1.1
On 10 December 2020, the Senate referred the provisions of the Regulatory Powers (Standardisation Reform) Bill 2020 (the bill) to the Senate Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 19 February 2021.
1.2
The referral followed a recommendation of the Senate Standing Committee for the Selection of Bills (the Selection of Bills Committee). An appendix to the report of the Selection of Bills Committee reasoned that the bill be referred because 'the Parliament should ensure it is properly drafted and there are no unintended consequences'.
Conduct of this inquiry
1.3
Details of the inquiry were advertised on the committee's webpage. The committee also invited a number of organisations and individuals to submit. The committee received seven submissions, which are listed at Appendix 1.
Acknowledgement
1.4
The committee thanks all submitters for their participation in the inquiry.
Purpose of the bill
1.5
This bill would amend the following Commonwealth acts to trigger the operation of the Regulatory Powers (Standard Provisions) Act 2014 (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).
1.6
The purpose of the bill is to:
repeal current provisions providing for regulatory regimes in the ESOS Act, FMA and the TEQSA Act, and instead trigger the standard provisions of the Regulatory Powers Act. This is to align those Acts' regulatory regimes with the standard provisions; and
trigger the standard provisions of the Regulatory Powers Act in the DFDA, TAPA and TPPA, to provide those Acts with compliance and enforcement mechanisms as required, which align with best practice.
1.7
The bill would also amend 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.
1.8
This is the second bill of its kind, following the passage of the Regulatory Powers (Standardisation Reform) Act 2017 which amended 15 Commonwealth acts to repeal existing regulatory schemes and trigger the provisions of the Regulatory Powers Act.
Regulatory Powers Act (Standardised Provisions) Act 2014
1.9
The Regulatory Powers Act commenced on 1 October 2014. It provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as provisions regulating the use of civil penalties, infringement notices, enforceable undertakings and injunctions. The standard provisions are based on powers which are commonly available to many Commonwealth regulatory agencies in their governing legislation.
1.10
The Regulatory Powers Act does not have direct legal effect on existing regulatory regimes established by legislation. Its operation must be triggered by the passage of legislation to repeal existing regimes and incorporate the standard provisions into the primary Act (a 'triggering Act').
1.11
By standardising regulatory powers across the Commonwealth, the Regulatory Powers Act is intended to:
significantly reduce the length of legislation governing each regulatory regime;
provide greater clarity and consistency for agencies that need to exercise powers with respect to multiple regulatory regimes;
make it easier for businesses that are subject to multiple regimes to understand and comply with the law; and
facilitate the development of a common body of law.
1.12
In his second reading speech, the Attorney-General, the Hon Christian Porter MP stated:
The regulatory powers act also ensures that Commonwealth regulatory powers are sufficiently certain and predictable, while being flexible, to ensure that agencies with specialised functions can operate effectively. The standard provisions of the regulatory powers act represent best practice in relation to regulatory powers of general application.
1.13
In addition, the explanatory memorandum states:
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.
1.14
The committee considered the provisions of the Regulatory Powers (Standard Provisions) Bill 2014 in a report dated 8 May 2014. This iteration received Royal Assent on 21 July 2014. The committee also considered a previous iteration of the bill, the Regulatory Powers (Standard Provisions) Bill 2012 [Provisions], in a report dated 18 March 2013. This earlier version of the bill lapsed at the end of the 43rd Parliament.
Consideration by other committees
Senate Standing Committee for the Scrutiny of Bills
1.15
The Senate Standing Committee for the Scrutiny of Bills sought further information from the minister in respect of a number of matters, including:
the justification for expanding the application of the monitoring powers in the Regulatory Powers (Standard Provisions) Act 2014 to allow them to be exercised in relation to 'a matter';
the justification for the proposed amendment to section 93 of the Fisheries Management Act 1991, to provide that the offence will be a strict liability offence, with reference to the principles set out in the Guide to Framing Commonwealth Offences;
the training, qualifications or experience of the various 'authorised officers' who are authorised to use force against things under the bill;
why it is necessary to confer powers to use force against things on any 'other person' to assist an authorised person;
whether the bill can be amended to require that all persons authorised to use force must have appropriate expertise and training;
why it is considered necessary and appropriate to allow any 'other person' to assist an authorised person in exercising monitoring and investigatory powers; and
whether the bill can be amended to require that any person assisting an authorised person have the expertise appropriate to the function or power being carried out.
1.16
At the time of writing, the minister's response was still to be published.
Parliamentary Joint Committee on Human Rights
1.17
The Parliamentary Joint Committee on Human Rights had no comments on the bill on the basis that it does not engage, or only marginally engages, human rights; promotes human rights; and/or permissibly limits human rights.
Financial impact
1.18
The explanatory memorandum states that the bill would have no financial impact in relation to the Regulatory Powers Act; nil or insignificant financial impact in relation to the DFDA, ESOS Act, FMA and TEQSA Act; and low financial impact on the TAPA and the TPPA which would be managed within existing resources.
Key provisions of the bill
1.19
The bill contains seven schedules. The schedules seek to amend the following Acts:
Schedule 1–Amendment of the Regulatory Powers (Standard Provisions) Act 2014;
Schedule 2–Amendment of the Defence Force Discipline Act 1982;
Schedule 3–Amendment of the Education Services for Overseas Students Act 2000;
Schedule 4–Amendment of the Fisheries Management Act 1991;
Schedule 5–Amendment of the Tertiary Education Quality and Standards Agency Act 2011;
Schedule 6–Amendment of the Tobacco Advertising Prohibition Act 1992; and
Schedule 7–Amendment of the Tobacco Plain Packaging Act 2011.
1.20
As the committee has not been asked to review the provisions of the Regulatory Powers Act, this report will only consider their operation so far as is necessary to analyse the application of the bill.
Schedule 1 – Regulatory Powers (Standard Provisions) Act 2014
1.21
Part 2 of the Regulatory Powers Act provides a framework for the exercise of monitoring powers in two circumstances: to determine whether the provisions of an Act or legislative instrument have been, or are being complied with; or to determine whether information given in compliance or purported compliance with a provision of an Act or a legislative instrument is correct. These monitoring provisions may take effect where provided for in a triggering Act.
1.22
The bill proposes to extend the circumstances for which the monitoring provisions may be used to 'other matters to which an Act or legislative instrument relates' (for example, whether or not a circumstance exists). All rights and obligations under the framework in Part 2 would be extended to monitoring activities undertaken for other matters.
Schedule 2 – Defence Force Discipline Act 1982
1.23
The DFDA provides for investigation powers which can be carried out on 'service land'. The bill would trigger the investigation provisions in Part 3 of the Regulatory Powers Act, to enable investigation of alleged service offences on premises, including those that occur beyond service land. The explanatory memorandum explains that it is not intended that the triggering of these provisions replace the existing provisions in Part VI of the DFDA, but instead sit alongside them and provide an alternative, or supplementary, suite of investigation powers.
1.24
The bill would provide authorised officers two additional investigation powers not already included in Part 3 of the Regulatory Powers Act, including the right to use force against things (not persons) in the course of executing an investigation warrant, and the power to be accompanied by and make use of an animal in exercising investigation powers under Part 3 of the Regulatory Powers Act. If the authorised person is acting under a warrant, the use of the animal must be specified in, and authorised by the warrant.
Schedule 3 – Education Services for Overseas Students Act 2000
1.25
Schedule 3 of the bill would amend Parts 6 and 7 of the ESOS Act to repeal existing monitoring, investigation and enforceable undertakings provisions. It is intended that amending regulations will repeal the existing infringement notices scheme contained in the Education Services of Overseas Students Regulations 2001 (ESOS Regulations). The bill would then apply the standard monitoring, investigation, infringement notices and enforceable undertakings provisions contained in Parts 2, 3, 5 and 6 of the Regulatory Powers Act.
1.26
The effect of triggering the standard provisions is that many of the powers removed by repealing existing provisions would be either retained by, or aligned to, the form proscribed by the Regulatory Powers Act. However, the bill would modify the standard provisions to allow authorised persons (or persons assisting an authorised person) to use force in executing monitoring or investigation warrants. This power would only permit the use of force against things (not persons) as is necessary and reasonable in the circumstances. In addition, the bill would also modify the standard provisions with respect to enforceable undertakings to allow for the acceptance of a written undertaking given by a registered provider regarding a condition of registration. Both modifications to the standard provisions would be powers retained from the existing suite of regulatory powers under the ESOS Act.
Schedule 4 – Fisheries Management Act 1991
1.27
Schedule 4 of the bill would repeal the existing infringement notice regime under the FMA (and the corresponding Fisheries Management Regulations 2019) and trigger the operation of Part 5 of the FMA. In doing so, it would place the infringement notice scheme in principal legislation. The bill would restrict the application of the infringement notice scheme to offences contrary to subsections 93(1) and 95(5) of the FMA. The explanatory memorandum notes that subsections 95(1) and 100 of the FMA, which are currently subject to the infringement notice scheme, would be excluded from the new scheme under the bill 'as they are indictable offences and are more appropriately dealt with through prosecution'.
1.28
Under the current legislation, an offence under subsection 93(1) carries a penalty of six-month imprisonment. The bill would convert this penalty to its equivalent pecuniary penalty, which has been identified as 30 penalty units. The bill would also repeal the defence of a reasonable excuse and would convert subsection 93(1) into a strict liability offence. The explanatory memorandum explains that a change from a penalty of imprisonment to one of a monetary penalty lessens the severity of the punishment and is proportionate to the level of the offence, whilst still acting as a deterrent.
Schedule 5 – Tertiary Education Quality and Standards Agency Act 2011
1.29
The bill would amend the TEQSA Act to repeal provisions of Part 6 that relate to the exercise of investigative powers on a premises or the issuance of identity cards. It would also repeal Division 3 of Part 7 which relates to enforceable undertakings. The bill would then trigger the operation of the following standard provisions under the Regulatory Powers Act by inserting new Divisions 3 to 7, and amending the existing Division 4 to become Division 8 of the TEQSA Act:
Part 4 – civil penalties;
Part 5 – infringement notices;
Part 6 – enforceable undertakings; and
1.30
The effect of triggering the standard provisions is that many of the powers removed by repealing existing provisions would be either retained by, or aligned with, the form proscribed by the Regulatory Powers Act. In addition, the bill would introduce new powers by triggering Part 5 of the Regulatory Powers Act which would introduce a new infringement notice scheme into the TEQSA Act.
1.31
The bill contains two modifications of the standard provisions of the Regulatory Powers Act in their application to the TEQSA Act. It would modify the standard provisions with respect to civil penalties by removing the multiplier that would otherwise apply if a body corporate were the subject of a determination. The explanatory memorandum states that this is because the entities subject to these provisions would only be bodies corporate and not individuals, so the attached maximum pecuniary penalty amounts have been determined with reference to corporations.
1.32
The bill would also modify the standard enforceable undertaking provisions of the Regulatory Powers Act to allow for the publication of an accepted undertaking given by a regulated entity on the National Register of Higher Education Providers. This measure would reflect an existing power under the TEQSA Act.
Schedule 6 – Tobacco Advertising Prohibition Act 1992
1.33
At present, the TAPA does not contain any regulatory powers. The bill would amend TAPA to trigger the standard monitoring, investigation, enforceable undertakings and injunctions provisions contained in Parts 2, 3, 6 and 7 of the Regulatory Powers Act. The bill would apply the standard provisions with one modification: it would modify the standard investigation powers to extend the 60 day period in which evidential material is seized under an investigation warrant to 90 days.
Schedule 7 – Tobacco Plain Packaging Act 2011
1.34
At present, the TPPA triggers Parts 3, 4 and 5 of the Regulatory Powers Act, establishing investigation, civil penalty provision and infringement notices regulatory powers frameworks. Schedule 7 would amend the TPPA to apply the standard monitoring, enforceable undertakings and injunctions provisions of the Regulatory Powers Act found in Parts 2, 6 and 7. The bill would institute new regulatory regimes as the TPPA does not currently contain similar powers.
1.35
The bill contains four changes to the standard provisions under the Regulatory Powers Act as they would apply to the TPPA:
Modify the standard monitoring provisions to empower authorised officers to take samples of any thing on a premises upon which monitoring is being undertaken. This provision would mirror an existing power under the TPPA.
Provide for the use of force in the course of executing a monitoring warrant. This power, which is not available under the standard provisions of the Regulatory Powers Act, is restricted to use against 'things'.
Abrogate the privilege against self-incrimination to provide that an individual would not be excused from answering a question or producing a document on the ground that answering the question, or producing the document, might tend to incriminate the individual in relation to an offence. The bill would provide, however, that answers, documents or information provided as a consequence of the abrogation would not be admissible in evidence against the individual in criminal proceedings except for those brought under the following sections:
sections 137.1 or 137.2 of the Criminal Code Act 1995 (Criminal Code), which deal with false or misleading information or documents;
section 149.1 of the Criminal Code, which deals with obstruction of Commonwealth public officials.
Extend the 60 day period in which evidential material is seized under an investigation warrant to 90 days.
1.36
The bill would also amend the existing investigation powers contained in the TPPA, to include a modification to the standard provisions that are currently triggered by the TPPA.
Key issues raised in evidence
1.37
The Commonwealth's efforts to standardise regulatory frameworks received broad support across submissions received to the inquiry. The Law Council of Australia (Law Council) acknowledged 'that the broad objectives of standardisation have the potential to improve the usability of legislation and, in turn, improve compliance outcomes and enforcement practices'. However, submitters raised a number of concerns regarding the implementation of the bill, including:
the scope of the proposed expansion of the Regulatory Powers Act's monitoring powers to include 'matters';
potential regulatory inconsistencies that might arise across statutes if other regimes are not included in the standardisation project;
the removal of existing powers from regulatory agencies;
the impact of the bill on efforts to combat the illicit tobacco trade; and
The scope of the monitoring powers
1.38
The Law Council raised concerns regarding the proposed amendment to the standard monitoring provisions to include an additional category of 'a matter subject to monitoring'. It submitted that the proposed inclusion of this additional category 'has the potential to result in significant coercive powers being available in a much wider range of circumstances', but identified that the bill does not include statutory criteria for identifying such a matter in relation to a particular triggering Act.
1.39
The Law Council further questioned the need for an additional category, highlighting that the example provided in the explanatory memorandum of whether or not a circumstance exists, seems to fall within the existing categories. It suggested:
A provision of a triggering Act that imposes a regulatory obligation, and is designated as a 'provision subject to monitoring' for the purpose of the RPA, will necessarily prescribe the factual circumstances in which that regulatory obligation is enlivened. In other words, regulatory 'provisions' necessarily prescribe 'matters'.
1.40
In contrast, the Council of International Students Australia (CISA) submitted that this expansion 'would allow for better enforcement of the provisions subject to the monitoring powers of the [Regulatory Powers Act]'. However, CISA questioned why a similar expansion was not applied to the standard investigation powers. It suggested:
such an inclusion may better achieve the underlying goal of ensuring that the penalty and offence provisions of the acts that trigger the [Regulatory Powers Act] can be effectively enforced.
1.41
The Attorney-General's Department (the department) stated that this amendment is part of a series of 'minor amendments' to clarify the operation of the standard provisions and 'ensure that the regulatory requirements and underlying penalty and offence provisions…can be properly enforced'. It stated that the amendments:
ensure the standard provisions work effectively and as intended, refining the operation of these best practice provisions in response to lessons learnt through their use of the past five years.
1.42
In relation to this particular amendment, the department submitted:
the proposed change would allow Regulatory Powers Act monitoring powers to be exercised in relation to other matters (for example, whether or not a circumstance, such as adherence to performance standards, exists). This expanded scope will only apply where triggering Acts are drafted or amended to nominate particular matters that may be subject to monitoring.
Potential regulatory inconsistencies
1.43
The Australian Skills Quality Authority (ASQA) is also known as the National VET Regulator and is one of the regulatory agencies under the ESOS Act. ASQA also has regulatory responsibilities under the National Vocational Education and Training Regulator Act 2011 (the NVR Act), which has not been amended to trigger the standard provisions of the Regulatory Powers Act.
1.44
ASQA submitted that while the proposed amendments to the ESOS Act would bring some measures into alignment with those under the NVR Act, provisions in two key areas, namely monitoring powers and investigation warrants, would be misaligned between the two Acts. This may result, ASQA argued, in 'non-standard monitoring, investigation and enforcement provisions across the two Acts under which ASQA regulates'.
Removal of existing powers from regulatory agencies
1.45
CISA submitted that the bill's amendments to the ESOS and TEQSA Acts would reduce the existing powers of officers conducting monitoring or investigations, and may hamper the ability of regulators to monitor compliance. In particular, it raised the following concerns:
the proposed amendments to the ESOS Act would preclude an authorised officer (without a warrant) from seizing evidence of particular offences discovered 'on the spot' if they believe it necessary to prevent its destruction;
the reduction in penalties for failing to answer questions or produce documents at the request of authorised officers acting under a monitoring warrant; and
the preclusion of the use of force by officers executing a monitoring or investigation warrant under the TEQSA Act.
1.46
CISA recommended that the committee consider the positions of regulatory bodies such as TEQSA or the National VET Regulator on these amendments. The committee did not receive a submission from TEQSA, and the National VET Regulator's submission did not raise these issues.
1.47
The department stated that the amendments to the ESOS Act 'restrict powers available under that Act to align with best practice regulatory policy'.
Impact of the bill on the illicit tobacco trade
1.48
Submissions from British American Tobacco Australia (BATA) and Imperial Brands Australasia (Imperial) emphasised the potential of the measures to be applied to the broader effort to combat the illicit tobacco trade.
1.49
BATA welcomed the bill's amendments to the TAPA and the TPPA, but suggested that as the bulk of the tobacco trade occurs in retail outlets across Australia, the definition of 'authorised persons' for the purposes of exercising powers under the Regulatory Powers Act should be extended to state and territory law enforcement agencies to further combat illegal tobacco and ensure ongoing compliance. BATA further submitted that time limits on authorised officers be removed.
1.50
Imperial raised concerns that the amendments 'do not sufficiently subject illicit tobacco products or packaging that breaches the [TPPA] to the monitoring and investigations provisions in the [Regulatory Powers Act]'. It submitted that the standard provisions should 'apply equally to the illicit tobacco trade and the legitimate tobacco industry'. Imperial stated:
The standard monitoring and investigations provisions under the Regulatory Powers Act will miss many illicit tobacco offences. In particular, the Bill and the TPPA do not catch any of the illicit tobacco offences under the Customs Act 1901 (Cth), Excise Act 1901 (Cth), or the Taxation Administration Act 1953 (Cth).
1.51
Imperial recommended that the bill be amended to ensure that the regulatory regime apply to the offences under these Acts that relate to the TPPA.
Transparency measures
1.52
The Law Council emphasised the importance of transparency in the expansion of regulatory regimes, and submitted that the extrinsic materials to the bill do not outline the selection process for the standardisation of regulatory regimes. It suggested that a consolidated register of existing triggering legislation could aid scrutiny of future triggering legislation, and that the inclusion of a provision requiring a statutory review to be completed after a period of operation might be a mechanism by which the effectiveness of the reform could be analysed.
Committee view
1.53
The committee congratulates the government on its continued efforts to standardise the Commonwealth statute book. These efforts will continue to ease unnecessary regulatory burdens on businesses and individuals, and enhance compliance outcomes. The committee encourages the government to continue its consideration of other statutes where the standard provisions might be triggered to ensure consistency across regulatory regimes and the application of best practice principals across the statute book.
1.54
The committee believes that a publicly available register of regulatory regimes which have triggered some or all of the standard provisions might assist businesses and individuals further in understanding their regulatory obligations. The committee encourages the government to consider whether such a resource might be produced.
1.55
The committee acknowledges the concerns raised with respect to the extension of the standard monitoring provisions to 'matters'. It encourages the government to clearly define 'matters' the subject of these powers in triggering Acts to ensure that there is certainty in their scope and application.
1.56
In its consideration of the Regulatory Powers Bill 2012, the committee expressed its expectation that any bills that trigger the standard provisions would be accompanied by an explanatory memorandum that would explicitly highlight this. It recommended that the explanatory memorandum to each such bill clearly set out the relevant agency's current regulatory powers, a comparison with the powers in the Regulatory Powers (Standard Provisions) Bill 2012 to be triggered, and, in the case of any expansion of the agency's powers, a detailed explanation of the reasons for the expansion of powers. The committee believes that the explanatory memorandum to this bill clearly compares the existing and proposed regulatory regimes and thanks the government for its efforts to adhere to these expectations.
1.57
The committee recommends that the bill be passed.
Senator the Hon Sarah Henderson
Chair