Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
REGULATORY POWERS (STANDARDISATION REFORM) BILL 2020
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Assistant Minister to the Attorney-General,
Senator the Hon Amanda Stoker)
REGULATORY POWERS (STANDARDISATION REFORM) BILL 2020
This addendum responds to concerns raised by the Senate Standing Committee for the
Scrutiny of Bills in Scrutiny Digest 4 of 2021.
After paragraph 19, Statement of Compatibility with Human Rights -
19A. As the Regulatory Powers Act only has effect where Acts are drafted or
amended to trigger its provisions, this expanded scope will only apply where
provisions in triggering Acts nominate particular matters subject to monitoring. As
such the amendments have no automatic effect in existing regulatory regimes.
After paragraph 211, Schedule 1 - Amendments to the Regulatory Powers
(Standard Provisions) Act 2014 -
211A. As the Regulatory Powers Act only has effect where Acts are drafted or
amended to trigger its provisions, this expanded scope will only apply where
provisions in triggering Acts nominate particular matters subject to monitoring. As
such the amendments have no automatic effect in existing regulatory regimes.
211B. The power to monitor matters supports the operation of effective, robust
monitoring schemes as it extends monitoring beyond direct compliance with
particular legislative provisions, to facilitate better regulatory awareness of
developing situations and potential risks. The expansion would allow for the
monitoring of whether a circumstance exists, for example adherence to performance
standards or incidents or patterns of incidents that may indicate failure to comply with
regulatory obligations. The ability to monitor circumstances or matters that may
indicate non-compliance with underlying legislative requirements supports effective
and robust regulatory action by ensuring the efficient direction of resources and
allowing early intervention and graduated enforcement to support continued
compliance. It will also facilitate better regulator awareness of developing situations
and potential risks.
211C. Any expansion of Regulatory Powers Act monitoring powers to matters will
require legislative amendment to define the matters in question, and should be
accompanied by appropriate explanation and justification in the accompanying
explanatory memoranda, including addressing:
• why it is considered appropriate for the bill to confer coercive or intrusive
powers;
• whether there are safeguards and appropriate limitations on the powers included
on the face of the bill;
• who may exercise the powers, and whether they are required to possess specific
skills or qualifications; and
• whether the approach taken is consistent with A Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers.
1
After paragraph 271, Schedule 2 - Amendment of the Defence Force Discipline
Act 1982
271A. For the purposes of the application of Part 3 of the Regulatory Powers Act to
the DFDA, authorised officer functions will ordinarily be carried out by trained and
qualified Military Police or Inspector General - ADF investigators. The Joint Military
Policing Unit will continue to work with civil law enforcement agencies to develop
best practice training and accreditation for the exercise of investigative powers.
After paragraph 278, Schedule 2 - Amendment of the Defence Force Discipline
Act 1982
278A. Assistance from other persons supports the exercise of functions and powers
under this Act to be performed efficiently and effectively by those most adept and
qualified to do so. The person assisting remains subject, at all times, to directions
given by the authorised person (paragraphs 23(2)(d) and 53(2)(d) of the Regulatory
Powers Act). The authorised person is responsible for any powers exercised by the
person assisting, and any power exercised, or function or duty performed, is taken to
be exercised or performed by the authorised person (subsections 23(3)-(4) and 53(3)-
(4). The qualifications, training or experience of the authorised person will provide
context and guidance for who they seek assistance from, as well as the directions they
give, and the assistance they request from, those other persons. The assistance
required from other persons will often be unanticipated, and limited in duration and
purpose to that which the authorised person requires to safely and effectively carry
out exercise of their powers. It is not anticipated that other persons will be routinely
used or required on an ongoing basis.
After paragraph 280, Schedule 2 - Amendment of the Defence Force Discipline
Act 1982
280A. On occasion, an authorised person exercising investigation powers may
encounter an unanticipated need for physical assistance or an unanticipated need for
specialist assistance (i.e. IT support, bomb disposal, classified material handling).
Situations where such assistance may be required include handling heavy or fragile
objects, discovery of dangerous or classified evidentiary material or specialised access
of electronic data from a computer server. The person assisting the authorised person
may only use force against things as is necessary and reasonable in the circumstances
and as above, remains subject, at all times, to directions given by the authorised
person (paragraphs 23(2)(d) and 53(2)(d) of the Regulatory Powers Act).
After paragraph 310, Schedule 3 - Amendment of the Education Services for
Overseas Students Act 2000
310A. This 'matter' relates to the key objective of the tuition protection scheme in the
ESOS Act. The tuition protection obligations that providers are subject to, and the
powers that the Tuition Protection Director has, under the ESOS Act are triggered
when a provider "defaults". A provider defaults (section 46A) where the provider fails
to start to provide a course to a student at a location on the agreed starting day, or the
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course ceases to be provided to the student at the location at any time after it starts,
but before it is completed, and the student has not withdrawn. Under section 46D of
the ESOS Act, providers, on default, are obliged to arrange for an alternative course
or to provide a refund. Providers are likely to default due to financial difficulty, but
could also default for other reasons.
310B. Where a provider does not discharge its obligations, the Tuition Protection
Director has powers (sections 49 and 50A) to arrange for a replacement course or to
call on a special account administered by the Director to arrange a refund.
310C. The matter that is subject to monitoring in proposed subsection 130(3) is
designed to ensure that the relevant ESOS agency is able to exercise monitoring
powers in circumstances where it is likely that a provider will default. This recognises
the importance of ensuring providers meet their obligations upon default and enables
effective tuition protection, consistently with the existing objectives of the tuition
protection scheme in the ESOS Act.
After paragraph 322, Schedule 3 - Amendment of the Education Services for
Overseas Students Act 2000
322A. Assistance from other persons supports the exercise of functions and powers
under this Act to be performed efficiently and effectively by those most adept and
qualified to do so. The person assisting remains subject, at all times, to directions
given by the authorised person (paragraphs 23(2)(d) and 53(2)(d) of the Regulatory
Powers Act). The authorised person is responsible for any powers exercised by the
person assisting, and any power exercised, or function or duty performed, is taken to
be exercised or performed by the authorised person (subsections 23(3)-(4) and 53(3)-
(4). The qualifications, training or experience of the authorised person will provide
context and guidance for who they seek assistance from, as well as the directions they
give, and the assistance they request from, those other persons. The assistance
required from other persons will often be unanticipated, and limited in duration and
purpose to that which the authorised person requires to safely and effectively carry
out exercise of their powers. It is not anticipated that other persons will be routinely
used or required on an ongoing basis.
After paragraph 326, Schedule 3 - Amendment of the Education Services for
Overseas Students Act 2000
326A. The locksmith assisting the authorised person may only use force against
things as is necessary and reasonable in the circumstances and as above, remains
subject, at all times, to directions given by the authorised person (paragraphs 23(2)(d)
and 53(2)(d) of the Regulatory Powers Act).
3
After paragraph 386, Schedule 4 - Amendment of the Fisheries Management Act
1991 -
386A. With respect to amendments contained in Items 2 and 3, subsection 93(1) of
the FMA currently provides that a holder of a fish receiver permit must not refuse or
fail to give a return or information that the person is required to give under section 92
or under regulations made for the purposes of that section. The fault element of
intention applies to the conduct (being the refusal or failure to give the return or
information) while strict liability applies to the circumstance that the return or
information is required under section 92 or the regulations. Subsection 93(2) provides
that subsection (1) does not apply if the person has a reasonable excuse. The offence
carries a maximum penalty of imprisonment for 6 months.
386B. The Bill will amend the Act to make section 93 a strict liability offence. The
effects of the amendments are to remove all fault elements from the offence so that a
person's state of mind will not be a relevant factor in proving guilt, replace the
defence of reasonable excuse with the defence of honest and reasonable mistake of
fact and replace the penalty of 6 months imprisonment with a pecuniary penalty of 30
penalty units.
386C. The amendments to section 93 will support the legislative objective of ensuring
the exploitation of fisheries resources is consistent with the principles of ecologically
sustainable development (section 3 of the FMA). The return or information required
under section 92 or under regulations assists in monitoring catch of fish against the
allocated quota of permitted catch. Removing the requirement to prove fault in
relation to elements of the offence is appropriate because it is likely to significantly
enhance the integrity and sustainability of fisheries resources by deterring
non-compliance with the requirements of the relevant permit. It also provides a
straightforward mechanism to promote compliance with the supervisory framework of
the fisheries regulatory regime. This upholds the integrity of fisheries management
arrangements and maintains the on-going sustainability of fisheries resources.
386D. The amendments also bring section 93 into line with commensurate offences in
subsection 95(5) of the FMA. Under subsection 95(5) the breach of a licence or
permit condition, involving the provision of certain information, is subject to a
pecuniary penalty instead of a penalty of imprisonment and is an offence of strict
liability.
386E. The Bill will also align the penalty in section 93 with other Commonwealth
legislation where breaches of conditions are offences of strict liability and subject to a
pecuniary penalty.
Application of the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers in restructuring section 93 to be a strict
liability offence
386F. The amendments in the Bill are consistent with paragraph 4.3.3 of the Guide,
which notes that "an offence-specific defence of 'reasonable excuse' should not be
applied to an offence" as it is too open-ended and difficult to rely on. Instead,
defences of general application in Part 2.3 of the Criminal Code should be used. The
4
Bill would replace the existing defence of reasonable excuse in section 93 with one of
reasonable mistake of fact - a general defence available under the Criminal Code.
This amendment modernises section 93, to make it consistent with the Guide.
386G. The amendments to the penalty in section 93 are consistent with the Guide's
statements on punitive consequences in strict liability offences - in particular, that
strict liability offences should not be punishable by imprisonment, and should apply a
fine no more than 60 penalty units for an individual (Paragraph 2.2.6). The
amendments in the Bill will apply a maximum penalty of 30 penalty units, the
standard equivalent to a 6 month imprisonment penalty under subsection 4B(2) of the
Crimes Act 1914. This lessens the severity of the maximum punishment available for
the offence and would make the penalty proportionate to the level of offending and
less intrusive on a person's rights and liberties.
386H. Restructuring the offence to be one of strict liability is consistent with the
Guide and is appropriate in achieving the policy goals of the FMA. Consistent with
paragraph 2.2.6 of the Guide, the amendments support the integrity of the regulatory
regime and reflect the fact that holders of fish receiver permits will be placed on
notice to guard against the possibility of contravention.
386I. The amendments to section 93 also have the consequence that the offence is one
that is appropriate for an infringement notice scheme. The use of infringement notices
in this context aligns with paragraph 6.2.1 of the Guide, which provides that
infringement notice schemes should only apply to minor offences with strict or
absolute liability. This change also satisfies the Regulatory Powers Act requirement
that only strict liability offences be made subject to infringement notices.
After paragraph 432, Schedule 5 - Amendment of the Tertiary Education Quality
and Standards Agency Act 2011
432A. Assistance from other persons supports the exercise of functions and powers
under this Act to be performed efficiently and effectively by those most adept and
qualified to do so. The person assisting remains subject, at all times, to directions
given by the authorised person (paragraphs 23(2)(d) and 53(2)(d) of the Regulatory
Powers Act). The authorised person is responsible for any powers exercised by the
person assisting, and any power exercised, or function or duty performed, is taken to
be exercised or performed by the authorised person (subsections 23(3)-(4) and 53(3)-
(4). The qualifications, training or experience of the authorised person will provide
context and guidance for who they seek assistance from, as well as the directions they
give, and the assistance they request from, those other persons. The assistance
required from other persons will often be unanticipated, and limited in duration and
purpose to that which the authorised person requires to safely and effectively carry
out exercise of their powers. It is not anticipated that other persons will be routinely
used or required on an ongoing basis.
5
After paragraph 443, Schedule 5 - Amendment of the Tertiary Education Quality
and Standards Agency Act 2011
443A. Assistance from other persons supports the exercise of functions and powers
under this Act to be performed efficiently and effectively by those most adept and
qualified to do so. The person assisting remains subject, at all times, to directions
given by the authorised person (paragraphs 23(2)(d) and 53(2)(d) of the Regulatory
Powers Act). The authorised person is responsible for any powers exercised by the
person assisting, and any power exercised, or function or duty performed, is taken to
be exercised or performed by the authorised person (subsections 23(3)-(4) and 53(3)-
(4). The qualifications, training or experience of the authorised person will provide
context and guidance for who they seek assistance from, as well as the directions they
give, and the assistance they request from, those other persons. The assistance
required from other persons will often be unanticipated, and limited in duration and
purpose to that which the authorised person requires to safely and effectively carry
out exercise of their powers. It is not anticipated that other persons will be routinely
used or required on an ongoing basis.
After paragraph 569, Schedule 6 - Amendment of the Tobacco Advertising
Prohibition Act 1992
569A. Assistance from other persons supports the exercise of functions and powers
under this Act to be performed efficiently and effectively by those most adept and
qualified to do so. The person assisting remains subject, at all times, to directions
given by the authorised person (paragraphs 23(2)(d) and 53(2)(d) of the Regulatory
Powers Act). The authorised person is responsible for any powers exercised by the
person assisting, and any power exercised, or function or duty performed, is taken to
be exercised or performed by the authorised person (subsections 23(3)-(4) and 53(3)-
(4). The qualifications, training or experience of the authorised person will provide
context and guidance for who they seek assistance from, as well as the directions they
give, and the assistance they request from, those other persons. The assistance
required from other persons will often be unanticipated, and limited in duration and
purpose to that which the authorised person requires to safely and effectively carry
out exercise of their powers. It is not anticipated that other persons will be routinely
used or required on an ongoing basis.
After paragraph 578, Schedule 6 - Amendment of the Tobacco Advertising
Prohibition Act 1992
578A. Assistance from other persons supports the exercise of functions and powers
under this Act to be performed efficiently and effectively by those most adept and
qualified to do so. The person assisting remains subject, at all times, to directions
given by the authorised person (paragraphs 23(2)(d) and 53(2)(d) of the Regulatory
Powers Act). The authorised person is responsible for any powers exercised by the
person assisting, and any power exercised, or function or duty performed, is taken to
be exercised or performed by the authorised person (subsections 23(3)-(4) and 53(3)-
(4). The qualifications, training or experience of the authorised person will provide
context and guidance for who they seek assistance from, as well as the directions they
give, and the assistance they request from, those other persons. The assistance
6
required from other persons will often be unanticipated, and limited in duration and
purpose to that which the authorised person requires to safely and effectively carry
out exercise of their powers. It is not anticipated that other persons will be routinely
used or required on an ongoing basis.
After paragraph 613, Schedule 7 - Amendment of the Tobacco Plain Packaging
Act 2011
613A. Generally, the types of qualifications, training or experience required for
authorised officers to be appointed will require the officer to hold a Cert IV or
Diploma of Government Investigations. In accordance with Australian Government
Investigation Standards, the authorised officer leading an investigation or executing a
warrant will hold those relevant qualifications. The appropriate use of force (enabled
by new subsection 51A(11)) and preparation for investigations or warrant executions
are taught through the Cert IV of Government Investigation training for field-based
officers. This knowledge and applied experience is a basic part of the skill set of
investigators, and more specifically, appointed authorised officers.
After paragraph 620, Schedule 7 - Amendment of the Tobacco Plain Packaging
Act 2011
620A. New subsection 51A(12) 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 TPPA. Assistance from other
persons supports the exercise of functions and powers under this Act to be performed
efficiently and effectively by those most adept and qualified to do so. The person
assisting remains subject, at all times, to directions given by the authorised person
(paragraphs 23(2)(d) and 53(2)(d) of the Regulatory Powers Act). The authorised
person is responsible for any powers exercised by the person assisting, and any power
exercised, or function or duty performed, is taken to be exercised or performed by the
authorised person (subsections 23(3)-(4) and 53(3)-(4). The qualifications, training or
experience of the authorised person will provide context and guidance for who they
seek assistance from, as well as the directions they give, and the assistance they
request from, those other persons. The assistance required from other persons will
often be unanticipated, and limited in duration and purpose to that which the
authorised person requires to safely and effectively carry out exercise of their powers.
It is not anticipated that other persons will be routinely used or required on an
ongoing basis.
620B. Situations may arise in the exercise of monitoring and investigation powers
under the TPPA where professional skilled assistance is required, such as the use of a
locksmith for locked doors or IT forensic experts for recovering data from locked
electronic devices. The person assisting the authorised person may only use force
against things as is necessary and reasonable in the circumstances and as above,
remains subject, at all times, to directions given by the authorised person.
7
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