal rules of evidence and procedure are not applied during
proceedings for civil penalty orders.
Division 3-Civil proceedings and criminal proceedings
Clause 88: Civil proceedings after criminal proceedings
135. Clause 88 provides that a court cannot issue a civil penalty order
against a person who has previously been convicted of a criminal offence
for the same conduct.
Clause 89: Criminal proceedings during civil proceedings
136. Clause 89 stays civil proceedings if criminal proceedings exist and
relate to the same conduct, to prevent any information that arises during
criminal proceedings prejudicing civil proceedings. If the criminal
proceedings result in a conviction, clause 89 will ensure that civil
proceedings related to the same conduct are dismissed and costs for the
civil proceedings are not awarded.
Clause 90: Criminal proceedings after civil proceedings
137. Clause 91 clarifies that criminal proceedings may commence after civil
0proceedings, even in the event the civil proceedings result in a civil
penalty order. This recognises the importance of criminal proceedings and
criminal penalties in dissuading and sanctioning contraventions of the
Act or regulation and ensures that criminal remedies are not precluded by
earlier civil action.
Clause 91: Evidence given in civil proceedings not admissible in criminal
proceedings
138. Clause 91 provides that evidence given by an individual during
proceedings for a civil penalty order cannot be used in any criminal
proceedings, against the same individual relating to the same conduct.
This ensures that information or documents produced during civil
proceedings are not relied upon to support subsequent criminal
proceedings, unless they are criminal proceedings relating to falsifying
evidence in civil proceedings. While it is appropriate to allow criminal
proceedings after civil proceedings have ended, given the overriding
importance of the criminal justice system, criminal proceedings not
related to falsifying evidence must rely upon evidence gathered during
independent investigations, not evidence from prior civil proceedings.
Division 4-Miscellaneous
Clause 92: Ancillary contravention of civil penalty provisions
139. Clause 92 supports the enforcement regime by ensuring that conduct
ancillary to the contravention of a civil penalty provision is considered
to be contravention of the provision itself. Ancillary conduct includes
any attempt to contravene a provision that does not succeed, aiding or
inducing a contravention of a civil penalty provision, and any conspiracy
to contravene a civil penalty provision.
Clause 93: Continuing contraventions of civil penalty provisions
140. Clause 93 clarifies that certain actions are considered to be repeated
contraventions of the Bill. The clause ensures that a civil obligation
under the Bill to do something by a certain deadline continues until it
is done, and is not discharged by failing to meet the deadline. The
clause also provides that a separate contravention of the civil penalty
provisions is incurred for every day the obligation is not met. This is
necessary to ensure that failure to comply with obligations under the
Bill does not excuse a person from meeting those obligations.
Clause 94: State of mind
141. Clause 94 provides that it is not necessary to prove a person's
intention, knowledge or other fault elements in civil penalty proceedings
under this Bill. This principle applies only to proceedings for
contravention of civil penalty provisions, not for ancillary
contravention of civil penalty provisions.
Clause 95: Mistake of fact
142. Clause 95 provides that a person cannot be held liable for a civil
penalty order if their actions arose from a legitimate mistake of fact.
This clause is significant because of clause 94 stating that, in these
types of proceedings, it is unnecessary to prove intention, knowledge or
other fault elements. This has an effect on civil proceedings similar to
the effect strict liability has on criminal proceedings. To ensure that
clause 94 does not result in liability for simple errors of fact, clause
90 provides a 'defence' to civil penalty proceedings on the grounds that
a person's conduct was the result of a considered but reasonable error of
fact.
143. The person who asserts that a particular course of action resulted
from a mistake of fact has the burden of proving the matter.
Clause 96: Exceptions etc. to civil penalty provisions - burden of proof
144. Clause 96 provides if a person wishes to rely on a defence, that
person bears the evidential burden of proving the defence.
Clause 97: Civil penalty provisions contravened by employees, agents or
officers
145. Clause 97 provides that a body corporate is responsible for the
actions of an employee, agent or officer of a body corporate, acting in
the legitimate scope of their employment.
Part 5-Infringement notices
Division 1-Outline and operation of this Part
146. 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.
147. 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 98: Simplified outline
148. Clause 98 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.
149. Part 5 provides that a triggering Act must make this Part enforceable
in order for the Part to operate.
Clause 99: Purpose and operation of this Part
150. Clause 99 outlines the purpose of this Part which is to create a
framework for the use of infringement notices.
151. Subclause 99(2) provides that a triggering Act must be made
enforceable under this Part for this Part to operate.
Clause 100: Enforceable provisions
152. Clause 100 provides the basis for enforcing offence provisions and
civil penalty provisions with infringement notices if a triggering Act
provides so.
Clause 101: Infringement officer
153. Clause 101 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 provides that the person is an
infringement officer in relation to that provision.
154. Subclause 101(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.
155. The Drafting Direction provides that an authorised person means an APS
employee or an officer of a State or Territory.
Clause 102: Relevant chief executive
156. Clause 102 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.
157. Subclause 102(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.
Division 2-Infringement notices
Clause 103: When an infringement notice may be given
158. Subclause 103(1) empowers an infringement officer to issue an
infringement notice where the infringement officer has reasonable grounds
to believe a person has contravened a civil penalty provision under the
Bill. Infringement notices provide a simpler and faster remedy to
suspected contravention of the Bill than formal civil or criminal
proceedings.
159. An infringement notice must be issued within 12 months of an alleged
contravention being committed. An infringement issued later than this is
invalid and cannot be enforced.
160. To ensure the reasons for each notice are clear, a separate
infringement notice must be issued for each alleged contravention of the
Bill, unless the contravention relates to an action that should have been
completed before a particular time and the ongoing failure to complete
the action constitutes multiple contraventions (see subsection 4K(2) of
the Crimes Act 1914 for continuing offices and clause 93 of this Bill for
continuing contraventions of civil penalty provisions).
161. Subclause 103(5) clarifies that an infringement notice must relate as
an offence provision where it can constitute both a civil penalty
provision and an offence provision.
Clause 104: Matters to be included in an infringement notice
162. Clause 104 specifies a range of matters that must be included in each
infringement notice. This includes a statement that if the infringement
notice is paid within 28 days of it being issued, this does not
constitute an admission of guilt but does preclude any further liability
or proceedings related to the alleged contravention (unless the notice is
subsequently withdrawn).
163. Subclause 104(2) limits the amount payable under an infringement
notice to one-fifth of the penalty that a court could impose in relation
to the alleged contravention. This ensures that infringement notices,
which do not reflect a court sanction or constitute an admission of
guilt, remain a lesser remedy to alleged contraventions of the Bill.
Clause 105: Extension of time to pay amount
164. To ensure that person who wishes to pay an infringement notice is not
prevented from doing so by financial hardship or other difficulties,
clause 105 allows a person who has received an infringement notice to
apply to the relevant chief executive for an extension of time to pay the
infringement notice.
Clause 106: Withdrawal of an infringement notice
165. A person who receives an infringement notice may elect to challenge
the notice rather than pay it. Clause 106 therefore sets out processes
for withdrawing infringement notices and provides guidance as to what
information the relevant chief executive must and may take into account
in considering whether to withdraw an infringement notice.
166. A person may apply for a notice to be withdrawn even if they have
already paid the amount specified in the infringement notice. If the
notice is withdrawn the amount paid must be refunded.
Clause 107: Effect of payment of amount
167. Clause 107 ensures that paying an infringement notice discharges all
liability for the alleged contravention, without constituting an
admission of fault. This is appropriate for an administrative remedy that
may be discharged without legal advice or adjudication by the courts.
However, payment does not discharge liability if the notice is
subsequently withdrawn and the amount refunded. In this sense,
withdrawing a notice acts as if the notice was never issued.
Clause 108: Effect of this part
168. Clause 108 clarifies that Division 2, Part 5 of the Bill, dealing with
infringement notices, does not make infringement notices a mandatory
response to a suspected contravention - they remain a discretionary
remedy. Division 2 Part 5 also does not limit the option to take
enforcement action in other ways, limit liability in any way unless an
infringement notice is paid, and does not limit a court's ability to
determine the amount of a penalty if a person is found to have
contravened a civil penalty provision enforceable under Division 2
(except when an infringement has been paid).
Part 6-Enforceable Undertakings
Division 1-Outline and operation of this Part
Clause 109: Simplified outline
169. Clause 109 permits offence provisions and civil penalty provisions to
be enforced by way of undertakings under Division 4, Part 8 of the Bill.
This contrasts with infringement notices, which only may be used to
enforce civil penalty provisions.
170. Part 6 provides that a triggering Act must make this Part enforceable
in order for the Part to operate.
Clause 110: Purpose and operation of this Part
171. Clause 110 outlines the purpose of this Part which is to create a
framework for the acceptance and enforcement of undertakings.
172. Subclause 110(2) provides that a triggering Act must be made
enforceable under this Part for this Part to operate.
Clause 111: Enforceable provisions
173. Clause 111 provides the basis for enforcing a provision with
undertakings if a triggering Act provides that the provision is
enforceable.
Clause 112: Authorised person
174. Clause 112 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.
175. Subclause 112(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.
Clause 113: Relevant court
176. Clause 113 clarifies that a court is a relevant court for the purposes
of exercising powers under this Part if a triggering Act provides so.
Division 2-Accepting and enforcing undertakings
Clause 114: Acceptance of undertakings
177. Clause 114 enables an authorised person to accept written undertakings
committing a person to particular action (or inaction) in order to
prevent or respond to a breach of an enforceable provision. Undertakings
are enforceable in their own right (see clause 111) and they may be
entered into instead of, or in addition to, the authorised person taking
other disciplinary action.
178. Undertakings provide a remedy other than financial sanctions to past
or prospective breaches of the Bill.
179. Under clause 114(3), the person giving the undertaking may vary or
withdraw it at any time, if the authorised person gives written consent
to the variation or withdrawal. The authorised person's consent to vary
or withdraw an undertaking may be cancelled by the authorised person at
any time, with written notice to the person.
180. Subclause 114(4) states that consent given under clause 114 is not a
legislative instrument. This is to assist readers to understand the
status of consent given under clause 114; it does 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.
Clause 115: Enforcement of undertakings
181. Clause 115 enables the authorised person to apply to have undertakings
given under clause 114 enforced in courts. Clause 115 also lists the
orders a court can impose to remedy a breach of an undertaking, including
orders to comply with the undertaking, to pay a pecuniary penalty to the
Commonwealth, to compensate other people, or any other order the court
sees fit.
Part 7-Injunctions
Division 1-Outline and operation of this Part
Clause 116: Simplified outline
182. Clause 116 provides that both offence provisions and civil penalty
provisions in Parts 3 and 5 of the Bill are enforceable by way of
injunctions.
183. Part 7 provides that a triggering Act must make this Part enforceable
in order for the Part to operate.
Clause 117: Purpose and operation of this Part
184. Clause 117 provides that the purpose of this Part is to create a
framework for the use of injunctions.
185. Subclause 117(2) clarifies that a triggering Act must be made
enforceable under this Part for this Part to operate.
Clause 118: Enforceable provisions
186. Clause 118 provides the basis for enforcing a provision with
injunctions if a triggering Act provides that the provision is
enforceable.
Clause 119: Authorised person
187. Clause 119 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.
188. Subclause 119(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.
Clause 120: Relevant court
189. Clause 120 provides that a court is a relevant court for the purposes
of exercising powers under this Part if a triggering Act provides so.
Division 2-Injunctions
Clause 121: Grant of injunctions
190. Clause 121 empowers the court to grant injunctions on application by
an authorised person. A court can issue injunctions to prevent a person
engaging in particular conduct and injunctions to compel a person to
engage in particular conduct if the court is satisfied an injunction is
necessary or desirable to respond to, or prevent, a contravention of an
enforceable provision.
Clause 122: Interim injunctions
191. In some cases, an interim injunction may be required to prevent or
require certain action while injunction proceedings are carried out.
Clause 122 therefore enables the court to grant an interim injunction
while it is considering an application for an injunction under Clause
121. A court cannot require the applicant to give an undertaking as to
damages as a condition of the interim injunction and refusing to give an
undertaking in respect of damages is not grounds for refusing to grant an
interim injunction.
Clause 123: Discharging or varying injunctions
192. Clause 123 provides that injunctions can be varied or discharged by a
relevant court.
Clause 124: Certain limits on granting injunctions not to apply
193. Clause 124 provides that a court can issue an injunction to prevent
conduct or require a person to engage in specified conduct whether or not
the specific conduct is occurring, has occurred in the past, or is likely
to give rise to damages. This ensures a court can prevent or require
conduct to uphold the purposes of the Bill without having to wait for
countervailing conduct to occur.
Clause 125: Other powers of a relevant court unaffected
194. Clause 125 clarifies that injunction powers under Division 2 Part 7 of
the Bill are additional to, not in replacement of, any other powers of
the court.
Part 8-General provisions
Clause 126: Regulations
195. Clause 126 provides a general regulation making power that will permit
the
Governor-General to make regulations required or permitted by the Bill,
or necessary or convenient to give effect to the Bill.
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