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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
REGULATORY POWERS (STANDARDISATION REFORM) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
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REGULATORY POWERS (STANDARDISATION REFORM) BILL 2020
GENERAL OUTLINE............................................................................................................... 5
FINANCIAL IMPACT .............................................................................................................. 6
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS........................................... 7
Regulatory Powers (Standardisation Reform) Bill 2020........................................................ 7
Overview of Schedule 1 - Regulatory Powers (Standard Provisions) Act 2014................... 7
Overview of Schedule 2 - Defence Force Discipline Act 1982 ........................................... 10
Overview of Schedule 3 - Education Services For Overseas Students Act 2000................ 15
Overview of Schedule 4 - Fisheries Management Act 1991 ............................................... 20
Overview of Schedule 5 - Tertiary Education Quality and Standards Agency Act 2011 ... 21
Overview of Schedule 6 - Tobacco Advertising Prohibition Act 1992 ............................... 27
Overview of Schedule 7 - Tobacco Plain Packaging Act 2011 .......................................... 30
NOTES ON CLAUSES ........................................................................................................... 36
Schedule 1 - Amendments to the Regulatory Powers (Standard Provisions) Act 2014 ..... 38
GENERAL OUTLINE ......................................................................................................... 38
AMENDMENTS .................................................................................................................. 38
Schedule 2 - Amendment of the Defence Force Discipline Act 1982 ................................. 45
GENERAL OUTLINE ......................................................................................................... 45
COMPARISON OF PROVISIONS ..................................................................................... 46
PART 1 - MAIN AMENDMENTS ..................................................................................... 46
PART 2 - AMENDMENTS RELATING TO THE FEDERAL CIRCUIT AND FAMILY
COURT OF AUSTRALIA ACT 2020................................................................................. 51
Schedule 3 - Amendment of the Education Services for Overseas Students Act 2000 ...... 52
GENERAL OUTLINE ......................................................................................................... 52
COMPARISON OF PROVISIONS ..................................................................................... 54
PART 1 - MAIN AMENDMENTS ..................................................................................... 65
PART 2 - AMENDMENTS RELATING TO THE NATIONAL VOCATIONAL
EDUCATION AND TRAINING REGULATOR AMENDMENT (GOVERNANCE AND
OTHER MATTERS) ACT 2020.......................................................................................... 75
PART 3 - AMENDMENTS RELATING TO THE FEDERAL CIRCUIT AND FAMILY
COURT OF AUSTRALIA ACT 2020................................................................................. 75
Schedule 4 - Amendment of the Fisheries Management Act 1991 ..................................... 77
GENERAL OUTLINE ......................................................................................................... 77
COMPARISON OF PROVISIONS ..................................................................................... 78
PART 1 - AMENDMENTS ................................................................................................ 79
PART 2 - APPLICATION AND SAVING PROVISIONS ................................................ 81
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Schedule 5 - Amendment of the Tertiary Education Quality and Standards Agency
Act 2011 ................................................................................................................................... 82
GENERAL OUTLINE ......................................................................................................... 82
COMPARISON OF PROVISIONS ..................................................................................... 84
PART 1 - MAIN AMENDMENTS ..................................................................................... 95
PART 2 - AMENDMENTS RELATING TO THE EDUCATION LEGISLATION
AMENDMENT (UP-FRONT PAYMENTS TUITION PROTECTION) ACT 2020 ....... 105
PART 3--AMENDMENTS RELATING TO THE FEDERAL CIRCUIT COURT AND
FAMILY COURT OF AUSTRALIA ACT 2020 .............................................................. 110
Schedule 6 - Amendment of the Tobacco Advertising Prohibition Act 1992 ................... 112
PART 1 - MAIN AMENDMENTS ................................................................................... 113
PART 2 - AMENDMENTS RELATING TO THE FEDERAL CIRCUIT AND FAMILY
COURT OF AUSTRALIA ACT 2020............................................................................... 117
Schedule 7 - Amendment of the Tobacco Plain Packaging Act 2011 .............................. 119
GENERAL OUTLINE ....................................................................................................... 119
PART 1 - MAIN AMENDMENTS ................................................................................... 120
PART 2 - AMENDMENTS RELATING TO THE FEDERAL CIRCUIT AND FAMILY
COURT OF AUSTRALIA ACT 2020............................................................................... 126
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GENERAL OUTLINE
1. This Bill makes amendments to six Commonwealth Acts in order to implement the
Regulatory Powers Act (Standard Provisions) Act 2014 (Regulatory Powers Act). The
Regulatory Powers Act provides for a standard suite of provisions in relation to
monitoring and investigation powers, as well as enforcement provisions through the use
of civil penalties, infringement notices, enforceable undertakings and injunctions. These
provisions are designed to simplify and streamline regulatory powers across the
Commonwealth statute book and represent best practice regulation.
2. The Regulatory Powers Act commenced on 1 October 2014. The Regulatory Powers Act
only has effect where Commonwealth Acts are drafted or amended to trigger its
provisions.
3. This standardisation project is the second of its kind, following the Regulatory Powers
(Standardisation Reform) Act 2017 which amended 15 Commonwealth Acts to repeal
existing provisions providing for regulatory regimes in those Acts and instead trigger the
standard provisions of the Regulatory Powers Act.
4. The Bill amends the following Commonwealth Acts to trigger the standard provisions of
the Regulatory Powers Act:
the Defence Force Discipline Act 1982 (DFDA)
the Education Services for Overseas Students Act 2000 (ESOS Act)
the Fisheries Management Act 1991 (FMA)
the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act)
the Tobacco Advertising Prohibition Act 1992 (TAPA)
the Tobacco Plain Packaging Act 2011 (TPPA).
5. Some of these Acts contain existing regulatory regimes which this Bill replaces with the
standard provisions, to align the Acts' regulatory regimes with the standard provisions.
The Bill provides additional powers for current regulatory regimes in some Acts to ensure
they are robust and align with best practice. The Bill also provides some regulatory
powers to Acts which do not currently contain regulatory regimes but require regulatory
powers to ensure a robust compliance and enforcement scheme. Modifications to the
standard powers are included where necessary for effective regulation in the context of
each Act.
6. Implementing the Regulatory Powers Act supports the government's regulatory reform
agenda as that Act simplifies and streamlines Commonwealth regulatory powers across
the statute book. This provides regulatory agencies with the opportunity to use more
uniform powers, and increase legal certainty for business and individuals who are subject
to those powers. Amendments to provide these Acts with standard regulatory powers will
support the Acts' overarching policy objectives and facilitate robust and consistent
enforcement.
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7. The Bill also makes minor amendments to the Regulatory Powers Act to ensure that the
regulatory requirements and underlying penalty and offence provisions of Acts that
trigger the Regulatory Powers Act can be effectively enforced. The amendments concern
the ability of monitoring powers to be exercised in relation to matters, the description of
offence provisions, and the description of provisions relating to infringement notices
which might apply to the contravention of both a civil penalty and criminal offence
provision.
FINANCIAL IMPACT
8. There is no financial impact associated with the amendments to the Regulatory Powers
Act contained in this Bill.
9. Amendments to the DFDA contained in this Bill will have a minor financial impact on
Defence, associated with training on, and use of, the new regulatory powers. Any
financial impact will be managed within Defence's annual budget.
10. Amendments to the ESOS Act contained in this Bill will have nil or insignificant
financial impact on government departments and agencies, as the amendments largely
standardise existing regulatory regimes. Amendments to the FMA contained in this Bill
will have nil or insignificant financial impact on government departments and agencies,
as the amendments largely standardise an existing infringement notices scheme.
Amendments to the TEQSA Act contained in this Bill will have insignificant financial
impact on government departments and agencies, as the amendments largely do not alter
the effect of the law.
11. Amendments to the TAPA and TPPA contained in this Bill will have a low financial
impact on the tobacco regulatory framework which the current Department of Health
administers. Any financial impact will be managed within existing resources.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Regulatory Powers (Standardisation Reform) Bill 2020
12. 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
13. This Bill makes amendments to six Commonwealth Acts in order to implement the
Regulatory Powers Act. The Regulatory Powers Act commenced on 1 October 2014. The
Regulatory Powers Act only has effect where Commonwealth Acts are drafted or
amended to trigger its provisions.
14. The purpose of this Bill is both to:
(i) amend various Commonwealth Acts to repeal current provisions providing for
regulatory regimes in those Acts and instead trigger the standard provisions of the
Regulatory Powers Act; and
(ii) amend various Commonwealth Acts to trigger the standard provisions of the
Regulatory Powers Act, to provide these Acts with compliance and enforcement
mechanisms as required.
These amendments are designed to simplify and streamline Commonwealth regulatory
powers across the Commonwealth statute book and represent best practice regulation
15. The Bill also makes minor amendments to the Regulatory Powers Act.
16. As noted by the Parliamentary Joint Committee on Human Rights in its consideration of
the Regulatory Powers (Standard Provisions) Bill 2014, it is necessary to consider the
human rights impact in the specific context of each legislative regime that triggers the
Regulatory Powers Act. Accordingly, the human rights impact is considered separately
for each of the Acts to be amended by this Bill.
Overview of Schedule 1 - Regulatory Powers (Standard Provisions) Act 2014
17. The Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act)
provides for a standard suite of provisions in relation to monitoring and investigation
powers, as well as enforcement provisions through the use of civil penalties, infringement
notices, enforceable undertakings and injunctions.
18. Schedule 1 to this Bill makes minor amendments to the Regulatory Powers Act standard
provisions to clarify their operation and ensure that the regulatory requirements and
underlying penalty and offence provisions of Acts that trigger the Regulatory Powers Act
can be effectively enforced.
Human rights implications
Right to privacy
19. Schedule 1 to this Bill amends Part 2 of the Regulatory Powers Act by inserting new
section 9A. New section 9A provides that a matter to which an Act or legislative
instrument relates is subject to monitoring under the Regulatory Powers Act, if a
triggering Act provides that the matter is subject to monitoring. Consequential
amendments to sections 3, 4, 6, 7, 10, 11-16, 18, 20, 22-24 and 32 ensure that the
standard monitoring provisions contained in Part 2 of the Regulatory Powers Act apply in
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relation to matters, just as they currently do in relation to determining compliance with a
provision and the correctness of information given in compliance, or purported
compliance, with a provision. The changes allow Regulatory Powers Act monitoring
powers to be exercised in relation to other matters (for example, whether or not a
circumstance exists). The power to monitor matters is necessary for the purposes of an
effective monitoring scheme.
20. New section 9A engages the protection against arbitrary or unlawful interference with
privacy. Article 17 of the International Covenant on Civil and Political Rights (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.
The right to privacy can be limited to achieve a legitimate objective where the limitations
are lawful and not arbitrary. In order for an interference with the right to privacy to be
permissible, the interference must be authorised by law, be for a reason consistent with
the ICCPR and be reasonable in the circumstances. The United Nations Human Rights
Committee has interpreted the requirement of 'reasonableness' as implying that any
interference with privacy must be proportionate to a legitimate end and be necessary in
the circumstances.
21. To the extent that the power to monitor matters under new subsection 9A of the
Regulatory Powers Act may limit the right to privacy, this limitation is provided by law.
The power to monitor matters alongside monitoring provisions and information given in
compliance with a provision allows for the robust monitoring of compliance with an Act
or legislative instrument.
22. Existing provisions contained in Part 2 of the Regulatory Powers Act protect against
arbitrary abuses of power under new section 9A, as the entry, monitoring, search and
information gathering powers in that new section 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.
23. The Regulatory Powers Act specifies that an issuing officer of a warrant to enter premises
for the purpose of monitoring must be a judicial officer. The Act also provides conditions
on the issuing of a monitoring warrant. An issuing officer may only issue a warrant if
they are satisfied, by information on oath or affirmation, that it is reasonably necessary
that one or more authorised persons should have access to the premises for the purpose of
determining a matter subject to monitoring under Part 2 of the Regulatory Powers Act.
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. These conditions ensure there
are adequate safeguards against arbitrary limitations on the right to privacy in the issuing
of warrants for the determination of a matter subject to monitoring.
24. 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 Regulatory Powers Act's powers and mitigates arbitrariness
and risk of abuse.
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25. Further, the power to monitor matters can only be exercised where the Act triggering the
Regulatory Powers Act specifies that the matter is subject to monitoring, in the same way
as a provision or type of information is currently specified as being subject to monitoring.
This would ensure that the power can only be exercised in appropriate circumstances.
26. The power provided by new section 9A is reasonable, necessary and proportionate to
achieve a legitimate objective. Adequate safeguards and limitations on the use of this new
power ensure that such lawful interferences are not arbitrary or at risk of abuse.
Criminal process rights
27. As part of amendments relating to the insertion of section 9A to allow for the monitoring
of matters, Schedule 1 to this Bill amends section 24 of the Regulatory Powers Act.
Current subsection 24(2) provides that if an authorised person enters premises with the
consent of the occupier, an authorised person may ask the occupier to answer any
questions or produce documents relating to the operation of the provision or the
information. Similarly, current subsection 24(3) provides that if entry is authorised by a
monitoring warrant, 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. Current subsection 24(5) provides that a person commits an offence for
failing to comply with a requirement under subsection 24(3) to answer a question or
produce a document. This offence carries a penalty of 30 penalty units.
28. The effect of the amendments is that they expand the circumstances in which an
authorised person may enter a premises and ask or require answers to questions or seek
production of documents. New subsections 24(2) and (3) provide that the authorised
person may ask (or may require) the answering of a question or the production of a
document for the purposes of determining a matter subject to monitoring under Part 2.
The changes allow Regulatory Powers Act monitoring powers to be exercised in relation
to other matters (for example, whether or not a circumstance exists). The power to
monitor matters is necessary for the purposes of an effective monitoring scheme.
29. These provisions do not limit the person's access to a fair trial or limit the other criminal
process rights in any way. Section 17 of the Regulatory Powers Act makes it clear that the
privileges against self-incrimination and legal professional privilege have not been
abrogated by the monitoring powers provisions. These protections guarantee the criminal
process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR. The usual
guarantees and criminal process rights will apply to these provisions and are not
abrogated by any provisions in the Bill or triggered provisions of the Regulatory Powers
Act. Accordingly, section 24 of the Regulatory Powers Act, as amended by Schedule 1 to
this Bill, is compatible with human rights.
Conclusion
30. Schedule 1 to this Bill is compatible with human rights as, to the extent the amendments
to the Regulatory Powers Act may limit the right to privacy, that limitation is reasonable,
necessary and proportionate. Furthermore, as the Regulatory Powers Act is an Act of
general application, it does not engage any limitations on human rights on its own. When
the standard provisions of the Regulatory Powers Act are triggered by an Act, 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 amended by 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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Overview of Schedule 2 - Defence Force Discipline Act 1982
31. The Defence Force Discipline Act 1982 (DFDA) is the principal legislative means
through which good order and discipline is enforced and maintained in the Australian
Defence Force (ADF). The DFDA also serves to ensure the effectiveness, efficiency, and
morale of the ADF and, consequently, the defence of the nation and public confidence.
The DFDA does this through creating a discipline system, which includes a disciplinary
offence code (service offences), investigative powers, prosecutorial and appeal processes,
service tribunals to try charges, a punishments and orders regime, internal review
processes, and related matters. The discipline system operates concurrently with the
criminal justice system. The DFDA applies to all ADF members in certain situations. The
DFDA also applies to a specified category of civilian persons (defence civilians) and
prisoners of war. Service offences consist of offences of a purely military character, such
as insubordinate and prejudicial conduct, and offences which have a civilian equivalent,
such as assault and theft. Federal criminal laws and other criminal laws that apply in the
Jervis Bay Territory form part of the disciplinary offences code. Where appropriate and
permissible, service offences are investigated and prosecuted within the discipline system.
The discipline system operates in and outside Australia, in peacetime and during
operations.
32. Schedule 2 to this Bill amends the DFDA to trigger the investigation provisions in Part 3
of the Regulatory Powers Act. This will enable appointed members of the ADF and
appointed APS employees in the Department of Defence, to enter premises to exercise
investigation powers for the purposes of gathering material relating to the contravention
of service offences. An authorised person may not enter a premises under these provisions
unless the occupier has provided consent or the authorised person is in possession of an
investigation warrant. The amendments progressed through this Bill will apply to every
external Territory.
33. Existing powers for the investigation of alleged service offences, found in Part VI of the
DFDA, will remain and will operate in conjunction with those provided for in the
Regulatory Powers Act. The existing investigative powers are limited in their scope, in
terms of investigative tools and their application to 'service land' which is narrowly
defined in the DFDA. The nature of military life and offending is changing, so the
additional investigative powers provided for in the Regulatory Powers Act are needed to
permit the gathering of new forms of evidence and from 'off-base' locations. For
example, possible evidence of alleged fraud may be revealed by bank statements or real
estate records, or stored on personal electronic devices. The additional investigative
powers are necessary to access or obtain that material, wherever it is located, either with
the consent of the occupier of the premises or the owner of the thing, or by executing a
warrant.
34. Accordingly, Part 3 of the Regulatory Powers Act will provide a restricted set of powers
parallel, and supplementary, to those which the DFDA currently confers in relation to
service land, to use on civilian premises to investigate alleged service offences. Defence
intends, following the amendments contained in this Schedule, to centralise the exercise
of the new powers provided by Part 3 of the Regulatory Powers Act. Centralisation will
ensure standardisation of procedures, training and competence between select authorised
persons within Defence. It will also ensure that the new powers are used in a considered
and targeted manner. The Inspector-General of the Australian Defence Force (IGDAF)
has power to audit and review the military justice system, and can exercise this power to
conduct regular audits of the use of Part 3 of the Regulatory Powers Act. Centralisation
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and regular audits will provide transparency, robust compliance, and confidence in
Defence's use of the new powers.
35. New subsection 101ZAB(1) of the DFDA states that a provision is subject to
investigation under Part 3 of the Regulatory Powers Act if it is a service offence.
36. Existing investigation powers in Part VI of the DFDA (which apply to service land) can
be exercised under a warrant issued by a commanding officer. An investigation warrant
issued under Part 3 of the Regulatory Powers Act may only be issued by a magistrate or a
Judge of certain specified courts. This means that the powers which may be used on non-
service, or civilian, land are subject to the exclusive authority of civilian judicial officers.
37. The general investigation powers of an authorised person set out in Part 3 of the
Regulatory Powers Act include the power to:
search the premises and any thing on the premises;
inspect, examine, take measurements of or conduct tests on evidential material;
ask persons on the premises questions and request the production of documents;
bring equipment and materials onto the premises;
take images of things; and
operate electronic equipment.
38. Further, if entry is under an investigation warrant, the authorised person may:
seize a disk, tape or other storage device on the premises if:
o it is not practicable to put the evidential material into documentary form or
transfer it to a separate disk, tape or other storage device brought onto the
premises for the exercise of investigation powers; or
o possession of the equipment or disk, tape or other storage device by the
occupier could constitute an offence;
seize evidential material that is not the kind specified in the warrant if:
o the authorised person finds the thing in the course of searching for material
of the kind specified in the warrant; and
o the authorised person believes on reasonable grounds that the thing is
evidential material of another kind;
o the authorised person believes on reasonable grounds that it is necessary to
seize the thing in order to prevent its loss, concealment or destruction; and
require persons on the premises to answer questions or produce documents
relating to evidential material of the kind specified in the warrant.
39. Amendments to the DFDA include the following modifications to the standard
investigation provisions in Part 3 of the Regulatory Powers Act:
the power to use force against things as is necessary and reasonable in the
circumstances by authorised persons and persons assisting authorised persons; and
the ability of an authorised person to be accompanied by, and make use of, an
animal in the course of an investigation.
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40. The use of force provision included as a modification to the Part 3 standard provisions of
the Regulatory Powers Act is a lesser and restricted form of the use of force provision
currently in the DFDA in relation to investigative powers which can be used on service
land.
41. The use of an animal during an investigation would permit, for example, the use of a
canine explosives detection capability and canine drug detection capability, in searches of
premises, during investigations for breaches of various service offences. The use of an
animal during an investigation will only be allowed with consent of the occupier of the
premises, or if the warrant states that the authorised persons or persons assisting are
authorised to use an animal, and specifies the kind of animal they may use.
42. While the amendments to the DFDA reflect an expansion of investigation powers to
civilian premises, this expansion is subject to best practice regulation policy with
modifications only as appropriate and necessary. These powers will be used in a
considered and targeted manner in connection with the investigation of service offences.
Human rights implications
Right to privacy
43. Schedule 2 to this Bill engages the protection against arbitrary or unlawful interference
with privacy. 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. The right to privacy can be limited to achieve a
legitimate objective where the limitations are lawful and not arbitrary. In order for an
interference with the right to privacy to be permissible, the interference must be
authorised by law, be for a reason consistent with the ICCPR, and be reasonable in the
circumstances. The United Nations Human Rights Committee has interpreted the
requirement of 'reasonableness' as implying that any interference with privacy must be
proportionate to a legitimate end and be necessary in the circumstances.
44. The objectives (or purposes) of the DFDA are to enforce and maintain good order and
discipline in the ADF, and to ensure the effectiveness, efficiency and morale of the ADF
and public confidence in the defence of the nation. Schedule 2 to the Bill supports these
objectives by triggering the standard provisions relating to investigation in Part 3 of the
Regulatory Powers Act, which will supplement the existing investigation regime in the
DFDA.
45. The entry, search, seizure and information gathering powers in the triggered provisions of
the Regulatory Powers Act are provided by law. The investigation powers are necessary
to enforce compliance with the DFDA and the collection of evidential material relating to
reasonably suspected contraventions of that Act. They are constrained in various ways as
set out below, ensuring that their use is not arbitrary.
46. The regime under the Regulatory Powers Act protects against arbitrary interference with
privacy, as the investigation powers cannot be exercised without consent being given to
the entry into the premises, or prior judicial authorisation in the form of a warrant. 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.
47. The Regulatory Powers Act also provides conditions on the issuing of an investigation
warrant. For example, an issuing officer may issue an investigation warrant only when
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satisfied, by oath or affirmation, that there are reasonable grounds for suspecting that
there is, or may be within 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. These conditions ensure there are adequate
safeguards against arbitrary limitations on the right to privacy in the issuing of warrants.
48. In addition, an authorised person cannot enter premises under a warrant 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 powers and mitigates
arbitrariness and risk of abuse.
49. Further, the standard powers can only be exercised in specific circumstances set out in the
triggered provisions. For example, under section 52 of the Regulatory Powers Act, the
power to seize evidence of a kind not specified in the warrant may only be exercised
where:
an authorised person finds the thing in the course of searching for material of the
kind specified in an investigation warrant; and
the authorised person believes on reasonable grounds that the thing is evidential
material of another kind; and
the authorised person believes on reasonable grounds that it is necessary to seize
the thing in order to prevent its loss, concealment or destruction.
50. These constraints on the exercise of the powers limit their susceptibility to arbitrary use or
abuse and ensure that their use is reasonable and proportionate in the circumstances.
51. New subsection 101ZAB(12) of the DFDA provides that, in executing an investigation
warrant, an authorised person is permitted to use such force against things as is necessary
and reasonable in the circumstances. It is necessary to include this power, as an
authorised person executing an investigation warrant may need to open locked doors,
cabinets, drawers and other similar objects that the authorised person reasonably suspects
contain things or information that would provide evidence that a provision subject to
investigation (service offences) has been contravened. This provision is a restricted form
of the existing use of force provision in Part VI of the DFDA in relation to powers which
can be used on service land, which allows reasonable force to be used against persons
(ADF members). This modification does not allow the use of force against persons.
52. New subsection 101ZAC of the DFDA also provides for the power of an authorised
person to be accompanied by, and to make use of, an animal to assist the person in
entering premises, or in exercising powers, under Part 3 of the Regulatory Powers Act (as
Part 3 applies in relation to evidential material that relates to a service offence under the
DFDA). This provision would allow, for example, the use of canine explosives detection
capability and canine drug detection capability, in searches of premises, during
investigations for suspected breaches of various service offences. This is a specific
modification of the standard provisions required for the military context. The provision
protects against the arbitrary use of this power, as the use of an animal during
investigation is only lawful with consent, or if the warrant authorises that the authorised
person is authorised to use an animal, and specifies the kind of animal they may use.
53. Accordingly, the investigation powers are necessary, proportionate and reasonable in the
pursuance of the legitimate objectives of the DFDA.
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54. New subsection 101ZAB(12) provides that, in executing an investigation warrant, an
authorised person is permitted to use such force against things as is necessary and
reasonable in the circumstances. As this power does not extend to the use of force against
persons, it does not engage the right to security of person in Article 9 of the ICCPR or the
right to life in Article 6 of the ICCPR.
Criminal process rights
55. Part 3 of the Regulatory Powers Act provides questioning powers to authorised persons.
Under subsection 54(3) of the Regulatory Powers Act, an authorised person who enters
premises under an investigation warrant may require persons on the premises to answer
questions or produce documents relating to evidential material of the kind specified in the
warrant. If the person fails to do so, this is an offence under subsection 54(5) of the
Regulatory Powers Act. The penalty is 30 penalty units.
56. Section 63 of the Regulatory Powers Act imposes an obligation on the occupier of
premises or another person who apparently represents the occupier, to provide reasonable
facilities and assistance to the authorised person and any person assisting, which is
necessary for the authorised person to effectively exercise their powers under Part 3 of the
Regulatory Powers Act. Subsection 63(2) of the Regulatory Powers Act provides that
failure to comply with section 63 of that Act is an offence, and carries a penalty of 30
penalty units.
57. Section 73 of the Regulatory Powers Act establishes an offence punishable by two years'
imprisonment for a range of conduct by an authorised applicant in respect of an
investigation warrant issued under section 71 of that Act. Section 71 sets out the
procedure by which an investigation warrant may be obtained from an issuing officer by
electronic means where the warrant is urgently required, or where delay would frustrate
the effective execution of the warrant. Subsection 71(6) places an obligation on the
authorised applicant to complete a form of warrant in the same terms as the warrant
completed and signed by the issuing officer under subsection 71(4). Procedural
requirements under subsection 71(6) ensure proper and considered authorisation for
urgent execution, protecting against the arbitrary use of investigation powers.
58. The application of these offences under the Regulatory Powers Act in the DFDA context
under Schedule 2 to this Bill engages the fair trial rights, minimum guarantees in the
determination of a criminal charge and other criminal process rights contained in Article
14 of the ICCPR. The offence provisions in the Regulatory Powers Act do not limit the
person's access to a fair trial or limit the other criminal process rights in any way.
Section 47 of the Regulatory Powers Act makes it clear that the privilege against self-
incrimination and legal professional privilege have not been abrogated by the
investigation powers provisions. These protections guarantee the criminal process rights
protected in paragraphs 14(3)(d) and (g) of the ICCPR. The usual guarantees and criminal
process rights will apply to these offences and are not abrogated by any provisions in the
Bill or triggered provisions of the Regulatory Powers Act.
59. Accordingly, Part 3 of the Regulatory Powers Act, as applied to the DFDA by Schedule 2
to this Bill, is compatible with human rights.
Conclusion
60. Schedule 2 to this Bill is compatible with human rights because, to the extent that it may
limit human rights, those limitations are necessary, reasonable and proportionate to
achieving the legitimate objectives of the DFDA.
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Overview of Schedule 3 - Education Services For Overseas Students Act 2000
61. The Education Services for Overseas Students Act 2000 (ESOS Act) regulates the
provision of education to overseas students in Australia including in the higher education,
vocational education and training (VET) and schools sectors. The objectives of the ESOS
Act are to provide tuition assurance and refunds for students for courses for which they
have paid, to protect and enhance Australia's reputation for quality education and training
services and to complement Australia's migration laws. Under the ESOS Act, the Tertiary
Education Quality and Standards Agency (TEQSA) regulates registered providers
providing courses to overseas students in the higher education sector, the Australian
Skills Quality Authority (ASQA) (also known as the National VET Regulator) regulates
the VET sector and the Secretary of the Department of Education, Skills and Employment
regulates the schools sector (known as ESOS agencies). The Bill will allow the ESOS
agencies to continue regulating the respective sectors using the standard provisions in the
Regulatory Powers Act.
62. Schedule 3 to this Bill amends the ESOS Act to trigger the monitoring powers in Part 2 of
the Regulatory Powers Act, which will enable an authorised officer of the ESOS agency
for a registered provider to enter any premises and exercise monitoring powers for the
purpose of determining whether:
(i) provisions of the ESOS Act, national code and English Language Intensive
Courses for Overseas Students (ELICOS) Standards or Foundation Program
Standards,
(ii) offences against the Crimes Act 1914 or Criminal Code which relate to the ESOS
Act,
(iii) information subject to monitoring, and
(iv) matters subject to monitoring, have been, or are being, complied with.
An authorised officer may not enter the premises unless the occupier has provided
consent or the inspector is in possession of a monitoring warrant. The general monitoring
powers of an authorised person are set out in Part 2 of the Regulatory Powers Act, and
include the power to:
search premises and any thing on the premises
examine or observe activities on the premises
inspect documents on the premises
ask persons on the premises questions and request the production of documents
bring equipment and materials onto the premises
inspect, examine, take measurements of or conduct tests on any thing on the
premises
take images of things or make copies of documents
operate electronic equipment, and
secure evidence of contraventions for up to 24 hours.
63. Further, if entry is under a monitoring warrant, the authorised person may:
require persons on the premises to answer questions or produce documents relating
to the provisions or information that are subject to monitoring, and
15
secure electronic equipment for the purposes of obtaining expert assistance.
64. Schedule 3 also amends the ESOS Act to trigger the provisions pertaining to investigation
powers in Part 3 of the Regulatory Powers Act, which will enable an authorised officer of
the ESOS agency for a registered provider to enter premises and exercise investigation
powers where the authorised officer suspects on reasonable grounds that there may be
evidential material on the premises related to the contravention of an offence under the
ESOS Act, or an offence against the Crimes Act 1914 or the Criminal Code that relates to
the ESOS Act. The general investigation powers of an authorised person are set out in
Part 3 of the Regulatory Powers Act, and are discussed above in relation to the Defence
Force Discipline Act 1982, at paragraph 37 and 38.
65. Amendments to the ESOS Act include a modification to both the standard monitoring and
investigation provisions of the Regulatory Powers Act. The power to use force against
things as is necessary and reasonable in the circumstances, during monitoring and
investigation, by authorised officers and persons assisting authorised officers is retained
from existing regulatory provisions in the ESOS Act.
66. Schedule 3 to this Bill also amends the ESOS Act to trigger the infringement notices
provisions in Part 5 of the Regulatory Powers Act which will enable an authorised officer
of the ESOS agency for a registered provider to issue an infringement notice under Part 5
where they believe, on reasonable grounds, that a provision under subsections 19(5)
(failure to give information about accepted students), 20(6) (failure to give students notice
of visa breaches), 21(5) (failure to keep records of students' details and assessment),
21A(1A) (failure to meet obligations relating to the agents of registered providers),
46E(1) (failure to discharge obligations to an overseas student or intending overseas
student), 47F(1) (failure to enter agreement that complies with requirements regarding a
written agreement about student default) or 47G(1) (failure to provide refund) of the
ESOS Act has been contravened.
67. The ESOS Act is also amended to trigger the enforceable undertakings provisions in
Part 6 of the Regulatory Powers Act, which will enable, as relevant, the CEO of TEQSA,
the CEO of the National VET Regulator, the Secretary of the Department of Education,
Skills and Employment or the head (however described) of the ESOS agency for the
registered provider to accept and enforce undertakings relating to compliance with the
provisions of the ESOS Act, provisions of the national code, and provisions of the
ELICOS Standards or Foundation Program Standards. That is, where the undertaking is in
relation to a registered higher education provider, the authorised person is the CEO of
TEQSA, where the undertaking is in relation to a registered VET provider, the authorised
person is the CEO of the National VET Regulator, where the undertaking is in relation to
an approved school provider, the authorised person is the Secretary, and where the
undertaking is in relation to any other registered provider, the authorised person is the
head (however described) of the ESOS agency for the registered provider. Further, if the
authorised person is satisfied that the person has breached the undertaking, the authorised
person may apply to a relevant court for an order relating to the undertaking.
Human rights implications
Monitoring and investigation and the right to privacy
68. Schedule 3 to this Bill engages the protection against arbitrary or unlawful interference
with privacy. 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. The right to privacy can be limited to achieve a
16
legitimate objective where the limitations are lawful and not arbitrary. In order for an
interference with the right to privacy to be permissible, the interference must be
authorised by law, be for a reason consistent with the ICCPR and be reasonable in the
circumstances. The United Nations Human Rights Committee has interpreted the
requirement of 'reasonableness' as implying that any interference with privacy must be
proportionate to a legitimate end and be necessary in the circumstances.
69. The objectives of the ESOS Act are to provide tuition assurance and refunds for students
for courses for which they have paid, to protect and enhance Australia's reputation for
quality education and training services and to complement Australia's migration laws.
Schedule 3 to this Bill supports this objective by providing a framework for regulating
registered providers that provide courses to overseas students in the higher education,
VET and schools sector to ensure providers are meeting their obligations under the
ESOS Act.
70. The entry, monitoring, search, seizure and information gathering powers in the triggered
provisions of the Regulatory Powers Act are provided by law. The monitoring and
investigation powers are necessary to enable the monitoring of compliance with the
ESOS Act and instruments made under that Act and collection of evidential material
relating to contraventions of the ESOS Act and related instruments. They are constrained
in various ways as set out below, ensuring that their use is not arbitrary.
71. The powers cannot be exercised without consent being given to the entry into the
premises, or prior judicial authorisation in the form of a warrant. Where entry is based on
the consent of the occupier, consent must be informed and voluntary and the occupier of
the 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.
72. The Regulatory Powers Act also provides conditions on the issuing of a monitoring or
investigation warrant. For example, in the case of an investigation warrant, 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 next
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. These conditions ensure there are adequate safeguards against
arbitrary limitations on the right to privacy in the issuing of warrants.
73. In addition, an authorised person cannot enter premises under a warrant unless their
identity card is shown to the occupier of the premises. If entry is authorised by a warrant,
the authorised person must provide a copy of the warrant to the occupier of the premises.
This provides for the transparent utilisation of the powers, and mitigates arbitrariness and
risk of abuse.
74. Further, the powers can only be exercised in specific circumstances set out in the
triggered provisions. For example, under section 52 of the Regulatory Powers Act, the
power to seize evidence of a kind not specified in a warrant may only be exercised in
limited circumstances set out at paragraph 38 above. These constraints on the exercise of
the powers also limit their susceptibility to arbitrary use and ensure that their use is
reasonable and proportionate in the circumstances.
75. Schedule 3 to this Bill also modifies the operation of Parts 2 and 3 of the Regulatory
Powers Act, and permits an authorised person to use force against things when exercising
17
a monitoring or an investigation warrant. These amendments preserve current
arrangements under the ESOS Act, which are repealed by Schedule 3.
76. In executing a monitoring or an investigation warrant, an authorised person is permitted
to use such force against things as is necessary and reasonable in the circumstances. It is
necessary to include this power, as an authorised person executing a monitoring warrant
may need to open locked doors, cabinets, drawers and other similar objects that the
authorised person reasonably suspects contain things or information that would provide
evidence that provisions subject to monitoring have not been, or are not being, complied
with, or that information subject to monitoring is incorrect. Similarly, an authorised
person executing an investigation warrant may need to open locked doors, cabinets,
drawers and other similar objects that the authorised person reasonably suspects contain
evidential material that would demonstrate that a compliance obligation of the ESOS Act
or related instruments has been contravened.
77. When a warrant is sought, it is necessary to protect evidence from being altered or
destroyed. Retaining this provision ensures that the authorised officer can gain entry to
premises in order to execute the warrant. Where premises are unattended or the occupier
refuses to attend or assist, use of force may be necessary in order to access further secure
locations within or on the premises (for example, a safe or where access is through a
locked door).
78. In these situations, the use of force provision means that the authorised person is able to
use a locksmith when encountering a locked cabinet or room to urgently secure
documents and things specified under a warrant in an efficient manner and avoid
circumstances where evidence may be destroyed if they are required to leave and return at
a later time.
79. The power can only be exercised under a monitoring or investigation warrant, which must
be issued by a judicial officer. Further, the power may only be used as is necessary and
reasonable in the circumstances which means that any ensuing damage to property would
be restricted to the minimum required to obtain the documents and things, during the
execution of the search warrant. As this power does not extend to the use of force against
persons, it does not engage the right to security of person in Article 9 of the ICCPR or the
right to life in Article 6 of the ICCPR.
80. Accordingly, the monitoring and investigation powers are necessary, proportionate and
reasonable in the pursuance of the legitimate objectives of the ESOS Act.
Monitoring and investigation and criminal process rights
81. Triggering the monitoring and investigation powers in the Regulatory Powers Act causes
offences in that Act to apply in relation to monitoring and investigation. The fair trial
rights, minimum guarantees in the determination of a criminal charge and other criminal
process rights contained in Article 14 of the ICCPR are engaged. For example, Parts 2
(monitoring) and 3 (investigation) of the Regulatory Powers Act provide questioning
powers to authorised persons. Under subsection 24(3) of the Regulatory Powers Act,
where entry is authorised by a monitoring warrant, the authorised person may require any
person on the premises to answer questions or produce documents relating to information
or provisions subject to monitoring. If the person fails to do so, this is an offence under
subsection 24(5) of the Regulatory Powers Act. The penalty is 30 penalty units. Similarly,
under subsection 54(3) of the Regulatory Powers Act an authorised person who enters
premises under an investigation warrant may require persons on the premises to answer
questions or produce documents relating to evidential material of the kind specified in the
18
warrant. If the person fails to do so, this is an offence under subsection 54(5) of the
Regulatory Powers Act. The penalty is 30 penalty units.
82. These offence provisions do not limit the person's access to a fair trial or limit the other
criminal process rights in any way. Sections 17 and 47 of the Regulatory Powers Act
make it clear that the privilege against self-incrimination and legal professional privilege
have not been abrogated by the monitoring and investigation powers provisions, including
the offence provisions. These protections guarantee the criminal process rights protected
in paragraphs 14(3)(d) and (g) of the ICCPR. The usual guarantees and criminal process
rights will apply to these offences and are not abrogated by any provisions in the Bill or
triggered provisions of the Regulatory Powers Act. Accordingly, sections 24 and 54 of
the Regulatory Powers Act, as applied to the ESOS Act by Schedule 3, are compatible
with human rights.
Infringement notices and criminal process rights
83. Schedule 3 to this Bill amends the ESOS Act to trigger the infringement notice provisions
in Part 5 of the Regulatory Powers Act. These provisions enable an authorised officer of
the ESOS agency for a registered provider to issue an infringement notice under Part 5
where they believe, on reasonable grounds, that a provision under subsections 19(5)
(failure to give information about accepted students), 20(6) (failure to give students notice
of visa breaches), 21(5) (failure to keep records of students' details and assessment),
21A(1A) (failure to meet obligations relating to the agents of registered providers),
46E(1) (failure to discharge obligations to an overseas student or intending overseas
student), 47F(1) (failure to enter agreement that complies with requirements regarding a
written agreement about student default) or 47G(1) (failure to provide refund) of the
ESOS Act has been contravened. If the person does not pay the amount in the notice,
proceedings seeking a civil penalty order may be brought against them in a court, and
where the notice is in relation to an offence, they may be prosecuted for the offence.
Accordingly, the right to a fair hearing in civil matters and the right to a public hearing in
criminal matters provided for by Article 14(1) of the ICCPR are engaged.
84. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a
pecuniary penalty imposed on a person. It sets out the particulars of an alleged
contravention of a law. Section 104 of the Regulatory Powers Act, as triggered by
Schedule 3 to this Bill, provides that an infringement notice is required to state that the
person may choose not to pay the penalty and notify them that, if they do so, proceedings
seeking a civil penalty order may be brought against them in a court, or if in relation to an
offence, they may be prosecuted in a court for the alleged offence. Accordingly, the
person must always be advised of the consequences of not paying the penalty, including
the possibility of the institution of civil proceedings or prosecution of the matter in court.
The person's right to a fair and public hearing by a competent, independent and impartial
tribunal is not limited.
85. Accordingly, the infringement notice provisions applied by Schedule 3 are consistent with
human rights.
Enforceable undertakings and criminal process rights
86. Under the amendments in Schedule 3 to this Bill, enforceable undertakings may be
accepted and enforced under the Regulatory Powers Act in relation to contraventions of
provisions of the ESOS Act, the national code and the ELICOS Standards or Foundation
Program Standards. As the enforceable undertakings framework applies to offence
19
provisions, the right to a fair and public hearing and the other criminal process rights and
minimum guarantees in Article 14 of the ICCPR are engaged.
87. Under Part 6 of the Regulatory Powers Act, an order enforcing an undertaking that relates
to compliance with provisions of the ESOS Act can only be made by a court, where all
the usual procedures and protections in relation to a fair hearing will apply. Accordingly,
the right to a fair and public hearing is not limited.
88. The amendments in Schedule 3 to this Bill also do not limit the minimum guarantees and
other criminal process rights in Article 14 of the ICCPR.
Conclusion
89. Schedule 3 to this Bill is compatible with human rights as, to the extent the amendments
to the ESOS Act may limit the engaged rights, those limitations are reasonable, necessary
and proportionate to achieving the legitimate objectives of the ESOS Act.
Overview of Schedule 4 - Fisheries Management Act 1991
90. The Fisheries Management Act 1991 (FMA) provides the statutory framework for the
regulation and management of Commonwealth fisheries. The FMA establishes
management plans for fisheries, and sets out the legislative basis for statutory fishing
rights, licenses and permits. The FMA defines the Australian Fishing Zone and provides
for the majority of Commonwealth fisheries offences. It underpins Australia's domestic
and foreign compliance work and provides enforcement powers to protect Australia's
fishery resources.
91. Schedule 4 to this Bill amends the FMA to trigger the infringement notice provisions
contained in Part 5 of the Regulatory Powers Act. This will enable an AFMA staff
member, appointed under section 83 of the FMA, to issue an infringement notice under
Part 5 where they believe, on reasonable grounds, that an offence under subsection 93(1)
(failure to give a return or information in relation to fish received) or subsection 95(5)
(engage in certain fishing without a licence or permit) has been committed.
Human rights implications
Infringement notices and Article 14
92. Schedule 4 to this Bill amends the FMA to trigger the infringement notice provisions in
Part 5 of the Regulatory Powers Act. These provisions enable an AFMA staff member
appointed under section 83 of the FMA to issue an infringement notice under Part 5
where he or she believes, on reasonable grounds, that an offence under subsection 93(1)
or subsection 95(5) of the FMA has been committed. Subsection 93(1) will be amended
to be an offence of strict liability and subsection 95(5) will remain a strict liability
offence. As these provisions are offences, if the person does not pay the amount in the
notice, they may be subject to criminal prosecution. Accordingly, the right to a fair and
public hearing in criminal matters provided for by Article 14(1) of the International
Covenant on Civil and Political Right (ICCPR) is engaged.
93. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a
pecuniary penalty imposed on a person. It sets out the particulars of an alleged
contravention of a law. Section 104 of the Regulatory Powers Act provides that an
infringement notice is required to state that the person may choose not to pay the penalty
and notify them that, if they do so, where the relevant provision is an offence provision
that does not also constitute a civil penalty provision, they may be prosecuted in a court
for the alleged offence. It also clarifies that the issuing of an infringement notice is merely
20
an allegation that the individual committed an offence, and that the payment of the
amount in an infringement notice is not an admission of guilt or liability. Accordingly, the
person must always be advised of the consequences of not paying the penalty, including
the possibility of prosecution of the matter in court. The person's right to a fair and public
hearing by a competent, independent and impartial tribunal is not limited.
94. Article 14 of the ICCPR also provides for other criminal process rights, such as the right
to be presumed innocent. It sets out the minimum guarantees in criminal proceedings.
These rights are not limited by the amendments in Schedule 4 to this Bill.
Conclusion
95. Schedule 4 to this Bill is consistent with human rights as the rights it engages are not
limited.
Overview of Schedule 5 - Tertiary Education Quality and Standards Agency Act 2011
96. The Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) sets out
the requirements for the regulation of higher education. This includes to regulate higher
education using a standards-based quality framework and principles relating to regulatory
necessity, risk and proportionality. The objects of the TEQSA Act also include to protect
and enhance Australia's reputation for quality higher education and training services,
international competitiveness in the sector and excellence, diversity and innovation in
higher education. The TEQSA Act establishes the Tertiary Education Quality and
Standards Agency (TEQSA) as the regulator for the provision of education in the higher
education sector. TEQSA has specific regulatory powers to regulate registered higher
education providers. The Bill will allow TEQSA to continue regulating higher education
providers using the standard provisions in the Regulatory Powers Act.
97. Schedule 5 to this Bill amends the TEQSA Act to trigger all Parts of the Regulatory
Powers Act.
98. The TEQSA Act will be amended to trigger the monitoring powers in Part 2 of the
Regulatory Powers Act, which will enable an authorised officer (as defined in the TEQSA
Act) to enter any premises and exercise monitoring powers for the purpose of determining
whether provisions of the TEQSA Act or provisions of an instrument made under
subsection 58(1) of the TEQSA Act have been, or are being, complied with, or whether
offences against the Crimes Act 1914 or the Criminal Code which relate to the TEQSA
Act have been, or are being, committed. An authorised officer may not enter the premises
unless the occupier has provided consent or the inspector is in possession of a monitoring
warrant. The general monitoring powers of an authorised person are set out in Part 2 of
the Regulatory Powers Act, and are discussed above in relation to the Education Services
for Overseas Students Act 2000, at paragraphs 62 and 63.
99. This Schedule also amends the TEQSA Act to trigger the provisions pertaining to
investigation powers in Part 3 of the Regulatory Powers Act, which will enable an
authorised officer (as defined in the TEQSA Act) to enter premises and exercise
investigation powers where the authorised officer suspects on reasonable grounds that
there may be material on the premises related to the contravention of an offence or civil
penalty provision of the TEQSA Act or an offence against the Crimes Act 1914 or the
Criminal Code that relates to the TEQSA Act. The general investigation powers of an
authorised person are set out in Part 3 of the Regulatory Powers Act, and are discussed
above in relation to the Defence Force Discipline Act.
21
100. Schedule 5 to this Bill amends the TEQSA Act to trigger the civil penalty provisions
in Part 4 of the Regulatory Powers Act, which enables civil penalty provisions of the
TEQSA Act to be enforced under Part 4 of the Regulatory Powers Act. Under these
amendments, TEQSA Commissioners and the Chief Executive Officer (CEO) of TEQSA
are authorised to apply to a relevant court for a civil penalty order requiring a person to
pay to the Commonwealth a pecuniary penalty for a contravention of the TEQSA Act.
Subsections 82(5) and (6) of the Regulatory Powers Act, as modified by Schedule 5 of
this Bill, provide for how the pecuniary penalty in a civil penalty order is to be
determined.
101. Schedule 5 to this Bill amends the TEQSA Act to trigger the infringement notice
provisions in Part 5 of the Regulatory Powers Act which will enable an authorised officer
(as defined in the TEQSA Act) to issue an infringement notice under Part 5 where they
believe, on reasonable grounds, that a civil penalty provision of the TEQSA Act has been
contravened.
102. The TEQSA Act is also amended to trigger the enforceable undertakings provisions in
Part 6 of the Regulatory Powers Act, which will enable TEQSA Commissioners and the
CEO of TEQSA to accept and enforce undertakings relating to compliance with the
provisions of the TEQSA Act. Further, if a Commissioner or the CEO is satisfied that the
person has breached the undertaking, they may apply to a relevant court for an order
relating to the undertaking.
103. The TEQSA Act is also amended to trigger the injunctions provisions in Part 7 of the
Regulatory Powers Act, which will enable the TEQSA Commissioners and the CEO to
apply to a relevant court for an injunction to restrain the person from engaging in conduct
or requiring the person to do a thing. Further, a relevant court may grant an interim
injunction.
Human rights implications
Monitoring and investigation and the right to privacy
104. Schedule 5 to this Bill engages the protection against arbitrary or unlawful
interference with privacy. 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. The right to privacy can be limited
to achieve a legitimate objective where the limitations are lawful and not arbitrary. In
order for an interference with the right to privacy to be permissible, the interference must
be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the
circumstances. The United Nations Human Rights Committee has interpreted the
requirement of 'reasonableness' as implying that any interference with privacy must be
proportionate to a legitimate end and be necessary in the circumstances.
105. The objective of the TEQSA Act is to regulate the higher education sector. This
includes registering higher education providers, accrediting the courses of providers that
do not have self-accrediting authority and monitoring providers' compliance with the
requirements set out in the Higher Education Standards Framework, which is made under
the TEQSA Act. TEQSA has specific regulatory powers to ensure the compliance of
registered higher education providers with those requirements.
106. Schedule 5 to this Bill supports these objectives by triggering the standard monitoring
and investigation provisions in Parts 2 and 3 of the Regulatory Powers Act. Triggering
these Parts of the Regulatory Powers Act would replace existing bespoke monitoring and
investigation provisions of the TEQSA Act.
22
107. The powers cannot be exercised without consent being given to the entry into the
premises, or prior judicial authorisation in the form of a warrant. Where entry is based on
the consent of the occupier, consent must be informed and voluntary and the occupier of
the 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.
108. The Regulatory Powers Act also provides conditions on the issuing of a monitoring or
investigation warrant. For example, in the case of an investigation warrant, 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 next 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. These conditions ensure there are adequate safeguards against
arbitrary limitations on the right to privacy in the issuing of warrants.
109. In addition, an authorised person cannot enter premises under a warrant unless their
identity card is shown to the occupier of the premises. If entry is authorised by a warrant,
the authorised person must provide a copy of the warrant to the occupier of the premises.
This provides for the transparent utilisation of the powers, and mitigates arbitrariness and
risk of abuse.
110. Further, the powers can only be exercised in specific circumstances set out in the
triggered provisions. For example, under section 52 of the Regulatory Powers Act, the
power to seize evidence of a kind not specified in a warrant may only be exercised in
limited circumstances set out at paragraph 38 above. These constraints on the exercise of
the powers also limit their susceptibility to arbitrary use and ensure that their use is
reasonable and proportionate in the circumstances.
111. Accordingly, the monitoring and investigation powers are necessary, proportionate
and reasonable in the pursuance of the legitimate objectives of the TEQSA Act.
Monitoring and investigation and criminal process rights
112. Schedule 5 to this Bill engages the criminal process rights contained in Article 14 of
the ICCPR. Parts 2 and 3 of the Regulatory Powers Act provide questioning powers to
authorised persons in certain situations. Under subsections 24(3) and 54(3) of the
Regulatory Powers Act, an authorised person who enters premises under a monitoring or
investigation warrant respectively may require persons on the premises to answer
questions or produce documents relating to evidential material of the kind specified in the
warrant. If the person fails to do so, this is an offence under subsections 24(5) and 54(5)
of the Regulatory Powers Act. The penalty for a contravention under subsections 24(5)
and 54(5) is 30 penalty units.
113. These offence provisions do not limit the person's access to a fair trial or limit the
other criminal process rights in any way. Sections 17 and 47 of the Regulatory Powers
Act make it clear that the privilege against self-incrimination and legal professional
privilege have not been abrogated by the provisions pertaining to monitoring and
investigation powers. These protections guarantee the criminal process rights protected in
paragraphs 14(3)(d) and (g) of the ICCPR by limiting the operation of the questioning
powers. The usual criminal process rights and minimum guarantees apply to these
offences and are not abrogated by any provision in the Bill or triggered provisions of the
Regulatory Powers Act. Accordingly, sections 24 and 54 of the Regulatory Powers Act,
23
as applied by the TEQSA Act in Schedule 5 to this Bill, are compatible with the criminal
process rights in Article 14 of the ICCPR.
Civil penalties and criminal process rights
114. The TEQSA Act is also amended to trigger the civil penalty provisions in Part 4 of the
Regulatory Powers Act, which means that the civil penalty provisions of the TEQSA Act
are enforceable under Part 4 of the Regulatory Powers Act.
115. Under these amendments, the TEQSA Commissioners and the CEO are authorised to
apply to a relevant court for a civil penalty order requiring a person to pay the
Commonwealth a pecuniary penalty for a contravention of the TEQSA Act. Subsections
82(5) and (6) of the Regulatory Powers Act, as modified by Schedule 5 of this Bill,
provide for how the pecuniary penalty in a civil penalty order is to be determined.
116. Triggering the civil penalty provisions of the Regulatory Powers Act could engage
criminal process rights if the imposition of civil penalties is classified as 'criminal' under
international human rights law. Article 14 of the ICCPR requires that, in the
determination of criminal charges, everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial tribunal established by law. Various other
rights are provided for persons charged with criminal offences.
117. Determining whether penalties could be considered to be criminal under international
human rights law requires consideration of the classification of the penalty provisions
under Australian domestic law, the nature and purpose of the penalties, and the severity of
the penalties.
118. The civil penalty provisions of the TEQSA Act, as enforceable under the Regulatory
Powers Act, create solely pecuniary penalties in the form of a debt payable to the
Commonwealth. The purpose of these penalties is to encourage compliance with the
TEQSA Act. The civil penalty provisions of the TEQSA Act do not impose criminal
liability, and do not lead to the creation of a criminal record. The penalties only apply to
those who are either registered higher education providers, or associated with the
administration of registered higher education providers, or engaged in the provision or
advertising of academic cheating services, rather than the public in general. Further, the
imposition of the civil penalties is not dependent on a finding of guilt. These factors all
suggest that the civil penalties imposed by the TEQSA Act are civil rather than criminal
in nature.
119. The amendments in Schedule 5 do not increase the maximum pecuniary penalties that
may be imposed in civil penalty orders for contraventions of the TEQSA Act. Schedule 5
modifies the standard civil penalty provisions under Part 4 of the Regulatory Powers Act
which, under subsection 82(5) would otherwise provide a corporate multiplier for the
application of pecuniary penalties under the TEQSA Act to bodies corporate. New
subsection 117(6) of the TEQSA Act provides that, despite subsection 82(5) of the
Regulatory Powers Act, the pecuniary penalty in relation to a contravention of a civil
penalty provision of the Act (except subsections 114A(3) or 114B(2), which deal with the
provision or advertising of academic cheating services) must not be more than the
applicable pecuniary penalty specified for the provision. This is because the regulated
entities subject to the civil penalty provisions under the TEQSA Act are generally bodies
corporate rather than individuals or unincorporated bodies, and so the pecuniary penalties
are set with reference to, and to be appropriate for, bodies corporate. The subsections for
which an exception is provided, about academic cheating services, are provisions to
which both individuals and bodies corporate may be subject. As the pecuniary penalty has
24
been set with reference to, and appropriate for, individuals, it is appropriate for subsection
82(5) of the Regulatory Powers Act to still apply, such that the maximum penalty that can
be afforded under this section for an individual is 500 penalty units, and for bodies
corporate is five times that amount.
120. The civil penalties do not carry the consequences of offences under the TEQSA Act,
which would involve a criminal record and can result in imprisonment as well as a
financial penalty for contravention of some provisions.
121. In particular, the civil penalty provisions relating to academic cheating services are
not considered 'criminal' in nature, as they are strictly confined to a specific regulatory or
disciplinary context, namely providers of cheating services within the higher education
sector. The amount of the pecuniary penalty that may be imposed for providing cheating
services is not punitive having regard to the nature of the industry sought to be regulated
(namely, providers and advertisers of higher education cheating services) and having
regard to the relative size of the civil pecuniary penalties that may be imposed in
comparable corporate settings.
122. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are
not engaged by the amendments relating to civil penalty orders in Schedule 5.
123. The amendments relating to civil penalty provisions in Schedule 5 engage, but do not
limit, the right to a fair and public hearing in civil proceedings provided for by Article
14(1) of the ICCPR. Under section 82 of the Regulatory Powers Act, civil penalty orders
can only be granted by a relevant court, which must consider all relevant matters before
determining the amount of the penalty. Accordingly, the right to a fair hearing is not
limited.
124. The application of Part 4 of the Regulatory Powers Act to the TEQSA Act is
consistent with human rights.
Infringement notices and criminal process rights
125. Schedule 5 to this Bill amends the TEQSA Act to trigger the infringement notice
provisions in Part 5 of the Regulatory Powers Act. These provisions enable an authorised
officer (defined under the TEQSA Act) to issue an infringement notice under Part 5
where they believe, on reasonable grounds, that a civil penalty provision of the TEQSA
Act has been contravened.
126. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice
of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged
contravention of a law. An infringement notice gives the person to whom the notice is
issued the option of paying the penalty set out in the notice, or electing to have the matter
dealt with by a court. As the amendments only trigger the infringement notice regime for
civil penalty provisions of the TEQSA Act, the criminal process rights in Article 14 of the
ICCPR are not engaged. There are no criminal consequences associated with
infringement notices for civil penalty provisions. For example, they do not carry the
possibility of imprisonment if the person does not pay the penalty or attend court.
127. Section 104 of the Regulatory Powers Act, as triggered by Schedule 5 of this Bill,
provides that an infringement notice is required to state that the person may choose not to
pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty
order may be brought against them in a court for the alleged contravention. It also
clarifies that the issuing of an infringement notice is merely an allegation that the
individual contravened the civil penalty provision, and that the payment of the amount in
25
an infringement notice is not an admission of guilt or liability. Accordingly, the person
must always be advised of the consequences of not paying the penalty, including the
possibility of court proceedings being instituted. As the person may elect to have the
matter heard by a court, rather than pay the penalty, the right to a fair and public hearing
by a competent, independent and impartial tribunal is not limited.
128. Accordingly, the infringement notice provisions applied by Schedule 5 are consistent
with human rights.
Enforceable undertakings and criminal process rights
129. Under the amendments in Schedule 5 to this Bill, enforceable undertakings may be
accepted and enforced under the Regulatory Powers Act in relation to compliance with
provisions of the TEQSA Act. As the enforceable undertakings framework applies to the
offence provisions, the right to a fair and public hearing and the other criminal process
rights and minimum guarantees in Article 14 of the ICCPR are engaged.
130. Under Part 6 of the Regulatory Powers Act, an order enforcing an undertaking that
relates to compliance with provisions of the TEQSA Act can only be made by a court.
Accordingly, the right to a fair and public hearing is not limited.
131. The amendments in Schedule 5 to this Bill also do not limit the minimum guarantees
and other criminal process rights in Article 14 of the ICCPR.
Injunctions and criminal process rights
132. Schedule 5 to this Bill also amends the TEQSA Act to trigger the injunctions
provisions in Part 7 of the Regulatory Powers Act. This will enable the TEQSA
Commissioners and the CEO to apply to a relevant court for an injunction to restrain the
person from engaging in conduct or requiring the person to do a thing. Further, a relevant
court may grant an interim injunction. The injunction powers are triggered in relation to
all provisions of the TEQSA Act. Accordingly, the right to a fair and public trial is
engaged, and, as the injunctions framework applies to the offence provisions of the
TEQSA Act, so too are other criminal process rights and minimum guarantees provided
for by Article 14 of the ICCPR.
133. Triggering the injunction provisions of the Regulatory Powers Act in relation to civil
penalty provisions and offences engages the rights to a fair and public hearing in civil and
criminal proceedings. Article 14(1) 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. Under Part 7 of the Regulatory Powers Act, an injunction can only be
granted by a court. Thus, the right to a fair and public hearing by a competent,
independent and impartial tribunal is not limited. The amendments in Schedule 5 relating
to injunctions and the triggered injunctions provisions do not limit any of the other
criminal process rights or minimum guarantees in Article 14 of the ICCPR.
134. Accordingly, the amendments relating to injunctions in Schedule 5 and the triggered
injunctions provisions are compatible with human rights.
Conclusion
135. Schedule 5 to this Bill is compatible with human rights because to the extent that it
may limit human rights, the limitation of those rights is necessary, reasonable and
proportionate to achieving the legitimate objectives of the TEQSA Act.
26
Overview of Schedule 6 - Tobacco Advertising Prohibition Act 1992
136. The Tobacco Advertising Prohibition Act 1992 (TAPA) sets out the requirements for
the sale and advertisement of tobacco products in, or with a link to, Australia. The
legislation prohibits the advertising of tobacco and tobacco products, with certain limited
exceptions. Tobacco advertising is a powerful influence that increases the use of tobacco
products, particularly by children and young people. The regulation of tobacco
advertising helps prevent smoking uptake and reduce smoking rates.
137. Schedule 6 to this Bill amends the TAPA to trigger the monitoring powers in Part 2 of
the Regulatory Powers Act, which will enable an authorised officer (as defined in the
TAPA) to enter any premises and exercise monitoring powers for the purpose of
determining whether provisions subject to monitoring have been, or are being, complied
with. An authorised officer may not enter the premises unless the occupier has provided
consent or the inspector is in possession of a monitoring warrant. The general monitoring
powers of an authorised person are set out in Part 2 of the Regulatory Powers Act, and are
discussed above in relation to the Education Services for Overseas Students Act 2000 at
paragraphs 62 and 63.
138. This Schedule also amends the TAPA to trigger the investigation powers in Part 3 of
the Regulatory Powers Act, which will enable an authorised officer (as defined in the
TAPA) to enter premises and exercise investigation powers where the authorised officer
suspects on reasonable grounds that there may be material on the premises related to the
contravention of an offence of the TAPA, or an offence against the Crimes Act 1914 or
the Criminal Code that relates to the TAPA. The general investigation powers of an
authorised person are set out in Part 3 of the Regulatory Powers Act, and are discussed
above in relation to the Defence Force Discipline Act 1982 at paragraphs 37 and 38.
139. The TAPA is also amended to trigger the enforceable undertakings provisions in
Part 6 of the Regulatory Powers Act, which will enable the Secretary of the Department
of Health to accept and enforce undertakings relating to compliance with the provisions
of the TAPA. Further, if the Secretary is satisfied that the person has breached the
undertaking, they may apply to a relevant court for an order relating to the undertaking.
140. Schedule 6 to this Bill also amends the TAPA to trigger the injunctions provisions in
Part 7 of the Regulatory Powers Act, which will enable the Secretary to apply to a
relevant court for an injunction to restrain the person from engaging in conduct or
requiring the person to do a thing.
Human rights implications
Monitoring and investigation and the right to privacy
141. Schedule 6 to this Bill engages the protection against arbitrary or unlawful
interference with privacy. 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. The right to privacy can be limited
to achieve a legitimate objective where the limitations are lawful and not arbitrary. In
order for an interference with the right to privacy to be permissible, the interference must
be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the
circumstances. The United Nations Human Rights Committee has interpreted the
requirement of 'reasonableness' as implying that any interference with privacy must be
proportionate to a legitimate end and be necessary in the circumstances.
27
142. The objectives of the TAPA are to improve public health by discouraging people from
taking up smoking or using tobacco products, reduce smoking rates, and reduce people's
exposure to messages and images relating to tobacco products. Schedule 6 to this Bill
supports these objectives by applying the standard monitoring and investigation
provisions in Parts 2 and 3 of the Regulatory Powers Act. Application of the standard
provisions pertaining to monitoring and investigation in the Regulatory Powers Act will
help provide the TAPA with a robust tobacco regulation scheme.
143. The entry, monitoring, search, seizure and information gathering powers in the
triggered provisions of the Regulatory Powers Act are provided by law. The monitoring
and investigation powers are necessary to enable the monitoring of compliance with the
TAPA and collection of evidential material relating to contraventions of that Act. They
are constrained in various ways as set out below, ensuring that their use is not arbitrary.
144. The powers cannot be exercised without consent being given to the entry into the
premises, or prior judicial authorisation in the form of a warrant. Where entry is based on
the consent of the occupier, consent must be informed and voluntary and the occupier of
the 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.
145. The Regulatory Powers Act also provides conditions on the issuing of a monitoring or
investigation warrant. For example, in the case of an investigation warrant, 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 next 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. These conditions ensure there are adequate safeguards against
arbitrary limitations on the right to privacy in the issuing of warrants.
146. In addition, an authorised person cannot enter premises under a warrant unless their
identity card is shown to the occupier of the premises. If entry is authorised by a warrant,
the authorised person must provide a copy of the warrant to the occupier of the premises.
This provides for the transparent utilisation of the powers, and mitigates arbitrariness and
risk of abuse.
147. Further, the powers can only be exercised in specific circumstances set out in the
triggered provisions. For example, under section 52 of the Regulatory Powers Act, the
power to seize evidence of a kind not specified in a warrant may only be exercised in
limited circumstances set out at paragraph 38. These constraints on the exercise of the
powers also limit their susceptibility to arbitrary use and ensure that their use is
reasonable and proportionate in the circumstances.
148. Accordingly, the standard monitoring and investigation powers are necessary,
proportionate and reasonable in the pursuance of the objectives of the TAPA.
Modifications to the standard investigation powers and the right to privacy
149. New section 25D of the TAPA modifies the operation of Part 3 of the Regulatory
Powers Act in relation to the return of evidential material seized under an investigation
warrant. Currently, under subsection 66(1) of the Regulatory Powers Act, evidential
material seized under an investigation warrant must be returned when the reason for the
seizure no longer exists, when it is decided the thing will not be used as evidence, or
when the period of 60 days has passed since seizure. Schedule 6 to this Bill modifies the
28
60 day period in paragraph 66(1)(c) for which seized items can be retained to a period of
90 days, with a consequential amendment reflecting this modification in paragraph
67(1)(a). This is designed to provide sufficient time for legal advice to be obtained and
properly considered, natural justice requirements to be met, as well as for related
documents to be drafted and enforcement outcomes to be sought. Accordingly, to the
extent that this modification limits an individual's right to privacy, it is necessary and
reasonable for the effective regulation of potential contraventions against the TAPA.
150. The investigation powers may only be exercised in certain circumstances set out in
the Regulatory Powers Act, which acts as a restriction on the power contained in new
section 25D. For example, under section 52 of the Regulatory Powers Act, the power to
seize evidence of a kind not specified in a warrant may only be exercised in limited
circumstances set out at paragraph 38. These constraints on the exercise of the powers
also limit their susceptibility to arbitrary use and ensure that their use is reasonable and
proportionate in the circumstances.
Monitoring and investigation and criminal process rights
151. Schedule 6 to this Bill engages the criminal process rights contained in Article 14 of
the ICCPR. Parts 2 and 3 of the Regulatory Powers Act provide questioning powers to
authorised persons in certain situations. Under subsections 24(3) and 54(3) of the
Regulatory Powers Act, an authorised person who enters premises under a monitoring or
investigation warrant respectively may require persons on the premises to answer
questions or produce documents relating to evidential material of the kind specified in the
warrant. If the person fails to do so, this is an offence under subsections 24(5) and 54(5)
of the Regulatory Powers Act. The penalty for a contravention under subsections 24(5)
and 54(5) is 30 penalty units.
152. These offence provisions do not limit the person's access to a fair trial or limit the
other criminal process rights in any way. Sections 17 and 47 of the Regulatory Powers
Act make it clear that the privilege against self-incrimination and legal professional
privilege have not been abrogated by the provisions pertaining to monitoring and
investigation powers. These protections guarantee the criminal process rights protected in
paragraphs 14(3)(d) and (g) of the ICCPR by limiting the operation of the questioning
powers. The usual criminal process rights and minimum guarantees apply to these
offences and are not abrogated by any provision in the Bill or triggered provisions of the
Regulatory Powers Act. Accordingly, sections 24 and 54 of the Regulatory Powers Act,
as applied by the TAPA in Schedule 6 to this Bill, are compatible with the criminal
process rights in Article 14 of the ICCPR.
Enforceable undertakings and criminal process rights
153. Under the amendments in Schedule 6 to this Bill, enforceable undertakings may be
accepted and enforced under the Regulatory Powers Act in relation to contraventions of
offences under the TAPA. As the enforceable undertakings framework applies to offence
provisions, the right to a fair and public hearing and the other criminal process rights and
minimum guarantees in Article 14 of the ICCPR are engaged.
154. Under Part 6 of the Regulatory Powers Act, an order enforcing an undertaking that
relates to compliance with provisions of the TAPA can only be made by a court.
Accordingly, the right to a fair and public hearing is not limited.
155. The amendments in Schedule 6 to this Bill also do not limit the minimum guarantees
and other criminal process rights in Article 14 of the ICCPR.
29
Injunctions and criminal process rights
156. Schedule 6 to this Bill also amends the TAPA to trigger the injunctions provisions in
Part 7 of the Regulatory Powers Act. This will enable the Secretary to apply to a relevant
court for an injunction to restrain the person from engaging in conduct or requiring the
person to do a thing. Further, a relevant court may grant an interim injunction. The
injunctions powers are triggered in relation to offences of the TAPA. Accordingly, the
right to a fair and public trial and other criminal process rights and minimum guarantees
provided for by Article 14 of the ICCPR are engaged.
157. Triggering the injunction provisions of the Regulatory Powers Act in relation to
offences engages the rights to a fair and public hearing in criminal proceedings. Article
14(1) 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. Under Part 7 of the
Regulatory Powers Act, an injunction can only be granted by a court. Thus, the right to a
fair and public hearing by a competent, independent and impartial tribunal is not limited.
The amendments in Schedule 6 relating to injunctions and the triggered injunctions
provisions do not limit any of the other criminal process rights or minimum guarantees in
Article 14 of the ICCPR.
158. Accordingly, the amendments relating to injunctions in Schedule 6 and the triggered
injunctions provisions are compatible with human rights.
Conclusion
159. Schedule 6 to this Bill is compatible with human rights as, to the extent the
amendments to the TAPA may limit the engaged rights, those limitations are reasonable,
necessary and proportionate to achieving the legitimate objectives of the TAPA.
Overview of Schedule 7 - Tobacco Plain Packaging Act 2011
160. The Tobacco Plain Packaging Act 2011 (TPPA) sets out the requirements for the
plain packaging of tobacco products. The legislation prohibits the use of logos, brand
imagery and promotional text on tobacco products and packaging, and includes
restrictions on colour, size, format and materials of packaging, as well as the appearance
of brand and variant names. All tobacco products sold, offered for sale or otherwise
supplied in Australia from 1 December 2012 are required to be in plain packaging, and be
labelled with updated and expanded health warnings.
161. Schedule 7 to this Bill amends the TPPA to trigger the monitoring powers in Part 2 of
the Regulatory Powers Act, which will enable an authorised officer (as defined in the
TPPA) to enter any premises and exercise monitoring powers for the purpose of
determining whether provisions subject to monitoring have been, or are being, complied
with. An authorised officer may not enter the premises unless the occupier has provided
consent or the inspector is in possession of a monitoring warrant.
162. New subsection 51A(1) of the TPPA provides that a provision is subject to
monitoring under Part 2 of the Regulatory Powers Act if it is an offence or civil penalty
provision of the TPPA or an offence against the Crimes Act 1914 or the Criminal Code
that relates to the TPPA. The general monitoring powers of an authorised person are set
out in Part 2 of the Regulatory Powers Act, and are discussed above in relation to the
Education Services for Overseas Students Act 2000 at paragraphs 62 and 63.
163. Schedule 7 to this Bill amends the TPPA to trigger the enforceable undertakings
provisions in Part 6 of the Regulatory Powers Act, which will enable the Secretary to
accept and enforce undertakings relating to compliance with the provisions of the TPPA.
30
Further, if the Secretary of the Department of Health is satisfied that the person has
breached the undertaking, they may apply to a relevant court for an order relating to the
undertaking.
164. The TPPA is also amended to trigger the injunctions provisions in Part 7 of the
Regulatory Powers Act, which will enable the Secretary to apply to a relevant court for an
injunction to restrain the person from engaging in conduct or requiring the person to do a
thing. Further, a relevant court may grant an interim injunction.
Human rights implications
Monitoring and right to privacy
165. Schedule 7 to this Bill engages the protection against arbitrary or unlawful
interference with privacy. 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. The right to privacy can be limited
to achieve a legitimate objective where the limitations are lawful and not arbitrary. In
order for an interference with the right to privacy to be permissible, the interference must
be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the
circumstances. The United Nations Human Rights Committee has interpreted the
requirement of 'reasonableness' as implying that any interference with privacy must be
proportionate to a legitimate end and be necessary in the circumstances.
166. The objectives of the TPPA are to give effect to Australia's obligations as a party to
the Convention on Tobacco Control, and to improve public health by discouraging people
from taking up smoking or using tobacco products, encouraging people to give up
smoking or to stop using tobacco products, discouraging people who have given up
smoking or who have stopped using tobacco products from relapsing, and reducing
people's exposure to smoke from tobacco products. Schedule 7 to this Bill supports these
objectives by triggering the standard monitoring provisions in Part 2 of the Regulatory
Powers Act, which will supplement the existing investigation powers of the TPPA. This
will result in an expansion of the current regulatory powers framework of the TPPA.
167. Part 2 of the Regulatory Powers Act protects against arbitrary interference with
privacy as the entry and search powers cannot be exercised without the fully informed
and voluntary consent of the occupier of the premises, or prior judicial authorisation in
the form of a warrant. Where entry is based on the consent of the occupier, entry may be
restricted to a particular period. Additional safeguards are provided through provisions
requiring authorised persons, and any persons assisting, to leave the premises if the
occupier withdraws their consent.
168. The Regulatory Powers Act also provides conditions on the issuing of monitoring
warrants. For example, an issuing officer may issue a monitoring warrant only when
satisfied, by oath or affirmation, that it is reasonably necessary for one or more authorised
persons to access the premises for monitoring purposes. 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. These conditions ensure there are adequate safeguards against
arbitrary limitations on the right to privacy in the issuing of warrants.
169. Further, an authorised person cannot enter premises under a warrant unless their
identity card is shown to the occupier of the premises. If entry is authorised by a warrant,
the authorised person must provide a copy of the warrant to the occupier of the premises.
31
This provides for the transparent utilisation of the powers, and mitigates arbitrariness and
risk of abuse.
170. New subsection 51A(10) of the TPPA modifies the operation of Part 2 of the
Regulatory Powers Act, and provides an authorised officer (as defined in the TPPA) with
the power to take samples of any thing at any premises entered under Part 2 of the
Regulatory Powers Act for the purposes of exercising monitoring powers. New
subsection 51A(10) mirrors subsection 52(11) of the TPPA, which provides for the same
power in relation to investigation under the TPPA.
171. This provision engages the right to privacy in Article 17 of the ICCPR. To the extent
that it may limit this right, the limitation is provided for by law. It is necessary to invoke
the power to take samples during monitoring in the TPPA in order to pursue the
legitimate objectives of that Act. The power allows for the testing of tobacco product
samples obtained in the course of monitoring. This provides for more targeted
investigations of businesses that are potentially breaching the TPPA. The tests are, by
necessity, destructive and cannot be carried out otherwise than by taking samples.
172. The power to sample any thing on any premises is restricted. The power may not be
exercised without a monitoring warrant, or the occupier's consent to enter the premises.
Further, under the Tobacco Plain Packaging Enforcement Policy, an authorised officer
may only take a reasonable number of samples of material to conduct required testing and
sampling. According to departmental policy, the authorised person may only take samples
of material that the authorised person suspects on reasonable grounds to be linked to the
contravention of a provision. Accordingly, the exercise of the power is restricted, and
these restrictions ensure its use is reasonable, necessary and proportionate to the
legitimate objectives of the TPPA. The provision is compatible with the protection
against arbitrary or unlawful interference with privacy.
173. Schedule 7 to this Bill modifies the operation of Part 2 of the Regulatory Powers Act,
and permits an authorised person to use force against things when exercising a monitoring
warrant. New subsection 51A(11) mirrors subsection 52(12) of the TPPA, which provides
for the same power in relation to investigation under the TPPA.
174. New subsection 51A(11) of the TPPA provides that, in executing a monitoring
warrant, an authorised officer (as defined in the TPPA), or person assisting an authorised
officer, may use such force against things as is necessary and reasonable in the
circumstances. The use of force against things is necessary in this context, as an
authorised person executing a monitoring warrant may need to open locked doors,
cabinets, drawers and other similar objects that the authorised person reasonably suspects
contain things that would provide evidence that provisions subject to monitoring have not
been, or are not being, complied with.
175. The power can only be exercised under a monitoring warrant, which must be issued
by a judicial officer. Further, the power may only be used as is necessary and reasonable
in the circumstances, and use of force against persons is not authorised.
176. As the power is limited to the use of force against things, and not persons, the right to
life provided for in Article 6 of the ICCPR and the right to liberty and security of person
provided for in Article 9 of the ICCPR are not engaged.
Monitoring powers and criminal process rights
177. Schedule 7 to this Bill engages the criminal process rights contained in Article 14 of
the ICCPR. Part 2 of the Regulatory Powers Act provides questioning powers to
32
authorised persons in certain situations. Under subsection 24(3) of the Regulatory Powers
Act, an authorised person who enters premises under a monitoring warrant may require
persons on the premises to answer questions or produce documents relating to evidential
material of the kind specified in the warrant. If the person fails to do so, this is an offence
under subsection 24(5) of the Regulatory Powers Act. The penalty for a contravention
under 24(5) is 30 penalty units.
178. Section 17 of the Regulatory Powers Act makes it clear that in general, the privilege
against self-incrimination and legal professional privilege have not been abrogated by the
provisions pertaining to monitoring powers. These protections guarantee the criminal
process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR by limiting the
operation of the questioning powers.
179. However, Schedule 7 to this Bill abrogates the operation of section 17 of the
Regulatory Powers Act, with regard to the privilege against self-incrimination, through
the inclusion of new subsection 51A(13). This new subsection provides that, despite
section 17 of the Regulatory Powers Act, an individual is not excused from answering a
question or producing a document under subsection 24(3) of the Regulatory Powers Act,
as Part 2 of the Regulatory Powers Act applies to the TPPA, on the ground that answering
the question or producing the document might tend to incriminate the individual in
relation to an offence. Similarly, new subsection 51A(15) provides that if at general law
an individual would otherwise be able to claim the privilege against self-exposure to a
civil penalty in relation to answering a question, or producing a document under
subsection 24(3) of the Regulatory Powers Act, as Part 2 of that Act applies in relation to
the TPPA, the individual is not excused from answering the question or producing the
document under that subsection, on that ground.
180. New subsection 51A(13) mirrors the policy objective in the existing parallel
provisions of the TPPA with respect to investigation powers. This provision engages the
right to be free from self-incrimination set out in Article 14(3) of the ICCPR. It is
necessary to abrogate the self-incrimination privilege in the TPPA due to the difficulties
in obtaining relevant evidence. Authorised officers are often not in a position to observe a
transaction that would form the basis of a contravention of the TPPA, as such evidence
may only be obtained from an individual who is a party to a transaction. The type of
information that may be requested from a tobacco company would not be obtainable other
than from representatives of that company, or people who engage in dealings with that
company. The full application of the privilege against self-incrimination would
compromise monitoring, investigation and enforcement activities, and would result in
retailers of tobacco products unfairly bearing the burden of compliance with the
requirements of the TPPA, as retailers are the most readily accessible point for
monitoring, investigation and enforcement.
181. Additionally, tobacco products are required by state and territory law to be stored in a
manner that make the products not visible to the public. Generally, this is in a closed
cabinet behind the counter. Consent to access the areas in which tobacco products may be
kept can only be granted by an individual who is the occupier of the store. The retailer, in
their role as occupier, may be offering for sale tobacco products that may not meet the
requirements of the TPPA. Retaining the abrogation of the self-incrimination privilege is
necessary to ensure that regulated parties are compelled to provide reasonable assistance
and answer questions necessary in order for effective monitoring and investigation to
occur. It also ensures that evidence is available and is not concealed, lost or destroyed.
33
182. New subsection 51A(14) of the TPPA provides that, in the case of an individual, none
of the following is admissible in evidence against that individual in criminal proceedings:
the answer given or document produced
the answering of the question or the production of the document, or
any information, document or thing obtained as a direct or indirect
consequence of giving the information, producing the document or answering
the question.
183. Exceptions, however, exist for proceedings for an offence against section 137.1 or
137.2 of the Criminal Code, which deal with false or misleading information or
documents, as they relate to this Act, and section 149.1 of the Criminal Code, which deals
with obstruction of Commonwealth public officials, as it relates to this Act. This would
mean that, where an individual commits an offence under sections 137.1, 137.2 or 149.1
by providing false information or documents, or engaging in obstructive conduct,
evidence of the conduct could be used in proceedings for an offence under those sections.
In these circumstances, the actions being prosecuted under the Criminal Code are
separate to the obligations being investigated under the TPPA. Not providing such an
exception to the use immunity would frustrate the purpose of these sections of the
Criminal Code.
184. Accordingly, new subsection 51A(14) of the TPPA restricts the abrogation of the
privilege against self-incrimination, and protects an individual from incriminating
themselves in a way that would allow evidence to be used against them in criminal
proceedings (with the exception of those identified above).
185. The usual criminal process rights and minimum guarantees apply in criminal
proceedings under the TPPA, including the right to a fair and public hearing and appeal
rights to a higher court. The provisions are compatible with the criminal process rights in
Article 14 of the ICCPR.
Investigation powers and the right to privacy
186. Schedule 7 to this Bill modifies existing investigation powers contained in the TPPA,
previously triggered through the Regulatory Powers (Standardisation Reform) Act 2017.
New section 53 of the TPPA modifies the operation of Part 3 of the Regulatory Powers
Act in relation to the return of evidential material seized under an investigation warrant.
Currently, under subsection 66(1) of the Regulatory Powers Act, evidential material
seized under an investigation warrant must be returned when the reason for the seizure no
longer exists, when it is decided the thing will not be used as evidence, or when the
period of 60 days has passed since seizure. Schedule 7 to this Bill modifies the 60 day
period in paragraph 66(1)(c) for which seized items can be retained to a period of 90
days, with respect to the TPPA. A consequential amendment to paragraph 67(1)(a)
reflecting this modification is also contained in new section 53 of the TPPA. This is
designed to provide sufficient time for the potential testing of tobacco products, legal
advice to be obtained and properly considered, natural justice requirements to be met, as
well as for related documents to be drafted and enforcement outcomes to be sought.
Accordingly, to the extent that this modification limits an individual's right to privacy, it
is necessary and reasonable for the effective administration and regulation of potential
contraventions against the TPPA.
34
187. The investigation powers may only be exercised in certain circumstances set out in
the Regulatory Powers Act. For example, under section 52 of the Regulatory Powers Act,
the power to seize evidence of a kind not specified in a warrant may only be exercised in
limited circumstances set out at paragraph 38. These constraints on the exercise of the
powers also limit their susceptibility to arbitrary use and ensure that their use is
reasonable and proportionate in the circumstances.
Enforceable undertakings and criminal process rights
188. Under the amendments in Schedule 7 to this Bill, enforceable undertakings may be
accepted and enforced under the Regulatory Powers Act in relation to contraventions of
offences and civil penalty provisions of the TPPA. As the enforceable undertakings
framework applies to the offence provisions, the right to a fair and public hearing and the
other criminal process rights and minimum guarantees in Article 14 of the ICCPR are
engaged.
189. Under Part 6 of the Regulatory Powers Act, an order enforcing an undertaking that
relates to compliance with provisions of the TPPA can only be made by a court.
Accordingly, the right to a fair and public hearing is not limited.
190. The amendments in Schedule 7 to this Bill also do not limit the minimum guarantees
and other criminal process rights in Article 14 of the ICCPR.
Injunctions and criminal process rights
191. Schedule 7 to this Bill also amends the TPPA to trigger the injunctions provisions in
Part 7 of the Regulatory Powers Act. This will enable the Secretary under Part 7 of the
Regulatory Powers Act, to apply to a relevant court for an injunction to restrain the
person from engaging in conduct or requiring the person to do a thing. Further, a relevant
court may grant an interim injunction. The injunction powers are triggered in relation to
civil penalty provisions and offences of the TPPA. Accordingly, the right to a fair and
public trial is engaged, and, as the injunctions framework applies to the offence
provisions of the TPPA, so too are other criminal process rights and minimum guarantees
provided for by Article 14 of the ICCPR.
192. Triggering the injunction provisions of the Regulatory Powers Act in relation to civil
penalty provisions and offences engages the rights to a fair and public hearing in civil and
criminal proceedings. Article 14(1) 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. Under Part 7 of the Regulatory Powers Act, an injunction can only be
granted by a court. Thus, the right to a fair and public hearing by a competent,
independent and impartial tribunal is not limited. The amendments in Schedule 7 relating
to injunctions and the triggered injunctions provisions do not limit any of the other
criminal process rights or minimum guarantees in Article 14 of the ICCPR.
193. Accordingly, the amendments relating to injunctions in Schedule 7 and the triggered
injunctions provisions are compatible with human rights.
Conclusion
194. Schedule 7 to this Bill is compatible with human rights because to the extent that it
may limit human rights, the limitation of those rights is necessary, reasonable and
proportionate to achieving the legitimate objectives of the TPPA.
35
NOTES ON CLAUSES
Clause 1 - Short title
195. Clause 1 provides for the short title of the Act to be the Regulatory Powers
(Standardisation Reform) Act 2020.
Clause 2 - Commencement
196. Clause 2 provides for the commencement of each provision in the Bill, as set out in
the table.
197. Subclause 2(1) provides that each provision of the Bill specified in column 1 of the
table commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its terms.
198. Item 1 in the table provides that sections 1, 2 and 3, which concern the formal aspects
of the Bill, as well as anything in the Bill not elsewhere covered by the table, will
commence on the day on which the Bill receives Royal Assent.
199. Item 2 in the table provides that Schedule 1 to the Bill commences on the day after the
Bill receives the Royal Assent.
200. Items 3, 5, 9, 19 and 21 in the table provide respectively that Part 1 of Schedules 2, 3,
5, 6 and 7 of the Bill commence on a single day to be fixed by Proclamation. Item 8
provides that Schedule 4 of the Bill commences on a single day to be fixed by
Proclamation. However, if any of these provisions do not commence within the period of
6 months beginning on the day the Bill receives the Royal Assent, they commence on the
day after the end of that period. Deferring commencement for a 6 month period for Part 1
of Schedules 2, 3, 5, 6 and 7 and for Schedule 4 of the Bill ensures that affected
regulatory agencies will have sufficient time to implement any necessary changes to
policies and procedures as a result of the amendments.
201. Items 4, 20 and 22 in the table provide respectively that Part 2 of Schedules 2, 6 and 7
of the Bill commence on the later of, immediately after the commencement of Part 1 of
Schedules 2, 6 and 7 of the Bill, or immediately after the commencement of the Federal
Circuit and Family Court of Australia Act 2020 (FCFCA Act). However, if the FCFCA
Act never commences, Part 2 of Schedules 2, 6 and 7 will never commence.
202. Items 7 and 18 in the table provide the same commencement provisions for Part 3 of
Schedules 3 and 5 of the Bill. That is Schedules 3 and 5 will commence respectively on
the later of, immediately after the commencement of Part 1 of Schedules 3 and 5 of the
Bill, or immediately after the commencement of the FCFCA Act. However, if the FCFCA
Act never commences, Part 3 of Schedules 3 and 5 will never commence.
203. Item 6 in the table provides that Part 2 of Schedule 3 of the Bill commences on the
later of, immediately after the commencement of Part 1 of Schedule 3 of the Bill, or
immediately after the commencement of Part 1 of Schedule 1 to the National Vocational
Education and Training Regulator Amendment (Governance and Other Matters)
Act 2020.
204. Items 10, 12, 15 and 17 in the table provide respectively that items 23, 25, 29-36 and
38-43 of Schedule 5 of the Bill commence on the later of, immediately after the
commencement of Part 1 of Schedule 5 of the Bill, or immediately after the
commencement of the Education Legislation Amendment (Up-front Payments Tuition
Protection) Act 2020 (ELAA). However, if the ELAA never commences, items 23, 25,
29-36 and 38-43 of Schedule 5 will never commence.
36
205. Items 11, 14 and 16 in the table provide respectively that items 24, 28 and 37 of
Schedule 5 of the Bill commence immediately after the commencement of the ELAA.
However items 24, 28 and 37 of Schedule 5 will never commence if the ELAA
commences before the day on which Part 1 of Schedule 5 of the Bill commences.
206. Item 13 in the table provides that items 26 and 27 of Schedule 5 of the Bill commence
immediately after the commencement of Part 1 of Schedule 5 of the Bill. However items
26 and 27 will never commence if the ELAA commences before the day on which Part 1
of Schedule 5 of the Bill commences.
207. Subclause 2(2) provides that any information in column 3 of the table is not part of
the Bill. Information may be inserted in column 3 of the table, or information in it may be
edited, in any published version of the Act.
Clause 3 - Schedules
208. Clause 3 provides that legislation specified in a Schedule to the Bill is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item
in a Schedule to the Bill has effect according to its terms.
37
Schedule 1 - Amendments to the Regulatory Powers (Standard Provisions) Act 2014
GENERAL OUTLINE
209. The Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act)
provides for a standard suite of provisions in relation to monitoring and investigation
powers, as well as enforcement provisions through the use of civil penalties, infringement
notices, enforceable undertakings and injunctions.
210. Schedule 1 to this Bill will make minor amendments to the RPA standard provisions
to ensure that the regulatory requirements and underlying penalty and offence provisions
of Acts that trigger the RPA can be effectively enforced.
211. Currently, monitoring powers under the Regulatory Powers Act are confined to
determining compliance with a provision or the correctness of information given in
compliance with a provision. The changes allow Regulatory Powers Act monitoring
powers to be exercised in relation to other matters (for example, whether or not a
circumstance exists). The matters subject to monitoring would be specified in the Act
triggering the Regulatory Powers Act in the same way as a provision or type of
information is currently specified as being subject to monitoring.
212. Minor and technical amendments relating to the description of offence provisions and
multiple consequence provisions and infringement notices are also included in
Schedule 1. These amendments ensure consistency throughout the Regulatory Powers Act
and respond to changing drafting practices in the description of multiple consequence
provisions. These amendments do not alter the effect of the law, but clarify its current
intended application for all contexts.
AMENDMENTS
Regulatory Powers (Standard Provisions) Act 2014
Item 1 - Section 3
213. Item 1 inserts paragraph (ba) into the simplified outline of the Regulatory Powers Act
to reflect the expansion of monitoring powers to include the monitoring of matters to
which an Act or legislative instrument relates, as provided by Schedule 1.
Item 2 - Section 4
214. Item 2 amends the definition of subject to monitoring to reflect the expansion of
monitoring powers to include the monitoring of matters to which an Act or legislative
instrument relates, as provided by Schedule 1.
Item 3 - Section 6
215. Item 3 amends the current simplified outline to Part 2 to reflect the expansion of
monitoring powers to include the monitoring of matters to which an Act or legislative
instrument relates, as provided by Schedule 1.
Item 4 - Section 7
216. Item 4 repeals current section 7 of the Regulatory Powers Act and replaces it with a
new section 7 to reflect the expansion of monitoring powers to include the monitoring of
matters to which an Act or legislative instrument relates, provided by Schedule 1.
217. New section 7 largely replicates current section 7, except that it also provides that a
purpose of Part 2 is to create a framework for monitoring matters to which an Act or
38
legislative instrument relates, and that Part 2 applies when an Act or legislative
instrument makes a matter subject to Part 2.
Item 5 - After section 9
218. Item 5 inserts new section 9A into the Regulatory Powers Act. New section 9A
provides that a matter to which an Act or legislative instrument relates is subject to
monitoring under the Regulatory Powers Act if a triggering Act provides that the matter is
subject to monitoring.
Item 6 - At the end of section 10
219. Item 6 inserts new subsection 10(3) into the Regulatory Powers Act. New
subsection 10(3) provides that a provision is related to a matter that is subject to
monitoring under Part 2 if a triggering Act provides that the provision is related to the
matter.
Item 7 - Subsection 11(1)
220. Item 7 repeals subsection 11(1) of the Regulatory Powers Act and replaces it with a
new subsection 11(1). New subsection 11(1) provides that a person is an authorised
applicant for the purposes of exercising monitoring powers under Part 2 if a triggering
Act provides that the person is an authorised applicant.
221. New subsection 11(1) largely replicates current subsection 11(1), except it also
provides that a triggering Act may provide that a person is an authorised applicant in
relation to a matter subject to monitoring under Part 2.
Items 8 and 9 - Subsection 11(3) and paragraphs 11(3)(a) and (b)
222. Items 8 and 9 omit the words 'a provision or information' and substitute 'a provision,
information or a matter' in subsection 11(3) and paragraphs 11(3)(a) and (b) of the
Regulatory Powers Act. This has the effect of providing that a triggering Act may provide
that a person is an authorised applicant for the purposes of Part 2 by providing that a
person of a specified class is an authorised applicant, or authorising another person to
specify that a person or a person of a specified class is an authorised applicant, in relation
to a provision, information or matter.
Item 10 - Subsection 12(1)
223. Item 10 repeals subsection 12(1) of the Regulatory Powers Act and replaces it with a
new subsection 12(1). New subsection 12(1) provides that a person is an authorised
person for the purposes of exercising monitoring powers under Part 2 if a triggering Act
provides that the person is an authorised person.
224. New subsection 12(1) largely replicates current subsection 12(1), except it also
provides that a triggering Act may provide that a person is an authorised person in
relation to a matter subject to monitoring under Part 2.
Items 11 and 12 - Subsection 12(3) and paragraphs 12(3)(a) and (b)
225. Items 11 and 12 omit the words 'a provision or information' and substitute 'a
provision, information or a matter' in subsection 12(3) and paragraphs 12(3)(a) and (b) of
the Regulatory Powers Act. This has the effect of providing that a triggering Act may
provide that a person is an authorised person for the purposes of Part 2 by providing that a
person of a specified class, or authorising another person to specify that a person or a
person of a specified class is an authorised person, in relation to a provision, information
or matter.
39
Item 13 - Section 13
226. Item 13 repeals section 13 of the Regulatory Powers Act and replaces it with a new
section 13. New section 13 largely replicates current section 13, except that it also
provides that the definition of identity card, for the purposes of an authorised person
under Part 2 of the Regulatory Powers Act, means a card issued to the person under
section 35 by the relevant chief executive in relation to that matter.
Item 14 - Subsection 14(1)
227. Item 14 repeals subsection 14(1) of the Regulatory Powers Act and replaces it with a
new subsection 14(1). New subsection 14(1) provides that a judicial officer is an issuing
officer for the purposes of exercising monitoring powers under Part 2 if a triggering Act
provides that the judicial officer is an issuing officer.
228. New subsection 14(1) largely replicates current subsection 14(1), except it also
provides that a triggering Act may provide that a judicial officer is an issuing officer in
relation to a matter subject to monitoring under Part 2.
Items 15 and 16 - Subsection 14(3) and paragraphs 14(3)(a) and (b)
229. Items 15 and 16 omit the words 'a provision or information' and substitute that phrase
with 'a provision, information or a matter' in subsection 14(3) and paragraphs 14(3)(a)
and (b). This has the effect of providing that a triggering Act may provide that a judicial
officer is an issuing officer for the purposes of Part 2 by providing that a judicial officer
of a specified class is an issuing officer, or authorising another person to specify that a
judicial officer or a judicial officer of a specified class is an issuing officer, in relation to a
provision, information or matter.
Item 17 - Subsection 15(1)
230. Item 17 repeals subsection 15(1) and replaces it with a new subsection 15(1). New
subsection 15(1) provides that a person is the relevant chief executive for the purposes of
exercising monitoring powers under Part 2 if a triggering Act provides that the person is
the relevant chief executive.
231. New subsection 15(1) largely replicates current subsection 15(1), except it also
provides that a triggering Act may provide that a person is the relevant chief executive in
relation to a matter for the purposes of Part 2.
Items 18 and 19 - Subsection 15(3) and paragraphs 15(3)(a) and (b)
232. Items 18 and 19 omit the words 'a provision or information' and substitutes 'a
provision, information or a matter' in subsection 15(3) and paragraphs 15(3)(a) and (b) of
the Regulatory Powers Act. This has the effect of providing that a triggering Act may
provide that a person is the relevant chief executive for the purposes of Part 2 by
providing that a person who holds a specified office is the relevant chief executive, or
authorising another person to specify that a person or a person who holds a specified
office is the relevant chief executive, in relation to a provision, information or matter.
Item 20 - Section 16
233. Item 20 repeals section 16 of the Regulatory Powers Act and replaces it with a new
section 16. New section 16 provides that a relevant court in relation to a matter that arises
because of the exercise of powers, functions or duties under Part 2, is the court provided
by the triggering Act. New section 16 largely replicates the current section 16, except that
40
it also includes the exercise of powers under Part 2 to determine a matter subject to
monitoring under Part 2.
Item 21 - Subsection 18(1)
234. Item 21 omits the words 'either or both' and substitutes 'one or more' in subsection
18(1) of the Regulatory Powers Act. This has the effect of ensuring that an authorised
person may enter and exercise the monitoring powers for any or all of the purposes listed
in subsection 18(1), and is a consequential amendment to item 22 below.
Item 22 - At the end of subsection 18(1)
235. Item 22 inserts paragraph 18(1)(c) into the Regulatory Powers Act to provide for an
additional purpose for which an authorised person may enter any premises and exercise
the monitoring powers. The new purpose is to determine a matter subject to monitoring
under Part 2.
Item 23 - Subsection 20(3)
236. Item 23 repeals subsection 20(3) of the Regulatory Powers Act and replaces it with a
new subsection 20(3). New subsection 20(3) largely replicates current subsection 20(3)
except that it provides that relevant data also means information relevant to determining a
matter subject to monitoring under Part 2.
Item 24 - Subparagraph 22(1)(b)(iv)
237. Item 24 repeals subparagraph 22(1)(b)(iv) of the Regulatory Powers Act and replaces
it with new subparagraphs 22(1)(b)(iv) and (v). The effect of the new subparagraphs is
that they provide that the monitoring powers include the power to secure a thing for a
period not exceeding 24 hours if an authorised person believes on reasonable grounds that
the thing affords evidence that information subject to monitoring under Part 2 or given in
compliance or purported compliance with a related provision is not correct, or the thing
affords evidence in relation to a matter subject to monitoring under Part 2, or the thing
affords evidence in relation to compliance or purported compliance with a provision that
is related to the matter.
Item 25 - Paragraph 23(2)(b)
238. Item 25 repeals paragraph 23(2)(b) of the Regulatory Powers Act and replaces it with
a new paragraph 23(2)(b). New paragraph 23(2)(b) largely replicates the current
paragraph 23(2)(b) except that it also provides that a person assisting the authorised
person may exercise powers under Part 2 for the purposes of assisting the authorised
person to determine compliance with a matter subject to monitoring under Part 2.
Item 26 - Subsection 24(1)
239. Item 26 repeals subsection 24(1) of the Regulatory Powers Act and replaces it with a
new subsection 24(1). New subsection 24(1) largely replicates current subsection 24(1)
except that it also provides that section 24 applies if an authorised person enters the
premises for the purposes of determining a matter subject to monitoring under Part 2.
Item 27 - At the end of subsections 24(2) and (3)
240. Item 27 inserts paragraphs 24(2)(c) and (3)(c) into the Regulatory Powers Act.
Current subsection 24(2) provides that if an authorised person enters premises with the
consent of the occupier, an authorised person may ask the occupier to answer any
questions or produce documents relating to the operation of the provision or the
information. Similarly, current subsection 24(3) provides that if entry is authorised by a
41
monitoring warrant, 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.
241. This amendment has the effect of providing that if entry is authorised by consent of
the occupier (or under a monitoring warrant) in relation to a matter relating to an Act or a
legislative instrument, the authorised person may ask (or may require) the occupier or any
person on the premises to answer any questions and produce any documents relating to
the matter.
Item 28 - Subsection 32(2)
242. Item 28 repeals subsection 32(2) of the Regulatory Powers Act and replaces it with a
new subsection 32(2). New subsection 32(2) largely replicates current subsection 32(2),
except that it also provides that a issuing officer may issue a monitoring warrant if the
issuing officer is satisfied, by information on oath or affirmation, that it is reasonably
necessary that one or more authorised persons should have access to the premises for the
purposes of determining a matter subject to monitoring under Part 2.
Item 29 - Subsection 38(1)
243. Item 29 changes the language used to describe offences in subsection 38(1) of the
Regulatory Powers Act by omitting the words 'offence against' and replacing it with the
words 'offence provision of'. This technical amendment is to ensure consistency of
language throughout the Regulatory Powers Act and to ensure that Acts triggering the
Regulatory Powers Act can more accurately describe the offence provisions covered.
Item 30 - Subsection 38(1)
244. Item 30 replaces 'offence' with 'offence provision' in subsection 38(1) of the
Regulatory Powers Act. This technical amendment is to ensure consistency of language
throughout the Regulatory Powers Act and to ensure that Acts triggering the Regulatory
Powers Act can more accurately describe the offence provisions covered.
Item 31 - Subsection 41(1)
245. Item 31 inserts the word 'the' after the second occurring phrase 'in relation to' in
subsection 41(1) of the Regulatory Powers Act. This is a technical amendment to ensure
consistency of language throughout the Regulatory Powers Act.
Item 32 - Section 98
246. Item 32 replaces 'strict liability offence' with 'strict liability offence provision' in
section 98 of the Regulatory Powers Act. This technical amendment is to ensure
consistency of language throughout the Regulatory Powers Act and to ensure that Acts
triggering the Regulatory Powers Act can more accurately describe the offence provisions
covered.
Item 33 - Section 100
247. Item 33 repeals section 100 of the Regulatory Powers Act and replaces it with a new
section 100. New section 100 largely replicates current section 100 and is not intended to
be a substantial change. The changes to section 100 update the language of the
Regulatory Powers Act in line with current drafting practices and ensure that it applies in
situations where criminal and civil liability are imposed in separate provisions.
42
Item 34 - Subsection 103(5)
248. Item 34 repeals subsection 103(5) and replaces it with a new subsection 103(5).
Currently, subsection 103(5) of the Regulatory Powers Act provides that if a single
provision can constitute both a civil penalty provision and an offence provision, an
infringement notice issued for contravention of that provision must relate to the offence.
However, drafting practice in relation to 'multiple consequence' provisions has changed,
and civil and criminal penalties for the same proscribed conduct are not always contained
in a 'single provision'. The changes to subsection 103(5) ensure that it applies in
situations where criminal and civil liability are imposed in separate provisions.
Items 35, 36 and 37 - Subparagraphs 104(1)(h)(i) to (iii), 104(1)(k)(i) to (iii), and
104(1)(m)(i) to (iii)
249. Items 35, 36 and 37 repeal subparagraphs 104(1)(h)(i) to (iii), 104(1)(k)(i) to (iii), and
104(1)(m)(i) to (iii) of the Regulatory Powers Act and replace them with new
subparagraphs. The new subparagraphs largely replicate the current subparagraphs and
are not intended to be a substantial change. Paragraphs 104(1)(h), (k) and (m) provide for
certain matters that must be included in an infringement notice issued to a person in
relation to the consequences if the amount is paid within 28 days, the person chooses not
to pay the amount, or if the infringement notice is withdrawn, respectively.
Subparagraphs (i) to (iii) in each subparagraph provide for the inclusion of information
relating to the consequences if the alleged contravention is of an offence provision only,
is of an offence provision and would also constitute a contravention of a civil penalty
provision, or is of a civil penalty provision only. The changes to the subparagraphs update
the language of the Regulatory Powers Act in line with current drafting practices and
ensure that appropriate information is included in the infringement notice in situations
where criminal and civil liability are imposed in separate provisions.
Item 38 - Subparagraphs 106(4)(e)(i) to (iii)
250. Item 38 repeals subparagraphs 106(4)(e)(i) to (iii) of the Regulatory Powers Act and
replaces them with new subparagraphs. The new subparagraphs largely replicate the
current subparagraphs and are not intended to be a substantial change. Paragraph
106(4)(e) provides for certain matters that must be included in a notice of withdrawal of
an infringement notice. Subparagraphs (i) to (iii) provide for the inclusion of information
relating to the consequences if the alleged contravention is of an offence provision only,
is of an offence provision and would also constitute a contravention of a civil penalty
provision, or is of a civil penalty provision only. The changes to the subparagraphs update
the language of the Regulatory Powers Act in line with current drafting practices and
ensure that appropriate information is included in the notice of withdrawal in situations
where criminal and civil liability are imposed in separate provisions.
Item 39 - Paragraphs 107(1)(b) to (d)
251. Item 39 repeals paragraphs 107(1)(b) to (d) of the Regulatory Powers Act and
replaces it with new paragraphs. The new paragraphs largely replicate the current
paragraphs and are not intended to be a substantial change. Subsection 107(1) sets out the
effects of the payment of an amount in an infringement notice. Paragraphs (b) to (d)
provide for the consequences of a payment if the alleged contravention is of an offence
provision only, is of an offence provision and would also constitute a contravention of a
civil penalty provision, or is of a civil penalty provision only. The changes to the
paragraphs update the language of the Regulatory Powers Act in line with current drafting
43
practices and ensure that the paragraphs apply in situations where criminal and civil
liability are imposed in separate provisions.
Item 40 - Paragraph 107(1)(f)
252. Item 40 repeals paragraph 107(1)(f) of the Regulatory Powers Act and replaces it with
a new paragraph 107(1)(f). The new paragraph 107(1)(f) largely replicates the current
paragraph 107(1)(f) and is not intended to be a substantial change. The changes to the
paragraph update the language of the Regulatory Powers Act in line with current drafting
practices by replacing the word 'provision' with 'alleged contravention' and ensure that it
applies in situations where criminal and civil liability are imposed in separate provisions.
44
Schedule 2 - Amendment of the Defence Force Discipline Act 1982
GENERAL OUTLINE
253. The Defence Force Discipline Act 1982 (DFDA) creates a system for the enforcement
and maintenance of good order and discipline in the Defence Force (ADF), by requiring
those subject to the DFDA to observe standards of behaviour prescribed by the law of the
land for the defence of the nation and public confidence. This is done through the creation
of a disciplinary offence code (service offences). All ADF members are subject to the
DFDA in certain situations. A specified category of civilian persons (defence civilians)
and prisoners of war are also subject to the DFDA.
254. Part VI of the DFDA establishes a framework that allows for the investigation of
service offences under the DFDA. The framework includes extensive investigative
powers that are appropriate and necessary within a military context. However, the
exercise of many of these powers are confined to 'service land', which is defined in
subsection 3(1) of the DFDA to mean land (including a building or other structure) used
or occupied by the ADF, an allied force, or an institution of the ADF or an allied force.
This narrow definition limits the practical scope of the existing investigative powers.
Further, many of the investigative powers themselves have not changed to take account of
the evolving nature of military life and offending.
255. Schedule 2 amends the DFDA to trigger the investigation provisions in Part 3 of the
Regulatory Powers Act, to enable investigation of alleged service offences on premises
which are not service land; that is, civilian premises and public places. Triggering Part 3
of the Regulatory Powers Act provides an alternative, or supplementary, suite of
investigation powers to those available under Part VI of the DFDA, that are more
appropriate for application on non-service land. The availability of investigation powers
that can be used on civilian premises and public places is necessary as service offences
and the evidence required to investigate those offences, such as bank statements, real
estate records, CCTV footage, and other things, may not be located on service land. The
amendments in Schedule 2 are necessary in order to ensure that evidential material can be
obtained, wherever it is located, either with the consent of the occupier of the premises or
the owner of the thing, or by executing a warrant.
256. Part 3 of the Regulatory Powers Act creates a framework for gathering material that
relates to the contravention of offence and civil penalty provisions of an Act or legislative
instrument. Subsection 37(2) of the Regulatory Powers Act states that, in order for Part 3
of the Regulatory Powers Act to operate, an offence or civil penalty provision of an Act
must be made subject to investigation under Part 3 by another Act (a triggering Act).
When a triggering Act applies Part 3 of the Regulatory Powers Act, it must identify the
provisions subject to investigation, any related provisions and who is an authorised
applicant, authorised person, issuing officer, the relevant chief executive and the relevant
court or courts that may exercise powers under Part 3 (see sections 38, 40, 41, 42, 44, 45
and 46 of the Regulatory Powers Act). The triggering Act must also express whether the
authorised person may be assisted by another person (see section 53 of the Regulatory
Powers Act), and whether the authorised applicant, authorised person, issuing officer or
relevant chief executive may delegate their powers and functions in relation to the
provisions subject to investigation under the triggering Act. If offence or civil penalty
provisions subject to investigation under the triggering Act apply in external territories or
offshore areas, the triggering Act should identify whether Part 3 of the Regulatory Powers
Act extends to any external Territories.
45
COMPARISON OF PROVISIONS
Defence Force Discipline Act 1982
257. Amendments to the DFDA in Schedule 2 trigger Part 3 of the Regulatory Powers Act
to provide the DFDA with standard investigation powers to be used in relation to service
offences under the DFDA. This regulatory regime will exist alongside, and supplement,
Division 6 of Part VI of the DFDA, which provides investigation powers on service land
in relation to the contravention of service offences under the DFDA.
258. The investigation powers contained in Part VI of the DFDA have remained largely
unchanged since the DFDA commenced in 1985. The regime has required extensive
adaption to reflect the nature of military service over time.
259. Division 6 of Part VI of the DFDA sets out, among other things, the duties of an
investigating officer when investigating persons suspected of committing service
offences; the dealing with confessional evidence; various other investigative actions that
may be taken, such as fingerprinting and photographs, identification parades, and medical
examinations; the rights of persons charged with service offences; and search and seizure
powers. Significantly, the search and seizure powers in Part VI can only be exercised on
service land, except with the consent of the occupier or person in charge of non-service
land or vehicles.
260. The standard provisions triggered in Schedule 2 provide for a more restricted
framework of investigation powers, appropriate for use on civilian land. The standard
investigation powers triggered through this Bill are subject to oversight by civilian
judicial officers and courts.
261. Amendments to the DFDA include the following modifications to the standard
investigation provisions of Part 3 of the Regulatory Powers Act:
the power to use force against things as is necessary and reasonable in the
circumstances by authorised persons and persons assisting authorised persons,
and,
the ability of an authorised person to be accompanied by and use an animal in
the course of an investigation.
PART 1 - MAIN AMENDMENTS
Division 1 - Amendments
Defence Force Discipline Act 1982
Item 1 - Subsection 3(1)
262. Item 1 amends subsection 3(1) of the DFDA to define references to the Regulatory
Powers Act to mean the Regulatory Powers (Standard Provisions) Act 2014.
Item 2 - After Division 6A of Part VI
263. Item 2 inserts new Division 6A (Investigation under the Regulatory Powers Act).
New section 101ZAA - Simplified outline of this Division
264. New section 101ZAA of the DFDA provides a simplified outline of the new Division
6A of Part VI of the DFDA. This simplified outline explains that new Division 6A applies
the provisions of Part 3 of the Regulatory Powers Act to the gathering of evidential
material that relates to the contravention of the service offence provisions of the DFDA.
46
New section 101ZAB - Basic investigation powers under Part 3 of the Regulatory Powers Act
265. New section 101ZAB of the DFDA outlines matters in relation to the application of
the investigation powers, including, authorised applicants, authorised persons, issuing
officers, the relevant chief executive, relevant courts, persons assisting, the use of force in
executing a warrant, and the extension of matters to external Territories.
266. New subsection 101ZAB(1) of the DFDA provides that a provision is subject to
investigation under Part 3 of the Regulatory Powers Act if it is a service offence.
267. The investigation provisions of Part 3 of the Regulatory Powers Act, as they relate to
the DFDA, have not been limited to use on civilian land or premises. Therefore, some
powers provided under new Division 6A will overlap with powers in Division 6 of Part
VI which relate to investigations conducted on service land. The existing powers under
the DFDA will normally remain the appropriate powers for the purpose of search and
seizure on service land. Search and seizure on civilian land will be conducted under the
Regulatory Powers Act. The Department of Defence has advised that it intends, following
the amendments contained in this Schedule, to centralise the exercise of the new powers
provided by Part 3 of the Regulatory Powers Act. Centralisation will ensure
standardisation of procedures, training and competence of select authorised persons
within Defence. It will also ensure that the new powers are used in a considered and
targeted manner. The Inspector-General of the Australian Defence Force (IGDAF) has
power to audit and review the military justice system, and can exercise this power to
conduct regular audits of the use of Part 3 of the Regulatory Powers Act.
268. Defence is developing a governance framework for the use of the investigation
powers in Part 3 of the Regulatory Powers Act. To the extent appropriate, Defence will
treat the implementation of the new powers like the introduction of a new capability into
Defence service. The Chief of Joint Capabilities is the responsible officer in Defence for
the Joint Military Police Unit. Accordingly, the Chief of Joint Capabilities will be the
sponsor and responsible officer in Defence for such matters as setting the training and
proficiency standards, approving new operating protocols and procedures, authorising
new or updated manuals, issuing directives and orders, and oversight and support
arrangements. Where appropriate, Defence will utilise the training materials and
processes of other federal government agencies that are using the Part 3 powers as 'best
practice' guides for Defence. It is intended that within six months of the amendments to
the DFDA having commenced, the Chief of Joint Capabilities will have reported to the
Chief of the Defence Force that all necessary internal arrangements are in place, or are on
track to be in place, such that the Chief of the Defence Force can authorise the use of the
new investigative powers by Defence.
269. New subsection 101ZAB(2) of the DFDA provides that there are no related provisions
for the purposes of Part 3 of the Regulatory Powers Act, as Part 3 applies to evidential
material that relates to a service offence under the DFDA.
270. New subsection 101ZAB(3) of the DFDA identifies a person appointed under new
subsection 101ZAD(1) of the DFDA as an authorised applicant for the purposes of Part 3
of the Regulatory Powers Act, as Part 3 applies to evidential material relating to a service
offence under the DFDA. This will enable the Chief of the Defence Force or the IGDAF
to, in writing, appoint any ADF member or APS employee in the Department, to be an
authorised applicant, if they are satisfied that the person has suitable qualifications,
training or experience (as required under subsection 101ZAD(3)). Appointments may be
of specified ADF members or APS employees, or by reference to a class of ADF
47
members or APS employees. The range of people who may be appointed as an authorised
applicant is broad due to the size, structure, and dispersed nature of the ADF, the division
and structure of Defence's regulatory enforcement bodies. Ongoing oversight by the
Chief of Joint Capabilities as the responsible officer in Defence, and separate oversight by
IGADF, as well as central control of the regime within Defence through the governance
framework, will ensure accountability, compliance, legal certainty, and transparency in
the exercise of the new investigative powers. Further, as the power to appoint authorised
applicants sits only with the Chief of the Defence Force and the IGDAF, this will ensure
high-level oversight and regulation of the classes of people or individual persons
appointed as authorised applicants. Those appointed under new subsection 101ZAD(1)
will be able to apply to an issuing officer for an investigation warrant in relation to
premises.
271. New subsection 101ZAB(4) of the DFDA identifies a person appointed under new
subsection 101ZAD(2) of the DFDA as an authorised person for the purposes of Part 3 of
the Regulatory Powers Act. This will enable the Chief of the Defence Force or the
IGDAF to, in writing, appoint any ADF member or any APS employee in the
Department, to be an authorised person, if they are satisfied that the person has suitable
qualifications, training or experience (as required under subsection 101ZAD(4)).
Appointments may be of specified ADF members or APS employees, or by reference to a
class of ADF members or APS employees. As above, while the range of people who may
be appointed as authorised persons is broad, this will be centrally controlled in similar
manner to that of authorised applicants. Those appointed under new subsection
101ZAB(2) will be able to enter premises and exercise investigation powers by consent or
under an investigation warrant granted by an issuing officer, where the authorised person
suspects on reasonable grounds that there may be material on the premises related to the
contravention of a service offence under the DFDA.
272. New subsection 101ZAB(5) of the DFDA provides that each of the following persons
is an issuing officer for the purposes of Part 3 of the Regulatory Powers Act, as Part 3
applies to the service offence provisions of the DFDA:
a. a Judge of the Federal Court of Australia, if the Judge has consented to act as
an issuing officer for the purposes of this Act and that consent is in force;
b. a Judge of the Federal Circuit Court of Australia, if the Judge has consented to
act as an issuing officer for the purposes of this Act and that consent is in
force; and
c. a magistrate.
273. It is intended that investigation warrants under Part 3 of the Regulatory Powers Act,
as Part 3 applies to the DFDA, would normally be sought from judges of the Federal
Circuit Court of Australia. It is appropriate in this context to approach judges of a federal
court as issuing officers due to the particular connection the military context has to the
Commonwealth. Defence contemplates seeking investigation warrants from magistrates
in relation to minor investigations or where practically necessary (such as where there is a
need to coordinate multiple searches in multiple locations simultaneously, to avoid the
possible destruction or loss of evidential material).
274. Section 75 of the Regulatory Powers Act provides that a power conferred on an
issuing officer by Part 3 of that Act is conferred on that person in a personal capacity, and
not as a court or as a member of a court. However, subsection 75(3) of the Regulatory
Powers Act provides that an issuing officer exercising power conferred by Part 3 of that
48
Act has the same protections and immunities as if the issuing officer were exercising the
power as the court of which the issuing officer is a member, or as a member of the court
of which the issuing officer is a member. This section recognises that issuing a warrant is
an executive function and not an exercise of judicial power.
275. New subsection 101ZAB(6) of the DFDA identifies the Chief of the Defence Force
and the IGDAF as the relevant chief executives for the purposes of Part 3 of the
Regulatory Powers Act, as Part 3 applies to the service offence provisions of the DFDA.
276. New subsection 101ZAB(7) of the DFDA provides that the Chief of the Defence
Force and the IGDAF, as the relevant chief executives under Part 3 of the Regulatory
Powers Act, as Part 3 applies to the service offence provisions of the DFDA, may, in
writing, delegate their powers and functions to an APS employee who holds or performs
the duties of an Executive Level 1 position, or an equivalent or higher position, in the
Department, or to an officer of the Navy who holds the rank of Commander or a higher
rank, an officer of the Army who holds the rank of Lieutenant Colonel or a higher rank,
or an officer of the Air Force who holds the rank of Wing Commander or a higher rank.
While, in an APS context, relevant chief executive powers are generally held at the SES
level or above, delegation to the positions indicated above is appropriate in this
circumstance given the size, structure, and dispersed nature of the ADF and the division
and structure of Defence's regulatory enforcement bodies. New subsection 101ZAB(8)
provides that the delegable powers and functions are those under Part 3 of the Regulatory
Powers Act in relation to evidential material that relates to a service offence under the
DFDA, and incidental powers and functions. Further, new subsection 101ZAB(9)
provides that a delegate exercising powers or performing functions under subsection
101ZAB(7) must comply with any directions of the relevant chief executive.
277. New subsection 101ZAB(10) identifies the Federal Court of Australia and the Federal
Circuit Court of Australia as relevant courts for the purposes of Part 3 of the Regulatory
Powers Act, as Part 3 applies to service offences under the DFDA.
278. New subsection 101ZAB(11) of the DFDA provides that an authorised person may be
assisted by other persons in exercising powers or performing functions or duties under
Part 3 of the Regulatory Powers Act, as Part 3 applies evidential material that relates to
service offences under the DFDA.
279. New subsection 101ZAB(12) modifies the operation of Part 3 of the Regulatory
Powers Act, and provides that, in executing an investigation warrant under Part 3, as Part
3 applies to evidential material that relates to a service offence under the DFDA, an
authorised person or person assisting an authorised person may use such force against
things as is necessary and reasonable in the circumstances. New subsection 101ZAB(12)
is a restricted form of the use of force provision currently contained in Division 6 of Part
VI of the DFDA in relation to powers which can be used on service land. The existing
investigation powers allow reasonable and necessary force to be used against Defence
members and defence civilians in certain situations. The modification contained in
Schedule 2 does not allow the use of force against persons.
280. It is necessary to modify the standard investigation provisions to allow authorised
persons and persons assisting authorised persons to use of force against things, as an
authorised person executing an investigation warrant may need to open locked doors,
cabinets, drawers and other similar objects, as well as electronic equipment, that the
authorised person reasonably suspects contain things or information that would provide
evidence that provisions subject to investigation (service offences) have been
49
contravened. This power is important in the military context where evidential material
must be urgently secured. Evidential material related to service offences may include
weapons or explosives, may be classified, or may otherwise adversely affect defence or
national security.
281. New subsection 101ZAB(13) of the DFDA extends the application of Part 3 of the
Regulatory Powers Act, as Part 3 applies to service offences of the DFDA, to every
external Territory.
New section 101ZAC - Modifications of Part 3 of the Regulatory Powers Act
282. New section 101ZAC provides another modification to the operation of Part 3 of the
Regulatory Powers Act. It provides that, in executing an investigation warrant under Part
3, as Part 3 relates to evidential material that relates to a service offence provision of the
DFDA, an authorised person may be accompanied by and make use of an animal to assist
the person in entering premises or in exercising powers under Part 3 of the Regulatory
Powers Act (as Part 3 applies in relation to evidential material that relates to a service
offence under the DFDA). This provision would allow, for example, for the use of canine
explosives detection capability and canine drug detection capability in searches of
premises during investigations for breaches of service offences. This is a specific
modification of the standard provisions as required for the military context.
283. New subsections 101ZAC(3) and (4) protect against the arbitrary use of this power, as
they provide that the use of an animal during investigation is only lawful with consent of
the occupier of the premises (as under sections 48 and 55 of the Regulatory Powers Act),
or if the warrant authorises the authorised person to use an animal, and specifies the kind
of animal they may use.
New section 101ZAD - Appointment of persons under this Division
284. New section 101ZAD deals with the appointment of authorised applicants and
authorised persons for the purposes of new Division 6A of Part VI. The operation of this
section is explained above in paragraphs 270 and 271.
New section 101ZAE - No limit on other powers
285. New section 101ZAE provides that new Division 6A of Part VI does not limit a
person's powers under any other provision of the DFDA. The application of the standard
investigation provisions merely provides a supplementary set of regulatory powers which
can be used for investigation of service offences under the DFDA. In particular, section
101ZC has the effect that the triggering of Part 3 of the Regulatory Powers Act will not
limit or restrict any action that may be taken in accordance with any other Australian law,
for a purpose not connected with the investigation of a service offence, or by a person
other than an investigating officer, for the purpose of investigating a service offence.
286. Application of the standard investigation powers in the Regulatory Powers Act results
in an expansion of the current regulatory powers framework to cover civilian premises,
where investigation powers contained in Division 6 of Part VI cannot be used. Underlying
offence provisions and persons subject to these provisions remain unaffected by the
amendments brought forward in this Bill.
Division 2 - Application provision
Item 3 - Application provision - investigation
287. Item 3 clarifies that the application of Part 3 of the Regulatory Powers Act to the
DFDA is in relation to evidential material that relates to the suspected contravention of
50
service offences committed before, on or after the commencement of Part 1 of Schedule 2
to the Bill.
PART 2 - AMENDMENTS RELATING TO THE FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA ACT 2020
Defence Force Discipline Act 1982
Item 4 - Paragraph 101ZAB(5)(b)
288. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 3 of
the Regulatory Powers Act, regarding investigation, to the DFDA. Accordingly,
paragraph 101ZAB(5)(b) provides a Judge of the Federal Circuit and Family Court of
Australia (Division 2) may be an issuing officer for the purposes of investigation under
Part 3 of the Regulatory Powers Act, as applied to the DFDA.
Item 5 - Paragraph 101ZAB(10)(b)
289. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 3 of
the Regulatory Powers Act, regarding investigation, to the DFDA. Accordingly,
paragraph 101ZAB(10)(b) provides that the Federal Circuit and Family Court of Australia
(Division 2) will be a relevant court for the purposes of investigation under Part 3 of the
Regulatory Powers Act, as applied to the DFDA.
51
Schedule 3 - Amendment of the Education Services for Overseas Students Act 2000
GENERAL OUTLINE
290. The Education Services for Overseas Students Act 2000 (ESOS Act) regulates the
provision of education to overseas students including in the higher education, vocational
education and training (VET) and schools sectors. The objectives of the ESOS Act are to
provide tuition assurance and refunds for students for courses for which they have paid, to
protect and enhance Australia's reputation for quality education and training services and
to complement Australia's migration laws. Under the ESOS Act, the Tertiary Education
Quality and Standards Agency (TEQSA) regulates registered providers providing courses
to overseas students in the higher education sector, the Australian Skills Quality
Authority (ASQA) (also known as the National VET Regulator) regulates the VET sector
and the Secretary of the Department of Education, Skills and Employment regulates the
schools sector. These regulators are known as ESOS agencies. The Bill will allow the
ESOS agencies to continue regulating the respective sectors using the standard provisions
in the Regulatory Powers Act.
291. The ESOS Act currently contains monitoring and investigation powers, and the power
to accept enforceable undertakings, for the respective ESOS agencies. These are provided
for in Parts 6 and 7 of that Act. The Education Services for Overseas Students
Regulations 2019 (ESOS Regulations) also outlines an infringement notices scheme.
292. Schedule 3 amends the ESOS Act to apply the standard monitoring, investigation,
infringement notices and enforceable undertakings provisions contained in Parts 2, 3, 5
and 6 of the Regulatory Powers Act. As a result, current Parts 6 and 7 of ESOS Act will
be amended to repeal existing monitoring, investigation and enforceable undertakings
provisions. Amending regulations will repeal the existing infringement notices scheme
contained in the ESOS Regulations. Amendments contained in Schedule 3 ensure that the
ESOS agencies will continue to exercise regulatory powers, but, to the extent possible,
through the relevant standard provisions of the Regulatory Powers Act.
293. Part 2 of the Regulatory Powers Act creates a framework for monitoring compliance
with an Act or a legislative instrument. Subsection 7(2) of the Regulatory Powers Act
states that, in order for Part 2 of the Regulatory Powers Act to operate, a provision of an
Act or legislative instrument must be made subject to monitoring under Part 2 by another
Act (a triggering Act). When a triggering Act applies Part 2 of the Regulatory Powers
Act, it must identify provisions subject to monitoring, any information or matters subject
to monitoring, any related provisions and who is an authorised applicant, authorised
person, issuing officer, the relevant chief executive and the relevant court or courts that
may exercise powers under Part 2 (see sections 8, 9, 9A, 10, 11, 12, 14, 15 and 16 of the
Regulatory Powers Act). The triggering Act must also express whether an authorised
person may be assisted by another person (see section 23 of the Regulatory Powers Act),
and whether an authorised applicant, authorised person, issuing officer or relevant chief
executive may delegate their powers and functions in relation to the provisions. If
provisions, matters or information subject to monitoring under the triggering Act apply in
external Territories or offshore areas, the triggering Act should identify whether Part 2 of
the Regulatory Powers Act extends to any external Territories.
294. Part 3 of the Regulatory Powers Act creates a framework for gathering material that
relates to the contravention of offence and civil penalty provisions of an Act or legislative
instrument. Subsection 37(2) of the Regulatory Powers Act states that, in order for Part 3
of the Regulatory Powers Act to operate, an offence or civil penalty provision of an Act
52
must be made subject to investigation under Part 3 by another Act (a triggering Act).
When a triggering Act applies Part 3 of the Regulatory Powers Act, it must identify the
provisions subject to investigation, any related provisions and who is an authorised
applicant, authorised person, issuing officer, the relevant chief executive and the relevant
court or courts that may exercise powers under Part 3 (see sections 38, 40, 41, 42, 44, 45
and 46 of the Regulatory Powers Act). The triggering Act must also express whether the
authorised person may be assisted by another person (see section 53 of the Regulatory
Powers Act), and whether the authorised applicant, authorised person, issuing officer or
relevant chief executive may delegate their powers and functions in relation to the
provisions subject to investigation under the triggering Act. If offence or civil penalty
provisions subject to investigation under the triggering Act apply in external territories or
offshore areas, the triggering Act should identify whether Part 3 of the Regulatory Powers
Act extends to any external Territories.
295. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement
notices that may be issued in relation to contravention of an offence or civil penalty
provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5
of that Act to operate, a provision of an Act or legislative instrument must be made
subject to an infringement notice under Part 5 by a triggering Act. When a triggering Act
applies Part 5 of the Regulatory Powers Act, it must nominate who is an infringement
officer for the purposes of exercising powers under Part 5 (see section 101 of the
Regulatory Powers Act). A triggering Act must also identify the relevant chief executive
for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see
section 102 of the Regulatory Powers Act). The triggering Act must also express whether
the relevant chief executive may delegate their powers and functions in relation to
infringement notices issued in relation to provisions of the triggering Act. If offence or
civil penalty provisions of a triggering Act are subject to an infringement notice and apply
in external Territories or offshore areas, the triggering Act should identify where Part 5 of
the Regulatory Powers Act extends to any external Territories.
296. Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing
undertakings relating to compliance with provisions of an Act. Subsection 110(2) of the
Regulatory Powers Act states that, in order for Part 6 of the Regulatory Powers Act to
operate, a provision of an Act or legislative instrument must be made enforceable under
Part 6 by a triggering Act. When a triggering Act applies Part 6 of the Regulatory Powers
Act, it must identify who is an authorised person and the relevant court or courts that may
exercise powers under Part 6 of the Regulatory Powers Act (see sections 112 and 113 of
the Regulatory Powers Act). It must also express whether the authorised person may
delegate their powers and functions under Part 6 of the Regulatory Powers Act in relation
to the enforceable undertakings provisions of the triggering Act. If provisions of the
triggering Act are subject to enforceable undertakings and apply in external Territories or
offshore areas, the triggering Act should identify whether Part 6 of the Regulatory Powers
Act extends to any external Territories.
53
COMPARISON OF PROVISIONS
Education Services for Overseas Students Act 2000 (ESOS Act) and Education Services
for Overseas Students Regulations 2019 (ESOS Regulations)
The below table identifies the corresponding provisions of the Regulatory Powers Act applied
by the amendments contained in Schedule 3 to the Bill for the provisions of the ESOS Act
that are repealed by that Schedule and provisions of the ESOS Regulations (provisions
contained in the ESOS Regulations will be repealed by amending regulations).
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
Magistrates' Part 7, Division 1 Part 2 and 3 -
powers (ESOS Act) Monitoring and
Investigation
Powers are 111 Retained 34(1) and (2), 75(1)
conferred on and (2)
magistrates in their
personal capacity
and are voluntary
Immunity of 112 Retained 34(3), 75(3)
magistrates
Monitoring Part 7, Division 3 Part 2 - Monitoring
warrants / powers
(ESOS Act)
Authorised officer 130 Retained 18
may enter premises
by consent or under
warrant
General monitoring
powers of authorised
officers
To search 131(1)(a) Retained 19(a)
premises and
receptacles
To examine 131(1)(b) Retained 19(c)
things
To examine 131(1)(c) Retained 19(b)
activities
54
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
To record 131(1)(d) Retained 19(d)
(photo,
video, audio,
sketch)
To inspect 131(1)(e) Retained 19(e)
documents
To take 131(1)(f) Retained 19(f)
extracts from
or make
copies of
documents
To take 131(1)(g) Retained 19(g)
required
equipment
and materials
onto
premises
To secure 131(1)(h) Retained 22
evidential
material
pending
warrant
To operate 131(2) Retained 20(1)
equipment or
use storage
devices to
search for
relevant
information
To remove 131(3) Retained 20(4)
information
via storage
device or
documents
Operation of 131(4), 148 Retained 20(5)
equipment
etc. without
damage
55
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
Securing 131(5) Retained through 8, 9, 22, as triggered
evidence of scope of provisions by new paragraph
other subject to 130(1) of the ESOS
offences monitoring Act which provides
that provisions of the
ESOS Act, national
code, ELICOS
Standards,
Foundation Program
Standards and
offences against the
Crimes Act 1914 and
the Criminal Code
that relate to the
ESOS Act are
subject to
monitoring.
(Provisions of the
TEQSA Act are also
identified as related
provisions.)
Authorised officer 132 Retained 24(2)
on premises with
consent may ask
questions
Authorised officer 133 Retained 24(3)
on premises under
warrant may ask
questions
Failure to answer 134(1) Retained 24(5)
questions is an
offence (where
monitoring under
warrant)
Privilege against 134(2) Retained (and 17(1)
self-incrimination is extended to legal
preserved professional
privilege)
Giving false or 135 Retained through N/A - Criminal
misleading application of Code offences apply
56
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
information is an section 137.1 of the
offence Criminal Code
Giving or showing 136 Retained through N/A - Criminal
documents that are application of Code offences apply
false or misleading section 137.2 of the
is an offence Criminal Code
Authorised officer 137 Aligned - an 32(1)
may apply to a authorised officer
magistrate or may apply to a
tribunal member for magistrate for a
monitoring warrant monitoring warrant
Magistrate or 138 Aligned - a 32(2)
tribunal member magistrate may issue
may issue a monitoring warrant
monitoring warrant
Magistrate or 139 Aligned - magistrate 32(3)
tribunal member must not issue the
may require more warrant until any
information further required
information is given
Contents of 140 Aligned - maximum 32(4)
monitoring warrant duration of warrant
is extended from 7
days to 3 months
Search warrants / Part 7, Division 4 Part 3 -
powers (ESOS Act) Investigation
Authorised officer 141 Aligned 48 (the Regulatory
may enter premises Powers Act also
by consent or under contains provisions
warrant relating to execution
of investigation
warrants after
temporary cessation
or where execution
was stopped by court
order - see ss 59,
60.)
57
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
General search
powers of authorised
officers
To search 142(1)(a) Retained 49(a), 49(b)(i)
premises and
receptacles
To examine 142(1)(b) Retained 49(c)
evidential
material
To record 142(1)(c) Retained 49(d)
(photo, video,
audio, sketch)
To inspect 142(1)(d) Retained 49(c)
documents
To take extracts 142(1)(e) Retained 49(d)
or make copies
To take 142(1)(f) Retained 49(e)
required
equipment and
materials onto
premises
To operate 142(2) Retained 50(1)
equipment or
use storage
devices to
search for
evidential
material
To remove 142(3) Retained 50(2)
information via
storage device
or documents
Operation of 142(4), 148 Retained 50(3)
equipment etc.
without damage
58
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
Restrictions on 142(5), 142(6) Retained 50(4)
seizure of
storage device
Securing 142(7) Retained through 38 as triggered by
evidence of scope of provisions new paragraph
other offences subject to 131(1)(b) of the
investigation ESOS Act which
provides that
offences against the
Crimes Act 1914 and
the Criminal Code
that relate to the
ESOS Act are
subject to
investigation.
(Provisions of the
TEQSA Act are also
identified as related
provisions.)
Authorised officer 143 Aligned - an 70(1)
may apply to a authorised officer
magistrate or may apply to a
tribunal member for magistrate for an
search warrant investigation warrant
Magistrate or 144 Aligned - a 70(2)
tribunal member magistrate may issue
may issue search an investigation
warrant warrant
Magistrate or 145 Aligned - magistrate 70(3)
tribunal member must not issue the
may require more warrant until any
information further required
information is given
Contents of search 146 Retained 70(4)
warrant
Common rules for Part 7, Division 5 Parts 2 and 3 -
monitoring and Monitoring and
search warrants Investigation
(ESOS Act)
59
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
Use of reasonable 147 Retained through N/A - see new
force modification of the subsections 130(14)
operation of the and 131(12) of the
Regulatory Powers ESOS Act which
Act provides for use of
force against things
Use of assistance 147 Retained 23, 53 as triggered
by new subsections
130(13) and 131(11)
of the ESOS Act
Use of electronic 148 Retained 20(5), 50(3)
equipment without
damage
For compensation
see sections 29, 61
Securing electronic 149 Retained 21, 51
equipment for use by
experts
Extension of period 150 Retained 21(5)-21(7), 51(5)-
for electronic (7)
equipment may be
secured for use by
experts
Powers without 151 Repealed The Regulatory
warrant (or consent) Powers Act provides
in emergency for securing of
situations things found during
monitoring or
investigation, and
seizure under an
investigation warrant
Retaining things 152 Repealed The Regulatory
seized without Powers Act only
warrant provides for seizure
under an
investigation
warrant.
Management of
seized things is dealt
60
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
with in sections 64-
69.
Authorised officer 153 Repealed The Regulatory
may apply for thing Powers Act only
seized without provides for seizure
warrant to be under an
retained for further investigation
period warrant.
Management of
seized things is dealt
with in sections 64-
69.
Magistrate or 154 Repealed The Regulatory
tribunal member Powers Act only
may order that thing provides for seizure
seized without under an
warrant be retained investigation
warrant.
Management of
seized things is dealt
with in sections 64-
69.
Occupier to provide 155 Retained 31, 63
all reasonable
facilities and
assistance (offence)
Limitations on 156 Retained 25, 55
entering premises
with consent
Conditions for entry 157 Retained 25, 55
with consent
Announcement 158 Retained 26, 56
before entry under
warrant
Copy of warrant to 159 Retained 28, 58
be given to occupier
Compensation for 160 Retained 29, 61
damage to electronic
61
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
equipment or data
Occupier entitled to 161 Retained 30, 62
be present during
execution of warrant
Issue, form, use and 162 Retained 35, 76
return of identity
cards (offence)
Authorised officer 163 Aligned Under the
must produce Regulatory Powers
identity card on Act identity cards
request must be carried at all
times when
exercising
monitoring or
investigation
powers, and must be
shown at prescribed
times (sections 25,
26, 35(6), 55, 56,
76(6).)
Authorised officer 164 Aligned - 71
may apply for investigation
warrants by warrants only
telephone etc.
Magistrate or 165 Aligned - 71(4)
tribunal member investigation
may grant warrant warrants only
by telephone etc.
Procedure for 166 Aligned - 71(4)-(8)
issuing warrant by investigation
telephone etc. warrants only
Procedure after 167 Aligned - 71(6)-(8)
telephone warrant investigation
ceases or is executed warrants only
Form of warrant 168 Aligned - 72(1)
authorises exercise investigation
of power warrants only
62
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
Court to assume that 169 Aligned - 72(2)
exercise of power investigation
not authorised by warrants only
telephone etc.
warrant
Infringement Under section 106 of Part 5 -
notices (ESOS the ESOS Act, Infringement
Regulations) matters concerning notices
infringement notices
provided by Part 4
of the Regulations
When an 16(1), 16(4) Aligned 103
infringement notice
may be given
Matters to be 16(2), 16(3) Aligned 104
included in an
infringement notice
Service of 17 The Regulatory N/A
infringement notices Powers Act does not
explicitly deal with
service of
infringement notices
- it provides that an
infringement officer
(for the ESOS Act,
an authorised
officer) may give an
infringement notice
to a person who they
believe on
reasonable grounds
has contravened a
relevant provision.
The general service
provisions of the
Acts Interpretation
Act 1901 will apply.
Extension of time to 18 Aligned 105
pay
63
Current provision Provision Provision as Applicable
in the ESOS Act / amended by this provision
ESOS Regulations Schedule (Regulatory Powers
Act)
Payment by 19 Repealed. However
instalments extension of time
provision provides
flexibility.
Withdrawal of 20 Aligned 106
infringement notice
Time for payment of 21 Repealed. However N/A (105 provides
infringement notice extension of time flexibility)
where withdrawal provision provides
has been refused flexibility.
Effect of payment of 22 Retained 107
infringement notice
penalty
Admissibility of 23 Repealed N/A
representations made
in relation to
infringement notice
Election not to pay 24 Repealed N/A
infringement notice
not to be considered
in sentencing
Evidence relating to 25 Repealed N/A
infringement notice
Payment of penalty 26 Repealed N/A
by cheque
Infringement notice 27 Retained 108
not compulsory etc.
Enforceable Part 6, Division 4 Part 6 -
undertakings Enforceable
undertakings
Acceptance of 110A Retained 114
undertakings
Enforcement of 110B Retained 115
undertakings
64
PART 1 - MAIN AMENDMENTS
Division 1 - Amendments
Education Services for Overseas Students Act 2000
Items 1, 2 and 3 - Section 5
297. Items 1 and 3 amend section 5 of the ESOS Act to repeal the definitions for evidential
material, monitoring warrant, occupier and search warrant.
298. Item 2 also amends section 5 to insert a definition for the Regulatory Powers Act,
which provides that references to the Regulatory Powers Act mean the Regulatory
Powers (Standard Provisions) Act 2014.
Item 4 - Part 6 (heading)
299. Item 4 amends the heading of Part 6 to account for the repeal of the existing
enforcement powers contained in Part 6. The new heading for Part 6 is 'Conditions,
suspension and cancellation etc.'
Item 5 - Section 83A
300. Item 5 removes a description of the power to accept enforceable undertakings under
the ESOS Act from the Guide to Part 6 contained in section 83A of the ESOS Act. The
power to accept undertakings is being repealed from Part 6, as this will be provided for
through the triggering of Part 6 of the Regulatory Powers Act, in Part 7 of the ESOS Act.
Item 6 - Section 106
301. Item 6 repeals existing section 106 of the ESOS Act, which provides the ability to
issue infringement notices under the ESOS Act, as prescribed by the regulations. The
standard infringement notices regime provided by the Regulatory Powers Act will instead
be triggered under Part 7 of the ESOS Act.
Item 7 - Division 4 of Part 6
302. Item 7 repeals existing Division 4 of Part 6 which set out the provisions under the
ESOS Act to accept and enforce undertakings.
Item 8 - Part 7 (heading)
303. Item 8 amends the heading of Part 7, from monitoring and searching providers to
monitoring, investigation and enforcement. This reflects the terminology of the
Regulatory Powers Act, as triggered by the amendments contained in Schedule 3, and the
inclusion of enforcement powers in Part 7 (previously contained in Part 6 of the ESOS
Act).
Item 9 - Section 111A
304. Item 9 repeals the current Guide to Part 7 and replaces it with a description of the
production notice and attendance notice provisions contained in Part 7 (which do not
relate to amendments contained in Schedule 3 regarding the Regulatory Powers Act) and
also notes that Part 7 applies Parts 2, 3, 5 and 6 of the Regulatory Powers Act. Those
Parts of the Regulatory Powers Act deal with monitoring, investigation, infringement
notices and enforceable undertakings.
Items 10 and 11 - Division 1 of Part 7 and section 129
305. Item 10 repeals existing Division 1 of Part 7 which contains provisions regarding the
powers conferred on magistrates in their personal capacities.
65
306. Item 11 inserts the provisions that were repealed by Item 10 at the end of section 129,
such that they refer only to the enforcement powers contained in this section, which are
not provided by the Regulatory Powers Act. For the monitoring, investigation and
enforcement powers triggered under Part 7 from the Regulatory Powers Act, equivalents
of these provisions are contained in the standard provisions of the Regulatory Powers Act.
Item 12 - Divisions 3 to 5 of Part 7
307. Item 12 repeals existing Divisions 3 to 5 of Part 7 which contain the ESOS Act's
existing monitoring and investigation provisions, replacing them instead with the
triggering provisions for Parts 2, 3, 5 and 6 of the Regulatory Powers Act, as below.
Division 3 - Monitoring
308. New Division 3 of Part 7 sets out the triggering provisions for the standard monitoring
powers available under the ESOS Act, along with modifications to the standard
provisions. New section 130 sets out these provisions.
New section 130 - Monitoring powers
309. New subsection 130(1) provides that provisions of the ESOS Act, provisions of the
national code, provisions of the ELICOS Standards or Foundation Program Standards, or
offences under the Crimes Act 1914 or the Criminal Code which relate to the ESOS Act
are subject to monitoring under Part 2 of the Regulatory Powers Act. New subsection
130(2) provides that information given in compliance or purported compliance with
provisions of the ESOS Act, provisions of the national code or provisions of the ELICOS
Standards or Foundation Program Standards are also subject to monitoring under Part 2 of
the Regulatory Powers Act.
310. New subsection 130(3) provides the matters under the ESOS Act that are subject to
monitoring under Part 2 of the Regulatory Powers Act. This subsection provides that
determining whether a registered provider might not be able to provide courses to its
accepted students or refund amounts to its accepted students under Division 2 of Part 5 of
the ESOS Act are matters subject to monitoring.
311. New subsection 130(4) provides that provisions mentioned in subsection 115(1) of the
Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) are related
provisions to those mentioned in subsection 130(1). Further, provisions of the TEQSA
Act mentioned in subsection 115(2) of that Act are related to the information subject to
monitoring, as provided by new subsection 130(2) of the ESOS Act.
312. New subsection 130(5) states that for the purposes of Part 2 of the Regulatory Powers
Act, as Part 2 applies in relation to the ESOS Act, an authorised officer of the ESOS
agency for a registered provider is an authorised applicant. As clarified above, under the
ESOS Act, the ESOS agencies for registered providers are: the TEQSA for registered
providers providing courses to overseas students in the higher education sector, the
ASQA for the VET sector and the Secretary for the schools sector (refer to section 6C of
the ESOS Act).
313. Section 6A of the ESOS Act sets out the authorised officers of an ESOS agency:
If the ESOS agency for a registered provider is TEQSA, then a person is an
authorised officer if the person is a Commissioner (within the meaning of the
TEQSA Act), the CEO of TESQA or an authorised officer (within the meaning of
the TEQSA Act). These authorised officers have the appropriate skills and
qualifications to exercise the relevant powers, and the positions align with the
66
same positions that will exercise regulatory powers for the purposes of the
TEQSA Act (as amended by this Bill).
If the ESOS agency for a registered provider is the National VET Regulator (i.e.
ASQA), then a person is an authorised officer if the person is a Commissioner
(within the meaning of the National Vocational Education and Training Regulator
Act 2011 (NVETR Act)) or an authorised officer (within the meaning of the
NVETR Act). These authorised officers would have the appropriate skills and
qualifications to exercise the relevant powers and the positions align with the
existing regulatory powers in the NVETR Act exercised by the same persons.
If the ESOS agency for a registered provider is the Secretary, then a person is an
authorised officer if the person is appointed under subsection 6A(2) of the ESOS
Act. The Secretary can only appoint APS employees in the Department that hold
or perform the duties of an APS 5 position or higher, or an equivalent position,
and the Secretary must be satisfied that the person has suitable qualifications and
experience for the appointment.
Further, if the ESOS agency for a registered provider is another entity, that agency
may appoint a person as an authorised officer if the person is an employee or
constituent member of the agency and the agency is satisfied that the person has
suitable qualifications and experiences for the appointment.
314. New subsection 130(6) provides for the purposes of Part 2 of the Regulatory Powers
Act, as Part 2 applies in relation to the ESOS Act, an authorised officer of the ESOS
agency for a registered provider is an authorised person.
315. New subsection 130(7) states that for the purposes of Part 2 of the Regulatory Powers
Act, as Part 2 applies in relation to the ESOS Act, a magistrate is an issuing officer.
Currently, the ESOS Act allows Administrative Appeals Tribunal members (non-judicial
officers) to be issuing officers for the purposes of monitoring warrants. The Regulatory
Powers Act provides that issuing officers must be judicial officers. This would usually be
a magistrate of a State or Territory and this would be consistent with A Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers.
316. New subsection 130(8) provides that for the purposes of the standard monitoring
provisions triggered under section 130, the relevant chief executive is:
the CEO of TEQSA, where the provisions relate to an authorised person who is an
authorised officer of TEQSA
the CEO of the National VET Regulator, where the provisions relate to an
authorised person who is an authorised officer of the National VET Regulator
the Secretary, where the provisions relate to an authorised person who is an
authorised officer of the Secretary
the head (however described) of any other entity, where an authorised officer from
that entity is an authorised person for the provisions triggered under section 130.
317. New subsections 130(9) and 130(10) provide that, where the relevant chief executive
is the CEO of TEQSA or the CEO of the National VET Regulator, they may delegate the
powers and functions under Part 2 of the Regulatory Powers Act, in relation to the
provisions, information and matters subject to monitoring under the ESOS Act, and
powers and functions incidental to those, to an SES employee, acting SES employee, or
67
an Executive Level 1 or 2 employee in their respective agency. The delegation must be in
writing.
318. While in general, the delegation of relevant chief executive powers should be
confined to members of the SES, it is appropriate in this context to provide for a wider
delegation. TEQSA and the National VET Regulator (ASQA) are both small agencies.
For example, TEQSA currently has approximately 100 full-time equivalent employees
and only one SES employee. Allowing the CEO of TEQSA and the CEO of the National
VET Regulator to delegate powers to Executive Level 1 and Executive Level 2
employees will ensure that TEQSA and the National VET Regulator have an
appropriately empowered decision maker available to exercise the powers of the relevant
chief executive under Part 2 of the Regulatory Powers Act. The relevant chief executive,
before delegating any powers, will ensure that all delegates have appropriate skills,
qualifications and experience to exercise powers delegated under those subsections.
319. Where the relevant chief executive is the Secretary, they may delegate the powers and
functions under Part 2 of the Regulatory Powers Act, in relation to the provisions,
information and matters subject to monitoring under the ESOS Act, and powers incidental
to those, to an SES or acting SES employee in the Department. The delegation must be in
writing.
320. New subsection 130(11) provides that a person exercising powers or performing
functions under a delegation must comply with any directions of the relevant chief
executive.
321. New subsection 130(12) states that for the purposes of Part 2 of the Regulatory
Powers Act, as Part 2 applies in relation to the ESOS Act, the Federal Court of Australia
and the Federal Circuit Court of Australia are relevant courts.
322. New subsection 130(13) provides that an authorised person may be assisted by other
persons when exercising powers or performing functions or duties under Part 2 of the
Regulatory Powers Act, as applied under the ESOS Act.
323. New subsection 130(14) modifies the standard monitoring powers to allow authorised
persons to, in executing a monitoring warrant under Part 2 of the Regulatory Powers Act
as applied by the ESOS Act, use force against things as is necessary and reasonable in the
circumstances. Paragraph 130(14)(b) provides that a person assisting the authorised
person, under subsection 130(13), may also use such force against things as is necessary
and reasonable in the circumstances. The power to use force against things is retained
from the existing suite of monitoring powers under the ESOS Act.
324. It is necessary for authorised persons to be able to use force against things in the
course of monitoring compliance with provisions of the ESOS Act, as an authorised
officer executing a warrant may need to open locked doors, cabinets, drawers and other
similar objects that the authorised officer reasonably suspects contain things that would
provide evidence that provisions subject to monitoring have not been, or are not being,
complied with.
325. When a warrant is sought, it is necessary to protect evidence to be collected from
being altered or destroyed. Retaining the use of force provision enables the authorised
officer to gain entry to premises to conduct the activity permitted under the applicable
warrant where a premise is unattended or the occupier refuses to attend and where after
securing entry, accessing further secure locations within or on the premises is prevented,
for example, by a safe or locked door.
68
326. In these situations, the use of force provision means that the authorised person is able
to use a locksmith when encountering a locked cabinet or room to urgently secure
documents and things specified under a warrant in an efficient manner and avoid
circumstances where evidence may be destroyed if they are required to leave and return at
a later time.
327. Section 31 of the Regulatory Powers Act places an obligation on the occupier of
premises, or another person who apparently represents the occupier, to provide reasonable
facilities and assistance to the authorised person, and any person assisting, which is
necessary for the authorised person to effectively exercise their powers under Part 2 of the
Regulatory Powers Act, for the purposes of executing a monitoring warrant. Subsections
31(2) of the Regulatory Powers Act provides that failure to comply with section 31 of that
Act is an offence, and carries a penalty of 30 penalty units. Despite this obligation and its
corresponding penalty for non-compliance, an occupier or other person may continue to
refuse access to locked premises or objects. It is necessary to include the power to use
force against things in the ESOS Act's monitoring provisions to ensure that the execution
of a monitoring warrant is not frustrated, and to prevent concealment, loss, destruction or
use of things in the course of non-compliance with the ESOS Act.
328. New subsection 130(15) states that Part 2 of the Regulatory Powers Act, as it applies
to the ESOS Act, extends to each external Territory mentioned in subsection 4B(1) of the
ESOS Act.
Division 4 - Investigation
329. New Division 4 of Part 7 sets out the application of Part 3 of the Regulatory Powers
Act to the ESOS Act, which contains standard investigation provisions.
New section 131 - Investigation powers
330. New subsection 131(1) provides that offences under the ESOS Act and offences
against the Crimes Act 1914 or the Criminal Code that relate to the ESOS Act are subject
to investigation under Part 3 of the Regulatory Powers Act. New subsection 131(2) states
that offence and civil penalty provisions under the TEQSA Act and offences against the
Crimes Act 1914 or the Criminal Code which relate to the TEQSA Act are related
provisions for the purposes of Part 3 of the Regulatory Powers Act, as Part 3 relates to
evidential material subject to investigation under the ESOS Act.
331. As in the monitoring provisions provided under the ESOS Act in this Schedule, new
subsection 131(3) provides that an authorised officer of the ESOS agency for a registered
provider (explained in detail above) is an authorised applicant for the purposes of
evidential material relating to a provision of the ESOS Act subject to Part 3 of the
Regulatory Powers Act.
332. New subsection 131(4) provides that for the purposes of Part 3 of the Regulatory
Powers Act as Part 3 is applied by section 131 of the ESOS Act, an authorised officer of
the ESOS agency for a registered provider (explained in detail above) is an authorised
person in relation to evidential material.
333. New subsection 131(5) states that for the purposes of Part 3 of the Regulatory Powers
Act, as Part 3 applies in relation to the ESOS Act, a magistrate is an issuing officer.
Currently, the ESOS Act allows Administrative Appeals Tribunal members (non-judicial
officers) to be issuing officers for the purposes of investigation warrants. The Regulatory
Powers Act provides that issuing officers must be judicial officers. This would usually be
69
a magistrate of a State or Territory and this would be consistent with A Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers.
334. New subsection 131(6) provides that for the purposes of the standard investigation
provisions triggered under section 131, the relevant chief executive is:
the CEO of TEQSA, where the provisions relate to an authorised person who is
an authorised officer of TEQSA
the CEO of the National VET Regulator, where the provisions relate to an
authorised person who is an authorised officer of the National VET Regulator
the Secretary, where the provisions relate to an authorised person who is an
authorised officer of the Secretary
the head (however described) of any other entity of which an authorised officer is
an authorised person for the provisions triggered under section 131.
335. New subsections 131(7) and 131(8) provide that, where the relevant chief executive is
the CEO of TEQSA or the CEO of the National VET Regulator, they may delegate the
powers and functions under Part 3 of the Regulatory Powers Act, in relation to evidential
material subject to investigation and powers and functions incidental to those, to an SES
employee, acting SES employee, or an Executive Level 1 or 2 employee in their
respective agency. The delegation must be in writing.
336. While in general, the delegation of relevant chief executive powers should be
confined to members of the SES, it is appropriate in this context to provide for a wider
delegation. This is explained above at paragraph 318 in relation to the relevant chief
executives functions under Part 2 of the Regulatory Powers Act, regarding monitoring.
337. Where the relevant chief executive is the Secretary, they may delegate the powers and
functions under Part 3 of the Regulatory Powers Act, in relation to evidential material
subject to investigation and powers and functions incidental to those, to an SES or acting
SES employee in the Department. The delegation must be in writing. New subsection
131(9) provides that a person exercising powers or performing functions under a
delegation must comply with any directions of the relevant chief executive.
338. New subsection 131(10) states that for the purposes of Part 3 of the Regulatory
Powers Act, as Part 3 applies in relation to the ESOS Act, the Federal Court of Australia
and the Federal Circuit Court of Australia are relevant courts.
339. New subsection 131(11) provides that an authorised person may be assisted by other
persons when exercising powers or performing functions or duties under Part 3 of the
Regulatory Powers Act, as applied under the ESOS Act.
340. New subsection 131(12) modifies the standard investigation powers to allow
authorised persons to, in executing an investigation warrant under Part 3 of the
Regulatory Powers Act as applied by the ESOS Act, use force against things as is
necessary and reasonable in the circumstances. Paragraph 131(12)(b) provides that a
person assisting the authorised person, under subsection 131(11), may also use such force
against things as is necessary and reasonable in the circumstances. The power to use force
against things is retained from the existing suite of investigation powers under the ESOS
Act.
341. It is necessary for authorised persons to be able to use force against things in the
course of investigation under the ESOS Act, as an authorised officer executing a warrant
may need to open locked doors, cabinets, drawers and other similar objects that the
70
authorised officer reasonably suspects contain things that would provide evidence that a
provision under the ESOS Act has been contravened.
342. When a warrant is sought, it is necessary to protect evidence to be collected from
being altered or destroyed. Retaining the use of force provision enables the authorised
officer to gain entry to premises to conduct the activity permitted under the applicable
warrant where a premise is unattended or the occupier refuses to attend and where after
securing entry, accessing further secure locations within or on the premises is prevented,
for example, by a safe or locked door.
343. In these situations, the use of force provision means that the authorised person is able
to use a locksmith when encountering a locked cabinet or room to urgently secure
documents and things specified under a warrant in an efficient manner and avoid
circumstances where evidence may be destroyed if they are required to leave and return at
a later time.
344. Section 63 of the Regulatory Powers Act places an obligation on the occupier of
premises, or another person who apparently represents the occupier, to provide reasonable
facilities and assistance to the authorised person, and any person assisting, which is
necessary for the authorised person to effectively exercise their powers under Part 3 of the
Regulatory Powers Act, for the purposes of executing a investigation warrant. Subsection
63(2) of the Regulatory Powers Act provides that failure to comply with section 63 of that
Act is an offence, and carries a penalty of 30 penalty units. Despite this obligation and its
corresponding penalty for non-compliance, an occupier or other person may continue to
refuse access to locked premises or objects. It is necessary to include the power to use
force against things in the ESOS Act's investigation provisions to ensure that the
execution of an investigation warrant is not frustrated, and to prevent concealment, loss,
destruction or use of thing in the course of contravention of the ESOS Act.
345. New subsection 131(13) states that Part 3 of the Regulatory Powers Act, as it applies
to the ESOS Act, extends to each external Territory mentioned in subsection 4B(1) of the
ESOS Act.
Division 5 - Infringement notices
346. New Division 5 of Part 7 sets out the particulars of triggering Part 5 of the Regulatory
Powers Act for the ESOS Act, which deals with infringement notices.
New section 132 - Infringement notices
347. New subsection 132(1) provides that offences contained in subsections 19(5), 20(6),
21(5), 21A(1A), 46E(1), 47F(1) and 47G(1) of the ESOS Act are subject to an
infringement notice under Part 5 of the Regulatory Powers Act. These provisions are all
strict liability offences and therefore appropriate for the application of an infringement
notice scheme.
348. New subsection 132(2) provides that for the purposes of Part 5 of the Regulatory
Powers Act, the authorised officer of the ESOS agency for a registered provider is an
infringement officer. Authorised officers appointed as infringement officers under this
subsection are appropriately qualified and trained to exercise enforcement powers under
the ESOS Act, as described above.
349. New subsection 132(3) provides that for the purposes of Part 5 of the Regulatory
Powers Act, the relevant chief executive is:
71
the CEO of TEQSA, where the provisions relate to an authorised person who is
an authorised officer of TEQSA
the CEO of the National VET Regulator, where the provisions relate to an
authorised person who is an authorised officer of the National VET Regulator
the Secretary, where the provisions relate to an authorised person who is an
authorised officer of the Secretary
the head (however described) of any other entity of which an authorised officer is
an authorised person for the provisions triggered under section 132.
350. New subsections 132(4) and 132(5) provide that, where the relevant chief executive is
the CEO of TEQSA or the CEO of the National VET Regulator, they may delegate the
relevant chief executive's powers and functions under Part 5 of the Regulatory Powers
Act, in relation to the provisions mentioned in subsection 132(1), to an SES employee,
acting SES employee, or an Executive Level 1 or 2 employee in their respective agency.
The delegation must be in writing.
351. While in general, the delegation of relevant chief executive powers should be
confined to members of the SES, it is appropriate in this context to provide for a wider
delegation. This is explained above at paragraph 318 in relation to the relevant chief
executives functions under Part 2 of the Regulatory Powers Act, regarding monitoring.
352. Where the relevant chief executive is the Secretary, they may delegate the powers and
functions under Part 5 of the Regulatory Powers Act, in relation to the provisions
mentioned in subsection 132(1), to an SES or acting SES employee in the Department.
The delegation must be in writing.
353. New subsection 132(5) provides that a person exercising powers or performing
functions under a delegation must comply with any directions of the relevant chief
executive.
354. New subsection 132(6) of the ESOS Act extends the application of Part 5 of the
Regulatory Powers Act, as Part 5 applies to the provisions mentioned in subsection
132(1), to each external Territory mentioned in subsection 4B(1) of the ESOS Act.
Division 6 - Enforceable undertakings
355. New Division 6 of Part 7 sets out the enforceable undertakings powers available
under the ESOS Act, provided through Part 6 of the Regulatory Powers Act. Part 6 of the
Regulatory Powers Act, as applied by Division 6 of Part 7, provides the ESOS Act with a
framework for accepting and enforcing undertakings relating to compliance with offences
under the ESOS Act.
New section 133 - Enforceable undertakings
356. New subsection 133(1) states that a provision is enforceable under Part 6 of the
Regulatory Powers Act if it is a provision under the ESOS Act, a provision of the national
code or a provision of the ELICOS Standards or Foundation Program Standards.
357. New subsection 133(2) provides that for the purposes of Part 6 of the Regulatory
Powers Act as Part 6 is triggered through section 133, the authorised person is:
the CEO of TEQSA, in relation to an undertaking by a registered higher
education provider
72
the CEO of the National VET Regulator, in relation to an undertaking by a
registered VET provider
the Secretary, in relation to an undertaking by an approved school provider
the head (however described) of the ESOS agency for the registered provider in
relation to an undertaking by any other registered provider.
358. New subsection 133(3) states that for the purposes of Part 6 of the Regulatory Powers
Act, as applied to the ESOS Act, the Federal Court of Australia and the Federal Circuit
Court of Australia are each relevant courts.
359. New subsection 133(4) modifies the application of Part 6 of the Regulatory Powers
Act to allow an authorised person, covered by subsection 133(2), to accept a written
undertaking given by a registered provider regarding a condition of the provider's
registration. The undertaking must be expressly provided as an undertaking under
subsection 133(4) of the ESOS Act. New subsection 133(5) provides that this power
supplements and is in addition to those listed in subsection 114(1) of the Regulatory
Powers Act, which relates to undertakings which can be accepted by an authorised
person.
360. New subsection 133(6) provides that the standard enforceable undertakings provisions
in Part 6 of the Regulatory Powers Act (other than subsections 114(1)-(2)) apply to
undertakings accepted under subsection 133(4) as usual. This modification reflects
existing subsection 110A(1) of the ESOS Act. This will retain an ESOS agency's existing
power to accept a written undertaking given by the provider that the provider will take, or
refrain from taking, specified action in order for the provider to comply with a condition
of the provider's registration, or the provider will take specified action directed towards
ensuring that in the future the provider does not, or is unlikely to, contravene a condition
of the provider's registration.
361. New subsection 133(7) provides that Part 6 of the Regulatory Powers Act, as applied
through section 133, extends to each external Territory mentioned in subsection 4B(1) of
the ESOS Act.
Division 2 - Application and saving provisions
Item 13 - Saving provision - identity cards
362. Item 13 clarifies that despite the repeal of section 162 of the ESOS Act by Part 1 of
Schedule 3, section 162 as in force immediately before the commencement of Part 1
continues to apply on and after that commencement in relation to a person who ceased to
be an authorised officer of the ESOS agency for a registered provider before the
commencement of Part 1. This ensures that the offence under existing subsection 162(3)
continues to apply to a person who ceases to be an authorised officer of the ESOS agency
for a registered provider and does not return the identity card to the ESOS agency as soon
as is practicable after so ceasing.
Item 14 - Application and saving provisions - monitoring
363. Item 14(1) provides for the application of monitoring provisions under Part 2 of the
Regulatory Powers Act as it applies under Division 3 of Part 7 of the ESOS Act and
makes it clear that the provisions apply in relation to determining whether a provision
mentioned in subsection 130(1) of the ESOS Act has been complied with before, on or
after the commencement of Part 1; whether information given in compliance or purported
compliance with section 130(2) of the ESOS Act before, on, or after the commencement
73
of Part 1 is correct; and a matter mentioned in subsection 130(3) of the ESOS Act on or
after the commencement of Part 1 of Schedule 3 to this Bill.
364. Item 14(2) also clarifies that Divisions 3 and 5 of Part 7 of the ESOS Act, as in force
immediately before the commencement of Part 1, continue to apply on and after the
commencement of Part 1 of Schedule 3, in relation to the following:
an application for a monitoring warrant made, but not decided, under section 137 or
164 of the ESOS Act before the commencement of Part 1;
a monitoring warrant issued under section 138 or subsection 165(2) of the ESOS Act
before, on or after the commencement of Part 1 as a result of an application made
before that commencement;
powers exercised, rights created and duties imposed, under Divisions 3 and 5 of Part 7
before, on or after that commencement as a result of: an entry onto premises before
the commencement of Part 1 with the consent of the occupier of the premises; or an
entry onto premises before, on or after that commencement as a result of a monitoring
warrant referred to above;
things secured or seized under Divisions 3 and 7 of Part 7 before, on or after the
commencement of Part 1
a requirement made under subsection section 133 of the ESOS Act before, on or after
the commencement of Part 1.
Item 15 - Application and saving provisions - investigation
365. Item 15(1) clarifies that the application of Part 3 of the Regulatory Powers Act, as it
applies under Division 4 of Part 7 of the ESOS Act is in relation to evidential material
that relates to a provision mentioned in new subsection 131(1) of the ESOS Act if the
suspected contravention of the provision occurred on or after the commencement of Part
1 of Schedule 3 to this Bill.
366. Item 15 also clarifies that Divisions 4 and 5 of Part 7 of the ESOS Act, as in force
immediately before the commencement of Part 1, continue to apply on and after the
commencement of Part 1, in relation to:
an application for a search warrant made, but not decided, under section 143 or 164 of
the ESOS Act before the commencement of Part 1;
a search warrant issued under section 144 or subsection 165(3) of the ESOS Act
before, on or after the commencement of Part 1 as a result of an application made
before that commencement;
powers exercised, rights created and duties imposed, under Divisions 4 and 5 of Part 7
before, on or after that commencement as a result of: an entry onto premises before
the commencement of Part 1 with the consent of the occupier of the premises; or an
entry onto premises before, on or after that commencement as a result of a monitoring
warrant referred to above;
things secured or seized under Divisions 4 and 5 of Part 7 before, on or after the
commencement of Part 1
a requirement made under subsection section 133 of the ESOS Act before, on or after
the commencement of Part 1.
74
Item 16 - Application and saving provisions - infringement notices
367. Item 16(1) clarifies that Part 5 of the Regulatory Powers Act, as it applies under
Division 4 of Part 7 of the ESOS Act, applies in relation to alleged contraventions of
provisions referred to in new subsection 132(1) of the ESOS Act occurring on or after the
commencement of Part 1 of Schedule 3 to this Bill.
368. Item 16(2) clarifies that the previous infringement notice regime under the ESOS Act
and regulations, as in force immediately before the commencement of Part 1, continues to
apply in relation to alleged contraventions of provisions referred to in subsection 106(1A)
of the ESOS Act, occurring before the commencement of Part 1 of Schedule 3 to this Bill.
Item 17 - Application and saving provisions - enforceable undertakings
369. Item 17(1) provides for the application of enforceable undertakings provisions under
Part 6 of the Regulatory Powers Act as it applies under Division 6 of Part 7 of the
ESOS Act and makes it clear that the amendments apply in relation to undertakings given
on or after the commencement of Part 1 of Schedule 3 to this Bill.
370. Item 17(2) clarifies that the existing provisions relating to enforceable undertakings
under Division 4 of Part 6 the ESOS Act, as in force immediately before the
commencement of Part 1, continue to apply in relation to the following:
an undertaking given under section 110A of the ESOS Act before the commencement
of Part 1;
an application for an order made, but not decided, under subsection 110B(1) of the
ESOS Act before the commencement of Part 1; and
an order made under subsection 110B(2) of the ESOS Act before, on, or after the
commencement of Part 1 as a result of an application made before that
commencement.
PART 2 - AMENDMENTS RELATING TO THE NATIONAL VOCATIONAL
EDUCATION AND TRAINING REGULATOR AMENDMENT (GOVERNANCE
AND OTHER MATTERS) ACT 2020
Items 18, 19, 20 and 21 - Paragraphs 130(8)(b), 130(9)(b), 131(6)(b), 131(7)(b),
132(3)(b), 132(4)(b) and 133(2)(b)
371. These items relate to changes to the governance arrangements for the National VET
Regulator introduced by the National Vocational Education and Training Regulator
Amendment (Governance and Other Matters) Act 2020, to replace the existing Chief
Commissioner/Chief Executive Officer and two Commissioners with a single
independent statutory officer holder, known as the National VET Regulator.
Consequently, these items update references from the CEO of the National VET
Regulator, to the National VET Regulator.
PART 3 - AMENDMENTS RELATING TO THE FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA ACT 2020
Item 22 - Paragraph 130(12)(b)
372. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 2 of
the Regulatory Powers Act, regarding monitoring, to the ESOS Act. Accordingly,
replacement paragraph 130(12)(b) provides that, the Federal Circuit and Family Court of
75
Australia (Division 2) will be a relevant court for the purposes of monitoring under Part 2
of the Regulatory Powers Act, as applied to the ESOS Act.
Item 23 - Paragraph 131(10)(b)
373. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 3 of
the Regulatory Powers Act, regarding investigation, to the ESOS Act. Accordingly,
paragraph 131(10)(b) provides that the Federal Circuit and Family Court of Australia
(Division 2) will be a relevant court for the purposes of investigation under Part 3 of the
Regulatory Powers Act, as applied to the ESOS Act.
Item 24 - Paragraph 133(3)(b)
374. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 6 of
the Regulatory Powers Act, regarding enforceable undertakings, to the ESOS Act.
Accordingly, paragraph 133(3)(b) provides that the Federal Circuit and Family Court of
Australia (Division 2) will be a relevant court for the purposes of enforcing undertakings
under Part 6 of the Regulatory Powers Act, as applied to the ESOS Act.
76
Schedule 4 - Amendment of the Fisheries Management Act 1991
GENERAL OUTLINE
375. The Fisheries Management Act 1991 (FMA) provides the statutory framework for the
regulation and management of Commonwealth fisheries. The FMA establishes
management plans for fisheries, and sets out the legislative basis for statutory fishing
rights, licenses and permits. The FMA defines the Australian Fishing Zone and provides
for the majority of Commonwealth fisheries offences. It underpins Australia's domestic
and foreign compliance work and provides enforcement powers to protect Australia's
fishery resources. The objectives of the FMA are set out in section 3 of that Act. These
objectives must be pursued by the Minister in the administration of the FMA and the
Australian Fisheries Management Authority (AFMA) in the performance of its functions.
376. Paragraph 168(2)(i) of the FMA states that regulations may be made to enable a
person who is alleged to have contravened section 93, 95, 100 or a determination made
under section 42 to pay to AFMA a specified penalty as an alternative to prosecution, that
is, it provides for an infringement notice scheme. Accordingly, Division 7 of Part 11 of
the Fisheries Management Regulations 2019 (FMR) sets out an infringement notice
scheme. In the FMR, provisions that are currently subject to an infringement notice are
limited to section 93, 95 or 100 of the FMA. While the FMR does not trigger the
Regulatory Powers Act, the infringement notices provisions are identical to the standard
provisions contained in Part 5 of the Regulatory Powers Act.
377. The triggering of Part 5 of the Regulatory Powers Act provides for the application of
an infringement notice scheme to certain offences under the FMA and places the
infringement notice scheme in principal legislation. This will ensure consistency with the
overall objective of the Regulatory Powers Act, which is to promote best practice use of
regulatory powers and streamline regulatory powers across the Commonwealth statute
book by ensuring greater consistency between different regulatory regimes.
378. Amendments to the FMA will restrict the application of an infringement notice
scheme to offences contained in subsections 93(1) (failure to give a return or information
in relation to fish received) and subsection 95(5) (engage in certain fishing without a
licence or permit). Subsection 95(2) and section 100 of the FMA relating to foreign
fishing offences have been excluded from the application of infringement notice scheme
as they are indictable offences and are more appropriately dealt with through prosecution.
It is appropriate for subsection 93(1), as amended by this Schedule, and 95(5) of the FMA
to continue to be subject to an infringement notice scheme.
379. The application of an infringement notice scheme to subsection 93(1) would allow an
infringement notice to be issued to a fish receiver permit holder who has allegedly
contravened subsection 93(1) for refusing or failing to give a return or information
required under section 92 or under regulations made for the purposes of that section. The
application of an infringement notice scheme to this offence would act as a deterrent
against non-compliance, and the issuing of an infringement notice for non-compliance
would be a proportionate and efficient response.
380. Amendments contained in this Schedule restructure the offence contained in section
93 to make the offence one of strict liability, repeal the defence of reasonable excuse, and
amend the current penalty of 6 months imprisonment to an equivalent pecuniary penalty.
The change from an imprisonment penalty to a pecuniary penalty lessens the severity of
the maximum punishment available for the offence. This makes the penalty proportionate
to the level of offence and less intrusive on a person's rights and liberties, and modernises
77
the regulatory regime to make it consistent with contraventions of similar offence
provisions in other Commonwealth legislation. These amendments ensure that the offence
contained in section 93 is appropriate for the application of an infringement notice.
381. Subsection 95(5) deals with offences in relation to domestic fishing. AFMA grants a
variety of rights, permits and licences for fishing activities. Some of these include fishing
concessions, fishing permits, scientific permits, fish receiver permits, and, for foreign
fishing boats, port permits. The type of offences in subsection 95(5) cover breaches of
conditions in a particular type of right, permit or licence, which includes conduct that can
be wide ranging in nature and level of seriousness. While not all conduct that constitutes
an offence under subsection 95(5) is specified on the face of the legislation, those subject
to a potential infringement notice would have, when applying for a particular type of
right, permit or licence, been made aware of the conditions pertaining to its grant and
would be notified of any changes pertaining to those conditions. Furthermore, holders of
these rights, permits or licences are able to seek both internal review, and external review
by the Administrative Appeals Tribunal, of any changes to the conditions. Therefore,
conduct that constitutes an offence under subsection 95(5) will be clear to all those
potentially subject to an infringement notice. It is expected that the application of an
infringement notice scheme will have a deterrent effect and provide AFMA with an
opportunity to appropriately respond to non-compliant activity, proportionate to the level
of offending.
382. This Schedule amends the FMA to apply the standard infringement notices provisions
of Part 5 of the Regulatory Powers Act to subsection 93(1) and subsection 95(5) of the
FMA. Part 5 of the Regulatory Powers Act creates a framework for the use of
infringement notices that may be issued in relation to a breach of an offence or civil
penalty provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for
Part 5 of that Act to operate, a provision of an Act or legislative instrument must be made
subject to an infringement notice under Part 5 by a triggering Act. When a triggering Act
applies Part 5 of the Regulatory Powers Act, it must nominate a person or persons as an
infringement officer or officers for the purposes of exercising powers under Part 5 (see
section 101 of the Regulatory Powers Act). A triggering Act must also identify the
relevant chief executive for the purposes of exercising powers under Part 5 of the
Regulatory Powers Act (see section 102 of the Regulatory Powers Act). If offence or civil
penalty provisions of a triggering Act are subject to an infringement notice and apply in
external Territories and/or offshore areas, the triggering Act should identify whether Part
5 of the Regulatory Powers Act extends to any external Territories.
COMPARISON OF PROVISIONS
Fisheries Management Act 1991 (FMA) and Fisheries Management Regulations 2019
(FMR)
383. The below table identifies the corresponding provisions of the Regulatory Powers Act
for the sections of the FMA and the FMR that will be repealed, in place of Part 5 of the
Regulatory Powers Act. Provisions contained in the FMR will be repealed by amending
regulations. Commencement by proclamation will ensure that both the amendments to the
FMR and the FMA take place at the same time.
78
Current provision in the FMR and Provision Provision as Applicable
FMA amended by provision
this Schedule (Regulatory
Powers Act)
Infringement notices Part 5 -
Infringement
notices
When an infringement notice may be 110 of the Retained 103
given FMR
Matters to be included in an 111 of the Retained 104
infringement notice FMR
Extension of time to pay amount 112 of the Retained 105
FMR
Withdrawal of an infringement notice 113 of the Retained 106
FMR
Effect of payment of amount 114 of the Retained 107
FMR
Extra-territorial operation 7 and 8 of Retained N/A (see new
the FMA subsection 98A(6)
of the FMA)
PART 1 - AMENDMENTS
Item 1 - Subsection 4(1)
384. Item 1 inserts into the interpretation provision of the FMA a statement that references
to the Regulatory Powers Act mean the Regulatory Powers (Standard Provisions) Act
2014.
Item 2 - Subsection 93(1)
385. Item 2 amends subsection 93(1), which contains an offence provision regarding
returns or information in relation to fish received. Item 2 amends the penalty of 6 months
imprisonment in subsection 93(1) to a penalty of 30 penalty units. 30 penalty units is the
standard equivalency of a 6 month imprisonment penalty under subsection 4B(2) of the
Crimes Act 1914. 30 penalty units would serve as an appropriate maximum penalty for
non-compliance by a holder of a fish receiver permit with subsection 93(1). Non-
compliance with subsection 93(1) entails refusing or failing to give a return or
information that the person is required to give under section 92 (or under regulations
made for the purposes of section 92).
Item 3 - Subsections 93(2) and (3
386. Item 3 repeals subsections 93(2) and (3) (including their associated notes) to remove
the defence of reasonable excuse from the offence contained in subsection 93(1) and to
79
make that offence one of strict liability. The defence of honest and reasonable mistake of
fact is a general defence available under the Criminal Code that applies to offences of
strict liability and will automatically apply to subsection 93(1). Items 2 and 3 together
restructure section 93 to update the provision consistent with current best practice
drafting.
Item 4 - Section 98A
387. Item 4 inserts section 98A which sets out the particulars of triggering Part 5 of the
Regulatory Powers Act for the FMA.
388. New subsection 98A(1) provides that offences contained in subsection 93(1) (failure
to give a return or information in relation to fish received) and subsection 95(5) (engage
in certain fishing without a licence or permit) of the FMA are subject to an infringement
notice under Part 5 of the Regulatory Powers Act. Subsections 93(1) and 95(5) are
appropriate for the application of an infringement notice. These provisions are currently
subject to an infringement notice scheme in the FMR (the relevant provisions of which
will be repealed by amending regulation as a consequence of the triggering of Part 5 of
the Regulatory Powers Act in the FMA) and it is appropriate for these provisions to
continue to be subject to the infringement notice scheme in the FMA.
389. Where a person is issued with an infringement notice for an offence under subsection
93(1), and that person pays the infringement notice but does not provide the information
required under section 92 (or regulations made for the purposes of section 92) within the
time required under that section, that person will commit a further offence for each day
during which they fail to provide the return or information (section 4K of the Crimes Act
1914). Section 103 of the Regulatory Powers Act provides that a single infringement
notice may be issued for multiple contraventions of an offence subject to an infringement
notice scheme.
390. New subsection 98A(2) provides that for the purposes of Part 5 of the Regulatory
Powers Act, an AFMA staff member who is a person appointed as an officer under
section 83 of the FMA is an infringement officer. Officers appointed as infringement
officers under this subsection are appropriately qualified and trained to exercise
enforcement powers and apply AFMA's national compliance and enforcement program
framework. AFMA can issue directions to an infringement officer under section 83. New
subsection 98A(3) provides that for the purposes of Part 5 of the Regulatory Powers Act,
the Chief Executive Officer (CEO) of AFMA is the relevant chief executive.
391. New subsection 98A(4) allows the CEO to delegate his or her powers as the relevant
chief executive under Part 5 of the Regulatory Powers Act to an SES or acting SES
employee. Delegation to the SES level is consistent with standard policy regarding the
Regulatory Powers Act. The powers that may be delegated are those under Part 5 of the
Regulatory Powers Act in relation to subsection 93(1) and subsection 95(5) of the FMA,
and powers and functions incidental to those subsections. This delegation provision
restricts the current ability of the CEO, in the infringement notice scheme in the FMR, to
delegate to any officer the powers of the relevant chief executive; that is, the power to
extend the period of time in which a person to whom an infringement notice is given can
pay the amount stated and the power to withdraw an infringement notice. New subsection
98A(5) states that a person exercising relevant chief executive powers under a delegation
by the CEO must comply with any directions of the CEO.
392. New subsection 98A(6) of the FMA extends the application of Part 5 of the
Regulatory Powers Act, as that Part applies to subsection 93(1) and subsection 95(5) of
80
the FMA, to all external Territories, and each other area to which those subsections
extend, consistent with sections 7 and 8 of the FMA. Section 7 of the FMA provides that
the FMA extends to all of the Territories and has extra-territorial operation. Section 8 of
the FMA extends the application of that Act to specified areas outside the Australian
Fishing Zone through regulations. New subsection 98A(6) allows for the application of an
infringement notice in a wide range of circumstances for alleged contraventions of
subsection 93(1) or subsection 95(5) where section 7 or 8 of the FMA is satisfied. The
application of an infringement notice is not precluded where both sections 7 and 8 are
satisfied.
Item 5 - Paragraph 168(2)(i)
393. Item 5 repeals paragraph 168(2)(i), which provides for an infringement notice scheme
for alleged contraventions of offences under sections 93, 95, 100 and determinations
made under section 42 of the FMA. Amendments to the FMR to repeal the infringement
notices scheme pursuant to paragraph 168(2)(i) of the FMA will be progressed in separate
amending regulations.
PART 2 - APPLICATION AND SAVING PROVISIONS
Item 6 - Application and saving provisions - infringement notices
394. Item 6 clarifies that Part 5 of the Regulatory Powers Act, as Part 5 applies under
section 98A of the FMA, applies in relation to alleged contraventions of subsection 93(1)
or subsection 95(5) occurring on or after the commencement of Part 2 of Schedule 4 to
the Bill. This item also clarifies that paragraph 168(2)(i) and the associated provisions
under Division 7 of Part 11 of the FMR, as in force immediately before the
commencement of Part 2 of Schedule 4 to the Bill, continue to apply on and after the
commencement of Part 2 in relation to alleged contraventions of sections 93, 95, 100 and
determinations made under section 42 of the FMA occurring before the commencement
of Part 2.
81
Schedule 5 - Amendment of the Tertiary Education Quality and Standards Agency
Act 2011
GENERAL OUTLINE
395. The Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) sets
out the requirements for the regulation of higher education. This includes to regulate
higher education using a standards-based quality framework and principles relating to
regulatory necessity, risk and proportionality. The objects of the TEQSA Act also include
to protect and enhance Australia's reputation for quality higher education and training
services, international competitiveness in the sector and excellence, diversity and
innovation in higher education. The TEQSA Act establishes the Tertiary Education
Quality and Standards Agency (TEQSA) as the national independent regulator for the
provision of higher education in Australia. TEQSA has specific regulatory powers to
regulate registered higher education providers. The Bill will allow TEQSA to continue
regulating higher education providers using the standard provisions in the Regulatory
Powers Act.
396. Current Part 6 of the TEQSA Act sets out investigative powers (including requiring
people to give information, searches of premises, warrants and powers of authorised and
issuing officers) and Part 7 provides enforcement powers (including offences and civil
penalty provisions, enforceable undertakings and injunctions).
397. This Schedule amends the TEQSA Act to trigger Parts 2, 3, 4, 5, 6 and 7 of the
Regulatory Powers Act, applying the standard monitoring, investigation, civil penalty,
infringement notices, enforceable undertakings and injunctions provisions. As a result,
Parts 6 and 7 of the TEQSA Act will be largely repealed. Amendments to the TEQSA Act
will generally align existing regulatory powers with the standard provisions of the
Regulatory Powers Act, with the exception of Part 5 of the Regulatory Powers Act which
will introduce an infringement notice scheme into the TEQSA Act. Amendments to the
TEQSA Act as part of this Schedule include modifications to the standard provisions.
398. Part 2 of the Regulatory Powers Act creates a framework for monitoring compliance
with an Act or a legislative instrument. Subsection 7(2) of the Regulatory Powers Act
states that, in order for Part 2 of the Regulatory Powers Act to operate, a provision of an
Act or legislative instrument must be made subject to monitoring under Part 2 by another
Act (a triggering Act). When a triggering Act applies Part 2 of the Regulatory Powers
Act, it must identify provisions subject to monitoring, any information or matters subject
to monitoring, any related provisions and who is an authorised applicant, authorised
person, issuing officer, the relevant chief executive and the relevant court or courts that
may exercise powers under Part 2 (see sections 8, 9, 9A, 10, 11, 12, 14, 15 and 16 of the
Regulatory Powers Act). The triggering Act must also express whether an authorised
person may be assisted by another person (see section 23 of the Regulatory Powers Act),
and whether an authorised applicant, authorised person, issuing officer or relevant chief
executive may delegate their powers and functions in relation to the provisions. If
provisions, matters or information subject to monitoring under the triggering Act apply in
external Territories or offshore areas, the triggering Act should identify whether Part 2 of
the Regulatory Powers Act extends to any external Territories.
399. Part 3 of the Regulatory Powers Act creates a framework for gathering material that
relates to the contravention of offence and civil penalty provisions of an Act or legislative
instrument. Subsection 37(2) of the Regulatory Powers Act states that, in order for Part 3
of the Regulatory Powers Act to operate, an offence or civil penalty provision of an Act
82
must be made subject to investigation under Part 3 by another Act (a triggering Act).
When a triggering Act applies Part 3 of the Regulatory Powers Act, it must identify the
provisions subject to investigation, any related provisions and who is an authorised
applicant, authorised person, issuing officer, the relevant chief executive and the relevant
court or courts that may exercise powers under Part 3 (see sections 38, 40, 41, 42, 44, 45
and 46 of the Regulatory Powers Act). The triggering Act must also express whether the
authorised person may be assisted by another person (see section 53 of the Regulatory
Powers Act), and whether the authorised applicant, authorised person, issuing officer or
relevant chief executive may delegate their powers and functions in relation to the
provisions subject to investigation under the triggering Act. If offence or civil penalty
provisions subject to investigation under the triggering Act apply in external territories or
offshore areas, the triggering Act should identify whether Part 3 of the Regulatory Powers
Act extends to any external Territories.
400. Part 4 of the Regulatory Powers Act creates a framework for the use of civil penalties
to enforce civil penalty provisions. Subsection 78(2) of the Regulatory Powers Act states
that, in order for Part 4 of the Regulatory Powers Act to operate, a civil penalty provision
must be made enforceable under Part 4 by another Act (a triggering Act). When a
triggering Act applies Part 4 of the Regulatory Powers Act, it must identify who is an
authorised applicant and the relevant court or courts that may exercise powers under Part
4 (see sections 80 and 81 of the Regulatory Powers Act). The triggering Act must also
express whether the authorised applicant may delegate their powers and functions in
relation to the civil penalty provisions of the triggering Act. If civil penalty provisions of
the triggering Act apply in external Territories or offshore areas, the triggering Act should
identify whether Part 4 of the Regulatory Powers Act extends to any external Territories.
401. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement
notices that may be issued in relation to contravention of an offence or civil penalty
provision. Subsection 99(2) of the Regulatory Powers Act states that, in order for Part 5
of that Act to operate, a provision of an Act or legislative instrument must be made
subject to an infringement notice under Part 5 by a triggering Act. When a triggering Act
applies Part 5 of the Regulatory Powers Act, it must nominate who is an infringement
officer for the purposes of exercising powers under Part 5 (see section 101 of the
Regulatory Powers Act). A triggering Act must also identify the relevant chief executive
for the purposes of exercising powers under Part 5 of the Regulatory Powers Act (see
section 102 of the Regulatory Powers Act). The triggering Act must also express whether
the relevant chief executive may delegate their powers and functions in relation to
infringement notices issued in relation to provisions of the triggering Act. If offence or
civil penalty provisions of a triggering Act are subject to an infringement notice and apply
in external Territories or offshore areas, the triggering Act should identify where Part 5 of
the Regulatory Powers Act extends to any external Territories.
402. Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing
undertakings relating to compliance with provisions of an Act. Subsection 110(2) of the
Regulatory Powers Act states that, in order for Part 6 of the Regulatory Powers Act to
operate, a provision of an Act or legislative instrument must be made enforceable under
Part 6 by a triggering Act. When a triggering Act applies Part 6 of the Regulatory Powers
Act, it must identify who is an authorised person and the relevant court or courts that may
exercise powers under Part 6 of the Regulatory Powers Act (see sections 112 and 113 of
the Regulatory Powers Act). It must also express whether the authorised person may
delegate their powers and functions under Part 6 of the Regulatory Powers Act in relation
to the enforceable undertakings provisions of the triggering Act. If provisions of the
83
triggering Act are subject to enforceable undertakings and apply in external Territories or
offshore areas, the triggering Act should identify whether Part 6 of the Regulatory Powers
Act extends to any external Territories.
403. Part 7 of the Regulatory Powers Act creates a framework for the use of injunctions to
enforce provisions of an Act. Subsection 117(2) of the Regulatory Powers Act states that,
in order for Part 7 of the Regulatory Powers Act to operate, a provision of an Act or
legislative instrument must be made enforceable under Part 7 by a triggering Act. When a
triggering Act applies Part 7 of the Regulatory Powers Act, it must identify who is an
authorised person, and the relevant court or courts that may exercise powers under Part 7
of the Regulatory Powers Act (see sections 119 and 120 of the Regulatory Powers Act).
A triggering Act must also express whether an authorised person may delegate their
powers and functions under Part 7 of the Regulatory Powers Act in relation to provisions
subject to an injunction under the triggering Act. If provisions of the triggering Act are
subject to an injunction and apply in external Territories or offshore areas, the triggering
Act should identify whether Part 7 of the Regulatory Powers Act extends to any external
Territories.
COMPARISON OF PROVISIONS
Tertiary Education Quality and Standards Agency Act 2011
The below table identifies the corresponding provisions of the Regulatory Powers Act applied
by the amendments contained in Schedule 5 to the Bill for the provisions of the TEQSA Act
that are repealed by that Schedule).
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
(provisions about
production of
documents etc are
retained - ss 63-69)
Searches of premises Part 6, Division 2 Monitoring,
Investigation
Authorised officers 70 Aligned (slightly 18, 48
may enter premises expanded - the
by consent or under Regulatory Powers
a warrant for Act also contains
monitoring or provisions relating
enforcement to completing
purposes execution of
investigation
warrants after
temporary cessation
or where execution
was stopped by court
order - see ss 59,
60)
84
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
Monitoring powers
of authorised
officers
To search 71(1)(a) Retained 19(a)
premises and
things
To examine 71(1)(b) Retained 19(b)
activities
To inspect, 71(1)(c) Retained 19(c)
examine,
measure or
test things
To make 71(1)(d) Retained 19(d)
images or
recording
To inspect 71(1)(e) Retained 19(e)
documents
To take 71(1)(f) Retained 19(f)
extracts from
or make
copies of
documents
To take 71(1)(g) Retained 19(g)
required
equipment
and materials
onto
premises
To operate 71(2) Retained 20(1)
equipment or
use storage
devices to
search for
relevant
information
To remove 71(3) Retained 20(4)
information
via storage
85
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
device or
documents
Operation of 71(4) Retained 20(5)
equipment
without
damage
To secure 71(5) Retained through 8, 9, 22, as triggered
evidence of scope of provisions by new subsection
offences or subject to 115(1) of the
civil penalty monitoring TEQSA Act which
provisions provides that
(where entry provisions of the
is under TEQSA Act,
warrant) provisions of an
instrument made
under subsection
58(1) of the TEQSA
Act, and offences
against the Crimes
Act 1914 or the
Criminal Code that
relate to the TEQSA
Act are subject to
monitoring.
(Provisions and
information subject
to monitoring under
the ESOS Act are
also identified as
related provisions.)
Extensions to 71(6)-71(9) As above - retained 22(2)-22(4) (in
securing of through scope of relation to extension
evidence provisions subject to of period by issuing
monitoring officer see s 33)
Enforcement powers
of authorised
officers
To search 72(1)(a) Retained 49(a)
premises and
things (where
entry is with
86
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
consent)
To search for 72(1)(b) Retained 49(b)
and seize
evidential
material
(where entry
is under
warrant)
To inspect, 72(1)(c) Aligned 49(c) (no power to
examine, take samples)
measure, test
or sample
evidential
material
To make 72(1)(d) Retained 49(d)
images or
recording of
premises or
evidential
material
To take 72(1)(e) Retained 49(e)
required
equipment
and materials
onto
premises
To operate 72(2) Retained 50(1)
equipment or
use storage
devices to
search for
evidential
material
To seize 72(3)(a) Retained 50(2)(a)
equipment or
storage
device
(where entry
is under
warrant)
87
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
To remove 72(3)(b)-72(3)(c) Retained 50(2)(b)-50(2)(c)
evidential
material via
storage
device or
documents
Operation of 72(4) Retained 50(3)
equipment
without
damage
To seize 72(5) Retained 50(4)
equipment or
storage
device
(where
removal via
storage
device or
documents is
not
practicable or
possession
could
constitute an
offence)
To seize 72(6) Retained 52
other
evidential
material
(where entry
is under
warrant)
Persons assisting 73 Retained 23, 53 as triggered
by new subsections
115(12) and 116(11)
of the TEQSA Act.
Use of force in 74 Repealed N/A
executing a warrant
Authorised officer 75 Retained 24, 54
may ask questions
88
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
and seek production
of documents
(offence to fail to
comply where entry
is under warrant)
Abrogation of 76(1) Repealed See sections 17 and
privilege against 47 which provide
self-incrimination or that the privilege
exposure to penalty against self-
incrimination and
legal professional
privilege are not
abrogated.
Use immunity 76(2) Repealed N/A
Obligations and Part 6, Division 3 Part 2, Division 3,
incidental powers of Part 3, Division 3
authorised officers
Consent 77 Aligned 25, 55 (authorised
person must also
show identity card as
soon as reasonably
practicable after
entry.)
Announcement 78 Aligned 26, 56 (no ability to
before entry under dispense with
warrant announcement prior
to entry where
necessary to ensure
execution of a
monitoring warrant
is not frustrated.)
Authorised officer to 79 Retained 27, 57
be in possession of
warrant
Details of warrant to 80 Retained 28, 58
be given to occupier
Securing equipment 81 Retained 21, 51 (period may
for use by experts be extended under ss
(where entry is
89
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
under warrant) 33 or 74)
Compensation for 82 Retained 29, 61
damage to electronic
equipment
Occupier's rights Part 6, Division 4 Part 2, Division 4;
and responsibilities Part 3, Division 4
Occupier entitled to 83 Retained 30, 62
observe execution of
warrant
Occupier to provide 84 Retained 31, 63
authorised officer
with facilities and
assistance (offence)
General provisions Part 6, Division 5 Part 3, Division 5
relating to seizure
Copies of things 85 Retained 64
seized during
execution of
enforcement warrant
to be provided
Receipts for things 86 Retained 65
seized
Return of seized 87 Retained 66
things
Issuing officer may 88 Aligned 67
permit a thing to be
retained
Disposal and 89 Retained 68, 69
compensation if
cannot be returned
Warrants Part 6, Division 6 Part 2 Division 5;
Part 3 Division 6
Issuing monitoring 90 Aligned - warrant 32
warrants ceases to be in force
(application, issue, three months after
90
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
content) issue
Issuing enforcement 91 Aligned 70
warrants
(application, issue,
content)
Enforcement 92 Retained 71, 72
warrants by
telephone etc.
(includes
arrangements for
form of warrant etc.)
Offence relating to 93 Retained 73
warrants by
telephone etc.
Identity cards Part 6, Division 7 Part 2 Division 8;
Part 3 Division 9
(provisions about
authorised officers
are retained - s 94)
Identity cards 95 Aligned 35, 76 (under the
Regulatory Powers
Act identity cards
must, as well as
being carried at all
times when
exercising
monitoring or
investigation
powers, be shown at
prescribed times -
see ss 25, 26, 35(6),
55, 56, 76(6).)
Powers of issuing Part 6, Division 8 Part 2 Division 7;
officers Part 3 Division 8
Federal Circuit 96 Repealed - the RPA See ss 14 and 44 as
Court Judges-- does not require an triggered by new
consent to issuing officer to subsections 115(6)
nomination consent to and 116(5) of the
nomination, but the
91
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
conferred powers TEQSA Act.
need not be
accepted.
Magistrates are
issuing officers for
the purposes of the
TEQSA Act and
individual written
Ministerial
nominations are not
required.
Issuing officers-- 97 34, 75
personal capacity
(provisions about
administrative
sanctions and
offences and civil
penalty provisions
are retained - Part
7, Divisions 1 and 2
(Subdivision A))
Obtaining a civil Part 7, Division 2, Part 5
penalty order Subdivision B
Civil penalty orders 115 Retained through 82, 84, 87 (see new
modification of the subsection 117(6) of
operation of the the TEQSA Act
Regulatory Powers which deals with the
Act determination of
pecuniary penalties
and application of
the standard
corporate multiplier)
Involvement in 116 Retained 92
contravening civil
penalty provision
Recovery of a 117 Retained 83
pecuniary penalty
Two or more 118 Retained 86
proceedings may be
92
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
heard together
Continuing and 119 Retained 85, 93
multiple
contraventions of
civil penalty
provisions
Mistake of fact 120 Aligned 95 (note also ss 94
which deals with
state of mind for
civil penalty order
proceedings, 96
which deals with
evidential burden
and 97 which
attributes certain
elements done by
employees, agents
and officers to the
relevant body
corporate)
Civil penalty Part 7, Division 2, Part 5 Division 3
proceedings and Subdivision C
criminal proceedings
Civil proceedings 121 Retained 88
after criminal
proceedings
Criminal 122 Retained 89
proceedings during
civil proceedings
Criminal 123 Retained 90
proceedings after
civil proceedings
Evidence given in 124 Retained 91
civil proceedings not
admissible in
criminal proceedings
Enforceable Part 7, Division 3 Part 6
undertakings
93
Current provision in Provision Provision as Applicable provision
the TEQSA Act amended by this (Regulatory Powers
Schedule Act)
Acceptance of 125(1)-125(4) Retained 114
undertakings
Publication of 125(5) Retained through See new subsection
undertakings modification of the 119(6) of the
operation of the TEQSA Act which
Regulatory Powers provides for
Act publication of
undertakings
Enforcement of 126 Retained 115
undertakings
Injunctions Part 7, Division 4 Part 7
Restraining and 127 Aligned - the 121
performance Regulatory Powers
injunctions Act as triggered by
the TEQSA Act does
not provide for
injunctions in
relation to offences
against the Crimes
Act 1914 or
Criminal Code.
(provisions for
injunctions relating
online cheating
services are retained
- s 127A)
Interim injunctions 128 Retained 122
Discharging or 129 Retained 123
varying injunctions
Certain limits on 130 Retained 130
granting injunctions
not to apply
Other powers of the 131 Retained 131
Court unaffected
Note that the TEQSA Act will be gaining an infringement notice scheme, through the
application of Part 5 of the Regulatory Powers Act. There is no existing infringement notice
scheme in the TEQSA Act.
94
PART 1 - MAIN AMENDMENTS
Division 1--Amendments
Tertiary Education Quality and Standards Agency Act 2011
Items 1, 2 and 3 - Section 5
404. Item 1 repeals the definition of civil penalty order in section 5 of the TEQSA Act.
This definition is no longer necessary, as this Schedule amends the TEQSA Act to apply
the standard provisions of the Regulatory Powers Act. Civil penalty order is defined in
section 4 of that Act.
405. Item 2 repeals the definition of civil penalty provision in section 5 of the TEQSA Act
and substitutes it with a new definition. The substituted definition provides that civil
penalty provision has the same meaning as in the Regulatory Powers Act. Civil penalty
provision is defined in section 4 of that Act.
406. Item 3 repeals the definitions of enforcement powers, enforcement warrant, evidential
material, issuing officer, monitoring powers, monitoring warrant, person assisting, and
warrant in section 5 of the TEQSA Act. These definitions are no longer necessary, as this
Schedule amends the TEQSA Act to apply the standard provisions of the Regulatory
Powers Act.
Item 4 - Part 6 (heading)
407. Item 4 repeals the existing heading to Part 6 of the TEQSA Act, 'Investigative
powers', and substitutes it with a new heading, 'Information gathering and authorised
officers'. This amendment reflects the amendments made below.
Item 5 - Divisions 2 to 6 of Part 6
408. Item 5 repeals Divisions 2 to 6 of Part 6. Current Divisions 2 to 6 contain provisions
relating to monitoring and investigation powers, including searches of premises,
obligations and powers of authorised officers to conduct searches of premises, occupier's
rights and responsibilities, seizure of things, and issuing of monitoring or enforcement
warrants.
409. Those provisions are no longer necessary, as item 12 below amends the TEQSA Act
to apply the standard monitoring and investigation provisions in Parts 2 and 3 of the
Regulatory Powers Act. The comparison table provided above identifies the
corresponding provisions of the Regulatory Powers Act for the provisions of the
TEQSA Act that are repealed by this item.
Item 6 - Division 7 of Part 6
410. Item 6 repeals the existing heading to Division 7 of Part 6 of the TEQSA Act,
'Authorised officers and identity cards' and substitutes it with a new heading, 'Authorised
officers'. This item reflects the amendments made in item 7 below.
Item 7 - Section 95
411. Item 7 repeals section 95 of the TEQSA Act, which currently provides for matters
relating to the issuance and requirements of identity cards.
412. Application of the standard monitoring and investigation provisions in Parts 2 and 3
of the Regulatory Powers Act means that section 95 of the TEQSA Act is no longer
necessary, as matters relating to identity cards are provided for by sections 35 and 76 of
95
the Regulatory Powers Act. Item 17 below provides for a saving provision in relation to
the repeal of section 95.
Item 8 - Division 8 of Part 6
413. Item 8 repeals Division 8 of Part 6 of the TEQSA Act. Current Division 8 provides
for various matters relating to powers of issuing officers.
414. Those provisions are no longer necessary, as item 12 below amends the TEQSA Act
to apply the standard monitoring and investigation provisions in Parts 2 and 3 of the
Regulatory Powers Act and includes powers of issuing officers. The comparison table
provided above identifies the corresponding provisions of the Regulatory Powers Act for
the provisions of the TEQSA Act that are repealed by this item.
Item 9 - Before Division 1 of Part 7
415. Item 9 inserts Division 1A 'Simplified Outline' before Division 1 of Part 7 of the
TEQSA Act.
416. Division 1A inserts section 97, which provides a simplified outline of Part 7. The
simplified outline clarifies that Part 7 contains triggering provisions for various Parts of
the Regulatory Powers Act, to allow for a range of enforcement activities in relation to
the TEQSA Act.
Item 10 - Subdivision A of Division 2 of Part 7 (heading)
417. Item 10 repeals the heading of Subdivision A of Division 2 of Part 7 of the
TEQSA Act. This item is consequential to item 11 below.
Item 11 - Subdivisions B and C of Division 2 of Part 7
418. Item 11 repeals Subdivisions B and C of Division 2 of Part 7. Current Subdivisions B
and C provide for various matters in relation to obtaining a civil penalty order, and civil
proceedings and criminal proceedings.
419. Those provisions are no longer necessary, as item 12 below amends the TEQSA Act
to apply the standard civil penalty provisions in Part 4 of the Regulatory Powers Act. The
comparison table provided above identifies the corresponding provisions of the
Regulatory Powers Act for the provisions of the TEQSA Act that are repealed by this
item.
Item 12 - Division 3 of Part 7
420. Item 12 repeals Division 3 of Part 7 of the TEQSA Act and substitutes new divisions,
which apply the standard provisions in the Regulatory Powers Act.
Division 3 - Monitoring
421. New Division 3 of Part 7 sets out the triggering provisions for the standard monitoring
powers available under the TEQSA Act through application of Part 2 of the Regulatory
Powers Act.
New section 115 - Monitoring powers
422. New subsection 115(1) provides that provisions of the TEQSA Act, provisions of an
instrument made under subsection 58(1) of the TEQSA Act, and offences under the
Crimes Act 1914 or the Criminal Code that relate to the TEQSA Act are subject to
monitoring under Part 2 of the Regulatory Powers Act.
96
423. New subsection 115(2) provides that information given in compliance or purported
compliance with a provision of the TEQSA Act is subject to monitoring under Part 2 of
the Regulatory Powers Act.
424. New subsection 115(3) provides that for the purposes of Part 2 of the Regulatory
Powers Act, a provision mentioned in subsection 130(1) of the Education Services For
Overseas Students Act 2000 (ESOS Act) is related to the provisions mentioned in new
subsection 115(1) and a provision mentioned in subsection 130(2) of the ESOS Act is
related to the information mentioned in new subsection 115(2). Amendments to the ESOS
Act to trigger the standard provisions of the Regulatory Powers Act are included in
Schedule 3 to this Bill.
425. New subsection 115(4) provides that for the purposes of Part 2 of the Regulatory
Powers Act, a TEQSA Commissioner, the Chief Executive Officer (CEO) of TEQSA and
an authorised officer are authorised applicants.
426. New subsection 115(5) provides that an authorised officer (as defined in section 5 of
the TEQSA Act) is an authorised person for the purposes of the monitoring powers
provided by Part 2 of the Regulatory Powers Act.
427. New subsection 115(6) provides that for the purposes of the powers triggered under
section 115, a magistrate is an issuing officer. The Regulatory Powers Act provides that
issuing officers must be judicial officers. This would usually be a magistrate of a State or
Territory and this would be consistent with A Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers.
428. New subsection 115(7) provides that for the purposes of the standard monitoring
provisions triggered under section 115, the CEO of TEQSA is the relevant chief
executive.
429. New subsections 115(8) and (9) allow the CEO to delegate the powers and functions
under Part 2 of the Regulatory Powers Act, as applied to the TEQSA Act, and powers
incidental to those powers, to a member of staff of TEQSA who is an SES employee or
acting SES employee, or an APS employee who holds or performs the duties of an
Executive Level 1 or 2 position or an equivalent position. The delegation must be in
writing. New subsection 115(10) provides that a person exercising powers or performing
functions under such a delegation must comply with any directions of the CEO.
430. While in general, the delegation of relevant chief executive powers should be
confined to members of the SES, it is appropriate in this context to provide for a wider
delegation. TEQSA is a small agency, with approximately 100 full-time equivalent
employees and only one SES employee. It is necessary to allow the CEO to delegate
powers as far as Executive Level 1 employees (depending on the specific power) to
ensure that TEQSA has an appropriately empowered decision maker available to exercise
the powers specified in new subsection 115(8), and equivalent subsections in new
sections 116, 117, 118, and 119. In making any delegation, the CEO will ensure that all
delegates have appropriate skills, qualifications and experience to exercise powers
delegated under these subsections. In addition, this degree of delegation is consistent with
section 154L of the TEQSA Act which allows the CEO to delegate other functions and
powers to a member of the staff of TEQSA to Executive Level 1 or higher.
431. New subsection 115(11) states that, for the powers triggered through section 115 of
the TEQSA Act, the Federal Court of Australia and the Federal Circuit Court of Australia
are each relevant courts.
97
432. New subsection 115(12) provides that an authorised person may be assisted by other
persons when exercising powers or performing functions under Part 2 of the Regulatory
Powers Act, as applied under the TEQSA Act.
433. New subsection 115(13) provides that Part 2 of the Regulatory Powers Act, as it
applies to section 115 of the TEQSA Act, extends to every external Territory.
Division 4 - Investigation
434. New Division 4 of Part 7 sets out the triggering provisions for the standard
investigation powers available under the TEQSA Act through the application of Part 3 of
the Regulatory Powers Act.
New section 116 - Investigation powers
435. New subsection 116(1) provides that a provision is subject to investigation under Part
3 of the Regulatory Powers Act if it is an offence against the TEQSA Act, a civil penalty
provision of the TEQSA Act, or an offence under the Crimes Act 1914 or the Criminal
Code that relates to the TEQSA Act.
436. New subsection 116(2) provides that for the purposes of Part 3 of the Regulatory
Powers Act, an offence against the ESOS Act, or an offence against the Crimes Act 1914
or the Criminal Code that relates to the ESOS Act, is related to evidential material that
relates to a provision mentioned in new subsection 116(1). Amendments to the ESOS Act
to trigger the standard provisions of the Regulatory Powers Act are included in Schedule
3 to this Bill.
437. New subsection 116(3) states that, for the purposes of evidential material relating to a
provision of the TEQSA Act subject to Part 3 of the Regulatory Powers Act, a TEQSA
Commissioner, the CEO and an authorised officer of TEQSA are authorised applicants.
438. New subsection 116(4) provides that an authorised officer (as defined in section 5 of
the TEQSA Act) is an authorised person in relation to evidential material for the purposes
of Part 3 of the Regulatory Powers Act.
439. New subsection 116(5) provides that for the purposes of Part 3 of the Regulatory
Powers Act, as applied to the TEQSA Act, a magistrate is an issuing officer. The
Regulatory Powers Act provides that issuing officers must be judicial officers. This
would usually be a magistrate of a State or Territory and this would be consistent with
A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers.
440. New subsection 116(6) provides that for the purposes of the standard investigation
provisions triggered under section 116, the CEO of TEQSA is the relevant chief
executive.
441. New subsections 116(7) and (8) allow the CEO to delegate the powers and functions
under Part 3 of the Regulatory Powers Act, as applied to the TEQSA Act, and powers
incidental to those powers, to a member of staff of TEQSA who is an SES employee or
acting SES employee, or an APS employee who holds or performs the duties of an
Executive Level 1 or 2 position or an equivalent position. The delegation must be in
writing. New subsection 116(9) provides that a person exercising powers or performing
functions under such a delegation must comply with any directions of the CEO. While in
general, the delegation of relevant chief executive powers should be confined to members
of the SES, it is appropriate in this context to provide for a wider delegation. This is
98
explained above at paragraph 430 in relation to the relevant chief executive's functions
under Part 2 of the Regulatory Powers Act, regarding monitoring.
442. New subsection 116(10) provides that for the powers triggered through section 116 of
the TEQSA Act, the Federal Court of Australia and the Federal Circuit Court of Australia
are each relevant courts.
443. New subsection 116(11) provides that an authorised person may be assisted by other
persons when exercising powers or performing functions under Part 3 of the Regulatory
Powers Act, as applied by the TEQSA Act.
444. New subsection 116(12) states that Part 3 of the Regulatory Powers Act, as it applies
to the TEQSA Act, extends to each external Territory.
Division 5 - Civil penalty provisions
445. New Division 5 of Part 7 of the TEQSA Act sets out the triggering provisions for the
standard civil penalty provisions available under the TEQSA Act through the application
of Part 4 of the Regulatory Powers Act.
New section 117 - Civil penalty provisions
446. New subsection 117(1) provides that each civil penalty provision of the TEQSA Act
is enforceable under Part 4 of the Regulatory Powers Act.
447. New subsection 117(2) provides that, for the purposes of Part 4 of the Regulatory
Powers Act, a TEQSA Commissioner and the CEO of TEQSA are authorised applicants
in relation to civil penalty provisions under the TEQSA Act.
448. New subsection 117(3) allows the CEO to delegate the powers and functions under
Part 4 of the Regulatory Powers Act, as applied to the TEQSA Act, to a member of staff
of TEQSA who is an SES employee or acting SES employee, or an APS employee who
holds or performs the duties of an Executive Level 2 position or an equivalent position.
The delegation must be in writing. New subsection 117(4) provides that a person
exercising powers or performing functions under such a delegation must comply with any
directions of the CEO. While in general, the delegation of relevant chief executive powers
should be confined to members of the SES, it is appropriate in this context to provide for
a wider delegation. This is explained above at paragraph 430 in relation to the relevant
chief executive's functions under Part 2 of the Regulatory Powers Act, regarding
monitoring.
449. New subsection 117(5) provides that, for the purposes of the Regulatory Powers Act,
the Federal Court and the Federal Circuit Court are relevant courts in relation to the
enforcement of civil penalty provisions of the TEQSA Act.
450. New subsection 117(6) modifies the standard provisions regarding civil penalty
provisions set out in Part 5 of the Regulatory Powers Act. This new subsection provides
that despite subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty in
relation to a contravention of a civil penalty provision of the TEQSA Act (except
subsections 114A(3) or 114B(2), which deal with the provision or advertising of
academic cheating services) must not be more than the applicable pecuniary penalty
specified for the provision.
451. Subsection 82(5) of the Regulatory Powers Act provides that if a body corporate has
contravened a civil penalty provision, the court may determine a pecuniary penalty not
exceeding an amount equal to 5 times the pecuniary penalty specified for the civil penalty
provision.
99
452. Departure from the standard Regulatory Powers Act provisions is required here
because the regulated entities subject to the civil penalty provisions under the TEQSA
Act are generally bodies corporate rather than individuals or unincorporated bodies, and
so the pecuniary penalties are set with reference to, and to be appropriate for, bodies
corporate. The subsections for which an exception is provided, about academic cheating
services, are provisions to which both individuals and bodies corporate may be subject.
As the pecuniary penalty has been set with reference to, and appropriate for, individuals,
it is appropriate for subsection 82(5) of the Regulatory Powers Act to still apply, such that
the maximum penalty that can be afforded under this section for an individual is 500
penalty units, and for bodies corporate is five times that amount.
453. New subsection 117(7) states that Part 4 of the Regulatory Powers Act, as it applies to
the TEQSA Act, extends to each external Territory.
Division 6 - Infringement notices
454. New Division 6 of Part 7 of the TEQSA Act sets out the triggering provisions of the
standard infringement notice provisions available under the TEQSA Act through
application of Part 5 of the Regulatory Powers Act.
New section 118 - Infringement notices
455. New subsection 118(1) provides that each civil penalty provision of the TEQSA Act
is subject to an infringement notice under Part 5 of the Regulatory Powers Act. The civil
penalty provisions of the TEQSA Act are appropriate for the application of an
infringement notice because of the nature of the civil penalty provisions. The introduction
of an infringement notice scheme in the TEQSA Act will provide an alternative to
litigation of a civil penalty matter. An infringement notice scheme is suitable for dealing
with minor transgressions of civil penalty provisions, where a penalty must be imposed
immediately to be effective. The civil penalties in the TEQSA Act that deal with
straightforward and objective criteria rather than complex legal distinctions are suitable
for an infringement notice scheme.
456. New subsection of 118(2) provides that, for the purposes of Part 5 of the Regulatory
Powers Act, an authorised officer, as defined in section 5 of the TEQSA Act, is an
infringement officer.
457. New subsection 118(3) provides that, for the purposes of Part 5 of the Regulatory
Powers Act, the CEO of TEQSA is the relevant chief executive.
458. New subsection 118(4) allow the CEO to delegate the powers and functions under
Part 5 of the Regulatory Powers Act, as applied to the TEQSA Act, to a member of staff
of TEQSA who is an SES employee or acting SES employee, or an APS employee who
holds or performs the duties of an Executive Level 1 or 2 position or an equivalent
position. The delegation must be in writing. New subsection 118(5) provides that a person
exercising powers or performing functions under such a delegation must comply with any
directions of the CEO. While in general, the delegation of relevant chief executive powers
should be confined to members of the SES, it is appropriate in this context to provide for
a wider delegation. This is explained above at paragraph 430 in relation to the relevant
chief executive's functions under Part 2 of the Regulatory Powers Act, regarding
monitoring.
459. New subsection 118(6) states that Part 5 of the Regulatory Powers Act, as it applies to
the TEQSA Act, extends to each external Territory.
Division 7 - Enforceable undertakings
100
460. New Division 7 of Part 7 of the TEQSA Act sets out the triggering provisions of the
standard enforceable undertakings powers available under the TEQSA Act through
application of Part 6 of the Regulatory Powers Act.
New section 119 - Enforceable undertakings
461. Subsection 119(1) provides that each provision of the TEQSA Act is enforceable
under Part 6 of the Regulatory Powers Act.
462. Subsection 119(2) provides that for the purposes of Part 6 of the Regulatory Powers
Act, as applied to the TEQSA Act, a TEQSA Commissioner and the CEO of TEQSA is
an authorised person.
463. New subsection 119(3) allows the CEO to delegate the powers and functions under
Part 6 of the Regulatory Powers Act, as applied to the TEQSA Act, to a member of staff
of TEQSA who is an SES employee or acting SES employee, or an APS employee who
holds or performs the duties of an Executive Level 2 position or an equivalent position.
The delegation must be in writing. New subsection 119(4) provides that a person
exercising powers or performing functions under such a delegation must comply with any
directions of the CEO. While in general, the delegation of relevant chief executive powers
should be confined to members of the SES, it is appropriate in this context to provide for
a wider delegation. This is explained above at paragraph 430 in relation to the relevant
chief executive's functions under Part 2 of the Regulatory Powers Act, regarding
monitoring.
464. New subsection 119(5) provides that, for the purposes of Part 6 of the Regulatory
Powers Act, the Federal Court and the Federal Circuit Court are relevant courts in relation
to undertakings accepted under the TEQSA Act.
465. New subsection 119(6) provides that, in relation to a provision mentioned in
subsection 119(1), an authorised person may publish an undertaking given in relation to
the provision by a regulated entity on the Register. The Register means the National
Register of Higher Education Providers established and maintained under section 198 of
the TEQSA Act. This requirement reflects the existing power of TEQSA to publish an
undertaking on the Register under subsection 125(5) of the TEQSA Act (which is
repealed by this item).
466. New subsection 119(7) provides that Part 6 of the Regulatory Powers Act, as it
applies to the TEQSA Act, extends to each external Territory.
Item 13 - Division 4 of Part 7 (heading)
467. Item 13 repeals the heading to Division 4 of Part 7 and substitutes it with a new
heading, 'Division 8--Injunctions'. This item updates the division numbering and is
consequential to item 12 above.
Division 8 - Injunctions
Item 14 - Section 127
468. Item 14 repeals section 127 of the TEQSA Act and substitutes it with triggering
provisions for the standard injunctions powers under Part 7 of the Regulatory Powers Act.
Current section 127 sets out matters relating to restraining and performance injunctions.
This provision is no longer necessary due to the application of the standard injunctions
powers in Part 7 of the Regulatory Powers Act.
New section 127 - Injunctions - general
101
469. New subsection 127(1) provides that each provision of the TEQSA Act is enforceable
under Part 7 of the Regulatory Powers Act.
470. New subsection 127(2) provides that for the purposes of Part 7 of the Regulatory
Powers Act, as applied to the TEQSA Act, a TEQSA Commissioner and the CEO of
TEQSA is an authorised person.
471. New subsection 127(3) allows the CEO to delegate the powers and functions under
Part 7 of the Regulatory Powers Act, as applied to the TEQSA Act, to a member of staff
of TEQSA who is an SES employee or acting SES employee, or an APS employee who
holds or performs the duties of an Executive Level 2 position or an equivalent position.
The delegation must be in writing. New subsection 127(4) provides that a person
exercising powers or performing functions under such a delegation must comply with any
directions of the CEO. While in general, the delegation of relevant chief executive powers
should be confined to members of the SES, it is appropriate in this context to provide for
a wider delegation. This is explained above at paragraph 430 in relation to the relevant
chief executive's functions under Part 2 of the Regulatory Powers Act, regarding
monitoring
472. New subsection 127(5) provides that, for the purposes of Part 7 of the Regulatory
Powers Act, the Federal Court and the Federal Circuit Court are relevant courts in relation
to provisions enforceable under subsection 127(1) of the TEQSA Act.
473. New subsection 127(6) provides that Part 7 of the Regulatory Powers Act, as it
applies to the TEQSA Act, extends to each external Territory.
Item 15 - At the end of section 127A
474. Item 15 inserts subsection 127A(13), which provides for the application of sections
122 to 125 of the Regulatory Powers Act (relating to interim injunctions, discharging or
varying injunctions, limits which do not apply on granting injunctions, and clarifying that
other powers of a relevant court are unaffected) in relation to an application for, or grant
of, an injunction under section 127A. Sections 122 to 125 of the Regulatory Powers Act
should apply here just as they would apply to an application for, or grant of, an injunction
under section 121 of the Regulatory Powers Act. The purpose of this item is to trigger the
relevant provisions of the Regulatory Powers Act in light of the repeal of sections 128 to
131 by item 16.
Item 16 - Sections 128 to 131
475. Item 16 repeals sections 128 to 131. Sections 128 to 131 provide for matters relating
to interim injunctions, discharging or varying injunctions, certain limits on granting
injunctions not to apply, and other powers of the courts not affected. Those provisions are
no longer necessary as item 14 above applies the standard injunctions powers in Part 7 of
the Regulatory Powers Act, which contains equivalent provisions. The comparison table
provided above identifies the corresponding provisions of the Regulatory Powers Act for
the provisions of the TEQSA Act that are repealed by this item.
476. Item 22 below provides for application and saving provisions in relation to the repeal
of these sections.
Division 2--Application and saving provisions
477. Division 2 provides for various application and saving provisions in relation to the
amendments made by this Bill.
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Item 17 - Saving provisions--identity cards
478. Item 17 provides that despite the repeal of section 95 of the TEQSA Act by item 7
above, section 95, as in force immediately before the commencement of Part 7, continues
to apply on and after that commencement in relation to a person who ceased to be an
authorised officer before that commencement.
Item 18 - Application and savings provisions--monitoring and investigation
479. Item 18(1) provides for the application of monitoring provisions under Part 2 of the
Regulatory Powers Act as it applies under Division 3 of Part 7 of the TEQSA Act (at item
12 above), and makes it clear that the provisions apply in relation to determining whether
a provision mentioned in subsection 115(1) of the TEQSA Act has been complied with
before, on or after the commencement of Part 1 of Schedule 5 to the Bill and determining
whether information given in compliance or purported compliance with a provision of the
TEQSA Act before, on, or after the commencement of Part 1 is correct.
480. Item 18(2) provides for the application of investigation provisions under Part 3 of the
Regulatory Powers Act as it applies under Division 4 of Part 7 of the TEQSA Act (at item
12 above), and makes it clear that the provisions apply in relation to evidential material
that relates to a provision mentioned in subsection 116(1) of the TEQSA Act.
481. Item 18(3) provides that Divisions 2 to 8 of Part 6 of the TEQSA Act, as in force
immediately before the commencement of Part 7, continue to apply on and after that
commencement in relation to the following:
an application for a warrant made, but not decided, under Division 6 of Part 6 before
the commencement of Part 7;
a warrant issued, or completed and signed, under Division 6 of Part 6 before, on or
after that commencement as a result of an application made before the
commencement of Part 7;
powers exercised, rights created and duties imposed, under those Divisions before, on
or after that commencement as a result of: an entry onto premises before the
commencement of Part 7 with the consent of the occupier of the premises; or an entry
onto premises before, on or after that commencement as a result of a warrant referred
to above;
things secured or seized under those Divisions before, on or after the commencement
of Part 7;
a requirement made under subsection 75(2) of the TEQSA Act before, on or after the
commencement of Part 7.
Item 19 - Application and saving provisions--civil penalties
482. Item 19(1) provides for the application of civil penalty provisions under Part 4 of the
Regulatory Powers Act as it applies under Division 5 of Part 7 of the TEQSA Act (at item
12 above), and makes it clear that the amendments apply in relation to contraventions of
civil penalty provisions of the TEQSA Act occurring on or after the commencement of
Part 7.
483. Item 19(2) provides that Subdivisions B and C of Division 2 of Part 7, as in force
immediately before the commencement of Part 1 of Schedule 5 of the Bill, continue to
apply on and after that commencement in relation to contraventions of civil penalty
provisions of the TEQSA Act occurring before that commencement.
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Item 20 - Application provision--infringement notices
484. Item 20 provides for the application of infringement notice provisions under Part 5 of
the Regulatory Powers Act as it applies under Division 6 of Part 7 of the TEQSA Act (at
item 12 above), and makes it clear that the amendments apply in relation to alleged
contraventions of civil penalty provisions of the TEQSA Act occurring on or after the
commencement of Part 1 of Schedule 5 of the Bill.
Item 21 - Application and saving provisions--enforceable undertakings
485. Item 21(1) provides for the application of enforceable undertakings provisions under
Part 6 of the Regulatory Powers Act as it applies under Division 7 of Part 7 of the
TEQSA Act (at item 12 above), and makes it clear that the amendments apply in relation
to undertakings given on or after the commencement of this Part.
486. Item 21(2) provides that Division 3 of Part 7 of the TEQSA Act, as in force
immediately before the commencement of this Part, continues to apply on and after that
commencement in relation to the following:
an undertaking given under Division 3 of Part 7 before the commencement of this
Part;
an application for an order made, but not decided, under Division 3 of Part 7 before
the commencement of this Part; and
an order made under Division 3 of Part 7 before, on, or after the commencement of
this Part as a result of an application made before that commencement.
Item 22 - Application and savings provisions--injunctions
487. Item 22(1) provides for the application of injunctions provisions under Part 7 of the
Regulatory Powers Act as it applies under section 127 of the TEQSA Act (at item 14
above), and makes it clear that the amendments apply in relation to contraventions
occurring on or after the commencement of this Part.
488. Item 22(2) provides that sections 127 and 128 to 131 of the TEQSA Act, as in force
immediately before the commencement of this Part, continue to apply on and after that
commencement in relation to:
contraventions referred to in section 127 of the TEQSA Act occurring before that
commencement;
an application made, but not decided, under section 127 of the TEQSA Act before that
commencement; and
an injunction granted under section 127 or 128 of the TEQSA Act before, on or after
that commencement as a result of an application made under section 127 of that Act
before that commencement.
489. Item 22(3) provides that sections 128 to 131 of the TEQSA Act, as in force
immediately before the commencement of this Part, continue to apply on and after that
commencement in relation to:
an application made, but not decided, under section 127A of the TEQSA Act before
that commencement; and
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an injunction granted under section 127A or 128 of the TEQSA Act before, on or after
the commencement as a result of an application under section 127A of that Act before
that commencement.
PART 2 - AMENDMENTS RELATING TO THE EDUCATION LEGISLATION
AMENDMENT (UP-FRONT PAYMENTS TUITION PROTECTION) ACT 2020
490. This Part sets out amendments to the TEQSA Act that are required to be made after
the commencement of the Education Legislation Amendment (Up-Front Payments
Tuition Protection) Act 2020 (ELAA). The Tuition Protection Act extends the Australian
Government's Tuition Protection Service to include domestic up-front fee paying higher
education students. It is necessary to repeal and amend provisions introduced through that
Act because of the adoption of the Regulatory Powers Act as it applies to the entire
TEQSA Act through this Bill. The ELAA triggered the Regulatory Powers Act only in
respect to the provisions of new Part 5A (tuition protection) of the TEQSA Act.
Item 23 - Section 5 (definition of applicable court)
491. Item 23 repeals the definition of applicable court in section 5 of the TEQSA Act. This
definition is no longer necessary, as this Schedule amends the TEQSA Act to apply the
standard provisions of the Regulatory Powers Act.
Item 24 - Section 5 (definition of civil penalty provision)
492. Item 24 repeals the definition of civil penalty provision in section 5 of the TEQSA
Act and substitutes it with a new definition. The substituted definition provides that civil
penalty provision has the same meaning as in the Regulatory Powers Act. Civil penalty
provision is defined in section 4 of that Act.
Item 25 - Section 5 (definition of judicial officer)
493. Item 24 repeals the definition of judicial officer in section 5 of the TEQSA Act. This
definition is no longer necessary, as this Schedule amends the TEQSA Act to apply the
standard provisions of the Regulatory Powers Act. Judicial officer is defined in section 4
of that Act.
Item 26 - Section 5
494. Item 26 inserts the definition of Regulatory Powers Act in section 5 of the TEQSA
Act. A reference to the Regulatory Powers Act means the Regulatory Powers (Standard
Provisions) Act 2014.
Item 27 - Section 104
495. Item 27 repeals section 104 of the TEQSA Act. Current section 104 sets out a guide to
offences and civil penalty provisions under the TEQSA Act. This provision is now
unnecessary as this Schedule makes amendments to the civil penalty provisions by
applying the standard civil penalty provisions under Part 4 of the Regulatory Power Act.
Item 28 - Subsection 115(1) (note) (the note inserted by the Education Legislation
Amendment (Up-front Payments Tuition Protection) Act 2020)
496. Item 28 repeals the note after subsection 115(1). The current note clarifies that civil
penalty provisions under Part 5A of the TEQSA Act are enforceable under the Regulatory
Powers Act. This note is now unnecessary as this Schedule makes amendments to the
civil penalty provisions by applying the standard civil penalty provisions under Part 4 of
the Regulatory Power Act to the whole TEQSA Act instead of just Part 5A.
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Item 29 - Subsection 115(2)
497. Item 29 repeals subsection 115(2) of the TEQSA Act and substitutes it with a new
provision. New subsection 115(2) provides that information given in compliance or in
purported compliance with a provision of the TEQSA Act or of the Up-front Payments
Guidelines is subject to monitoring under Part 2 of the Regulatory Powers Act.
498. The difference between the old and new subsection is the inclusion of information
given in compliance or in purported compliance of the Up-front Payments Guidelines.
The enabling provision for the Guidelines was inserted by the ELAA.
Item 30 - Subsections 115(4) and (5)
499. Item 30 repeals subsections 115(4) and (5) of the TEQSA Act and substitutes the
subsections with new provisions.
500. New paragraph 115(4)(a) provides that for the purposes of Part 2 of the Regulatory
Powers Act, a Commissioner, the CEO, or an authorised officer of TEQSA are authorised
applicants in relation to a provision of the TEQSA Act (except Part 5A), a provision of an
instrument made under subsection 58(1) or an offence against the Crimes Act 1914 or the
Criminal Code that relates to a provision of the TEQSA Act (except Part 5A), and
information given in compliance or purported compliance with a provision of the TEQSA
Act (except Part 5A) or of the Up-front Payments Guidelines.
501. New paragraph 115(4)(b) provides that for the purposes of Part 2 of the Regulatory
Powers Act, each Higher Education Support Act 2003 (HESA) investigator and
authorised officer is an authorised applicant in relation to a provision of Part 5A, an
offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of
Part 5A, and information given in compliance or purported compliance with a provision
of Part 5A.
502. New paragraph 115(5)(a) provides that an authorised officer (as defined in section 5
of the TEQSA Act) is an authorised person for the purposes of the monitoring powers
provided by Part 2 of the Regulatory Powers Act in relation to a provision of the TEQSA
Act (except Part 5A), a provision of an instrument made under subsection 58(1) or an
offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of
the TEQSA Act (except Part 5A), and information given in compliance or purported
compliance with a provision of the TEQSA Act (except Part 5A) or of the Up-front
Payments Guidelines.
503. New paragraph 115(5)(b) provides that each HESA investigator and authorised officer
is an authorised person in relation to a provision of Part 5A, an offence against the Crimes
Act 1914 or the Criminal Code that relates to a provision of Part 5A, and information
given in compliance or purported compliance with a provision of Part 5A.
504. The difference between the old and new subsections 115(4) and (5) is that the new
subsections take into account that different monitoring regimes are established in Part 5A
of the TEQSA Act as compared to the rest of the Act. Part 5A was inserted by the ELAA.
Item 31 - Subsections 115(7) to (10)
505. Item 31 repeals subsections 115(7) to (10) of the TEQSA Act, and substitutes these
provisions with new subsection 115(7). The effect of subsections 115(8) to (10),
containing matters related to delegation by the CEO of TEQSA, is preserved in
subsection 154L(2) of the TEQSA Act (inserted by the ELAA) as amended by items 41
and 42 below.
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506. New paragraph 115(7)(a) provides for the purposes of the standard monitoring
provisions triggered under subsections 115(1) and (2), the CEO of TEQSA is the relevant
chief executive.
507. New paragraph 115(7)(b) provides that the Secretary is also a relevant chief executive
in relation to a provision of Part 5A, an offence against the Crimes Act 1914 or the
Criminal Code that relates to a provision of Part 5A, and information given in compliance
or purported compliance with a provision of Part 5A.
508. The difference between the old and new subsections 115(7) is that the new subsection
takes into account that different monitoring regimes are established in Part 5A of the
TEQSA Act as compared to the rest of the Act. Part 5A was inserted by the ELAA.
Item 32 - Subsections 116(3) and (4)
509. Item 32 repeals subsections 116(3) and (4) and substitutes these subsections with new
provisions.
510. New paragraph 116(3)(a) provides that, for the purposes of Part 3 of the Regulatory
Powers Act, the CEO, each TEQSA Commissioner, and an authorised officer of TEQSA
are authorised applicants in relation to evidential material that relates to an offence
against the TEQSA Act (except Part 5A), a civil penalty provision of the TEQSA Act
(except Part 5A) or an offence against the Crimes Act 1914 or the Criminal Code that
relates to a provision of the TEQSA Act (except Part 5A).
511. New paragraph 116(3)(b) provides that, for the purposes of Part 3 of the Regulatory
Powers Act, each HESA investigator and authorised officer is an authorised applicant in
relation to evidential material that relates to an offence against Part 5A, a civil penalty
provision of Part 5A, and an offence against the Crimes Act 1914 or the Criminal Code
that relates to a provision of Part 5A.
512. New paragraph 116(4)(a) provides that, for the purposes of Part 3 of the Regulatory
Powers Act, an authorised officer (as defined in section 5 of the TEQSA Act) is an
authorised person in relation to evidential material that relates to an offence against the
TEQSA Act (except Part 5A), a civil penalty provision of the TEQSA Act (except Part
5A), and an offence against the Crimes Act 1914 or the Criminal Code that relates to a
provision of the TEQSA Act (except Part 5A).
513. New paragraph 116(4)(b) provides that for the purposes of Part 3 of the Regulatory
Powers Act, each HESA investigator and authorised officer is an authorised person in
relation to evidential material that relates to an offence against Part 5A, a civil penalty
provision of Part 5A, and an offence against the Crimes Act 1914 or the Criminal Code
that relates to a provision of Part 5A.
514. The difference between the old and new subsections 116(3) and (4) is that the new
subsections take into account that different investigation regimes are established in Part
5A of the TEQSA Act as compared to the rest of the Act. Part 5A was inserted by the
ELAA.
Item 33 - Subsection 116(6) to (9)
515. Item 33 repeals subsections 116(6) to (9) of the TEQSA Act. Item 33 only replaces
subsection 116(6). The effect of subsections 116(7) to (9), containing matters related to
delegation by the CEO of TEQSA, is preserved in subsection 154L(2) of the TEQSA Act
(inserted by the ELAA) as amended by items 41 and 42 below.
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516. New paragraph 116(6)(a) provides that, in relation to evidential material that relates to
a provision mentioned in subsection 116(1), the CEO of TEQSA is the relevant chief
executive.
517. New paragraph 116(6)(b) provides that the Secretary is also a relevant chief executive
in relation to a provision of Part 5A, a civil penalty provision of Part 5A and an offence
against the Crimes Act 1914 or the Criminal Code that relates to Part 5A.
518. The difference between the old and new subsection 116(6) is that the new subsection
takes into account that different monitoring regimes are established in Part 5A of the
TEQSA Act as compared to the rest of the Act. Part 5A was inserted by the ELAA.
Item 34 - Subsection 117(2) to (4)
519. Item 34 repeals subsection 117(2) to (4) of the TEQSA Act and substitutes it with a
new provision. Item 34 only replaces subsection 117(2). The effect of subsections 117(3)
and (4), containing matters related to delegation by the CEO of TEQSA, is preserved in
subsection 154L(2) of the TEQSA Act (inserted by the ELAA) as amended by items 41
and 42 below.
520. New paragraph 117(2)(a) provides that, for the purposes of Part 4 of the Regulatory
Powers Act, a TEQSA Commissioner, the CEO of TEQSA and an authorised officer is an
authorised applicant in relation to civil penalty provisions under the TEQSA Act (except
for civil penalty provisions of Part 5A).
521. New paragraph 117(2)(b) provides that, for the purposes of Part 4 of the Regulatory
Powers Act, the Higher Education Tuition Protection Director is an authorised applicant
in relation to civil penalty provisions of Part 5A of the TEQSA Act.
522. The difference between the old and new subsection 117(2) is that the new subsection
takes into account that different civil penalty regimes are established in Part 5A of the
TEQSA Act as compared to the rest of the Act. Part 5A was inserted by the ELAA.
Item 35 - Subsections 118(2) to (6)
523. Item 35 repeals subsections 118(2) to (6) of the TEQSA Act. Item 35 only replaces
subsections 118(2) and (3). The effect of subsections 118(4) to (6), containing matters
related to delegation by the CEO of TEQSA, is preserved in subsection 154L(2) of the
TEQSA Act (inserted by the ELAA) as amended by items 41 and 42 below.
524. New paragraph 118(2)(a) provides that, for the purposes of Part 5 of the Regulatory
Powers Act, an authorised officer is an infringement officer in relation to the provisions
mentioned in subsection 118(1), except a provision of Part 5A.
525. New paragraph 118(2)(b) provides that, for the purposes of Part 5 of the Regulatory
Powers Act, the Higher Education Tuition Protection Director is an infringement officer
in relation to a civil penalty provision of Part 5A.
526. New paragraph 118(3)(a) provides that, for the purposes of Part 5 of the Regulatory
Powers Act, the CEO of TEQSA is the relevant chief executive in relation to the penalty
provisions mentioned in subsection 118(1), except a provision of Part 5A.
527. New paragraph 118(3)(b) provides that, for the purposes of Part 5 of the Regulatory
Powers Act, the Higher Education Tuition Protection Director is the relevant chief
executive in relation to a civil penalty provision of Part 5A of the TEQSA Act.
528. The difference between the old and new subsections 118(2) and (3) is that the new
subsections take into account that different civil penalty regimes are established in Part
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5A of the TEQSA Act as compared to the rest of the Act. Part 5A was inserted by the
ELAA.
Item 36 - Subsections 119(2) to (4)
529. Item 36 repeals subsections 119(2) to (4) of the TEQSA Act. Item 36 only replaces
subsection 119(2). The effect of subsections 119(3) to (4), containing matters related to
delegation by the CEO of TEQSA, is preserved in subsection 154L(2) of the TEQSA Act
(inserted by the ELAA) as amended by items 41 and 42 below.
530. New paragraph 119(2)(a) provides that, for the purposes of Part 6 of the Regulatory
Powers Act, a TEQSA Commissioner and the CEO of TEQSA are authorised persons in
relation a provision of the TEQSA Act except for provisions of Part 5A.
531. New paragraph 119(2)(b) provides that, for the purposes of Part 6 of the Regulatory
Powers Act, the Secretary is an authorised person in relation to a provision of Part 5A of
the TEQSA Act.
532. The difference between the old and new subsection 119(2) that the new subsection
takes into account that different civil penalty regimes are established in Part 5A of the
TEQSA Act as compared to the rest of the Act. Part 5A was inserted by the ELAA.
Item 37 - Subsection 127(1) (note) (the note inserted by the Education Legislation
Amendment (Up-front Payments Tuition Protection) Act 2020)
533. Item 37 repeals the note after subsection 127(1). The current note clarifies injunctions
in relation to Part 5A of the TEQSA Act are obtained under the Regulatory Powers Act.
This note is now unnecessary as this Schedule makes amendments to the injunctions
provisions by applying the standard injunction provisions under Part 7 of the Regulatory
Powers Act to the whole TEQSA Act instead of just Part 5A.
Item 38 - Subsections 127(2) to (4)
534. Item 38 repeals subsections 127(2) to (4) of the TEQSA Act. Item 38 only replaces
subsection 127(2). The effect of subsections 127(3) to (4), containing matters related to
delegation by the CEO of TEQSA, is preserved in subsection 154L(2) of the TEQSA Act
(inserted by the ELAA) as amended by items 41 and 42 below.
535. New paragraph 127(2)(a) provides that, for the purposes of Part 7 of the Regulatory
Powers Act, a TEQSA Commissioner and the CEO of TEQSA are authorised persons in
relation a provision under the TEQSA Act except for provisions of Part 5A.
536. New paragraph 127(2)(b) provides that, for the purposes of Part 7 of the Regulatory
Powers Act, the Secretary is an authorised person in relation to provisions of Part 5A of
the TEQSA Act.
537. The difference between the old and new subsection 127(2) that the new subsection
takes into account that different civil penalty regimes are established in Part 5A of the
TEQSA Act as compared to the rest of the Act. Part 5A was inserted by the ELAA.
Item 39 - Division 5 of Part 7 (the Division inserted by the Education Legislation
Amendment (Up-front Payments Tuition Protection) Act 2020)
538. Item 39 repeals Division 5 of Part 7 of the TEQSA Act, which was inserted by the
ELAA.
539. Current Division 5 of Part 7 sets out the triggering provisions for various Parts of the
Regulatory Powers Act to apply to Part 5A of the TEQSA Act. These provisions are now
unnecessary, as this Schedule makes amendments to the TEQSA Act by applying the
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standard provisions under the relevant Parts of the Regulatory Powers Act to the whole
TEQSA Act instead of just Part 5A.
Item 40 - Subsection 154L(1)
540. Item 40 omits the words '(other than the functions and powers referred to in
subsection (2))' from subsection 154L(1) of the TEQSA Act. The words were inserted by
the ELAA to make a distinction between functions and powers under Part 5A, which was
also inserted by that Act, and functions and powers under other Parts of the TEQSA Act.
However, these words are no longer necessary as subsection 154L(2) (as amended by
item 41 below) no longer provides for a distinction between Part 5A and the other Parts of
the TEQSA Act.
Item 41 - Subsection 154L(2)
541. Item 41 omits the words 'Part 5A of' from subsection 154L(2). This item only makes
technical changes to the TEQSA CEO's delegation power. This item replaces the powers
of delegation in subsections 115(8) to (10), 116(7) to (9), 117(3) and (4), 118(4) to (6),
119(3) to (4) and 127(3) to (4), which provided for powers of delegation in relation to
specific Parts of the Regulatory Powers Act, with a general power of the TEQSA CEO to
delegate any of the CEO's functions and powers under the Regulatory Powers Act as it
applies to the TEQSA Act.
Item 42 - Paragraph 154L(2)(b)
542. Item 42 would insert the words '1 or' after the words 'Executive Level'. This would
have the effect of broadening the category of persons to whom the functions and powers
of the CEO under the Regulatory Powers Act as it applies to the TEQSA Act may be
delegated to include an APS employee who holds of performs the duties of an Executive
Level 1 position.
543. TEQSA is a small agency, with approximately 100 full-time equivalent employees
and only one SES employee. It is necessary to allow the CEO to delegate powers to
Executive Level 1 employees (depending on the specific power) to ensure that TEQSA
has an appropriately empowered decision maker available to exercise the powers
specified under the Act. In making any delegation, the CEO will ensure that all delegates
have appropriate skills, qualifications and experience to exercise such delegated powers.
Item 43 - Subsection 201A(1)
544. Item 43 would omit the words 'or Division 5 of Part 7' from subsection 201A(1). This
reference to Division 5 of Part 7 is unnecessary as item 39 above repeals Division 5 of
Part 7.
PART 3--AMENDMENTS RELATING TO THE FEDERAL CIRCUIT COURT AND
FAMILY COURT OF AUSTRALIA ACT 2020
545. This Part sets out amendments to the TEQSA Act that are required to be made after
the commencement of the Federal Circuit Court and Family Court of Australia Act 2020
to ensure that the renaming of the Federal Circuit Court to the Federal Circuit and Family
Court of Australia is reflected in the TEQSA Act.
Item 44 - Paragraph 115(11)(b)
546. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 2 of
the Regulatory Powers Act, regarding monitoring, to the TEQSA Act. Accordingly,
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replacement paragraph 115(11)(b) provides that, the Federal Circuit and Family Court of
Australia (Division 2) will be a relevant court for the purposes of monitoring under Part 2
of the Regulatory Powers Act, as applied to the TEQSA Act.
Item 45 - Paragraph 116(10)(b)
547. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 3 of
the Regulatory Powers Act, regarding investigation, to the TEQSA Act. Accordingly,
replacement paragraph 116(10)(b) provides that, the Federal Circuit and Family Court of
Australia (Division 2) will be a relevant court for the purposes of investigation under Part
3 of the Regulatory Powers Act, as applied to the TEQSA Act.
Item 46 - Paragraph 117(5)(b)
548. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 4 of
the Regulatory Powers Act, regarding civil penalty provisions, to the TEQSA.
Accordingly, replacement paragraph 117(5)(b) provides that, the Federal Circuit and
Family Court of Australia (Division 2) will be a relevant court for the purposes of civil
penalty provisions under Part 4 of the Regulatory Powers Act, as applied to the TEQSA
Act.
Item 47 - Paragraph 119(5)(b)
549. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 6 of
the Regulatory Powers Act, regarding enforceable undertakings, to the TEQSA Act.
Accordingly, replacement paragraph 119(5)(b) provides that, the Federal Circuit and
Family Court of Australia (Division 2) will be a relevant court for the purposes of
enforceable undertakings under Part 6 of the Regulatory Powers Act, as applied to the
TEQSA Act.
Item 48 - Paragraph 127(5)(b)
550. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 7 of
the Regulatory Powers Act, regarding injunctions, to the TEQSA Act. Accordingly,
replacement paragraph 127(5)(b) provides that, the Federal Circuit and Family Court of
Australia (Division 2) will be a relevant court for the purposes of injunctions under Part 7
of the Regulatory Powers Act, as applied to the TEQSA Act.
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Schedule 6 - Amendment of the Tobacco Advertising Prohibition Act 1992
GENERAL OUTLINE
551. The Tobacco Advertising Prohibition Act 1992 (TAPA) sets out the requirements for
the sale and advertisement of tobacco products in, or with a link to, Australia. The
legislation prohibits the advertising of tobacco and tobacco products, with certain limited
exceptions. Tobacco advertising is a powerful influence that increases the use of tobacco
products, particularly by children and young people. The regulation of tobacco
advertising helps prevent smoking uptake and reduce smoking rates.
552. The TAPA does not currently contain any regulatory powers. This Schedule amends
the TAPA to apply the standard monitoring, investigation, enforceable undertakings and
injunctions provisions contained in Parts 2, 3, 6 and 7 of the Regulatory Powers Act.
When used in conjunction with the monitoring, investigation and enforcement powers
available under the TPPA, amendments contained in this Schedule will provide a robust
enforcement scheme in relation to the current provisions under the two Acts.
553. Part 2 of the Regulatory Powers Act creates a framework for monitoring compliance
with an Act or a legislative instrument. Subsection 7(2) of the Regulatory Powers Act
states that, in order for Part 2 of the Regulatory Powers Act to operate, a provision of an
Act or legislative instrument must be made subject to monitoring under Part 2 by another
Act (a triggering Act). When a triggering Act applies Part 2 of the Regulatory Powers
Act, it must identify provisions subject to monitoring, any information or matters subject
to monitoring, any related provisions and who is an authorised applicant, authorised
person, issuing officer, the relevant chief executive and the relevant court or courts that
may exercise powers under Part 2 (see sections 8, 9, 9A, 10, 11, 12, 14, 15 and 16 of the
Regulatory Powers Act). The triggering Act must also express whether an authorised
person may be assisted by another person (see section 23 of the Regulatory Powers Act),
and whether an authorised applicant, authorised person, issuing officer or relevant chief
executive may delegate their powers and functions in relation to the provisions. If
provisions, matters or information subject to monitoring under the triggering Act apply in
external Territories or offshore areas, the triggering Act should identify whether Part 2 of
the Regulatory Powers Act extends to any external Territories.
554. Part 3 of the Regulatory Powers Act creates a framework for gathering material that
relates to the contravention of offence and civil penalty provisions of an Act or legislative
instrument. Subsection 37(2) of the Regulatory Powers Act states that, in order for Part 3
of the Regulatory Powers Act to operate, an offence or civil penalty provision of an Act
must be made subject to investigation under Part 3 by another Act (a triggering Act).
When a triggering Act applies Part 3 of the Regulatory Powers Act, it must identify the
provisions subject to investigation, any related provisions and who is an authorised
applicant, authorised person, issuing officer, the relevant chief executive and the relevant
court or courts that may exercise powers under Part 3 (see sections 38, 40, 41, 42, 44, 45
and 46 of the Regulatory Powers Act). The triggering Act must also express whether the
authorised person may be assisted by another person (see section 53 of the Regulatory
Powers Act), and whether the authorised applicant, authorised person, issuing officer or
relevant chief executive may delegate their powers and functions in relation to the
provisions subject to investigation under the triggering Act. If offence or civil penalty
provisions subject to investigation under the triggering Act apply in external territories or
offshore areas, the triggering Act should identify whether Part 3 of the Regulatory Powers
Act extends to any external Territories.
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555. Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing
undertakings relating to compliance with provisions of an Act. Subsection 110(2) of the
Regulatory Powers Act states that, in order for Part 6 of the Regulatory Powers Act to
operate, a provision of an Act or legislative instrument must be made enforceable under
Part 6 by a triggering Act. When a triggering Act applies Part 6 of the Regulatory Powers
Act, it must identify who is an authorised person and the relevant court or courts that may
exercise powers under Part 6 of the Regulatory Powers Act (see sections 112 and 113 of
the Regulatory Powers Act). It must also express whether the authorised person may
delegate their powers and functions under Part 6 of the Regulatory Powers Act in relation
to the enforceable undertakings provisions of the triggering Act. If provisions of the
triggering Act are subject to enforceable undertakings and apply in external Territories or
offshore areas, the triggering Act should identify whether Part 6 of the Regulatory Powers
Act extends to any external Territories.
556. Part 7 of the Regulatory Powers Act creates a framework for the use of injunctions to
enforce provisions of an Act. Subsection 117(2) of the Regulatory Powers Act states that,
in order for Part 7 of the Regulatory Powers Act to operate, a provision of an Act or
legislative instrument must be made enforceable under Part 7 by a triggering Act. When a
triggering Act applies Part 7 of the Regulatory Powers Act, it must identify who is an
authorised person the relevant court or courts that may exercise powers under Part 7 of
the Regulatory Powers Act (see sections 119 and 120 of the Regulatory Powers Act).
A triggering Act must also express whether an authorised person may delegate their
powers and functions under Part 7 of the Regulatory Powers Act in relation to provisions
subject to an injunction under the triggering Act. If provisions of the triggering Act are
subject to an injunction and apply in external Territories or offshore areas, the triggering
Act should identify whether Part 7 of the Regulatory Powers Act extends to any external
Territories.
PART 1 - MAIN AMENDMENTS
Division 1 - Amendments
Tobacco Advertising Prohibition Act 1992
Item 1 - Section 8
557. Item 1 amends section 8 of the TAPA to insert definitions for authorised officer,
Regulatory Powers Act and Secretary.
558. The amendments provide that an authorised officer means a person appointed under
section 25G as an authorised officer, references to the Regulatory Powers Act mean the
Regulatory Powers (Standard Provisions) Act 2014, and Secretary means the Secretary of
the Department.
Item 2 - After Part 3
559. Item 2 inserts Part 3A into the TAPA, which triggers the Regulatory Powers Act to
provide a range of enforcement actions in relation to the TAPA.
Part 3A - Enforcement
Division 1 - Simplified outline
New section 25A - Simplified outline for this part
560. New Division 1 of Part 3A inserts section 25A which provides a simplified outline of
Part 3A. The simplified outline clarifies that Part 3A contains triggering provisions for
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various Parts of the Regulatory Powers Act. These provisions allow authorised officers,
appointed by the Secretary, to exercise powers of entry to check compliance with and
investigate contraventions, and provide for the enforcement of undertakings and a
legislative mechanism for the issuing of injunctions.
Division 2 - Monitoring powers
New section 25B - Monitoring powers
561. Division 2 of Part 3A sets out the triggering provisions for the standard monitoring
powers available under the TAPA, along with modifications to the standard provisions.
562. New subsection 25B(1) provides that offences against the TAPA and offences under
the Crimes Act 1914 or the Criminal Code that relate to the TAPA are subject to
monitoring under Part 2 of the Regulatory Powers Act. New subsection 25B(2) states that
there are no related provisions for the purpose of Part 2 of the Regulatory Powers Act, as
Part 2 relates to the provisions subject to monitoring under the TAPA.
563. New subsection 25B(3) states that for the purposes of Part 2 of the Regulatory Powers
Act, as Part 2 applies in relation to the TAPA, the Secretary of the Department and SES
employees, or acting SES employees, in the Department are authorised applicants. It is
generally appropriate for the delegation of powers of this type to be limited to SES or
acting SES.
564. New subsection 25B(4) provides that an authorised officer (as defined in the
Interpretation provisions of the TAPA) is an authorised person for the purposes of the
monitoring powers provided by Part 2 of the Regulatory Powers Act.
565. New subsection 25B(5) provides that for the purposes of the powers triggered under
section 25B, a magistrate is an issuing officer. This would usually be a magistrate of a
State or Territory and this would be consistent with A Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers.
566. New subsection 25B(6) provides that for the purposes of the standard monitoring
provisions triggered under section 25B, the Secretary is the relevant chief executive.
567. New subsections 25B(7) and 25B(8) allow the Secretary to delegate the powers and
functions under Part 2 of the Regulatory Powers Act, in relation to the provisions subject
to monitoring under the TAPA, and powers incidental to those powers, to an SES
employee or acting SES employee in the Department. The delegation must be in writing.
New subsection 25B(9) provides that a person exercising powers or performing functions
under such a delegation must comply with any directions of the Secretary. It is generally
appropriate for the delegation of powers of this type to be limited to SES or acting SES.
568. New subsection 25B(10) states that, for the powers triggered through section 25B of
the TAPA, the Federal Court of Australia and the Federal Circuit Court of Australia are
each relevant courts.
569. New subsection 25B(11) provides that an authorised person may be assisted by other
persons when exercising powers or performing functions under Part 2 of the Regulatory
Powers Act, as applied under the TAPA.
570. Subsection 25B(12) states that Part 2 of the Regulatory Powers Act, as it applies to
the TAPA, extends to every external Territory.
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Division 3 - Investigation powers
571. New Division 3 of Part 3A sets out the investigation powers available under the
TAPA, provided through the Regulatory Powers Act.
New section 25C - Investigation powers
572. New subsection 25C(1) states that a provision is subject to investigation under Part 3
of the Regulatory Powers Act if it is an offence provision under the TAPA or an offence
against the Crimes Act 1914 or the Criminal Code that relates to the TAPA. New
subsection 25C(2) states that there are no related provisions for the purpose of Part 3 of
the Regulatory Powers Act, as Part 3 relates to evidential material subject to investigation
under the TAPA.
573. New subsection 25C(3) states that, for the purposes of evidential material relating to a
provision of the TAPA subject to Part 3 of the Regulatory Powers Act, the Secretary of
the Department and SES employees or acting SES employees in the Department are
authorised applicants. It is generally appropriate for the delegation of powers of this type
to be limited to SES or acting SES.
574. New subsection 25C(4) provides that, for the purposes of Part 3 of the Regulatory
Powers Act as Part 3 is applied by section 25C of the TAPA, an authorised officer (as
defined in the Interpretation provisions of the TAPA) is an authorised person in relation
to evidential material.
575. New subsection 25C(5) provides that for the purposes of Part 3 of the Regulatory
Powers Act, as applied to the TAPA, a magistrate is an issuing officer. This would
usually be a magistrate of a State or Territory and this would be consistent with A Guide
to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
576. New subsection 25C(6) provides that the Secretary is the relevant chief executive
under Part 3 of the Regulatory Powers Act, as applied to the TAPA. New subsections
25C(7) and 25C(8) allow the Secretary to delegate the powers and functions under Part 3
of the Regulatory Powers Act, as applied to the TAPA, and powers incidental to those
powers, to an SES employee or acting SES employee in the Department. The delegation
must be in writing. New subsection 25C(9) provides that a person exercising powers or
performing functions under such a delegation must comply with any directions of the
Secretary. It is generally appropriate for the delegation of powers of this type to be
limited to SES or acting SES.
577. New subsection 25C(10) states that, for the powers triggered through section 25C of
the TAPA, the Federal Court of Australia and the Federal Circuit Court of Australia are
each relevant courts.
578. New subsection 25C(11) provides that an authorised person may be assisted by other
persons when exercising powers or performing functions under Part 3 of the Regulatory
Powers Act, as applied by the TAPA.
579. Subsection 25C(12) states that Part 3 of the Regulatory Powers Act, as it applies to
the TAPA, extends to every external Territory.
New section 25D - Modifications of Part 3 of the Regulatory Powers Act
580. New section 25D provides a modification to the standard investigation provisions in
relation to evidential material seized in the course of investigation. By modifying the
references to 60 days contained in paragraphs 66(1)(c) and 67(1)(a) of the Regulatory
Powers Act to 90 days, section 25D allows seized evidential material to be retained for 90
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days. This additional time is required in this regulatory context to enable natural justice
requirements to be met, legal advice to be obtained and properly considered, as well as
enforcement outcomes to be sought.
Division 4 - Enforceable undertakings
581. New Division 4 of Part 3A sets out the enforceable undertakings powers available
under the TAPA, provided through Part 6 of the Regulatory Powers Act. Part 6 of the
Regulatory Powers Act, as applied by Division 4 of Part 3A, provides the TAPA with a
framework for accepting and enforcing undertakings relating to compliance with offences
under the TAPA.
New section 25E - Enforceable undertakings
582. New subsection 25E(1) states that a provision is enforceable under Part 6 of the
Regulatory Powers Act if it is an offence against the TAPA.
583. New subsection 25E(2) provides that for the purposes of Part 6 of the Regulatory
Powers Act as Part 6 is triggered through section 25E, the Secretary is an authorised
person. New subsection 25E(3) allows the Secretary to delegate, in writing, the
Secretary's powers under Part 6 of the Regulatory Powers Act as applied to the TAPA to
an SES, or acting SES, employee in the Department. It is generally appropriate for the
delegation of powers of this type to be limited to SES or acting SES.
584. New subsection 25E(4) states that for the purposes of Part 6 of the Regulatory Powers
Act, as applied to the TAPA, the Federal Court of Australia and the Federal Circuit Court
of Australia are each relevant courts.
585. New subsection 25E(5) provides that Part 6 of the Regulatory Powers Act, as applied
through section 25E, extends to every external Territory.
Division 5 - Injunctions
586. New Division 5 of Part 3A sets out the injunctions powers available under the TAPA,
provided through Part 7 of the Regulatory Powers Act. Part 7 of the Regulatory Powers
Act, as applied by Division 5 of Part 3A, provides the TAPA with a framework for using
injunctions to enforce offence provisions under the TAPA.
New section 25F - Injunctions
587. New subsection 25F(1) provides that offence provisions under the TAPA are
enforceable under Part 7 of the Regulatory Powers Act.
588. New subsection 25F(2) provides that the Secretary is an authorised person in relation
to the enforcement of offence provisions under the TAPA through the injunctions
provisions of Part 7 of the Regulatory Powers Act. Subsection 25F(3) allows the
Secretary to delegate, in writing, the Secretary's powers under Part 7 of the Regulatory
Powers Act to an SES, or acting SES, employee in the Department. It is generally
appropriate for the delegation of powers of this type to be limited to SES or acting SES.
589. New subsection 25F(4) provides that the Federal Court of Australia and the Federal
Circuit Court of Australia are relevant courts for the purposes of Part 7 of the Regulatory
Powers Act, as that Act is applied through section 25F of the TAPA.
590. New subsection 25F(5) states that the application of Part 7 of the Regulatory Powers
Act to the TAPA extends to every external Territory.
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Division 6 - Appointment of authorised officers
591. Division 6 of Part 3A sets out provisions relating to the appointment of authorised
officers.
New section 25G - Appointment of authorised officers
592. New subsection 25G(1) states that the Secretary may appoint as an authorised officer,
for the purposes of the application of the Regulatory Powers Act to the TAPA, a person
who is appointed or engaged under the Public Service Act 1999, a person who is
otherwise appointed or engaged by the Commonwealth or by a Commonwealth entity
within the meaning of the Public Governance, Performance and Accountability Act 2013,
or a member or special member of the Australian Federal Police. Appointments must be
made in writing. New subsection 25G(2) provides that the Secretary may only appoint a
person as an authorised officer if the Secretary is satisfied that the person has suitable
qualifications, training or experience. New subsection 25G(3) provides that an authorised
officer is appointed for the period specified in the instrument of appointment. After
subsection 25G(3), a note is included to clarify that that an authorised officer is eligible
for reappointment.
Division 2 - Application provisions
Item 3 - Application provision - monitoring
593. Item 3 clarifies that the application of Part 2 of the Regulatory Powers Act to the
TAPA is in relation to determining whether an offence provision of the TAPA has been
complied with on or after the commencement of Part 1 of Schedule 6 to this Bill.
Item 4 - Application provision - investigation
594. Item 4 clarifies that the application of Part 3 of the Regulatory Powers Act to the
TAPA is in relation to evidential material that relates to an offence provision of the
TAPA, if the suspected contravention of the provision occurred on or after the
commencement of Part 1 of Schedule 6 to this Bill.
Item 5 - Application provision - enforceable undertakings
595. Item 5 clarifies that the application of Part 6 of the Regulatory Powers Act to the
TAPA is in relation to undertakings given on or after the commencement of Part 1 of
Schedule 6 to this Bill.
Item 6 - Application provision - injunctions
596. Item 6 clarifies that the application of Part 7 of the Regulatory Powers Act to the
TAPA is in relation to contraventions occurring on or after the commencement of Part 1
of Schedule 6 to this Bill.
PART 2 - AMENDMENTS RELATING TO THE FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA ACT 2020
Tobacco Advertising Prohibition Act 1992
Item 7 - Paragraph 25B(10)(b)
597. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 2 of
the Regulatory Powers Act, regarding monitoring, to the TAPA. Accordingly,
replacement paragraph 25B(10)(b) provides that, the Federal Circuit and Family Court of
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Australia (Division 2) will be a relevant court for the purposes of monitoring under Part 2
of the Regulatory Powers Act, as applied to the TAPA.
Item 8 - Paragraph 25C(10)(b)
598. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 3 of
the Regulatory Powers Act, regarding investigation, to the TAPA. Accordingly,
paragraph 25C(10)(b) provides that the Federal Circuit and Family Court of Australia
(Division 2) will be a relevant court for the purposes of investigation under Part 3 of the
Regulatory Powers Act, as applied to the TAPA.
Item 9 - Paragraph 25E(4)(b)
599. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 6 of
the Regulatory Powers Act, regarding enforceable undertakings, to the TAPA.
Accordingly, paragraph 25E(4)(b) provides that the Federal Circuit and Family Court of
Australia (Division 2) will be a relevant court for the purposes of enforcing undertakings
under Part 6 of the Regulatory Powers Act, as applied to the TAPA.
Item 10 - Paragraph 25F(4)(b)
600. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 7 of
the Regulatory Powers Act, regarding injunctions provisions, to the TAPA. Accordingly,
paragraph 25F(4)(b) provides that the Federal Circuit and Family Court of Australia
(Division 2) will be a relevant court for the purposes of injunctions provisions under Part
7 of the Regulatory Powers Act, as applied to the TAPA.
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Schedule 7 - Amendment of the Tobacco Plain Packaging Act 2011
GENERAL OUTLINE
601. The Tobacco Plain Packaging Act 2011 (TPPA) sets out the requirements for the
plain packaging of tobacco products. The legislation prohibits the use of logos, brand
imagery and promotional text on tobacco products and packaging, and includes
restrictions on colour, size, format and materials of packaging, as well as the appearance
of brand and variant names. All tobacco products sold, offered for sale or otherwise
supplied in Australia from 1 December 2012 are required to be in plain packaging, and be
labelled with updated and expanded health warnings.
602. Current Part 2 of Chapter 4 and Part 2 of Chapter 5 of the TPPA trigger Parts 3, 4 and
5 of the Regulatory Powers Act, establishing investigation, civil penalty provision and
infringement notices regulatory powers frameworks.
603. This Schedule amends the TPPA to apply the standard monitoring, enforceable
undertakings and injunctions provisions of the Regulatory Powers Act. The TPPA does
not currently contain similar powers as those provided through the amendments contained
within this Schedule. Amendments to the TPPA as part of this Schedule include
modifications to the standard provisions.
604. This Schedule also amends the existing investigation powers contained in the TPPA,
to include a modification to the standard provisions previously triggered by the TPPA.
605. Part 2 of the Regulatory Powers Act creates a framework for monitoring compliance
with an Act or a legislative instrument. Subsection 7(2) of the Regulatory Powers Act
states that, in order for Part 2 of the Regulatory Powers Act to operate, a provision of an
Act or legislative instrument must be made subject to monitoring under Part 2 by another
Act (a triggering Act). When a triggering Act applies Part 2 of the Regulatory Powers
Act, it must identify provisions subject to monitoring, any information or matters subject
to monitoring, any related provisions and who is an authorised applicant, authorised
person, issuing officer, the relevant chief executive and the relevant court or courts that
may exercise powers under Part 2 (see sections 8, 9, 9A, 10, 11, 12, 14, 15 and 16 of the
Regulatory Powers Act). The triggering Act must also express whether an authorised
person may be assisted by another person (see section 23 of the Regulatory Powers Act),
and whether an authorised applicant, authorised person, issuing officer or relevant chief
executive may delegate their powers and functions in relation to the provisions. If
provisions, matters or information subject to monitoring under the triggering Act apply in
external Territories or offshore areas, the triggering Act should identify whether Part 2 of
the Regulatory Powers Act extends to any external Territories.
606. Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing
undertakings relating to compliance with provisions of an Act. Subsection 110(2) of the
Regulatory Powers Act states that, in order for Part 6 of the Regulatory Powers Act to
operate, a provision of an Act or legislative instrument must be made enforceable under
Part 6 by a triggering Act. When a triggering Act applies Part 6 of the Regulatory Powers
Act, it must identify who is an authorised person and the relevant court or courts that may
exercise powers under Part 6 of the Regulatory Powers Act (see sections 112 and 113 of
the Regulatory Powers Act). It must also express whether the authorised person may
delegate their powers and functions under Part 6 of the Regulatory Powers Act in relation
to the enforceable undertakings provisions of the triggering Act. If provisions of the
triggering Act are subject to enforceable undertakings and apply in external Territories or
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offshore areas, the triggering Act should identify whether Part 6 of the Regulatory Powers
Act extends to any external Territories.
607. Part 7 of the Regulatory Powers Act creates a framework for the use of injunctions to
enforce provisions of an Act. Subsection 117(2) of the Regulatory Powers Act states that,
in order for Part 7 of the Regulatory Powers Act to operate, a provision of an Act or
legislative instrument must be made enforceable under Part 7 by a triggering Act. When a
triggering Act applies Part 7 of the Regulatory Powers Act, it must identify who is an
authorised person the relevant court or courts that may exercise powers under Part 7 of
the Regulatory Powers Act (see sections 119 and 120 of the Regulatory Powers Act).
A triggering Act must also express whether an authorised person may delegate their
powers and functions under Part 7 of the Regulatory Powers Act in relation to provisions
subject to an injunction under the triggering Act. If provisions of the triggering Act are
subject to an injunction and apply in external Territories or offshore areas, the triggering
Act should identify whether Part 7 of the Regulatory Powers Act extends to any external
Territories.
PART 1 - MAIN AMENDMENTS
Division 1 - Amendments
Tobacco Plain Packaging Act 2011
Item 1 - Subsection 4(1)
608. Item 1 amends subsection 4(1) of the TPPA to repeal definitions for Deputy President
and non-presidential member. This reflects the amendment contained in Part 1 of
Schedule 7 to this Bill at Item 5 to the issuing officer provision in the TPPA's existing
investigation powers.
Item 2 - Chapter 4 (heading)
609. Item 2 repeals the current heading, replacing it with the heading 'Powers to monitor
compliance with and investigate contraventions of this Act' to reflect the addition of
monitoring provisions provided through this Schedule.
Item 3 - Section 51
610. Item 3 amends the outline of Chapter 4 so that it also includes reference to the
standard monitoring provisions as well as the standard investigation powers provided
under the TPPA. Section 51 describes the powers of entry provided through the
monitoring and investigation provisions under the TPPA, noting that entry must be with
consent or under a warrant and that authorised officers may be assisted by other persons if
necessary and reasonable.
Item 4 - After Part 1 of Chapter 4
Part 1A - Monitoring
New section 51A - Monitoring powers
611. Item 4 inserts Part 1A into Chapter 4 of the TPPA, which triggers the standard
monitoring provisions of the Regulatory Powers Act.
612. New subsection 51A(1) provides that offences against the TPPA, civil penalty
provisions of the TPPA, and offences under the Crimes Act 1914 or the Criminal Code
which relate to the TPPA are subject to monitoring under Part 2 of the Regulatory Powers
Act. New subsection 51A(2) states that there are no related provisions for the purpose of
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Part 2 of the Regulatory Powers Act, as Part 2 relates to the provisions subject to
monitoring under the TPPA.
613. New subsection 51A(3) states that for the purposes of Part 2 of the Regulatory Powers
Act, as Part 2 applies in relation to the TPPA, an authorised officer (as defined in the
interpretation provisions of the TAPA) is both an authorised applicant and an authorised
person for the purposes of the monitoring powers provided by Part 2 of the Regulatory
Powers Act.
614. New subsection 51A(4) provides that for the purposes of the powers triggered under
section 51A, a magistrate is an issuing officer. This would usually be a magistrate of a
State or Territory and this would be consistent with paragraph 8.4.1 of A Guide to
Framing Commonwealth Offences.
615. New subsection 51A(5) provides that for the purposes of the monitoring provisions
provided through section 51A, the Secretary is the relevant chief executive. New
subsection 51A(6) allows for the Secretary to delegate the powers and functions under
Part 2 of the Regulatory Powers Act, in relation to the provisions subject to monitoring
under the TPPA, and powers incidental to those powers, to an SES employee or acting
SES employee in the Department. The delegation must be in writing. New subsection
51A(7) provides that a person exercising powers or performing functions under such a
delegation must comply with any directions of the Secretary. It is generally appropriate
for the delegation of powers of this type to be limited to SES or acting SES.
616. New subsection 51A(8) states that, for the powers provided through the triggered
provisions contained in section 51A of the TPPA, the Federal Court of Australia and the
Federal Circuit Court of Australia are each relevant courts.
617. New subsections 51A(9) and 51A(10) modify the standard monitoring powers to
include an additional power to take, test and analyse samples of any thing on premises
entered under Part 2 of the Regulatory Powers Act, for the purposes of determining
whether a provision subject to monitoring has been, or is being, complied with. New
subsection 51A(10) mirrors existing subsection 52(11) of the TPPA, which provides for
the same power in relation to investigation under the TPPA. It is necessary to invoke the
power to take samples during monitoring in the TPPA, as it allows for the testing of
tobacco product samples obtained in the course of monitoring. This provides for more
targeted investigations of businesses that are potentially breaching the TPPA. The tests
are, by necessity, destructive and cannot be carried out otherwise than by taking samples.
618. New subsection 51A(11) also modifies the standard monitoring powers to allow
authorised persons to, in executing a monitoring warrant under Part 2 of the Regulatory
Powers Act as applied by the TPPA, use force against things as is necessary and
reasonable in the circumstances. Paragraph 51A(11)(b) provides that a person assisting
the authorised person, under subsection 51A(12), may also use such force against things
as is necessary and reasonable in the circumstances. The power to use force against things
reflects the parallel power in existing subsection 52(12) which allows authorised persons
and persons assisting an authorised person to use force against things as is necessary and
reasonable in the circumstances.
619. It is necessary for authorised persons to be able to use force against things in the
course of monitoring compliance with provisions of the TPPA, as an authorised officer
executing a warrant may need to open locked doors, cabinets, drawers and other similar
objects that the authorised officer reasonably suspects contain things that would provide
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evidence that provisions subject to monitoring have not been, or are not being, complied
with.
620. Section 31 of the Regulatory Powers Act places an obligation on the occupier of
premises, or another person who apparently represents the occupier, to provide reasonable
facilities and assistance to the authorised person, and any person assisting, which is
necessary for the authorised person to effectively exercise their powers under Part 2 of the
Regulatory Powers Act, for the purposes of executing a monitoring warrant. Subsections
31(2) of the Regulatory Powers Act provides that failure to comply with section 31 of that
Act is an offence, and carries a penalty of 30 penalty units. Despite this obligation and its
corresponding penalty for non-compliance, an occupier or other person may continue to
refuse access to locked premises, cabinets, drawers or objects to prevent authorised
officers undertaking reasonable compliance duties. It is necessary to include the power to
use force against things in the TPPA's monitoring provisions to ensure that the execution
of a monitoring warrant is not frustrated, and to prevent concealment, loss, destruction or
use of thing in the course of non-compliance with the TPPA.
621. New subsection 51A(13) modifies the standard provisions under Part 2 of the
Regulatory Powers Act regarding the privilege against self-incrimination, affirmed
through section 17 of the Regulatory Powers Act. This privilege is also abrogated in the
TPPA's existing equivalent provision regarding investigation powers. The TPPA
modifies this privilege to provide that, despite section 17 of the Regulatory Powers Act,
an individual is not excused from answering a question or producing a document, under
subsection 24(3) of the Regulatory Powers Act, as applied by section 51A of the TPPA,
on the ground that answering the question, or producing the document, might tend to
incriminate the individual in relation to an offence. While the privilege against self-
incrimination is an important feature of the criminal law system, it is necessary and
appropriate to abrogate the privilege in this context due to the difficulties in obtaining
relevant evidence. Authorised officers (as defined in the TPPA) are often not in a position
to observe a transaction that would form the basis of a contravention of the TPPA, as such
evidence may only be obtained from an individual who is party to a transaction. The type
of information that may be requested from a tobacco company would not be obtainable
other than from representatives of that company, or people who engage in dealings with
that company. The full application of the privilege against self-incrimination would
compromise monitoring, investigation and enforcement activities, and would result in
retailers of tobacco products unfairly bearing the burden of compliance with the
requirements of the TPPA, as retailers are the most readily accessible point for
monitoring, investigation and enforcement.
622. Additionally, tobacco products are required by state and territory law to be stored in a
manner that makes it not visible to the public. Generally, this is in a closed cabinet behind
the counter. Consent to access the areas in which tobacco products may be kept can only
be granted by an individual who is the occupier of the store. The retailer, in their role as
occupier, may be offering for sale tobacco products that may not meet the requirements of
the TPPA. Retaining the abrogation of the self-incrimination privilege is necessary to
ensure that regulated parties are compelled to provide reasonable assistance and answer
questions necessary in order for effective monitoring and investigation to occur. It also
ensures that evidence is available and is not concealed, lost or destroyed. The note
contained in subsection 51A(13) clarifies that the privilege against self-incrimination is
not generally available to body corporates.
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623. New subsection 51A(14) provides that, while an individual is not excused from
providing such answers or documents during monitoring, the (i) answer given or
document produced, (ii) answering of the question or production of the document, and
(iii) any information, document or thing obtained as a direct or indirect consequence of
the answering of the question or the production of the document, are not admissible in
evidence against the individual in criminal proceedings. Exceptions, however, exist for
proceedings for an offence against section 137.1 or 137.2 of the Criminal Code, which
deal with false or misleading information or documents, as they relate to this Act, and
section 149.1 of the Criminal Code, which deals with obstruction of Commonwealth
public officials, as it relates to this Act. Evidence obtained in relation to subsection
25B(12) can be used for proceedings regarding the offences contained under sections
137.1, 137.2 and 149.1 of the Criminal Code.
624. New subsection 51A(15) provides that if at general law an individual would be able to
claim the privilege against self-exposure to a civil penalty in relation to answering a
question or producing a document, that privilege is abrogated. Under subsection 24(3) of
the Regulatory Powers Act, as it relates to the TPPA, the individual is not excused from
answering the question or producing the document under that subsection on that ground.
625. New subsection 51A(16) states that Part 2 of the Regulatory Powers Act, as it applies
to the TPPA, extends to every external Territory.
Item 5 - Subsections 52(4) and 52(5)
626. Item 5 amends the current issuing officer provision of the TPPA, which provides that
under Part 3 of the Regulatory Powers Act, as it applies to the TPPA, a Deputy President
or non-presidential member of the Administrative Appeals Tribunal (non-judicial
officers) can be an issuing officer under those provisions. This provision modifies the
application of Part 3 of the Regulatory Powers Act to the TPPA by allowing non-judicial
officers to be issuing officers. Item 5 amends subsections 52(4) and 52(5) to provide that,
for the purposes of Part 3 of the Regulatory Powers Act as it applies to the TPPA, a
magistrate is an issuing officer. This would usually be a magistrate of a State or Territory,
to ensure the appropriate application of persona designata functions, and would be
consistent A Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers.
Items 6 and 7 - Subsections 52(10) and 52(11)
627. The amendments contained in Items 6 and 7 are minor, technical amendments to
improve the clarity of subsections 52(10) and 52(11).
Item 8 - Subsections 52(14) and 52(15)
628. Item 8 amends the existing abrogation of the privilege against self-incrimination
provision in the TPPA investigation powers, to update it with current drafting practices.
This brings the provisions in line with similar provisions across the statute book. The
provision is also aligned with new subsections 51A(13)-(15) which abrogate the same
privilege against self-incrimination and exposure to a penalty in relation to monitoring
under the TPPA. Changes to phrases contained in these sections respond to current case
law in the area. The policy justification for the abrogation of the privilege against self-
incrimination was included in the Explanatory Memorandum for the Regulatory Powers
(Standardisation Reform) Act 2017 which triggered Part 3 of the Regulatory Powers Act
for the TPPA. The tobacco industry has particular difficulties in obtaining evidence as the
type of evidence required may only be obtained from representatives of tobacco
companies or people who engage in dealings with the company. The full application of
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the privilege against self-incrimination would compromise investigation and enforcement
activities.
629. Amended subsection 52(14) modifies the standard provisions under Part 3 of the
Regulatory Powers Act regarding the privilege against self-incrimination, affirmed
through section 47 of the Regulatory Powers Act. The TPPA modifies this privilege to
provide that, despite section 47 of the Regulatory Powers Act, an individual is not
excused from answering a question or producing a document, under subsection 54(3) of
the Regulatory Powers Act, as applied by section 52 of the TPPA, on the ground that
answering the question, or producing the document, might tend to incriminate the
individual in relation to an offence. The note contained in subsection 52(14) clarifies that
the privilege against self-incrimination is not generally available to a body corporate.
630. New subsection 52(15) provides that, while an individual is not excused from
providing such answers or documents during monitoring, the (i) answer given or
document produced, (ii) answering of the question or production of the document, and
(iii) any information, document or thing obtained as a direct or indirect consequence of
the answering of the question or the production of the document, are not admissible in
evidence against the individual in criminal proceedings. Exceptions, however, exist for
proceedings for an offence against section 137.1 or 137.2 of the Criminal Code, which
deal with false or misleading information or documents, as they relate to the TAPA, and
section 149.1 of the Criminal Code, which deals with obstruction of Commonwealth
public officials, as it relates to the TAPA. Evidence obtained in relation to subsection
52(14) can be used for proceedings regarding the offences contained under sections
137.1, 137.2 and 149.1 of the Criminal Code.
631. New subsection 52(15A) provides that if at general law an individual would be able to
claim the privilege against self-exposure to a civil penalty in relation to answering a
question or producing a document, that privilege is abrogated. Under subsection 54(3) of
the Regulatory Powers Act, as it relates to the TPPA, the individual is not excused from
answering the question or producing the document under that subsection on that ground.
Item 9 - At the end of Pat 2 of Chapter 4
New section 53 - Modifications of Part 3 of the Regulatory Powers Act
632. Item 9 inserts a modification to the existing investigation powers triggered under the
TPPA in relation to evidential material seized in the course of investigation. By
modifying the references to 60 days contained in paragraphs 66(1)(c) and 67(1)(a) of the
Regulatory Powers Act to 90 days, section 53 allows seized evidential material to be
retained for 90 days. This additional time is required in this regulatory context as it would
allow for the potential testing of tobacco products, legal advice to be obtained and
properly considered, natural justice requirements to be met, as well as for relevant
documents to be drafted and enforcement outcomes to be sought.
Items 10 and Item 11 - Section 84
633. Items 10 and 11 amend the simplified outline contained in section 84, which sets out
the enforcement powers available under the TPPA. The amendments include reference to
enforceable undertakings and injunctions, the provisions for which are being triggered
through this Schedule.
634. Additions to section 84 explain that undertakings to comply with the TPPA may be
accepted and enforced by a court order under Part 6 of the Regulatory Powers Act. A
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court can also grant an injunction under Part 7 of the Regulatory Powers Act restraining a
person from contravening, or requiring a person to comply with, a provision of the TPPA.
Item 12 - Part 2 of Chapter 5 (heading)
635. This item amends the heading of Part 2 of Chapter 5 to include enforceable
undertakings and injunctions.
Item 13 - At the end of Part 2 of Chapter 5
636. Item 13 inserts the triggering provisions to apply Part 6 of the Regulatory Powers Act
to the TPPA.
New section 87 - Enforceable undertakings
637. New section 87 sets out the enforceable undertakings powers available under the
TPPA, provided through Part 6 of the Regulatory Powers Act. Part 6 of the Regulatory
Powers Act, as applied by this section, provides the TPPA with a framework for
accepting and enforcing undertakings relating to compliance with civil penalty provisions
and offences under the TPPA.
638. New subsection 87(1) states that a provision is enforceable under Part 6 of the
Regulatory Powers Act if it is an offence or civil penalty provision under the TPPA.
639. New subsection 87(2) provides that for the purposes of Part 6 of the Regulatory
Powers Act as Part 6 is triggered through section 87 of the TPPA, the Secretary is an
authorised person. New subsection 87(3) allows the Secretary to delegate, in writing, the
Secretary's powers under Part 6 of the Regulatory Powers Act as applied to the TPPA to
an SES, or acting SES, employee in the Department. It is generally appropriate for the
delegation of powers of this type to be limited to SES or acting SES.
640. New subsection 87(4) states that for the purposes of Part 6 of the Regulatory Powers
Act, as applied to the TPPA, the Federal Court of Australia and the Federal Circuit Court
of Australia are each relevant courts.
641. New subsection 87(5) provides that Part 6 of the Regulatory Powers Act, as applied
through section 87, extends to every external Territory.
New section 88 - Injunctions
642. New section 88 sets out the injunctions powers available under the TPPA, provided
through Part 7 of the Regulatory Powers Act. Part 7 of the Regulatory Powers Act, as
applied by section 88, provides the TPPA with a framework for using injunctions to
enforce offence and civil penalty provisions under the TPPA.
643. New subsection 88(1) provides that offence and civil penalty provisions under the
TPPA are enforceable under Part 7 of the Regulatory Powers Act.
644. New subsection 88(2) provides that the Secretary is an authorised person in relation to
the enforcement of offence provisions under the TPPA through the injunctions provisions
of Part 7 of the Regulatory Powers Act. Subsection 88(3) allows the Secretary to delegate,
in writing, the Secretary's powers under Part 7 of the Regulatory Powers Act to an SES,
or acting SES, employee in the Department. It is generally appropriate for the delegation
of powers of this type to be limited to SES or acting SES.
645. New subsection 88(4) provides that the Federal Court of Australia and the Federal
Circuit Court of Australia are relevant courts for the purposes of Part 7 of the Regulatory
Powers Act, as that Act is applied through section 88 of the TPPA.
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646. New subsection 88(5) states that the application of Part 7 of the Regulatory Powers
Act to the TPPA extends to every external Territory.
Division 2 - Application provisions
Item 14 - Application provision - monitoring
647. Item 14 clarifies that the application of Part 2 of the Regulatory Powers Act, as under
Part 1A of Chapter 4 of the TPPA, is in relation to determining whether an offence or
civil penalty provision of the TPPA has been complied with on or after the
commencement of Part 1 of Schedule 7 to this Bill.
Item 15 - Application provision - investigation
648. Item 15 clarifies that the amendments to section 52 of the TPPA apply in relation to
entries to premises that occur on or after the commencement of Part 1 of Schedule 7 to
this Bill. This Item also clarifies that section 53 of the TPPA, as added by this Part,
applies in relation to entries to premises that occur on or after the commencement of Part
1 of Schedule 7 to this Bill.
Item 16 - Application provision - enforceable undertakings
649. Item 16 clarifies that the application of Part 6 of the Regulatory Powers Act to the
TPPA, as under section 87 of the TPPA, is in relation to undertakings given on or after
the commencement of Part 1 of Schedule 7 to this Bill.
Item 17 - Application provision - injunctions
650. Item 17 clarifies that the application of Part 7 of the Regulatory Powers Act to the
TPPA, as under section 88 of the TPPA, is in relation to contraventions occurring on or
after the commencement of Part 1 of Schedule 7 to this Bill.
PART 2 - AMENDMENTS RELATING TO THE FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA ACT 2020
Tobacco Plain Packaging Act 2011
Item 18 - Paragraph 51A(8)(b)
651. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 2 of
the Regulatory Powers Act, regarding monitoring, to the TPPA. Accordingly, paragraph
51A(8)(b) provides that the Federal Circuit and Family Court of Australia (Division 2)
will be a relevant court for the purposes of monitoring under Part 2 of the Regulatory
Powers Act, as applied to the TPPA.
Item 19 - Paragraph 87(4)(b)
652. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 6 of
the Regulatory Powers Act, regarding enforceable undertakings, to the TPPA.
Accordingly, paragraph 87(4)(b) provides that the Federal Circuit and Family Court of
Australia (Division 2) will be a relevant court for the purposes of enforcing undertakings
under Part 6 of the Regulatory Powers Act, as applied to the TPPA.
Item 20 - Paragraph 88(4)(b)
653. This item ensures that the renaming of the Federal Circuit Court of Australia to the
Federal Circuit and Family Court of Australia is reflected in the application of Part 7 of
the Regulatory Powers Act, regarding injunctions provisions, to the TPPA. Accordingly,
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paragraph 88(4)(b) provides that the Federal Circuit and Family Court of Australia
(Division 2) will be a relevant court for the purposes of injunctions provisions under Part
7 of the Regulatory Powers Act, as applied to the TPPA.
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