Bills Digest no. 73 2013–14
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Law and Bills Digest Section
22 May 2014
Purpose of the Bill
Structure of the Bill
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 20 March 2014
House: House of Representatives
Commencement: Parts 1 and 8 commence on Royal Assent. Parts 2-7 commence on a day to be fixed by Proclamation or the day after the end of a six month period after the date of Royal Assent, whichever is earlier.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.
The Regulatory Powers (Standard Provisions) Bill 2014 (the Bill) seeks, over time, to systematise the monitoring and investigatory powers provided to Commonwealth regulatory agencies. To do that, the Bill seeks to act as the standard framework to which other legislation refers, in order to trigger its provisions that are relevant to a particular agency or authority. The standard framework proposed by the Bill does not differ substantially from the framework proposed by the Regulatory Powers (Standard Provisions) Bill 2013, except for the provisions which restate that the common law position that the privilege against self-incrimination and legal professional privilege are not automatically abrogated. The Bill also does not have the mechanism of a trigger by a regulation, as was included in the 2013 Bill as introduced, but removed in Government amendments made in the House of Representatives.
The Government proposes that use of the Bill as the standard framework will be rolled out progressively.
First, any new legislation requiring the types of powers contained in the Bill will be drafted to trigger a relevant Part (or Parts) of the Bill providing specific types of powers. Second, recently passed legislation which provides regulators with investigatory and monitoring powers based on the precedents used to draft the Bill may be reviewed and amended to instead trigger a Part (or Parts) of the Bill that are relevant to the particular agency or authority. Finally, other legislation containing monitoring and investigations powers may be reviewed and amended to trigger relevant Part (or Parts) contained in the Bill.
The Government states that, through this process, the amount of duplication between laws will be reduced, improving consistency and thus reducing costs to businesses which are incurred as a result of the current inconsistent and differing regulatory regimes. But the Government also notes that the powers provided by the Bill may not be suitable for all regulatory regimes (especially law enforcement and security agencies).
However, as discussed in detail in this Digest, it is not clear if successor Parliaments will be bound by the requirement expressed in the Bill that future legislation trigger relevant Parts (rather than individual provisions) of the Bill. As a result of this ambiguity, inevitable questions about the ability of the Bill, in the long term, to achieve the goal of a more consistent, standardised regulatory environment arise.
The history of the Regulatory Powers (Standard Provisions) Bill 2014 can be summarised as follows:
- a version of the Bill was introduced by the previous Government into the 43rd Parliament on 10 October 2012 as the Regulatory Powers (Standard Provisions) Bill 2013 (the 2013 Bill)
- following consideration by a number of committees, the 2013 Bill passed the House of Representatives with 61 Government amendments
- as the 2013 Bill had passed the House of Representatives but not the Senate when the Parliament was prorogued on 5 August 2013, it lapsed
- a new version of the 2013 Bill was introduced by the Government, with some changes, into the 44th Parliament as the Regulatory Powers (Standard Provisions) Bill 2014. This Digest outlines those changes.
The purpose of the Regulatory Powers (Standard Provisions) Bill 2014 (the Bill) is to prescribe a framework to be used consistently for Commonwealth regulatory schemes that include:
- monitoring and investigation powers
- civil penalty provisions
- infringement notices
- enforceable undertakings and
Explicitly, this Bill does not empower, prohibit, prescribe or administer any activity, person or administrative matter. Any new Act that requires investigation or enforcement powers will be drafted to trigger relevant portions of this Bill. Existing Acts will be reviewed and, if considered necessary, amended to trigger relevant portions of this Bill.
The Bill is divided into eight parts which outline the standard regulatory powers that a Commonwealth agency may trigger through another Act.
In particular, the Bill prescribes:
- extensive monitoring and investigation powers (including entry, search and seizure) and associated procedures available to authorised persons (Parts 2 and 3) and
- a framework for civil penalty orders, infringement notices, enforceable undertakings and injunctions to be used by Commonwealth agencies (Parts 4, 5, 6 and 7).
In 2009 the previous Government formed an Access to Justice Taskforce to examine the federal civil justice system with a view to developing a more strategic approach to access to justice issues. The Taskforce’s report, Strategic Framework for Access to Justice, recommended that the Government commit to developing clearer laws and practical measures to reduce the volume and complexity of legislation. This commitment includes legislating only where necessary and encouraging the evaluation and review of laws to reduce complexity.
In 2011 the Attorney-General’s Department worked with the Office of Parliamentary Counsel (OPC) to introduce measures to improve the clarity and reduce the complexity of Commonwealth laws. This package included:
- the Quick Reference Guide to Developing Clearer Laws, which provides a simple overview of key principles, tips and essential points of contact to assist departmental officers involved in developing legislation
- a scheme which enables drafters and instructing officers to work together to reduce complexity when drafting legislation and
- the Clearer Laws website which is a central repository for resources, training material and key Government contacts to guide instructing officers in developing clearer laws.
The 2013 Bill emerged as part of the previous Government’s Clearer Laws Project, arising from the Access to Justice Taskforce’s report, which has been the policy umbrella for legislation such as the Acts Interpretation Amendment Act 2011, Parliamentary Counsel and Other Legislation Amendment Act 2012, and the Statute Law Revision Act 2012.
During the 2013 election campaign, Senator Brandis, now the Attorney-General, outlined plans to have the Australian Law Reform Commission (ALRC) conduct a review of Commonwealth legislation that unreasonably encroaches upon traditional rights, freedoms and privileges. Whilst the ALRC is not due to provide its report until 1 December 2014 the differences between the Bill and the 2013 Bill reflect the view expressed by Senator Brandis in the 2013 election campaign that:
… the right to silence, the privilege against self-incrimination and lawyer-client privilege, are abridged or wholly abrogated in too many Commonwealth statutes.
The major differences between the Bill and the 2013 Bill centre on the privilege against self-incrimination and legal professional privilege, as discussed below under the heading ‘New provisions’.
The Bill would seem to rely on the power in section 51(xxxix) of the Constitution to deal with matters incidental to the execution of another power vested in the Parliament. According to the evidence given by Mr Richard Glenn from the Attorney-General’s Department before the Senate Standing Committee on Legal and Constitutional Affairs inquiry into the 2013 Bill:
…This Bill will be in exercise of the incidental power like the other laws of general application like the Acts Interpretation Act and the Criminal Code, and those sorts of laws. Its draws its operational power from the power of the substantive act that triggers the provision, but the creation of the framework in this Bill is an exercise of the incidental power. We do not think that is a particularly controversial constitutional proposition and that it is sound.
It is envisaged that the Bill will be rolled out in three stages. First, it will serve as a prompt for new laws that require monitoring, investigation or enforcement powers. New laws that require such powers ‘will be drafted to trigger the relevant provisions’ contained in the Bill. Second, legislation drafted in recent years using precedents based on the Bill will be amended to remove those provisions and instead trigger the relevant provisions in the Bill. Finally, existing legislation with monitoring, investigation and enforcement provisions ‘may be reviewed and amended to instead trigger the relevant provisions’ in the Bill (emphasis added). Further, the Bill is one of ‘general application’, designed to:
… significantly simplify and streamline Commonwealth regulatory powers across the statute book over time, and improve the accessibility, efficiency and effectiveness of the federal justice system.
From a technical perspective, this Bill (like the 2013 Bill) is difficult to fault. The provisions are logical, clear and have a simplified outline at the beginning of each part to assist a person who may be entirely unfamiliar with monitoring, investigation or enforcement regimes. The Bill is of concern for reasons such as need, the obvious lack of immediate application and the immeasurable practical benefit that this regime may have.
In this context, the Law Council of Australia (LCA) noted in its submission to the Parliamentary Joint Committee on Law Enforcement’s (PJCLE) Inquiry into the 2013 Bill (discussed further below) that the proposed three stage review and roll out of this framework and 'the extent to which there may be problems with existing powers should have preceded the development of the Bill and the results of the review should have been made publicly available.’ This issue was also apparent in the Fair Work Ombudsman’s submission to the PJCLE Inquiry into the 2013 Bill where differences and variations between the existing regime under the Fair Work Act 2009 and the regulatory framework outlined in the 2013 Bill (which do not differ in substance from those in the Bill) were highlighted. It would seem that if the Fair Work regime were to be standardised for the sake of consistency by triggering the Bills provisions, any ‘removal of a number of current powers and penalties may significantly impede the Fair Work Ombudsman’s ability to regulate the national workplace relations system’.
The LCA accurately noted that ‘that the powers contained in the Bill cannot be evaluated in isolation from the Acts, Bills or Regulations governing the regulatory agencies that are likely to make use of them’. Instead, then, debate about the Bill should focus on the effectiveness of streamlining regulatory powers across Commonwealth law.
The Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs (the Senate Committee) for inquiry and report by 8 May 2014. Details of the inquiry are on the Committee homepage.
The Senate Standing Committee for the Scrutiny of Bills (the Scrutiny Committee) commented on the 2013 Bill in Alert Digest No. 13 of 2012 and received a response from the then Attorney-General which was published in the committee's First Report of 2013.
The Scrutiny Committee considered the current Bill in Alert Digest No. 4 of 2014. The Committee noted that concerns had been expressed in relation to the 2013 Bill, about the ability to activate the provisions of the Bill through Regulation and also noted that the Senate Legal and Constitutional Affairs Committee had recommended that the 2013 Bill be amended to remove the power to trigger its provisions by Regulation.
The Scrutiny Committee noted that ‘… the current Bill does not include this provision and thanks the Attorney‑General for recognising the significance of this matter’.
However, the Committee draws the Senate’s attention to item 59 of the Bill. Item 59 provides that an investigation warrant may continue to have effect after the authorised person and all persons assisting with the execution of the warrant, cease the execution and leave the premises. Item 59 also provides that the continuation of a warrant is allowed in limited circumstances, including if the authorised person and all persons assisting are absent from the premises for:
- one hour or less (in any situation), or
- for up to 12 hours in an emergency situation
- without the need for additional authorisation from an issuing officer.
The concern expressed by the Committee was that improper use of the power provided by item 59 could result in an authorised person searching premises on multiple occasions, which could amount to undue trespass on personal rights and liberties. This concern led the Committee to state that:
… in circumstances in which repeat access without the need for additional authorisation from an issuing officer will be permitted, the committee notes its future interest in whether any reporting requirements will apply to these situations.
The 2013 Bill was initially referred to both the Senate Standing Committee on Legal and Constitutional Affairs and the Parliamentary Joint Committee on Law Enforcement (PJCLE) for inquiry and report. The Senate Committee considered that it would be better not to duplicate the work of the PJCLE and ‘resolved that it will not call for submissions or conduct its own inquiry in relation to the Bill’.
On 26 November 2012 the PJCLE reported that consideration of the 2013 Bill’s possible constitutional issues would be better dealt with by the Senate Committee and, consequently, the 2013 Bill was referred back to the Senate Committee, which tabled its report on 18 March 2013. In his evidence before the Senate Committee, Mr Glenn was asked about the basis of such constitutional issues. He commented:
The proposition [of such issues] was not put to us in the course of the hearing and I do not recall seeing anything in a submission about it, at least not with argument associated as to why there might be a problem.
The Committee’s key recommendation was that the 2013 Bill be amended to remove the power to trigger the provisions of the Bill by Regulation. Further, the Committee recommended that the Explanatory Memorandum make it clear that each time a Bill is introduced that provides for the triggering of the provisions in this Bill, this must be ‘explicitly articulated and explained in the Explanatory Memorandum to the relevant Bill’. The key recommendation was based on evidence presented by the Law Council of Australia:
Triggering the Bill’s provisions by regulation may dilute parliamentary scrutiny of precisely what powers are available to an agency in a specific regulatory context, and limit the opportunity for meaningful discussion about whether those powers are appropriate in the circumstances.
As noted above, triggering by Regulation is not permitted under this Bill.
At the time of writing this Digest, submissions to the Senate Committee were not available. However, the Law Council of Australia (LCA) made a submission to the PJCLE inquiry into the 2013 Bill. Noting the constraints of a lack of time to consider the 2013 Bill, the submission still raised insightful and key points of concern:
The powers contained in the Bill are said to be based on the standard monitoring and investigative powers already available to regulatory agencies responsible for compliance activities. However neither the Explanatory Memorandum nor the Second Reading speech provides any examples of the types of regulatory agencies that have similar powers, or that have identified a need for the standard range of powers.
At a public hearing in February 2013, the LCA said that while it neither supported nor opposed the 2013 Bill, it raised strong concerns that there may be ‘insufficient parliamentary scrutiny of the circumstances in which the Bill’s provisions are triggered’. Further:
… the Bill may result in increasing the availability and use of coercive powers overall. While this is clearly not the policy intention, the Law Council notes that some submissions from agencies regarding the Bill seem to indicate their openness to the possibility of new or expanded powers but resistance to any perceived diminution of their current powers. This potential for overall bracket creep is exacerbated by the problems associated with the lack of parliamentary scrutiny already discussed.
The Australian Law Reform Commission made a submission to the PJCLE inquiry into the 2013 Bill and referred to its 2003 report, Principled Regulation: Federal Civil and Administrative Penalties in Australia, which recommended greater consistency in Commonwealth penalties. This report, as well as its significant implementation in the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, has influenced the drafting of the current Bill and its predecessor, the 2013 Bill.
There is no immediate financial impact associated with this Bill. However, the Explanatory Memorandum notes that, once enacted, drafting and scrutiny time will be reduced. In that light, this Bill might be regarded as an efficiency measure which may result in cost savings for the Government.
The Statement of Compatibility with Human Rights can be found at pages 4–7 of the Explanatory Memorandum to the Bill. As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. Whilst the Government considers that the Bill is compatible, in relation to human rights implications it notes:
… further consideration will need to be given to these implications each time a Bill proposes to apply parts of this Bill. The human rights implications will differ with each circumstance in which elements of the framework contained in this Bill are triggered. These must be considered specifically and in context.
However, the Government notes that the Bill engages the following human rights:
- the protection against arbitrary interference with privacy and
- the right to a fair trial.
The Government accurately notes that various provisions in the Bill engage the right to privacy and reputation created by Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Examples of provisions which impact on this right included those related to the monitoring and investigation powers provided by the Bill (including entry, search and seizure). More specifically, the right to not be subjected to arbitrary interference with a person’s privacy or home is potentially engaged by the powers to enter and search a premise (for the reasons discussed above under the heading Senate Standing Committee for the Scrutiny of Bills). Likewise, depending on the circumstances in which a monitoring warrant is executed or an injunction is obtained, it could also be argued to engage a person’s right not to have their reputation attacked.
As a result of the above, the right to privacy and reputation created by Article 17 of the ICCPR is engaged. The Government is of the view that the powers provided by the Bill that impact on the right to privacy and reputation are ‘reasonable, necessary and proportionate to achieve a legitimate objective’. In addition, the Government notes that any lawful interference with this right is not arbitrary or at risk of abuse due to the following safeguards and limitations on the use of the powers provided by the Bill:
- entry, monitoring, search, seizure and information gathering powers provided are conditional upon informed and voluntary consent being given by the occupier of the premises or prior judicial authorisation
- authorised persons and any persons assisting them must leave premises if the occupier withdraws their consent
- monitoring warrants can only be issued when the issuing officer is satisfied that it is ‘reasonably necessary’ for the purpose of determining if a relevant law is being complied with or information subject to monitoring is correct
- investigation warrants can only be issued if the issuing officer is satisfied that there are ‘reasonable grounds’ for suspecting that there is, or may be within 72 hours, evidential material on the premises, and
- an authorised person cannot enter premises under a monitoring or investigation warrant unless:
– their identity card is shown to the occupier of the premises and
– if entry is authorised by warrant, a copy of the warrant is provided to the occupier of the premises.
Given the protections noted above, it would appear that relevant provisions contained in the Bill meet the implied permissible limitations on the right to privacy and reputation of participants in Commonwealth regulatory schemes provided by Article 17 of the ICCPR. This is because the limitations are not arbitrary or unlawful and appear reasonably necessary and proportionate to as means for pursuit of legitimate objectives.
However, as noted by the Government, this is currently abstract and ‘further consideration will need to be given to these implications each time a Bill proposes to apply parts of this Bill.’ This view is shared by the PJCHR which stated that ‘… a final assessment of the compatibility of a specific application of the standard provisions will need to be made in the context of a particular triggering bill.’
Article 14 of the ICCPR ensures that everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. As noted by the Government, the Bill engages that right through:
- the creation of an infringement notice scheme
- the questioning powers provided to authorised officers and
- the imposition of a reverse onus of proof in some circumstances.
An infringement notice is a notice of a pecuniary penalty imposed on a person which sets out the alleged contravention of a law. The person has the option of:
- paying the penalty set out in the notice (and thus finalising the matter) or
- electing to have the matter dealt with by a court or tribunal (i.e. contesting the matter).
Infringement notices are administrative methods for dealing with certain breaches of a law and are typically used for low-level offences and where a high volume of uncontested contraventions is likely to be detected by the relevant regulator or agency. They are often used as a low cost and efficient means by which regulators deal with minor contraventions, and allow wrongdoers to discharge their obligation without a court appearance.
Consistent with the general observations above, the Bill allows a person issues with an infringement notice to elect to have the matter heard by a court (instead of paying the amount specified in the infringement notice). Further, the Bill also provides that every infringement notice must contain a statement alerting a person to that right. As such, in relation to the infringement notice scheme, the Government is correct in noting that the right to a fair and public hearing by a competent, independent and impartial tribunal established by law is preserved.
Article 14(3)(g) of the ICCPR provides that a person has the right ‘in the determination of a criminal charge against him … not to be compelled to testify against himself or to confess guilt’. This right is engaged by items 24 and 54, which make it an offence (in certain circumstances) to fail to answer questions of an authorised officer. The Government notes that ‘the Bill relies on the common law presumption against abrogation of core rights to preserve the privilege against self-incrimination and legal professional privilege’. Further, items 17 and 47 (discussed below under the heading ‘New provisions’) are intended ensure that the privilege against self‑incrimination is not abrogated.
A key threshold issue here is whether or not the right provided by Article 14(3)(g) of the ICCPR is engaged, as the Bill creates a regime for the enforcement of civil penalty provisions, rather than criminal offences. In reports into previous Bills, the PJCHR has highlighted the difficulty in determining if civil penalty provisions are, for the purposes of Article 14 of the ICCPR, actually criminal charges, and outlined the factors identified by international jurisprudence that are taken into account when determining that issue. One of these factors is the severity of the penalty and whether it is punitive and intended to deter, rather than compensate for loss.
In an extensive survey of international and European jurisprudence on the right to fair trials, the Office for Democratic Institutions and Human Rights (ODIHR) examined the content and interpretation of Article 14 of the ICCPR and its analogues contained in the European Convention on Human Rights (ECHR). It noted that for the purposes of Article 14 of the ICCPR, three factors from international jurisprudence emerge as assisting in determining if a law creates a criminal offence:
- the domestic classification of the act as criminal or otherwise
- the nature of the offence and
- the purpose and severity of the penalty.
However, as noted by the Government, it is not possible to determine if the Bill creates criminal offences or otherwise contravenes Article 14 of the ICCPR as:
… each Act that triggers these civil penalty enforcement mechanisms will need to be accompanied by a statement of compatibility considering the compatibility of these mechanisms with Australia’s human rights obligations in their substantive context. This cannot be done in the abstract.
As such, whilst the Bill engages the right provided by Article 14(3)(g) of the ICCPR, it is not possible to determine if it contravenes or otherwise abrogates the right provided.
Article 14(2) of the ICCPR provides that ‘everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.’ As noted above, a key threshold issue is whether the Bill (or future legislation that triggers its civil penalty enforcement mechanisms) engages the right provided by Article 14(2) of the ICCPR, as the Bill creates a regime for the enforcement of civil penalty provisions, rather than criminal offences. For the reasons noted above, this is a complex issue that is not possible to determine in the context of the abstract framework created by the Bill.
However, items 35, 76 and 96 clearly engage the right provided by Article 14(2) of the ICCPR. For example, item 96 provides that where a person seeks to rely on an exception, exemption, excuse, qualification or justification in relation to a civil penalty provision, they bear the evidential burden in relation to that excuse or exemption. Put another way, the person seeking to rely on an exemption must provide evidence supporting that claim, rather than the regulator leading evidence to prove that it does not apply (hence the term reverse onus of proof). The Government justifies the imposition of a reverse onus of proof on the basis that:
- in relation to item 96, , it will ensure that all appropriate evidence is before a court and that it is appropriate given that the knowledge as to the person’s considerations and beliefs at the time of the conduct is peculiar to that person
- in relation to items 35 and 76 (which deal with identity cards), it is appropriate to impose a reverse onus of proof on the person seeking to come within the exception to the strict liability offence of failing to return an identity card when a person ceases to be an authorised person (that the card was lost or destroyed).
The Parliamentary Joint Committee on Human Rights (PJCHR) considered the Bill in its Fifth Report of the 44th Parliament. The PJCHR concluded that ‘… a final assessment of the compatibility of a specific application of the standard provisions will need to be made in the context of a particular triggering Bill.’
The Bill, like the 2013 Bill, is closely based on the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The Guide and this Bill, if enacted, will coexist to assist agencies working with the OPC to draft clear and consistent legislative provisions. The Bill, once enacted, will ‘simplify and streamline’ legislation in which provisions dealing with investigation, monitoring, civil penalty provisions, infringement notices, enforceable undertakings and injunctions are included. For future Bills, it is proposed that this framework will significantly reduce the time and resources needed within the Commonwealth to produce those Bills. Whilst the goal of the Bill is to provide a framework of powers for general application across regulatory schemes to ensure that functions and powers that are frequently used by regulatory agencies are carried out under uniform provisions, the Attorney-General notes in the Explanatory Memorandum:
In some cases the powers contained in this Bill will not be appropriate or sufficient for the requirements of particular regulatory agencies. For example, law enforcement agencies that deal with national security will still require their own specialised powers. Similarly, some regulatory agencies may have specific requirements not met in this Bill and consequently may decide to not trigger the Bill’s provisions. Alternatively, agencies may choose to only trigger certain provisions that are relevant to carrying out their regulatory functions.
The Attorney-General’s Department stated that the aim of the 2013 Bill was to encourage consistency in enforcement regimes, noting difficulties if the same activity is expressed differently in two head statutes. Once enacted, the Bill will result in core provisions in the head statute not being constantly reworked in discussions between agencies. This argument is not particularly convincing as it suggests that this Bill (like the 2013 Bill) is an administrative convenience to ‘hopefully lose pages from the statute book’.
In an attempt to compare and contrast existing regimes with what was proposed by the 2013 Bill, the LCA considered the Great Barrier Reef Marine Park Act 1975 (GBRMPA) and the Fisheries Management Act 1991 in an attachment to its submission to the Senate Committee inquiry into the 2013 Bill. The LCA sought to illustrate how the 2013 Bill would have worked in practice and concluded that it would be a:
… complex exercise to reconcile [the 2013 Bill and the GBRMPA]. This is particularly the case given that the GBR Act is already supplemented by, and must be read together with, the EPBDC Act [Environment Protection and Biodiversity Conservation Act 1999] … [U]nless amendments are made incorporating only peripheral aspects of the Bill, any attempt to prescribe the agency’s regulatory powers primarily by reference to the Bill will result in a substantial review workload and possible procedural and operational changes.
Similarly with the Fisheries Management Act 1991, the LCA noted that ‘rather than resulting in the streamlining of legislation, the Bill may simply complicate current legislative frameworks, with large parts of the regulatory power provisions in existing legislation necessarily preserved’. These observations, although made in the context of the 2013 Bill, apply equally to the Bill.
Nonetheless, if the Bill is accepted as a drafting tool that is not rigidly applied to regulatory regimes that are already efficient and appropriate, it will reduce the drafting and scrutiny times for Government departments.
Clauses 17 (which relates to monitoring) and 47 (which relates to investigations) provide that the privilege against self-incrimination and legal professional privilege are not abrogated by any provisions of Parts 2 or 3 of the Bill. As a result, a person can refuse to answer a question, give information or produce a document on the ground that it would tend to incriminate them or make them liable to a penalty. Likewise, a person can refuse to answer a question, give information or produce a document on the grounds that the answer, information or document would attract legal professional privilege.
In effect, clauses 17 and 47 are re-statements of long-standing common law assumptions that courts apply when interpreting legislation: a provision will not abrogate established common law rights (such as the privilege against self-incrimination) unless there is a clearly expressed intention to do so. Put simply, the two new items place those common law assumptions into the Bill. Importantly however, they cannot prevent those privileges being abrogated by future triggering legislation. However, exactly how future legislation will operate to trigger the powers provided by the Bill (in part or whole) is not entirely clear.
One view is that, consistent with the language used in the Bill, future legislation can only trigger a Part (or Parts) of the Bill in its entirety, subject to any variations provided by the triggering Act itself. Another view is that consistent with the doctrine of Parliamentary sovereignty and well established principles of statutory interpretation, and despite the language used in the Bill, future legislation could trigger individual provisions contained in the Bill, instead of triggering the entire Part.
As this issue is relevant to the Parliamentary oversight of future triggering legislation and the ability of the Bill to make a meaningful contribution to the stated goal of ensuring that regulatory powers are relatively uniform and predictable, it is examined below.
The Bill provides that for the powers provided by a particular Part of the Bill to operate, the relevant Part of the Bill must be triggered by another Act. Whilst the Explanatory Memorandum and Second reading speech speak of the ‘relevant provisions’ of the Bill being triggered by another Act, the Bill itself only refers to powers being triggered by being ‘made subject to…. this Part’.
Put simply, one interpretation is that other Acts can trigger Parts of the Bill as a whole, but not separate provisions within those Parts. The drafting directions provided by the OPC in relation to the 2013 Bill suggest that this is how the Bill is intended to operate.
If this interpretation is correct, then, for example, any future legislation that triggers Part 2 or 3 of the Bill could not exclude items 17 or 47. Instead, the triggering legislation would have to trigger the relevant Part of the Bill in its entirety, then include provisions that provide specific variations to items 17 or 47 (for example, a provision abrogating the privilege against self-incrimination in relation to the provision of documents in exchange for use immunity).
This view is supported by the language of the Bill itself. For example, subclause 37(2) provides that for the investigation powers to operate, a provision of another Act ‘must be made subject to investigation under this Part', that is, there does not appear to be capacity for the provision in the other Act to be made subject to investigation under only specific provisions of Part 3 of the Bill.
The alternative view is that due to the doctrine of Parliamentary sovereignty and as a matter of statutory interpretation, specific provisions in a later triggering Act can override general provisions in the Bill.
The doctrine of Parliamentary sovereignty holds that, as a general rule, it is not possible for a Parliament to bind successor Parliaments. Accordingly the Bill, if enacted, cannot prevent another Parliament from enacting legislation that contradicts, differs, amends, or repeals the Bill. From this general proposition also flows the invariable rule that in case of conflict between two Acts of Parliament, the later takes precedence.
On this view, despite the provisions in the Bill providing that generally the Part of the Bill containing the relevant powers must be triggered by another Act, a successor Parliament could instead choose to enact legislation that explicitly triggers only specific provisions contained in the Bill (instead of the relevant Part of the Bill as a whole).
Leaving aside the doctrine of Parliamentary sovereignty, as a matter of statutory interpretation the later triggering Act would be viewed as containing specific provisions that deal with the provision of specific powers to the relevant regulator or agency. In turn, the Bill would be viewed as containing general provisions regulating how its powers are to be triggered. Long-standing rules of statutory interpretation suggest that the triggering Act would prevail over the Bill to the extent of any inconsistency between them, the inconsistency being whether:
- the powers provided by the Bill are subject to the conditions contained in the Bill (that they be triggered via the relevant Part as a whole) or
- the powers provided by the Bill are subject to the conditions contained in the triggering Act (that only specific provisions contained in the relevant Part of the Bill are triggered).
As a result, on this view, the triggering Act would prevail. As a result, it could, for example, choose to trigger specific investigation powers provided by the Bill in isolation without triggering clauses 17 and 47.
Far from being an existential question of the precise bounds of the doctrine of Parliamentary sovereignty or the correct applications of rules of statutory interpretation, this issue has practical relevance and could potentially determine the validity of future legislative provisions referring to the Bill if challenged in court.
If the correct interpretation is that triggering legislation can only trigger a Part of the Bill as a whole, subject to any variations provided in the triggering Act, arguably future scrutiny of such legislation (for example, determining the human rights implications of the triggering Act) may be a relatively straightforward. The examination would centre on the implications of the use of the powers provided by the Bill and the issues raised by any variations contained in the triggering Act.
Most importantly however, if this interpretation is correct then any future legislation that triggers only specific provisions in the Bill (instead of a Part in whole) could be challenged in the courts and the relevant provisions declared invalid. This would cause temporary disruption to the relevant regulatory regime until such time as new legislation overcoming the invalidity and providing a proper basis for the use of, for example, the relevant monitoring or investigation powers was passed. Further, this interpretation would strengthen the utility of the Bill in terms of streamlining Commonwealth regulatory powers by increasing consistency and uniformity.
However, if the correct interpretation is that triggering legislation can trigger specific provisions in the Bill, then arguably the required level of scrutiny of the triggering Act will necessarily be complex and the utility of the Bill in terms of streamlining Commonwealth regulatory powers by increasing consistency and uniformity would be undermined.
If this interpretation is correct, then any future legislation can trigger specific provisions in the Bill without fear of being challenged in court. This would provide more flexibility to legislators.
However, whilst greater flexibility may be desirable, there are downsides to this interpretation. If successor Parliaments can pass legislation that ‘cherry picks’ specific provisions contained in the Bill, rather than using the framework provided by a particular Part of the Bill as a whole, then it is difficult to see how the Bill would substantially contribute to ensuring that ‘Commonwealth regulatory powers are sufficiently certain and predictable’. In addition, the triggering of individual provisions may result in powers becoming available to regulatory agencies without the corresponding protections provided in the framework set out in the Bill being available. For example, the power to seize items when executing a warrant (clause 52) could be triggered, without the provisions imposing requirements to provide copies of seized documents and receipts for seized items, and to return those items when they are no longer required (clauses 64 to 66).
Given the relatively novel approach to the provision of regulatory powers proposed by the Bill, it is not possible to definitively determine which interpretation is correct. However, based on the doctrine of Parliamentary sovereignty, long-established principles of statutory interpretation and case law that has considered those issues (albeit not within the type of framework proposed by the Bill), it would appear the latter view is more likely to be correct, which raises issues around the Bill’s long-term utility.
Part 1 of the Bill includes the following clauses:
- clause 3, which sets out a simplified outline of the Bill that includes the requirement that the provisions of the Bill (when enacted) must be triggered by another Act and
- clause 4, which provides for a dictionary of terms.
Part 8 of the Bill gives the Governor-General the standard power to make Regulations under an Act.
Parts 2 and 3 of the Bill set out the various monitoring and investigation powers prescribed under the Act.
Part 2 of the Bill sets out provisions allowing for an authorised officer to monitor whether a person or organisation is complying with the relevant legislation and whether the information that has been provided by the person or organisation is correct. Part 3 provides for a range of investigation powers that an authorised person may utilise while attempting to gather material relating to a suspected breach of a prescribed offence or civil penalty provision.
Some examples of Commonwealth legislation that use monitoring powers are the Clean Energy Act 2011 (section 233); Customs Act 1901 (sections 214AB, 214AE); Migration Act 1958 (section 268CI); and Gene Technology Act 2000 (section 153).
Some examples of Commonwealth legislation that use investigation powers are the National Gambling Reform Act 2012 (section 126); Illegal Logging Prohibition Act 2012 (section 31); and Greenhouse and Energy Minimum Standards Act 2012 (sections 95, 96).
Part 4 of the Bill creates a framework for civil penalties in Commonwealth law. Where a person has contravened a civil penalty provision, the court will have the authority to issue a civil penalty order. It is possible to have both a criminal penalty, that is, a term of imprisonment as well as a civil penalty, available for the same conduct. In such offences, the fault elements (knowledge, recklessness, intention) are clearly distinguishable so that the more appropriate penalty can be applied.
Division 1 of Part 4 sets out the purpose of Part 4 and how it will operate. Specifically, subclause 79(2) defines what is a civil penalty provision, in any Act or legislative instrument.
Division 2 of Part 4 details the process involved in obtaining a civil penalty order. Subclause 82(1) provides that an authorised applicant may apply to the relevant court for an order that a person, who is alleged to have breached a civil penalty provision, pay the Commonwealth a pecuniary penalty. Under subclause 82(3), where the relevant court is satisfied that the person has breached the civil penalty provision, the court may order to person to pay a pecuniary penalty. The amount of the penalty is for the court to determine, upon taking into account all relevant factors, including those prescribed under subclause 82(6), though subclause 82(5) sets out maximum penalties that a court may order the person to pay. Clause 83 clarifies that a pecuniary penalty is a debt payable to the Commonwealth and that the Commonwealth has the power to enforce such a debt.
Division 3 of Part 4 provides for the situation where concurrent criminal and civil proceedings have arisen out of the same conduct without subjecting a person to a situation of double jeopardy. A court cannot issue a civil penalty order against a person who has previously been convicted of a criminal offence in relation to the same conduct (clause 88). Clauses 88-90 outline when civil penalty orders can be made, whether during or subsequent to criminal proceedings and vice versa, where criminal proceedings can commence after civil proceedings. These are important procedural provisions that commonly arise in prosecutions and causes of action.
Clause 91 prevents evidence given in civil proceedings from being admitted in criminal proceedings, except where a person has been charged with giving false evidence in the proceedings for the civil penalty order.
Division 4 of Part 4 sets out various provisions that relate to civil penalty provisions. Clause 92 provides that even where a person has not directly contravened the civil penalty provisions, they will still be considered to have breached the provisions in certain circumstances. Therefore any attempt to contravene a provision that does not succeed, aiding or inducing a contravention of a civil penalty provision, and any conspiracy to contravene a civil penalty provision, will be considered to be a breach of a civil penalty provision. Clause 93 sets out the circumstances where certain actions will be considered to be repeated contraventions of a civil penalty provision. Under clause 94, in proceedings for a civil penalty order against a person, it is not necessary to consider the person’s state of mind. This means that neither the intent nor state of mind of the person, or the presence or absence of knowledge, recklessness or negligence is relevant in determining whether the person breached a civil penalty provision. However, clause 95 provides that a person will not be liable for a civil penalty order where there has been an honest mistake of fact.
Civil penalty provisions operate across most areas of Commonwealth law.
Part 5 of the Bill allows for the use of infringement notices in certain circumstances. A well-versed description of infringement notices is set out in the Explanatory Memorandum:
An infringement notice is a notice of a pecuniary penalty imposed on a person by statute setting out particulars of an alleged contravention of a law … Infringement notices are administrative methods for dealing with certain breaches of the law and are typically used for low-level offences and where a high volume of uncontested contraventions is likely.
Clause 103 of the Bill provides for when an infringement notice may be given. In particular, subclause 103(1) provides that where an infringement officer has reasonable grounds to believe that a person has contravened an offence of strict liability or a civil penalty provision, which is subject to an infringement notice under Part 5 of the Bill, the infringement officer can issue an infringement notice. Clause 104 sets out a number of details that must be included in an infringement notice, including the person to whom the notice is directed, the time and method of payment and the consequences of non-compliance with the notice.
Under clause 107, a person who has received an infringement notice can elect to pay the amount specified in the notice and will therefore be discharged from all liability for the offence the subject of the notice, without having to go to court. Payment of the amount does not constitute an admission of fault. Clause 106 allows a person to challenge an infringement notice and in the event they are successful, then the notice will be withdrawn. Where a person has already paid the amount, and then subsequently been successful in having the notice withdrawn, the amount must then be refunded. Subclause 107(2) provides that where a notice has been withdrawn, the person is not considered to be discharged from liability under subclause 107(1). According to the Explanatory Memorandum, ‘withdrawing a notice acts as if the notice was never issued’, meaning there is no need for the person’s liability to be discharged.
Under Part 6 of the Bill, a framework is established for the use of enforceable undertakings. Where a person has breached an offence provision or civil penalty provision that is enforceable under Part 6, the enforcement body may choose to have the matter dealt with by way of an enforceable undertaking. This is a legal agreement where the person undertakes to either perform, or refrain, from a particular action in exchange for avoiding, or minimising, the disciplinary action required to be taken against them. Subclause 114(1) of the Bill allows for an authorised person to accept such an undertaking. Under subclause 114(3) of the Bill, the person who gives the undertaking may vary or withdrawal it on the condition that they have the authorised person’s consent. Clause 115 allows for the relevant undertaking to be enforced by the court, and sets out the remedies which a court may provide where an undertaking has been breached.
Examples where enforceable undertakings operate in current Commonwealth legislation include Banking Act 1959 (section 18A), Fair Work Act 2009 (section 715), Life Insurance Act 1995 (section 133A), and Telecommunications Act 1997 (Part 31A).
Part 7 of the Bill allows for the use of injunctions when enforcing provisions. An injunction is ‘an order of a court that stops a person from doing, or demands that a person do a particular action’. Injunctions may be used to enforce both offence provisions and civil penalty provisions.
Under clause 121 of the Bill, the court has the power to grant an injunction to either restrain a person from engaging in a particular type of conduct (restraining injunction), or order that a person engage in a particular type of conduct (performance injunction). The court will only grant an injunction where an application has been submitted by an authorised person and the court is satisfied that it is either desirable to grant such an injunction, or that a refusal or failure to do so would result in a contravention of an enforceable provision. Clause 122 allows for an interim injunction to be granted, while the court is hearing the original application for an injunction and there is need to either compel or restrain a person from engaging in particular conduct. Pursuant to clause 123, the court has the power to discharge or vary an injunction that has been granted, while clause 124 allows the court to issue an injunction to require a person to engage in specified conduct whether or not the specific conduct is occurring, has occurred in the past, or is likely to give rise to damages.
Theoretically, this Bill is sound in its aim to streamline the drafting of regulatory powers at the Commonwealth level. However, it is possible that the Bill may have the unintended consequences of creating greater complexity and confusion as agencies attempt to reconcile the requirements to streamline legislation with their existing operational requirements. In addition, the issue of how the Bill will be interpreted in relation to future triggering legislation adds to this complexity.
As discussed, there are two possible interpretations that a court could take in relation to how future legislation can trigger the powers provided by the Bill:
- only by triggering a relevant Part of the Bill in its entirety, subject to any variations provided by the triggering legislation or
- by triggering specific provisions in the Bill, or a relevant Part in its entirety, subject to any variations provided by the triggering legislation.
Both possible interpretations create different risks to the efficacy of the Bill.
If the first interpretation is adopted by the courts, there is a possibility that future triggering legislation could be declared invalid if it seeks to only trigger selected provisions in the Bill instead of the whole of a relevant Part or Part(s). This creates a risk that a regulatory scheme could be rendered (temporarily) invalid and inoperative.
The second interpretation (that future legislation can trigger specific provisions in the Bill) appears more likely to prevail, but raises its own risk to the Bill’s efficacy. Specifically, if adopted by successor Parliaments or the courts, then over time it is possible that triggering legislation will vary considerably from the framework provided by Bill. This creates the risk that the Bill will not have streamlined the drafting of regulatory powers or created a more consistent, standardised regulatory environment, which is one of its stated purposes.
Combined with continuing budget restraints on the public service and the Government being light on the details of the three stage rollout of the Bill, the Bill’s usefulness will not be able to be judged for some time.
. This Bills Digest is based, in part, on M Biddington and L Ferris, Regulatory Powers (Standard Provisions) Bill 2013, Bills digest, 99, 2012–13, Parliamentary Library, Canberra, 2013, accessed 28 March 2014.
. Recommendation 6.9 of the report stated: ‘To ensure that legislation is relevant, clear, effective and not redundant, the Government should introduce a flexible scheme for the regular review of primary legislation’. Attorney-General’s Department (AGD), A strategic framework for access to justice in the federal civil justice system, report prepared by the Access to Justice Taskforce, September 2009, p. 86, accessed 28 March 2014.
. G Brandis (Attorney-General), New Australian law reform inquiry to focus on freedoms, media release, 11 December 2013, accessed 28 March 2014: ‘This is a major instalment towards the commitment I made to restore the balance around the issue of human rights in Australia’. See also: C Merritt, ‘Audit to restore human rights’, The Australian, 27 August 2013, p. 7, accessed 28 March 2014; A Boxsell and M Priest, ‘Coalition promises review of statutes: row over legal rights removal’, The Australian Financial Review, 27 August 2013, p. 11, accessed 28 March 2014; C Merritt, ‘Brandis to reclaim rights agenda’, The Australian, 30 August 2013, p. 29, accessed 28 March 2014.
. Whilst not stated directly, it would appear that this would include legislation drafted using precedents based on the 2013 Bill.
. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 13 of 2012, The Senate, 31 October 2013, pp. 17–19, accessed 31 March 2014; Senate Standing Committee for the Scrutiny of Bills, First report of 2013, The Senate, 6 February 2013, pp. 20–22, accessed 31 March 2013.
. Proposed subclauses 59(2),-(5)
. The referrals were both made on 11 October 2012; A Burke, ‘House of Representatives Committees: Selection Committee Report’, House of Representatives, 11 October 2012, p. 12109, accessed 31 March 2014; Senate Selection of Bills Committee, Report No. 13 of 2012, The Senate, Canberra, 11 October 2012, accessed 31 March 2014.
. LCA, Submission to the Parliamentary Joint Committee on Law Enforcement, op. cit., p. 2.
. Ibid., pp. 3–4. See: International Covenant on Civil and Political Rights, done in New York on 16 December 1966,  ATS 23 [reprint] (entered into force for Australia (except Article 41) on 13 November 1980; Article 41 came into force for Australia on 28 January 1993).
. For example, clauses 18-23, 32, and 48.
. Clauses 26 and 35(6) (monitoring warrants) and paragraph 56(1)(b) and clause 76(6).
. As noted by the Attorney-General’s Department ‘Implied limitations can arise as a result of interpreting terms such as … 'arbitrary' (e.g., Article 17 ICCPR) …’, AGD, ‘Permissible limitations’, AGD website, accessed 31 March 2014. See also: Australian Human Rights Commission (AHRC), ‘Any permitted measures restricting rights need to … be prescribed by law, be on grounds permitted in relation to the right concerned, [and] be a reasonable, necessary and proportionate means for pursuit of a legitimate objective’, Permissible limitations on rights, AHRC website, accessed 31 March 2014.
. Ibid., p. 6; proposed paragraph 104(1)(k).
. Ibid., paragraph 1.10.
. AGD, A guide to framing Commonwealth offences, infringement notices and enforcement powers, op. cit.
. R Glenn (Attorney-General’s Department), Public Hearing of the Legal and Constitutional Affairs Legislation Committee, op. cit., p. 8.
. Subclauses 17(1), 47(1).
. Subclauses 17(2), 47(2).
. See for example in relation to the privilege against self-incrimination: Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 at 433 (as per French J),  FCA 126; Griffin v Pantzer (2004) 137 FCR 209 at - (as per Allsop J),  FCAFC 113; Re Comptroller-General of Customs v Disciplinary Appeal Committee (1992) 35 FCR 466,  FCA 194; Pyneboard Pty Ltd v Trade Practices Commission (1982) 152 CLR 328 at  (as per Mason ACJ, Wilson and Dawson JJ),  HCA 9. In relation to legal professional privilege see: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543,  HCA 49; Carmody v Mackellar (1997) 76 FCR 115,  FCA 839.
. See (for example) clauses 6-8, 36-38, 77-79, 98-100, 109-111, and 116-118.
. According to the proposed drafting directions, any such adjustment to the way in which the framework established by the Bill operates would need to be cleared with the Attorney-General’s Department ‘if that difference or variation represents a departure from fundamental criminal law principles’ - Office of Parliamentary Council, Submission to Parliamentary Joint Committee on Law Enforcement, op. cit., paragraph 7, p. 3.
. This rule of statutory interpretation is known by the Latin maxims generalibus specialia derogant (‘specific provisions override general ones’) and generalia specailibus no derogant (‘general provisions do not override specific ones’). Whilst they are subject to exceptions, and do not appear to have been applied or considered by an Australian court in the context of the type of regulatory framework proposed by the Bill, it would appear that a court would give primacy to the later triggering Act’s specific provisions over the Bill’s general framework, provided that was the clearly expressed purpose of the relevant provisions in the later triggering Act: P Herzfeld, T Prince and S Tully, Interpretation and use of Legal Sources, Laws of Australia, Thomson Reuters, Sydney, 2013, pp. 219–220 and cases cited therein; Acts Interpretation Act 1901 (Cth), section 15AA, accessed 21 May 2014.
. G Carney, ‘An overview of manner and form in Australia’, Queensland University of Technology Law Journal, 1989(5), p. 69; H Wade 'The Basis of Legal Sovereignty', Cambridge Law Journal, 13(2), November 1955, pp. 172–197, p. 174; House of Representatives, The Parliament and the role of the House, Department of the House of Representatives, p. 18, accessed 19 May 2014.
. This is because, in the context of determining the human rights issues raised by future legislation it would be necessary to consider the implications of: (1) the use of the powers provided by the specific provisions contained in the Bill that are proposed to be triggered (in the context of the specific regulatory environment to which they will apply), (2) the implications of not triggering particular provisions, (3) any variations or additional powers contained in the triggering Bill and (4) the compatibility of the powers with the common law.
. Clause 126 provides that the Governor-General may make Regulations.
. Clauses 84-86 provide for where a person’s conduct has constituted two or more civil penalty provisions.
. Clause 94 does not apply to breaches that arise out of a contravention of clause 92 (see note to subclause 92(2)).
. Under subclause 114(5), the authorised person may cancel the undertaking by giving written notice to the other party.
. Under subclause 115(2) a court can make the following orders: an order directing compliance, an order requiring any financial benefit from the failure to comply to be surrendered, an order for damages or any other order that the court considers appropriate.
. PH Butt and D Hamer, eds., LexisNexis concise Australian legal dictionary, fourth edn, LexisNexis Butterworths, Chatswood, 2011, p. 305.
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