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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
REGULATORY POWERS (STANDARD PROVISIONS) BILL 2014
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
Senator the Hon George Brandis QC)
THIS MEMORANDUM REPLACES THE EXPLANATORY MEMORANDUM
PRESENTED TO THE HOUSE OF REPRESENTATIVES ON
20 MARCH 2014
REGULATORY POWERS (STANDARD PROVISIONS) BILL
2014
Outline
The Regulatory Powers (Standard Provisions) Bill 2014 provides for a framework of standard
regulatory powers exercised by agencies across the Commonwealth. The Bill will only apply
to regulatory schemes that trigger its provisions through primary 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 whether 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 anything 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 powers provided by the Bill will be rolled out progressively. New Acts that
require monitoring, investigation or enforcement powers of the kind available under the
Regulatory Powers Bill will be drafted to trigger the relevant provisions of this Bill.
Over time, existing regulatory regimes will be reviewed and, if appropriate, amended to
instead trigger the relevant provisions of the Regulatory Powers Bill.
The Department, in conjunction with the Office of Parliamentary Counsel, has identified Acts
passed in the last session of Parliament that include provisions modelled on the Bill. Once the
Bill is passed, the Department will contact each of the responsible agencies inviting them to
remove those provisions from the relevant Acts and instead trigger the provisions of this Bill.
Preliminary work has already begun in drafting amendments of some Acts, so that agencies
can gain a clear understanding of what the provisions of their Acts would look like once
amended.
In addition, the Department will contact agencies in all portfolios inviting them to identify
Acts within their portfolio which include provisions that, although not modelled wholly on
the provisions of this Bill, could be replaced with provisions triggering this model. This may
require adjustments to the relevant triggering Acts to deal with any novel issues raised
because of the environment in which the powers are to be exercised.
2
For the regulatory provisions in this Bill to be activated, new or existing legislation would
need to be amended to remove existing regulatory powers and trigger the provisions of this
Bill. This will mean that any future legislation that proposes to trigger provisions in this Bill
will be introduced and scrutinised by Parliament. An assessment of human rights engagement
and compatibility will need to be undertaken in the context of each regulatory scheme and the
particular provisions of this Bill that have been triggered. The Explanatory Memorandum to
each Bill should clearly set out the relevant agency's current regulatory powers, a comparison
with the powers in the Regulatory Powers Bill that will be triggered, and in the case of any
expansion of the agency's powers, a detailed explanation of the reasons for the expansion of
powers.
In some cases the powers contained in this Bill will not be appropriate or sufficient for the
requirements of particular regulatory agencies. 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 powers for an agency to monitor whether provisions of an Act have been,
or are being complied with, and to monitor whether information given in compliance,
or purported compliance, with provisions of an Act is correct (Part 2)
(c) investigation powers for an agency to gather 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).
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 that legislate for regulatory schemes.
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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 2014 (the Bill) provides a framework of
standard regulatory powers which, when enacted, would be applied to Commonwealth Acts
(if appropriate) in a staged approach. The Bill, in and of itself, will not grant agencies any
powers. To trigger the Bill's provisions, new or existing Commonwealth Acts must expressly
apply the relevant provisions and specify other requisite information such as persons who are
authorised to exercise the applicable powers.
The Bill predominantly provides powers for monitoring and gathering evidence which are
designed to be used by an agency to determine compliance with provisions of a triggering Act
or legislative instrument. 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
While the following statement considers the human rights implications of the Bill in the
abstract, further consideration will need to be given to these implications each time a Bill
proposes to apply parts of this Bill. The human rights implications will differ with each
circumstance in which elements of the framework contained in this Bill are triggered. These
must be considered specifically and in context.
That said, 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 be reasonable, necessary and proportionate to that
objective.
The Bill places obligations on participants in Commonwealth regulatory schemes that relate
to:
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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 is shown to the occupier
of the premises. If entry is authorised by warrant, the authorised person must also provide a
copy of the warrant 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
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contraventions of a strict liability offence provision or a civil penalty provision that is
enforceable under the Bill.
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.
The Bill also provides questioning powers to authorised officers in certain situations. These
powers are expressed in clauses 24 and 54, which make it an offence to fail to answer
questions of an authorised officer. While these powers are expressed to be subject only to
very limited defences and exceptions, the Bill relies on the common law presumption against
abrogation of core rights to preserve the privilege against self-incrimination and legal
professional privilege. Clauses 17 and 47 are intended to make certain that the privilege
against self-incrimination and legal professional privilege have not been abrogated by this
Bill. These protections guarantee the fair trial rights protected in articles 14(3)(d) and (g) of
the ICCPR by limiting the operation of the questioning powers provided by the Bill.
The Bill also creates a regime for the enforcement of civil penalty provisions. Because there
are no substantive civil penalty clauses in the Bill, each Act that triggers these civil penalty
enforcement mechanisms will need to be accompanied by a statement of compatibility
considering the compatibility of these mechanisms with Australia's human rights obligations
in their substantive context. This cannot be done in the abstract.
However, it is important to note that civil penalties add to the flexibility of regulatory law by
allowing for the punishment of misconduct without the need to impose criminal liability.1
They provide an alternative to the unnecessary extension of the criminal law into regulatory
areas. This means that it is possible that civil penalties may in some circumstances be much
greater in magnitude than a criminal fine because of the role they play in the pyramid of
enforcement. That is, they must be sufficiently serious to act as a deterrent, without
necessarily carrying the stigma of a criminal conviction.2
For the purpose of assessing their compatibility with Australia's human rights obligations,
civil penalty provisions should only be considered to be criminal in nature where there is the
possibility of a truly penal consequence, that is, imprisonment or, in the rare case, a pecuniary
penalty of some magnitude which may impact on other rights such as the right to privacy.3
The civil penalty orders provided for in the Bill are exclusively pecuniary and operate to
1
Australian Law Reform Commission Report 95, Principled Regulation: Federal Civil and Administrative
Penalties in Australia, 13 March 2003, Statement of Principle, paragraph 3.110.
2
Ibid, paragraph 2.61.
3
This is also the approach taken by the Canadian Courts in relation to section 11 of the Canadian Charter of
Rights and Freedoms, see R v Wigglesworth [1987] 2 R.C.S 541, Matineau v M.N.R. [2004] 3 R.C.S. 737,
Canada v Guindon 2013 FCA 153.
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create a debt to the Commonwealth. Therefore, while the purpose of any provision triggering
the civil penalty mechanisms in this Bill is likely to be punitive or deterrent, this should not
be the determinative factor in assessing the nature of the provisions for the purpose of
Australia's international human rights obligations, though this must be carefully assessed
each time a Bill seeks to trigger the provisions in this Bill.
Clause 96 of the Bill provides for a reverse onus of proof. This provision engages the right to
be presumed innocent where it is triggered with regard to a provision creating a civil penalty.
However, this represents a necessary, reasonable and proportionate engagement of the right
for a number of reasons. The objective of the reversal is to ensure that all appropriate
evidence is before a court. This is appropriate given that the knowledge as to the person's
considerations and beliefs at the time of the conduct is peculiar to that person. However, the
Senate Scrutiny of Bills Alert Digest No. 13 of 2012 recognised that the appropriateness of
these provisions will depend upon the statutory context in which they are applied, as is true of
all of the powers contemplated in this Bill.
Clauses 35 and 76 of the Bill also provide for a reverse onus of proof with regard to proving
an exception to an offence of strict liability. It is appropriate that the prosecution does not
need to prove fault for the elements of this offence, on the basis that the state of mind of the
defendant is not relevant, the elements of the offence are objective, and the offence is minor
and deterrent in nature. It is reasonable that the defendant bears an evidential burden given
the context of the exception and the minor nature of the offence.
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 triggered. When this occurs, an individual assessment of the proposed
legislation will be required to determine compatibility with human rights. This will provide
additional protections to human rights and freedoms, and will ensure that those provisions of
this Bill that are applied to new or existing legislation are necessary, reasonable and
proportionate for the particular agency to carry out its functions.
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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 2014.
Clause 2: Commencement
2. Clause 2 provides the commencement details of the Bill.
Clause 3: Simplified outline
3. Clause 3 provides an overview of the Bill which creates a framework of regulatory
powers, including monitoring and investigation powers, and the use of civil penalties,
infringement notices, undertakings and injunctions to enforce provisions.
4. The monitoring, investigation and enforcement powers provided in the Bill only have
force in relation to a provision of an Act or a legislative instrument when triggered by another
Act.
Clause 4: Dictionary
5. Clause 4 provides a dictionary to define the key terms used in the Bill, to assist in the
interpretation and implementation of the Bill.
Clause 5: Binding the Crown
6. Clause 5 provides that this Act binds the Crown in each of its capacities.
Part 2--Monitoring
Division 1--Outline and operation of this Part
Clause 6: Simplified outline
7. Clause 6 provides an outline of Part 2 of the Bill which creates a framework of
monitoring powers.
8. Part 2 provides that another Act (a triggering Act) must make a provision or
information subject to monitoring under this Part, for this Part to operate.
Clause 7: Purpose and operation of this Part
9. Clause 7 provides that the purpose of this Part is to create a framework for monitoring
compliance with provisions of an Act or legislative instrument, and monitoring whether
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information given in compliance, or purported compliance, with a provision of an Act or
legislative instrument is correct.
10. Subclause 7(2) clarifies that the monitoring powers of this Part will only operate if a
provision of an Act or legislative instrument, or information given in compliance, or
purported compliance, with a provision of an Act or legislative instrument, is made subject to
this Part.
Clause 8: Provisions subject to monitoring
11. Clause 8 provides that a provision of an Act or a legislative instrument is subject to
monitoring under this Part if a triggering Act provides so.
Clause 9: Information subject to monitoring
12. Clause 9 provides that information given in compliance, or purported compliance,
with a provision of an Act or a legislative instrument is subject to monitoring under this Part
if a triggering Act provides so.
Clause 10: Related provisions
13. Clause 10 provides that a provision is related to a provision or to information that is
subject to monitoring under this Part, if a triggering Act provides so.
Clause 11: Authorised applicant
14. Clause 11 provides that a person is an authorised applicant for the purposes of
exercising monitoring powers under this Part, or exercising other powers, functions or duties
incidental to those powers, if a triggering Act provides so.
15. Subclause 11(3) provides that a triggering Act may nominate a person of a specified
class, or authorise another person to specify a person or a person of a specified class, as an
authorised applicant in relation to a provision or information for the purposes of this Part.
Clause 12: Authorised person
16. Clause 12 provides that a person is an authorised person for the purposes of exercising
monitoring powers under this Part, or exercising other powers, functions or duties incidental
to those powers, if a triggering Act provides so.
17. Subclause 12(3) provides that a triggering Act may nominate a person of a specified
class, or authorise another person to specify a person or a person of a specified class, as an
authorised person in relation to a provision or information for the purposes of this Part.
Clause 13: Identity card
18. An authorised person must be able to identify themselves at all times when exercising
monitoring powers under this Part, in relation to a provision or information. The authorised
9
person will be issued with an identity card under clause 35 by the relevant chief executive in
relation to that provision or information.
Clause 14: Issuing officer
19. Clause 14 provides that a judicial officer is an issuing officer for the purposes of
exercising powers under this Part, or performing other powers incidental to those powers, if a
triggering Act provides so.
20. Subclause 14(3) provides that a triggering Act may nominate a judicial officer of a
specified class, or authorise another person to specify a judicial officer or a judicial officer of
a specified class, as an issuing officer in relation to a provision or information for the
purposes of this Part.
Clause 15: Relevant chief executive
21. Clause 15 provides that a person is the relevant chief executive for the purposes of
exercising powers under this Part, or performing other powers, functions or duties incidental
to those powers, if a triggering Act provides so.
22. Subclause 15(3) provides that a triggering Act may nominate a person who holds a
specified office, or authorise another person to specify a person or a person who holds a
specified office, as the relevant chief executive in relation to a provision or information for
the purposes of this Part.
Clause 16: Relevant court
23. Clause 16 provides that a relevant court in relation to a matter that arises because of
the exercise of powers, functions or duties under this Part, is the court provided by the
triggering Act.
Clause 17: Privileges not abrogated
24. Subclause 17(1) makes clear that the right to claim privilege against
self-incrimination, as enshrined in common law, has not been abrogated under this Part. This
means that a person has the right to refuse to answer a question or provide information or
documents if that answer, information or document might incriminate that person or make
them liable to a penalty.
25. The privilege against self-incrimination will not apply if the person voluntarily
answers a question, or voluntarily provides information or documents that are incriminatory,
when requested through the exercise of powers under this Part.
26. Subclause 17(2) makes clear that the right to claim legal professional privilege, as
provided by the common law, has not been abrogated under this Part. This means that a
person has the right to refuse to answer a question, give information, or produce a document
on the ground that the answer, information or document would be subject to legal
professional privilege.
10
27. A person may waive legal professional privilege, if they voluntarily answer a question
or voluntarily provide information or documents when requested through the exercise of
powers under this Part.
28. These privileges provide significant protections for individuals and should generally
be available in the context of regulatory schemes. For this reason, subclauses 17(1) and (2)
take the unusual approach for Commonwealth law by making clear that these privileges have
not been abrogated under this Bill.
Division 2--Powers of authorised persons
Subdivision A--Monitoring powers
Clause 18: Entering premises by consent or under warrant
29. Clause 18 provides that an authorised person may enter the premises and exercise
monitoring powers to determine compliance with a provision subject to monitoring, or to
determine whether information subject to monitoring is correct.
30. The authorised person can only enter the premises if authorised. Authorisation to enter
the premises is provided if either the occupier of the premises consents to the entry, or the
entry is authorised by a monitoring warrant.
31. The explanatory note to this clause makes clear that an authorised person must leave
the premises if entry to the premises was with the occupier's consent and that consent has
been withdrawn (see clause 25).
Clause 19: General monitoring powers
32. Clause 19 sets out the authorised person's monitoring powers in relation to entering
premises by consent or under a warrant. The monitoring powers 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
33. Clause 20 provides the power for an authorised person to operate electronic
equipment on the premises and to use a disk, tape or other storage device that is on the
premises and can be used with the equipment or is associated with it. 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. This power is
necessary to ensure an authorised person can obtain access to electronic records that may
indicate whether a provision of an Act or legislative instrument is being complied with or
whether information provided in compliance or purported compliance with a provision of an
Act or legislative instrument is correct.
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34. 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
35. An authorised person may not be accompanied by an expert assistant when exercising
monitoring powers. Expert or specialised assistance may be required to operate electronic
equipment to access relevant information. 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.
36. An authorised person may only secure equipment if the authorised person has
reasonable grounds to believe relevant data on the equipment may be destroyed, altered or
otherwise interfered with, if the equipment is not secured. Under subclause 21(3), the
authorised person must notify the occupier of the premises, or their apparent representative,
of their intention to secure the equipment.
37. Subclause 21(5) enables an authorised person to apply to an issuing officer for an
extension of the 24 hour period if the authorised person believes on reasonable grounds that
the equipment needs to be secured for longer than that period. An extension may be sought
and granted more than once (subclause 21(7)).
38. Subclause 21(6) requires the authorised person to notify the occupier of the premises,
or their apparent representative, of their intention to apply for an extension. 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
39. 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 compliance
with a law, or whether information provided in compliance, or purported compliance, with a
law is correct. Seizing evidence is a more coercive power and should be exercisable only
where an issuing officer is satisfied that an authorised person has in fact located evidence of a
breach of an Act or legislative instrument.
40. 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 he or she reasonably believes provides evidence of a
contravention of an Act or legislative instrument, for up to 24 hours. An issuing officer may
extend the period beyond 24 hours (see subclauses 22(2) and (4)).
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41. Subclause 22(3) requires the authorised person to notify the occupier of the premises,
or their apparent representative, of their intention to apply for an extension. This provides a
means by which an occupier can challenge an application for extension if they so choose.
Clause 23: Persons assisting authorised persons
42. Authorised persons may require assistance when exercising powers and carrying out
their functions or duties under this Part. Clause 23 establishes clear legislative basis for such
assistance, if that assistance is necessary and reasonable, and another Act empowers the
authorised person to be assisted.
43. A person assisting an authorised person has the power to enter premises and assist the
authorised person to exercise powers and perform functions and duties under this Part, in
accordance with a direction given by the authorised person.
44. Any action validly taken in respect of this power is taken to be done by the authorised
person (subclauses 23(3) and (4)).
45. Subclause 23(5) states that a direction given by the authorised person is not a
legislative instrument. This is to assist readers to understand the status of these directions,
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 24: Asking questions and seeking production of documents
46. Clause 24 provides the power for an authorised person to ask questions and seek
documents.
47. If an authorised person enters premises with the consent of the occupier,
subclause 24(2) provides that an authorised person may ask the occupier to answer any
questions or produce documents relating to the operation of the provision or the information.
48. If entry is authorised by 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.
49. Subclause 24(4) provides that a person is not subject to the requirement of
subclause 24(3) if the person does not possess the information or document required, and has
taken reasonable steps to obtain the required information or documents without success.
50. Subclause 24(5) provides that a person commits an offence for failing to comply with
a requirement under subclause 24(3). This offence carries a penalty of 30 penalty units. This
clause does not abrogate the privilege against self-incrimination or legal professional
privilege (as per clause 17).
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Division 3--Obligations and incidental powers of authorised
persons
Clause 25: Consent
51. Entry into premises to exercise monitoring 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.
52. An authorised person should present their identity card to the occupier before entering
the premises. If the authorised person has not done so, subclause 25(6) provides that the
authorised person must present their identity card upon entry, or as soon as is reasonably
practical after entering the premises.
Clause 26: Announcement before entry under warrant
53. Certain powers to inspect public premises may be exercised without announcement or
identification. Where an authorised person has a monitoring warrant and the occupier of the
premises or that person's apparent representative is present, clause 26 requires an authorised
person to identify him or herself by presenting their identity card and announcing that he or
she is authorised to enter the premises before entering. This ensures that an occupier of
premises who is present is made aware and given the opportunity to allow entry before the
authorised person exercises monitoring powers under warrant.
Clause 27: Authorised person to be in possession of warrant
54. 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 warrant etc. to be given to occupier
55. Clause 28 requires an authorised person to provide a copy of the warrant to the
occupier of premises, or an occupier's apparent representative, if either are present, and to
inform that person of their rights and responsibilities under Division 4 of this Part. This
obligation ensures that occupiers and representatives who are present when a warrant is
executed, are granted an opportunity to examine the warrant and are explicitly informed about
their rights and responsibilities (clauses 30 and 31 provide for the rights and responsibilities
of an occupier).
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Clause 29: Compensation for damage to electronic equipment
56. Clause 29 provides that a person is entitled to compensation for damage to electronic
equipment operated during the course of an inspection, or for damage to data that is recorded
or programs associated with the use of the equipment or data. This 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
57. Clause 30 provides the right for the occupier of premises or their apparent
representative, who is present when a warrant is executed, to observe the execution of the
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.
58. An occupier or representative who is present when a warrant is executed must be
made aware of their rights under this clause.
Clause 31: Responsibility to provide facilities and assistance
59. Clause 31 imposes an obligation on an occupier of premises, or their apparent
representative, to provide reasonable facilities and assistance to the authorised person and any
person assisting, required to effectively carry out the warrant powers. This obligation
recognises that monitoring powers are authorised by issuing officers for the purpose of
determining whether laws are being complied with and should not be obstructed. The failure
of an occupier or their representative to provide reasonable facilities and assistance carries a
penalty of 30 penalty units.
60. An occupiers or representative who is present when a warrant is executed should be
made aware of their responsibilities under this clause.
Division 5--Monitoring warrants
Clause 32: Monitoring warrants
61. Clause 32 provides for an authorised applicant to apply to an issuing officer for a
monitoring warrant in relation to premises.
62. To ensure warrants are issued and exercised only in appropriate situations, this clause
details the circumstances by which an issuing officer may issue a warrant. The issuing officer
may issue a warrant if they are satisfied that it is reasonably necessary that one or more
authorised persons access premises for the purposes of determining compliance with a law
15
that is subject to monitoring under this Part, or whether information subject to monitoring
under this Part is correct.
63. Subclause 32(4) sets out the mandatory content of a monitoring warrant, which
includes the purpose for which the warrant is issued, who is authorised to exercise the
warrant, and when the warrant ceases to be in force.
Division 6--Extension of periods in which things secured
Clause 33: Extension of periods in which things secured
64. 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.
65. Clause 33(4) outlines what must be included in an order extending the period in which
a thing is secured, including a description of the thing to which the order relates and the
period for which the extension is granted.
Division 7 - Powers of issuing officers
Clause 34: Powers of issuing officers
66. Clause 34 provides that the power conferred on an issuing officer under this Part is
conferred on the issuing officer in their personal capacity and not as a representative of the
court. However, 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 8 - Identity cards
Clause 35: Identity Cards
67. Clause 35 requires the relevant chief executive to issue an identity card to an
authorised person, which is in the form prescribed by the Regulations and contains a photo of
the authorised person that is no more than one year old.
68. Clause 35(3) requires a person to return their identity card when they cease their role
as an authorised person. This obligation is supported by an offence of strict liability
punishable by one penalty unit if the person fails to return their identity card within 14 days
after ceasing that role. It is appropriate that the prosecution does not need to prove fault for
the elements of this offence, on the basis that the state of mind of the defendant is not
relevant, the elements of the offence are objective, and the offence is minor and deterrent in
nature. Further, subclause 35(5) provides for an exception to the offence if the identity card
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was lost or destroyed. The defendant bears an evidential burden and will need to show a
reasonable possibility that the identity card was lost or destroyed. This reverse onus of proof
is appropriate given the context and minor nature of the offence.
69. Subclause 35(6) requires an authorised person to carry his or her identity card at all
times when acting in their capacity as an authorised person exercising monitoring powers.
Part 3--Investigation
Division 1--Outline and operation of this Part
Clause 36: Simplified outline
70. Clause 36 provides an outline of Part 3 of the Bill which creates a framework for
gathering material relating to the contravention of offence and civil penalty provisions.
71. Part 3 provides that another Act (a triggering Act) must make an offence provision or
a civil penalty provision subject to investigation under this Part, for this Part to operate.
Clause 37: Purpose and operation of this Part
72. Clause 37 provides that the purpose of this Part is to create a framework for gathering
material that relates to the contravention of offence provisions and civil penalty provisions.
73. Subclause 37(2) provides that an offence provision or civil penalty provision must be
made subject to investigation under this Part for this Part to operate.
Clause 38: Provisions subject to investigation
74. Clause 38 provides that an offence against, or a civil penalty provision under, an Act
or legislative instrument, is subject to investigation under this Part if an Act (the
triggering Act) provides so.
Clause 39: Evidential material
75. Clause 39 defines 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
76. Clause 40 provides that a provision is related to evidential material for the purposes of
this Part, if a triggering Act provides so.
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Clause 41: Authorised applicant
77. Clause 41 provides that a person is an authorised applicant for the purposes of
exercising powers under this Part in relation to evidential material, or exercising other
powers, functions or duties incidental to those powers, if a triggering Act provides so.
78. Subclause 41(3) provides that a triggering Act may nominate a person of a specified
class, or authorise another person to specify a person or a person of a specified class, as an
authorised applicant in relation to evidential material for the purposes of this Part.
Clause 42: Authorised person
79. Clause 42 provides that a person is an authorised person for the purposes of exercising
powers under this Part in relation to evidential material, or exercising other powers, functions
or duties incidental to those powers, if a triggering Act provides so.
80. Subclause 42(3) provides that a triggering Act may nominate a person of a specified
class, or authorise another person to specify a person or a person of a specified class, as an
authorised person in relation to evidential material for the purposes of this Part.
Clause 43: Identity card
81. An authorised person must be able to identify themselves at all times when exercising
powers in relation to evidential material under this Part. The authorised person will be issued
with an identity card under clause 43 by the relevant chief executive in relation to that
evidential material.
Clause 44: Issuing officer
82. Clause 44 provides that a judicial officer is an issuing officer for the purposes of
exercising powers under this Part, or exercising other powers incidental to those powers, if a
triggering Act provides so.
83. Subclause 44(3) provides that a triggering Act may nominate a judicial officer of a
specified class, or authorise another person to specify a judicial officer or a judicial officer of
a specified class, as an issuing officer in relation to evidential material for the purposes of this
Part.
Clause 45: Relevant chief executive
84. Clause 45 provides that a person is the relevant chief executive for the purposes of
exercising powers under this Part, or exercising other powers, functions or duties incidental to
those powers, if a triggering Act provides so.
85. Subclause 45(3) provides that a triggering Act may nominate a person who holds a
specified office, or authorise another person to specify a person or a person who holds a
specified office, as the relevant chief executive in relation to evidentiary material for the
purposes of this Part.
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Clause 46: Relevant court
86. Clause 46 provides that a relevant court in relation to a matter that arises because of
the exercise of powers, functions or duties under this Part, is the court provided by the
triggering Act.
Clause 47: Privileges not abrogated
87. Subclause 47(1) makes clear that the right to claim privilege against
self-incrimination, as enshrined in common law, has not been abrogated under this Part. This
means that a person has the right to refuse to answer a question or provide information or
documents if that answer, information or document might incriminate that person or make
them liable to a penalty.
88. The privilege against self-incrimination will not apply if the person voluntarily
answers a question, or voluntarily provides information or documents that are incriminatory,
when requested through the exercise of powers under this Part.
89. Subclause 47(2) makes clear that the right to claim legal professional privilege, as
provided by the common law, has not been abrogated under this Part. This means that a
person has the right to refuse to answer a question, give information, or produce a document
on the ground that the answer, information or document would be subject to legal
professional privilege.
90. A person may waive legal professional privilege, if they voluntarily answer a question
or voluntarily provide information or documents when requested through the exercise of
powers under this Part.
91. These privileges provide significant protections for individuals and should generally
be available in the context of regulatory schemes. For this reason, subclauses 47(1) and (2)
take the unusual approach for Commonwealth law by making clear that these privileges have
not been abrogated under this Bill.
Division 2--Powers of authorised persons
Subdivision A--Investigation powers
Clause 48: Entering premises by consent or under a warrant
92. Clause 48 provides that an authorised person may enter the premises and exercise
investigation powers if the authorised person suspects on reasonable grounds that there may
be evidential material on the premises.
93. The authorised person can only enter the premises if authorised. Authorisation to enter
the premises is provided if either the occupier of the premises consents to the entry, or the
entry is made under an investigation warrant.
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Clause 49: General investigation powers
94. Clause 49 sets out the investigation powers that an authorised person may exercise in
relation to premises.
95. If an authorised person enters premises by way of an occupier's consent, the
authorised person has the power to search the premises and any thing on the premises for the
evidential material the authorised person suspects on reasonable grounds may be on the
premises.
96. If an authorised person enters premises under an investigation warrant, the authorised
person has the power to: search the premises and seize evidential material; inspect, test and
copy evidential material; take necessary equipment 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 judicial oversight of these investigation
powers.
Clause 50: Operating electronic equipment
97. To ensure an authorised person is able to obtain access to electronic records that may
contain evidential material, clause 50 empowers an authorised person to operate any
electronic equipment on premises that the authorised person suspects on reasonable grounds
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.
98. In addition to the power to operate electronic equipment, an authorised person has 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 by
consent or under 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 form or if possessing the electronic equipment or storage device
would constitute an offence by the occupier of premises.
99. 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 51: Securing electronic equipment to obtain expert assistance
100. Clause 51 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. This power only applies if the authorised person enters premises under
an investigation warrant to search for evidential material.
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101. Clause 51 permits an authorised person to secure electronic equipment in order to
engage expert assistance to operate the electronic equipment - where he or she believes that
expert assistance is required. As an authorised person may not be accompanied by an expert
assistant when exercising monitoring powers, this clause permits an authorised person to
secure equipment for up to 24 hours in order to engage expert assistance.
102. An authorised person may only secure equipment if the authorised person has
reasonable grounds to believe that evidential material may be destroyed, altered or otherwise
interfered with, if the equipment is not secured.
103. Subclause 51(3) requires the authorised person to give notice to the occupier of the
premises or another person who apparently represents the occupier, of the intent to secure the
equipment and the fact that the equipment may be secured for up to 24 hours.
104. Subclause 51(5) enables an authorised person to apply to an issuing officer for an
extension of the 24 hour period if the authorised person believes on reasonable grounds that
the equipment needs to be secured for longer than that period. An extension may be sought
and granted more than once under subclause 51(7).
105. Subclause 51(6) requires the authorised person to notify the occupier of the premises,
or their apparent representative, of their intention to apply for an extension. This provides a
means by which an occupier can challenge an application for extension if they so choose.
Clause 52: Seizing evidence of related provisions
106. 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.
107. Clause 52 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 a related provision. The
authorised person must believe on reasonable grounds that it is necessary to seize the thing in
order to prevent its concealment, loss or destruction.
108. 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 53: Persons assisting authorised persons
109. Authorised persons may require assistance when exercising powers and carrying out
their functions or duties under this Part. Clause 53 establishes a clear legislative basis for
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such assistance, if that assistance is necessary and reasonable, and another Act empowers the
authorised person to be assisted.
110. A person assisting an authorised person has the power to enter premises and assist the
authorised person to exercise powers and perform functions and duties under this Part, in
accordance with a direction given by the authorised person.
111. Any action validly taken in respect of this power is taken to be done by the authorised
person (subclauses 53(3) and (4)).
112. Subclause 53(5) states that a direction given by the authorised person is not a
legislative instrument. This is to assist readers to understand the status of these directions,
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 54: Asking questions and seeking production of documents
113. Clause 54 provides the power for an authorised person to ask questions and seek
documents.
114. If an authorised person enters premises with the consent of the occupier, subclause
54(2) provides that an authorised person may ask the occupier to answer any questions or
produce documents, relating to evidential material.
115. If entry is authorised by an investigation warrant, subclause 54(3) provides that an
authorised person may require any person on the premises to answer any questions or produce
documents relating to evidential material of the kind specified in the warrant.
116. Subclause 54(4) provides that a person is not subject to the requirement of subclause
54(3) if the person does not possess the information or document required, and has taken all
reasonable steps to obtain the required information or documents without success.
117. Subclause 54(5) provides that a person commits an offence for a failing to comply
with a requirement under subclause 54(3). This offence carries a penalty of 30 penalty units.
This clause does not abrogate the privilege against self-incrimination or legal professional
privilege (as per clause 47).
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Division 3--Obligations and incidental powers of authorised
persons
Clause 55: Consent
118. Entry into premises to exercise investigation powers under Part 3 Division 2 may be
exercised with the consent of the occupier. Clause 55 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.
119. An authorised person should present their identity card to the occupier before entering
the premises. If the authorised person has not done so, subclause 55(6) provides that the
authorised person must present their identity card upon entry, or as soon as is reasonably
practical after entering the premises.
Clause 56: Announcement before entry under warrant
120. Certain powers to inspect public premises may be exercised without announcement or
identification. Where an authorised person has an investigation warrant, clause 56 requires an
authorised person to identify him or herself by presenting their identity card and announcing
that he or she is authorised to enter the premises before entering 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 and given the opportunity to allow entry before the
authorised person exercises investigation powers under warrant.
121. In some situations, the requirement to identify and announce the purpose of the visit
could result in serious detriment. Clause 56 therefore permits an authorised person to enter
without identifying himself or herself or announcing their purpose where they believe on
reasonable grounds that 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. The authorised person is still obliged to provide
identification as soon as practicable after entry, if an occupier or their representative is
present.
Clause 57: Authorised person to be in possession of warrant
122. Clause 57 requires an authorised person to be in possession of the warrant or a copy of
the warrant issued by the issuing officer, or the form of warrant completed, or a copy of the
form completed by the authorised person. An authorised person who does not possess one of
these documents is not permitted to enter premises as authorised by the warrant, and is not
permitted to exercise warrant powers.
Clause 58: Details of warrant etc. to be given to occupier
123. Clause 58 requires an authorised person to provide a copy of the warrant to the
occupier of premises, or an occupier's apparent representative, if either are present, and to
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inform the person of their rights and responsibilities under Division 4 of this Part. This
obligation ensures that occupiers and representatives who are present when a warrant is
executed, are granted an opportunity to examine the warrant and are explicitly informed about
their rights and responsibilities (clauses 62 and 63 provide for the rights and responsibilities
of an occupier).
Clause 59 Completing execution after temporary cessation
124. 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.
125. 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 59 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. not more than twelve hours in an emergency situation
c. 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 60: Completing execution of warrant stopped by court order
126. Clause 60 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 61: Compensation for damage to electronic equipment
127. Clause 61 provides that a person is entitled to compensation for damage to electronic
equipment operated during the course of an inspection, or for damage to data that is recorded
or programs associated with the use of the equipment or data. This recognises the fact that
powers to operate electronic equipment do not excuse damage caused by a lack of care.
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Division 4--Occupier's rights and responsibilities
Clause 62: Right to observe execution of warrant
128. Clause 62 provides the right for the occupier of premises or their apparent
representative, who is present when a warrant is executed, to observe the execution of the
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.
129. An occupier or representative who is present when a warrant is executed must be
made aware of their rights under this clause.
Clause 63: Responsibility to provide facilities and assistance
130. Clause 63 imposes an obligation on an occupier of premises, or their apparent
representative, to provide reasonable facilities and assistance to the authorised person and any
person assisting, required to effectively carry out the 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. The failure
of an occupier or their representative to provide reasonable facilities and assistance carries a
penalty of 30 penalty units.
131. An occupier or representative who is present when a warrant is executed must be
made aware of their obligations under this clause.
Division 5--General provisions relating to seizure
Clause 64: Copies of seized things to be provided
132. If an authorised person seizes a storage device, document or other thing that can be
readily copied while exercising investigation powers, clause 64 permits the occupier of
premises, or a person who represents the occupier, to request a copy of the seized thing. The
authorised person must provide a copy of the seized thing as soon as practicable after the
seizure. Clause 64 ensures that a person can, for example, retain a copy of seized material for
their own records or use.
Clause 65: Receipts for seized things
133. To ensure a record of seizure is maintained and available to the person from whom
material is seized, clause 65 requires an authorised person to give a receipt for a thing that is
seized when exercising investigation powers.
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Clause 66: Return of seized things
134. The Bill authorises seizure of material only for specific reasons and does not permit
material to be retained indefinitely. Clause 66 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.
135. The obligation to return seized material, or to return it within 60 days of seizure, may
at times conflict with other priorities. The requirement to return seized material is subject to
any contrary order of a court, and does not apply 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 67: Issuing officer may permit a thing to be retained
136. To ensure the 60 day limit for retaining seized items does not prejudice ongoing
investigations or legal proceedings, clause 67 permits an issuing officer to issue an order
extending the period a thing may be retained, up to a maximum period of three years. The
relevant chief executive is required 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 68: Disposal of things
137. If the relevant chief executive is unable to return seized items as required by clause 66
because return is refused or the person to whom the item should be returned cannot be
located, clause 68 permits the relevant chief executive to dispose of the seized material.
Clause 69: Compensation for acquisition of property
138. To ensure constitutional validity of acquisition powers, and to protect people against
unjust acquisitions under this Part, clause 69 requires the Commonwealth to pay reasonable
compensation if the disposal of items 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.
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Division 6--Investigation warrants
Clause 70: Investigation warrants
139. While monitoring powers under Part 1 are available to determine whether a
Commonwealth law is being complied with, investigation powers are available where an
authorised person has reasonable grounds to suspect that premises contain evidence of
contravention of a Commonwealth law. Clause 70 sets out the procedure for obtaining an
investigation warrant and the mandatory content of such warrants.
Clause 71: Investigation warrants by telephone, fax etc.
140. In some circumstances an authorised person may urgently require an investigation
warrant, for example, where the authorised person has secured material for 24 hours or where
the time taken to obtain a warrant may result in evidential material being altered or disposed
of. Clause 71 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 72: Authority of warrant
141. The copy of a warrant made in accordance with clause 71 is not physically the warrant
made by an issuing officer. Clause 72 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. To further prevent
arguments over validity, clause 72 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 73: Offence relating to warrants by telephone, fax etc.
142. To discourage and punish any misuse of warrants obtained by electronic
communication, clause 73 establishes an offence punishable by two years' imprisonment for a
range of conduct by an authorised applicant in respect of investigation warrants.
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Division 7--Extension of periods in which things secured
Clause 74: Extension of periods in which things secured
143. Clause 74 provides for an issuing officer to grant an extension to the 24 hour period in
which a thing can be secured by an authorised person. The issuing officer may require further
information from the authorised person or some other person which demonstrates that the
extension is necessary to prevent evidential material being destroyed, altered or interfered
with.
144. Clause 74(4) outlines what must be included in an order for extending the period in
which a thing is secured. This includes a description of the thing to which the order relates
and the period for which the extension is granted.
Division 8 - Powers of issuing officers
Clause 75: Powers of issuing officers
145. Clause 75 provides that the power conferred on an issuing officer under this Part is
conferred on the issuing officer in their personal capacity and not as a representative of the
court. However, 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 76: Identity Cards
146. Clause 76 requires the relevant chief executive officer to issue an identity card to an
authorised person, which is in the form prescribed by the Regulations and contains a photo of
the authorised person that is no more than one year old.
147. Clause 76(3) requires a person to return their identity card when they cease their role
as an authorised person. This obligation is supported by an offence of strict liability
punishable by one penalty unit if the person fails to return their identity card within 14 days
after ceasing that role. It is appropriate that the prosecution does not need to prove fault for
the elements of this offence, on the basis that the state of mind of the defendant is not
relevant, the elements of the offence are objective, and the offence is minor and deterrent in
nature. Further, subclause 76(5) provides for an exception to the offence if the identity card
was lost or destroyed. The defendant bears an evidential burden and will need to show a
reasonable possibility that the identity card has been lost or destroyed. This reverse onus of
proof is appropriate given the context and minor nature of the offence.
148. Subclause 76(6) requires an authorised person to carry his or her identity card at all
times when acting in their capacity as an authorised person exercising investigation powers.
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Part 4--Civil Penalty Provisions
Division 1--Outline and operation of this Part
Clause 77: Simplified outline
149. Clause 77 provides an outline of Part 4 of Bill which creates a framework for the use
of civil penalties to enforce civil penalty provisions.
150. Part 4 provides that another Act (a triggering Act) must make a civil penalty provision
enforceable under this Part, for this Part to operate.
Clause 78: Purpose and operation of this Part
151. Clause 78 provides that the purpose of this Part is to create a framework for the use of
civil penalties to enforce civil penalty provisions.
152. Subclause 78(2) clarifies that a civil penalty provision must be made enforceable
under this Part, for this Part to operate.
Clause 79: Enforceable civil penalty provisions
153. Clause 79 provides that a provision is enforceable under this Part if it is a civil penalty
provision and another Act (a triggering Act) provides that the civil penalty provision is
enforceable under this Part.
154. Subclause 79(2) clarifies what constitutes a civil penalty provision in an Act or a
legislative instrument.
Clause 80: Authorised applicant
155. Clause 80 provides that a person is an authorised applicant for the purposes of
exercising powers under this Part in relation to the contravention of a civil penalty provision,
or exercising other powers, functions or duties incidental to those powers, if a triggering Act
provides so.
156. Subclause 80(3) provides that a triggering Act may nominate a person of a specified
class, or authorise another person to specify a person or a person of a specified class, as an
authorised applicant in relation to a civil penalty provision for the purposes of this Part.
Clause 81: Relevant court
157. Clause 81 provides that a relevant court for the purposes of exercising powers under
this Part in relation to the contravention of a civil penalty provision, is the court provided by
the triggering Act.
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Division 2--Obtaining a civil penalty order
Clause 82: Civil penalty orders
158. Clause 82 provides for an authorised applicant to apply for a civil penalty order to
remedy an alleged breach in a triggering Act'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
159. 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 provision
160. Clause 84 clarifies that a person's conduct may contravene more than one provision
under the triggering Act. 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
161. Clause 85 clarifies that a relevant court may make a single penalty order for multiple
contraventions of a civil penalty provision if proceedings for the contraventions are founded
on the same facts, or if the contraventions form, or are part of, a series of contraventions for
the same or similar conduct. This provision is intended to minimise court administration and
consolidate legal proceedings. The penalty must not exceed the sum of the maximum
penalties that could be ordered if there were separate proceedings for each contravention.
Clause 86: Proceedings may be heard together
162. 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
163. 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.
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Division 3--Civil proceedings and criminal proceedings
Clause 88: Civil proceedings after criminal proceedings
164. Clause 88 provides that a court cannot make a civil penalty order against a person who
has been convicted of a criminal offence for the same, or substantially the same, conduct.
Clause 89: Criminal proceedings during civil proceedings
165. Clause 89 stays civil proceedings if criminal proceedings commence or have
commenced and relate to the same, or substantially the same, conduct. This is to prevent any
information that arises during criminal proceedings prejudicing civil proceedings. If the
criminal proceedings result in a conviction, civil proceedings related to the same, or
substantially the same, conduct will be dismissed and costs for the civil proceedings are not
awarded. Civil proceedings may resume if the person is not convicted of the offence.
Clause 90: Criminal proceedings after civil proceedings
166. Clause 90 clarifies that criminal proceedings may commence after civil proceedings,
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 triggering Act and ensures that criminal remedies are not precluded by
earlier civil action.
Clause 91: Evidence given in civil proceedings not admissible in criminal proceedings
167. 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
168. Clause 92 supports the enforcement regime by ensuring that conduct ancillary to the
contravention of a civil penalty provision is considered to be a 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.
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Clause 93: Continuing contraventions of civil penalty provisions
169. Clause 93 clarifies that certain actions are considered to be repeated contraventions.
The clause ensures that a civil obligation 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 provision is incurred for every day the
obligation is not met. This is necessary to ensure that failure to comply with an obligation
does not excuse a person from meeting that obligation.
Clause 94: State of mind
170. Clause 94 provides that it is not necessary to prove a person's state of mind in civil
penalty proceedings under this Bill. This applies only to proceedings for contravention of
civil penalty provisions, not for ancillary contravention of civil penalty provisions, nor where
the civil penalty provision or a provision that relates to the civil penalty provisions expressly
provides otherwise
171. It is appropriate that a person's state of mind does not need to be proven for civil
penalty contraventions, on the basis civil penalties are deterrent in nature and do not
constitute criminal liability.
Clause 95: Mistake of fact
172. 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 a person's state of mind.
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, this
clause 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.
173. The person who asserts that a particular course of action resulted from a mistake of
fact has the burden of proving the matter. This is appropriate on the basis that the knowledge
of the person's state of mind at the time of the conduct is peculiar to that person.
Clause 96: Exceptions etc. to civil penalty provisions - burden of proof
174. Clause 96 provides that if a person wishes to rely on any exception, exemption,
excuse, qualification or justification provided by the triggering Act, that person bears the
evidential burden of proving that matter. This is appropriate on the basis that knowledge of
the matter would be peculiar to that person.
Clause 97: Civil penalty provisions contravened by employees, agents or officers
175. 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.
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Part 5--Infringement notices
Division 1--Outline and operation of this Part
Clause 98: Simplified outline
176. Clause 98 provides an outline of Part 5 of the Bill which creates a framework for the
use of infringement notices. Infringement notices can be issued in relation to a breach of an
offence provision or a civil penalty provision.
177. An infringement notice is a notice of a pecuniary penalty imposed on a person by
statute setting out particulars of an alleged contravention of a law. 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 civil penalty contravention 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 contravention.
178. 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 contraventions and for
wrongdoers to discharge their obligation without appearing before a court.
179. Part 5 provides that another Act (a triggering Act) must make a provision subject to an
infringement notice under this Part, in order for the Part to operate.
Clause 99: Purpose and operation of this Part
180. Clause 99 provides that the purpose of this Part is to create a framework for the use of
infringement notices.
181. Subclause 99(2) provides that a provision of an Act or a legislative instrument must be
made subject to an infringement notice under this Part, for this Part to operate.
Clause 100: Provisions subject to infringement notices
182. Clause 100 provides that an offence of strict liability or a civil penalty provision in an
Act or legislative instrument is subject to an infringement notice under this Part if a triggering
Act provides so.
Clause 101: Infringement officer
183. Clause 101 provides that a person is an infringement officer for the purposes of
exercising powers under this Part in relation to a contravention of a provision, or exercising
other powers, functions or duties incidental to those powers, if a triggering Act provides so.
33
184. Subclause 101(3) provides that a triggering Act may nominate a person of a specified
class, or authorise another person to specify a person or a person of a specified class, as an
infringement officer for the purposes of this Part.
Clause 102: Relevant chief executive
185. Clause 102 provides that a person is the relevant chief executive for the purposes of
exercising powers under this Part, or exercising other powers, functions or duties incidental to
those powers, if a triggering Act provides so.
186. Subclause 102(3) provides that a triggering Act may nominate a person who holds a
specified office, or authorise another person to specify a person or a person who holds a
specified office, as the relevant chief executive, for the purposes of this Part.
Division 2--Infringement notices
Clause 103: When an infringement notice may be given
187. 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
provision subject to an infringement notice under this Part. Infringement notices provide a
simpler and faster remedy to a suspected contravention of a provision than formal civil or
criminal proceedings.
188. An infringement notice must be issued within 12 months of an alleged contravention.
An infringement notice issued later than this is invalid and cannot be enforced.
189. To ensure the reasons for each notice are clear, a separate infringement notice must be
issued for each alleged contravention, 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).
190. Subclause 103(5) provides that where a provision constitutes bother a civil penalty
provision and an offence provision, the infringement notice must relate as an offence
provision.
Clause 104: Matters to be included in an infringement notice
191. 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).
34
192. 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
193. To ensure that a 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. The relevant chief executive may extend the period more
than once.
Clause 106: Withdrawal of an infringement notice
194. 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.
195. 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
196. 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
197. Clause 108 clarifies that Part 5 Division 2of the Bill, dealing with infringement
notices, does not make infringement notices a mandatory response to a suspected
contravention - they remain a discretionary remedy. Part 5 Division 2 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).
35
Part 6--Enforceable Undertakings
Division 1--Outline and operation of this Part
Clause 109: Simplified outline
198. Clause 109 provides an outline of Part 6 of the Bill which creates a framework for
accepting and enforcing undertakings relating to compliance with offence provisions and civil
penalty provisions.
199. Part 6 provides that another Act (a triggering Act) must make a provision enforceable
under this Part, for this Part to operate.
Clause 110: Purpose and operation of this Part
200. Clause 110 provides that the purpose and operation of this Part is to create a
framework for the acceptance and enforcement of undertakings relating to compliance with
provisions.
201. Subclause 110(2) provides that a provision of an Act or a legislative instrument must
be made enforceable under this Part, for this Part to operate.
Clause 111: Enforceable provisions
202. Clause 111 provides that a provision of an Act or a legislative instrument is
enforceable under this Part if a triggering Act provides so.
Clause 112: Authorised person
203. Clause 112 provides that a person is an authorised person for the purposes of
exercising powers under this Part, or exercising powers, functions or duties incidental to those
powers, if a triggering Act provides so.
204. Subclause 112(3) provides that a triggering Act may nominate a person of a specified
class, or authorise another person to specify a person or a person of a specific class, as an
authorised person, for the purposes of this Part.
Clause 113: Relevant court
205. Clause 113 provides that a relevant court for the purposes of exercising powers under
this Part in relation to an undertaking given in relation to a provision enforceable under this
Part, is the court provided by the triggering Act.
36
Division 2--Accepting and enforcing undertakings
Clause 114: Acceptance of undertakings
206. 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.
207. Undertakings provide a remedy other than financial sanctions to past or prospective
breaches of a provision.
208. 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.
209. Subclause 114(4) states that consent of an authorised person is not a legislative
instrument. This is to assist readers to understand the status of consent given under this
clause; 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.
210. Subclause 114(5) provides that an authorised person may, by written notice given to
the person, cancel the undertaking.
Clause 115: Enforcement of undertakings
211. Clause 115 enables the authorised person to apply to have undertakings given under
clause 114 enforced in a relevant court. This clause 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
212. Clause 116 provides an outline of Part 7 of the Bill which creates a framework for
using injunctions to enforce provisions.
213. Part 7 provides that another Act (a triggering Act) must make a provision enforceable
under this Part, for this Part to operate.
214. Injunctions may be used to restrain a person from contravening a provision
enforceable under this Part, or to compel compliance with such a provision.
37
Clause 117: Purpose and operation of this Part
215. Clause 117 provides that the purpose of this Part is to create a framework for the use
of injunctions in the enforcement of provisions.
216. Subclause 117(2) clarifies that this Part will only operate if a provision of an Act or a
legislative instrument is made enforceable under this Part.
Clause 118: Enforceable provisions
217. Clause 118 provides that a provision of an Act or a legislative instrument is
enforceable under this Part if a triggering Act provides so.
Clause 119: Authorised person
218. Clause 119 provides that a person is an authorised person for the purposes of applying
for an injunction in relation to a provision which is enforceable under this Part, or exercising
other powers, functions or duties incidental to those powers, if a triggering Act provides so.
219. Subclause 119(3) provides that a triggering Act may nominate a person of a specified
class, or authorise another person to specify a person or a person of a specified class, as an
authorised person for the purposes of this Part.
Clause 120: Relevant court
220. Clause 120 provides that a relevant court for the purposes of exercising powers under
this Part in relation to the contravention of a provision enforceable under this Part, is the court
provided by the triggering Act.
Division 2--Injunctions
Clause 121: Grant of injunctions
221. 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 or
issue 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
222. In some cases, an interim injunction may be required to prevent or require certain
action while injunction proceedings are carried out. Clause 122 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. Refusing to give an undertaking in respect of damages is not grounds for
refusing to grant an interim injunction.
38
Clause 123: Discharging or varying injunctions
223. Clause 123 provides that injunctions can be varied or discharged by a relevant court.
Clause 124: Certain limits on granting injunctions not to apply
224. 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 an imminent danger of substantial damage to
any other person. 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
225. Clause 125 clarifies that injunction powers under this Part are additional to, not in
replacement of, any other powers of the court.
Part 8--General provisions
Clause 126: Regulations
226. Clause 126 provides a general regulation making power that will permit the
Governor-General to make Regulations required or permitted to be prescribed by the Bill, or
necessary or convenient to carry out or give effect to the Bill.
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