Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 415 (6 December 2017)

• Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Bill 2017
• Reversal of evidential burden of proof68
• Removal of cause of action74
• Privilege against self-incrimination76

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Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Bill 2017

Purpose	This bill seeks to amend various Acts in relation to the financial sector by amending: • Australian Prudential Regulation Authority’s (APRA) statutory and judicial management regimes; • APRA’s existing directions powers; • APRA’s ability to implement a transfer under the Financial Sector (Business Transfer and Group Restructure) Act 1999; • APRA’s ability to respond when an Australian branch of a foreign regulated entity (foreign branch) may be in distress; • stay provisions and ensure that the exercise of APRA’s powers does not trigger certain rights in the contracts of relevant entities within the same group; • the operation of the Financial Claims Scheme; • APRA’s powers in relation to the wind‑up or external administration of regulated entities; • APRA's powers to make appropriate prudential standards on resolution planning and • conversion and write-off of capital instruments to which the conversion and write-off provisions in APRA's prudential standards apply
Portfolio	Treasury
Introduced	House of Representatives on 19 October 2017
Bill status	Before House of Representatives
Scrutiny principle	Standing order 24(1)(a)(i)

2.168 The committee dealt with this bill in Scrutiny Digest No. 13 of 2017. The Minister responded to the committee's comments in a letter dated 5 December 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Treasurer's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[67]

Reversal of evidential burden of proof^[68]

Initial scrutiny – extract

2.169 The bill seeks to provide the Australian Prudential Regulation Authority (APRA) with the power to issue certain directions and to determine that that direction is covered by a secrecy provision. Proposed sections 11CI, 109A and 231A make it an offence if certain persons disclose information that reveals the fact that the direction was made by APRA. Each proposed provision provides an exception (offence specific defence) to this offence, stating that the offence does not apply if the disclosure is:

• information that has already been lawfully made available to the public;

• permitted by APRA as set out in the determination;

• provided to a legal representative for the purpose of seeking legal advice;

• authorised by the secrecy provisions in the Australian Prudential Regulation Authority Act 1998;

• made in circumstances specified in the regulations;

• for the same purpose as set out above (but disclosed by a different person); or

• required by an order or direction of a court or tribunal.

2.170 Each proposed offence carries a maximum penalty of up to two years imprisonment.

2.171 Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

2.172 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

2.173 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified.

2.174 In this instance, the explanatory memorandum states that the evidentiary burden rests on the person bound by the secrecy provision 'because they are best positioned to provide the evidence as it is within their knowledge'.^[69] However, the committee notes that the Guide to Framing Commonwealth Offences^[70] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[71]

2.175 The committee notes that this requires more than just the defendant knowing that a certain fact exists, it must be a matter that is peculiarly within their knowledge. As such, it is not clear to the committee that matters such as whether the disclosure has been permitted by APRA, authorised by relevant legislative provisions or required by an order or direction of a court or tribunal, would be matters peculiarly within the defendant's knowledge. These matters appear to be matters more appropriate to be included as an element of the offence.

2.176 The committee requests the Minister's detailed justification as to the appropriateness of including the specified matters as offence-specific defences (which reverse the evidential burden of proof). The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[72]

Treasurer's response

2.177 The Treasurer advised:

Proposed sections 11CI of the Banking Act 1959 (Banking Act), 109A of the Insurance Act 1973 (Insurance Act) and 23IA of the Life Insurance Act 1995 (Life Insurance Act) set out secrecy provisions which the Australian Prudential Regulation Authority (APRA) may apply to ensure that details of a direction given by APRA to an authorised deposit-taking institution (ADI) or insurer or related entities are not disclosed. While most directions will properly be publically available, there are limited circumstances where a period of confidentiality is necessary to ensure panic does not develop in financial markets as a consequence of precipitously announced resolution actions.
There are a number of defences available to a person who has made a relevant disclosure. The defences are that the disclosure is:

• of information that has already been lawfully made available to the public;

• permitted by APRA as set out in the determination;

• made to a legal representative for the purpose of seeking legal advice;

• authorised by a relevant exception in the secrecy provision in the Australian Prudential Regulation Authority Act 1998 (APRA Act);

• made in circumstances specified in the regulations;

• for the same purpose as one of the above (but made by a different person); or

• required by an order or direction of a court or tribunal

The defendant bears an evidential burden in relation to these defences. This means that a defendant has the burden of adducing or pointing to evidence that suggests a reasonable possibility that the basis of the defence exists.
The matters listed as defences would normally be expected to be peculiarly within the knowledge of the defendant For example:

• If the disclosure was allowed by a determination made by APRA (e.g. under proposed section 11CK of the Banking Act) and complied with any conditions imposed by APRA in the determination, the defendant, having made the disclosure, and having been privy to all the relevant surrounding circumstances of the disclosure, will be in the best position to raise initial evidence of the possibility that the disclosure aligned with APRA's determination.

– It should be noted that APRA must provide a copy of the determination permitting the disclosure to the entity and any person covered by the determination, or else the determination will be a legislative instrument and therefore publicly available.
– Therefore the defendant will generally have:
- knowledge of the content of the determination; and
- peculiar knowledge of the precise circumstances of the disclosure in question, and whether they align with the terms of the determination.
– They will therefore be in the best position to raise evidence supporting the possibility that the defence can be made out, which will return the onus to the prosecution to prove the contrary.

• If the disclosure was made to a legal representative for the purpose of seeking legal advice or a legal service (e.g. under proposed section 11CL of the Banking Act), the defendant will be in the best position to adduce evidence of both elements. Specifically, the defendant will have peculiar knowledge of the relationship between the defendant and the recipient of the information (that the recipient was in fact the defendant's legal representative) and of the purpose for which the disclosure was made (i.e. so that the recipient of the information could provide the advice or service, rather than for some other reason).

• If the disclosure is authorised by an exception to the secrecy provision in section 56 of the APRA Act - which it should be noted will only be relevant if the defendant is a APRA member, APRA staff member or other Commonwealth officer - evidence of that fact will generally be peculiarly within the knowledge of the defendant. For example, where the disclosure was made to a financial sector supervisory agency, the defendant will be in the best position to raise evidence that when they made the disclosure they were "satisfied that the disclosure ... [would] assist [that] financial sector supervisory agency...to perform its functions or exercise its powers"(see paragraph 56(4)(a) of the APRA Act). It should be noted that section 56 of the APRA Act itself casts an evidential burden on the defendant to adduce prima facie evidence of the existence of each defence, and therefore the approach taken in the new secrecy provisions in the Bill is consistent.

• If the disclosure was made in circumstances prescribed by the regulations it will generally be the case that the defendant will be in the best position to adduce evidence of that possibility because the defendant will again be the person with peculiar knowledge of the facts and circumstances of the disclosure and whether they align with the terms of the determination.

• If the disclosure was in response to an order or direction of a court or tribunal, the defendant will generally be in possession of a copy of the order (e.g. subpoena), and will have the peculiar knowledge to adduce evidence of this.

• The above considerations also apply to secondary disclosures (e.g. where an initial permissible disclosure is made to a solicitor, who then seeks advice from a barrister who is a legal representative of the solicitor's client).

Further, the defendant is merely required to adduce or point to evidence that suggests a reasonable possibility that the relevant fact or facts exist.
It would be onerous, costly and (often) redundant for the prosecution to have to prove beyond reasonable doubt, in every prosecution, that every single one of the above circumstances does not exist. It is inherently difficult to prove a negative, and in most cases there will usually be no reason to suggest that the factual circumstances described in the defence provisions exist.
It is highly unlikely that a prosecution would be brought where the information about the direction had already been lawfully made available to the public and it submitted that it would be onerous for the prosecution to be required to prove, beyond reasonable doubt, the negative proposition that the information had not been lawfully made available to the public. Again, should there be some prospect that the information was lawfully made available to the public, the defence would only be obliged to adduce evidence of this possibility, rather than prove it to a legal standard. It is submitted that the Bill strikes an appropriate balance in this regard.
Finally, the approach taken is broadly consistent with other secrecy provisions in Commonwealth legislation (including, as noted, section 56 of the APRA Act).

Committee comment

2.178 The committee thanks the Treasurer for this response. The committee notes the Treasurer's advice that the listed defences would normally be expected to be peculiarly within the knowledge of the defendant. In particular, the committee notes the Minister's advice in relation to the following defences:

(a) disclosure of information that has already been lawfully made available to the public; that it would be onerous for the prosecution to be required to prove, beyond reasonable doubt, the negative proposition that the information had not been lawfully made available to the public;

(b) disclosure allowed by a determination made by APRA; that the defendant would be in the best position to raise initial evidence, and the defendant would generally have knowledge of the content of the determination and peculiar knowledge of the precise circumstances of the disclosure in question;

(c) disclosure to a legal representative for the purposes of seeking legal advice; that the defendant will be in the best position to adduce evidence and will have peculiar knowledge of the relationship between the defendant and the recipient of the information and the purpose for which the disclosure was made;

(d) disclosure which is authorised by the APRA Act; that this would generally only be relevant if the defendant is an APRA member, staff member or other Commonwealth officer and evidence of whether the disclosure was authorised by the Act would generally be peculiarly within the knowledge of the defendant and the defendant would be in the best position to raise evidence;

(e) disclosure made in circumstances specified in the regulations; that generally the defendant will be in the best position to adduce evidence as they will have peculiar knowledge of the facts and circumstances of disclosure and whether they align with the terms of the determination;

(f) disclosure in response to an order or direction of a court or tribunal; that the defendant will generally be in possession of a copy of the order and will have the peculiar knowledge to adduce evidence of this;

(g) secondary disclosures; the same considerations as above apply.

2.179 The committee also notes the Treasurer's advice that it would be onerous and costly and often redundant for the prosecution to have to prove beyond reasonable doubt that every one of the above circumstances does not exist and in most cases there will usually be no reason to suggest that the factual circumstances in the defence do exist.

2.180 The committee reiterates that at common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to raise evidence to disprove one or more elements of an offence interferes with this common law right. The committee notes that the Guide to Framing Commonwealth Offences provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[73]

2.181 The committee notes that this requires more than just the defendant knowing that a certain fact exists or being 'best placed' to adduce evidence, it must be a matter that is peculiarly within their knowledge. It is also not sufficient that it would be onerous or costly for the prosecution to disprove a matter (given the role of the prosecution is to prove a person's guilt beyond reasonable doubt, including proving that certain circumstances do not exist). As such, the committee does not consider that the matters listed above in paragraph [2.178] (other than that at paragraph (c), in relation to disclosure to a legal representative) are matters that are peculiarly within the defendant's knowledge, but are matters that would be known to the prosecution and the defendant. The committee notes, in particular, that it is not possible to say if a disclosure made in accordance with circumstances set out in the regulations would be peculiarly within the defendant's knowledge, given those regulations have not yet been made.

2.182 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.183 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in the above circumstances.

Removal of cause of action^[74]

Initial scrutiny – extract

2.184 A number of provisions in the bill provide that a person cannot begin or continue a proceeding in a court or tribunal in respect of certain body corporates if a statutory manager is in control of the body corporate's business. This prohibition does not apply if the court or tribunal grants leave for the proceedings to be begun or continued on the ground that the person would be caused hardship if leave were not granted. This provision thereby removes a person's right to bring a cause of action against certain body corporates.

2.185 The explanatory memorandum explains that when a statutory manager is appointed to an ADI or insurer, or a judicial manager is appointed to an insurer, it is important that they not be subjected to a multiplicity of litigious and enforcement actions and so these provisions 'assist with one of the primary aims of statutory or judicial management, which is to stabilise the relevant entity and prepare for implementation of the resolution, by ensuring this can be done without the constraints of creditor or other third party actions that could otherwise impede the orderly nature of a resolution'.^[75]

2.186 The committee notes the explanation as to why it is necessary to remove the right of creditors and third parties to bring a cause of action against certain body corporates, noting also that a court or tribunal has the discretion to grant leave to begin or continue proceedings in certain circumstances. However, it is not clear to the committee whether the rights of creditors and third parties would be adversely affected by these provisions even once a statutory manager is no longer in control of the body corporate. For example, it is unclear whether a person could lose their right to bring an action against a body corporate because of statutory time limits having passed while the body corporate's business was under the control of a statutory manager.

2.187 The committee therefore seeks the Treasurer's advice as to whether creditors and third parties would be adversely affected by the bar on beginning or continuing court or tribunal proceedings at the point in time that the statutory manager is no longer in control of the body corporate's business.

Treasurer's response

2.188 The Treasurer advised:

The proposed sections 15B of the Banking Act, 62ZOR of the Insurance Act and 179AR of the Life Insurance Act are necessary to allow breathing space for the stabilisation of an insolvent entity in order to prepare it for resolution and to allow the statutory or judicial manager to focus on the interests of depositors or policyholders and properly discharge their statutory mandate.
It should be noted that they are moratorium provisions only. They temporarily suspend or stay the right to bring or continue proceedings rather than remove the cause of action as such.
Without these provisions, orderly resolution could be constrained by creditor or other third party actions. A disorderly resolution would result in poorer outcomes for depositors and policyholders, as well as creditors and other third parties. Depending on the entity involved a disorderly resolution may also have an adverse impact on the stability of financial markets or the wider industry.
There are sufficient checks and balances to mitigate against the risk of these provisions applying in a harsh or unjust way (indeed in certain respects they improve on the current provisions). To elaborate:

• Proposed sections 15B of the Banking Act, 62ZOR of the Insurance Act and 179AR of the Life Insurance Act apply where a statutory manager has been appointed to a regulated entity or related body. They provide that a person cannot begin or continue a proceeding in a court or tribunal in respect of the body corporate if a statutory manager is in control of the body corporate's business.

• However, the court or tribunal may grant leave for the proceeding to be begun or continued with on the ground that the person would be caused hardship if leave were not granted. This serves as a safeguard where, for example, the plaintiff would be prejudiced by the expiry of a limitation period if they were unable to commence the relevant proceeding. It should also be noted that APRA, or the statutory manager (after considering APRA's views) may consent to the proceeding beginning or continuing.

– It should also be noted that APRA, or the statutory manager (after considering APRA's views) may consent to the proceeding beginning or continuing (proposed subsection 15B(5) in the Banking Act, proposed subsection 62ZOR(5) in the Insurance Act and proposed subsection 179AR(5) in the Life Insurance Act). At the point in time that the statutory manager is no longer in control of the body corporate's business, there is no longer a bar on beginning or continuing proceedings.

• Existing section 15B of the Banking Act is in similar terms (although it does not refer to the statutory manager being able to consent).

• Proposed sections 62P of the Insurance Act and 161 of the Life Insurance Act apply where a judicial manager has been appointed to an insurer. They allow the court or tribunal, or the judicial manager (after considering APRA's views) to consent to the beginning or continuing of the proceedings. Again, this will allow the court, tribunal or judicial manager to allow proceedings to be filed where there would otherwise be hardship for the plaintiff (for example, proceedings need to be filed promptly as a limitation period is about to expire).

• Existing sections 62P of the Insurance Act and 161 of the Life Insurance Act are in similar terms except that, rather than allowing the court or tribunal in which the proceedings have been (or are to be) brought to allow them to be commenced or continue, they refer to the Federal Court giving leave.

• Similar moratorium provisions exist in other legislation, for example section 440D of the Corporations Act 2001 (Corporations Act) (in the case of voluntary administration, under Part 5.3A of the Corporations Act).

Committee comment

2.189 The committee thanks the Treasurer for this response. The committee notes the Treasurer's advice that these provisions are moratorium provisions only and temporarily suspend or stay the right to bring or continue proceedings rather than remove the cause of action. The committee also notes the Treasurer's advice that there are checks and balances that mitigate against the risk of these provisions applying in a harsh or unjust way, including that the court or tribunal may grant leave for the proceeding to be begun or continued, which would serve as a safeguard where, for example, the plaintiff would be prejudiced by the expiry of a limitation period if they were unable to commence the relevant proceeding.

2.190 The committee requests that the key information provided by the Treasurer be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.191 In light of the information provided, the committee makes no further comment on this matter.

Privilege against self-incrimination^[76]

Initial scrutiny – extract

2.192 Proposed sections 62ZOD and 179AD provide that an Insurance Act and Life Insurance Act statutory manager may require a person to give any information relating to a body corporate that the manager requires. Subsection 62ZOD(4) and 179AD(4) provides that a person is not excused from complying with a requirement to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty. This provision therefore overrides the common law privilege against self-incrimination, which provides that a person cannot be required to answer questions or produce material which may tend to incriminate himself or herself.^[77]

2.193 The committee recognises there may be certain circumstances in which the privilege can be overridden. However, abrogating the privilege represents a serious loss of personal liberty. In considering whether it is appropriate to abrogate the privilege against self-incrimination, the committee will consider whether the public benefit in doing so significantly outweighs the loss to personal liberty.

2.194 A use immunity is included in proposed subsections 62ZOD(5) and 179AD(5) as it provides that information given in compliance with the requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information. However, this does not include a derivative use immunity, meaning that any information obtained as an indirect consequence of the production of the information or documents, may be admissible in evidence against the person.

2.195 The explanatory memorandum does not appear to provide any explanation of these provisions, and while the statement of compatibility gives some justification in relation to the abrogation of the privilege against self-incrimination, this appears to reference other provisions in the bill.^[78] It also does not explain why a derivative use immunity is not included.

2.196 The committee requests the Minister's advice as to why it is proposed to abrogate the privilege against self-incrimination in these two instances, particularly by reference to the matters outlined in the Guide to Framing Commonwealth Offences.^[79]

Treasurer's response

2.197 The Treasurer advised:

These provisions are based on existing section 14A of the Banking Act. It is critical that a statutory manager, having taken over what will often be an insolvent or near insolvent financial institution or related entity, be in a position to obtain all relevant information about the institution from officers (and former officers) in order for the statutory manager to control, stabilise, investigate and (to the extent possible) resolve the institution or resolve a related entity.
Overriding the privilege against self-incrimination is justified in this context because only the key personnel of a relevant entity will have access to information and documents relating to that entity's financial condition. It is essential for a statutory manager to be able to obtain this information quickly to assist with the management and crisis resolution of a relevant entity that is financially distressed. By compelling relevant officers or ex-officers to provide the required information and documents, statutory managers will be able to maximise their ability to rehabilitate a distressed entity. This will benefit the entity's customers, creditors and other suppliers. In the event of a significant crisis, APRA would also be able to use the information gathered to support decision making and prevent contagion in the system.
These powers only apply in relation to an 'officer' as defined in section 9 of the Corporations Act (e.g. a director or other senior person with significant strategic responsibilities in relation to the failed entity), and a person who has been such an officer. Circumstances may exist where the failure of the institution can be attributed to a failure by the one or more officers to comply with their statutory responsibilities, including where there has been a breach of Corporations Act provisions carrying an offence. This raises the real possibility of the statutory manager's ability to fulfil his or her duties being hampered by a refusal to provide information on self-incrimination grounds, making the override of the privilege against self-incrimination necessary in this instance.
As the committee has noted, direct use immunity is conferred by these provisions, but not derivative use immunity. The reason for this is that if derivative use immunity applied, it would often be very difficult for the prosecution to show that the evidence they rely on to prove a criminal case against an officer relating to the failure of the financial institution was uncovered through an absolutely independent and separate investigation process. This may in turn lead to hesitation on the part of a statutory manager to exercise the information-obtaining power, undermining the purpose for which the power was conferred. Another difficulty with derivative use immunity is that further evidence obtained through a chain of inquiry resulting from the protected evidence cannot be used in relevant proceedings even if the additional evidence would have been uncovered through independent investigative processes. Also, where the information obtaining power is exercised against officers or ex-officers who may have been responsible for the deterioration or failure of a financial institution, for example, a director implicated in a failure such as HIH, a derivative use immunity would not be helpful in building a case against the director for breach of their duties under law.
These provisions are consistent with the majority of existing self-incrimination provisions in other APRA-administered legislation, including provisions in the Superannuation Industry (Supervision) Act 1993 (SIS Act) and Private Health Insurance (Prudential Supervision) Act 2015.

Committee comment

2.198 The committee thanks the Treasurer for this response. The committee notes the Treasurer's advice that overriding the privilege against self-incrimination is justified because it is critical that a statutory manager be in a position to obtain all relevant information about the institution from officers in order to be able to control, stabilise, investigate and resolve the institution or related entity, only the key personnel of a relevant entity will have access to this information and documents, and compelling them to provide the required information or documents will allow statutory managers to maximise their ability to rehabilitate a distressed entity.

2.199 The committee also notes the Treasurer's advice that only a use immunity is conferred by these provisions but not a derivative use immunity (which would have prevented information or evidence indirectly obtained from being used in criminal proceedings against the person). The committee notes the Treasurer's advice that if a derivative use immunity applied, it would be very difficult for the prosecution to show that the evidence they relied on against an officer was uncovered through an absolutely independent and separate investigation process, which may lead to hesitation on the part of a statutory manager to exercise the information-obtaining powers.

2.200 The committee reiterates that it considers that the privilege against self-incrimination is an important right under the common law and any abrogation of that right represents a significant loss to personal liberty. As such, the committee considers, from a scrutiny perspective, it would be more appropriate if a derivative use immunity were included to ensure information or evidence indirectly obtained from an officer compelled to provide information or documents could not be used in evidence against them.

2.201 The committee requests that the key information provided by the Treasurer be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.202 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of overriding the privilege against self-incrimination with no accompanying derivative use immunity.

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[67] See correspondence relating to Scrutiny Digest No. 15 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest

[68] Schedule 1, item 56, proposed subsection 11CI(3), Schedule 2, item 135, proposed subsection 109A(3); and Schedule 3, item 102, proposed subsection 231A(3). The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(i) of the committee’s terms of reference.

[69] Explanatory memorandum, p. 85.

[70] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[71] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[72] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[73] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[74] Schedule 1, item 190, proposed section 15B; Schedule 2, item 33, proposed section 62P; item 58, proposed section 62ZOR; Schedule 3, item 28, proposed section 161; item 52, proposed section 179AR. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(i) of the committee’s terms of reference.

[75] Explanatory memorandum, p. 43.

[76] Schedule 2, item 58, proposed section 62ZOD and Schedule 3, item 52, proposed section 179AD. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(i) of the committee’s terms of reference.

[77] Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328.

[78] Statement of compatibility, pp 224-225.

[79] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 94-99.