Chapter 2
Key issues
2.1
The committee received three submissions on the Bill. Two of those
submissions were from statutory agencies with existing regulatory powers. Both
of those agencies highlighted that their existing legislation provided them
with appropriate and necessary regulatory powers and that the powers in the
Bill were insufficient for their organisation. For example, ASIC suggested
that:
If ASIC were required to rely on the powers in the Bill there
would be a material reduction in the quantity, quality and scope of information
that ASIC could gather. This would result in a direct and material adverse
impact on the quantity, quality and scope of surveillances, enforcement and
regulatory outcomes that ASIC presently delivers.[1]
2.2
In similar evidence, the Fair Work Ombudsman (FWO) submitted that:
The investigative and monitoring powers under the Bill are
distinctly different from those provided for in the Fair Work Act. There are
also significant differences to the civil remedy provisions and important
mechanisms in the Fair Work Act that are not included in the Bill...Should a
decision be made to extend these standard regulatory powers to the FWO, we
consider the FWO's capacity to deliver our statutory functions would be
impeded.[2]
2.3
Nevertheless, the Attorney-General's Department has consistently argued
that the Bill would not be applied universally as the regulatory powers in the
Bill may not be appropriate for certain agencies. Specifically, the department
explained:
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.[3]
Committee view
2.4
Two Bills were passed by the previous parliament, which have provisions that
are contingent on the passage of this Bill.[4]
If this Bill passes, the National Offshore Petroleum Safety and Environmental
Management Authority (NOPSEM) would be the first agency
to rely, in part, on the regulatory powers which are set out in this Bill.
2.5
Beyond NOPSEM, the committee notes that there is little detail from the
Attorney-General's Department on how it intends to progressively implement the
Bill and specifically which agencies have agreed that their legislation should
be amended to trigger the Bill.
2.6
The committee notes that for the Bill to realise its intended
deregulatory effect, legislation affecting multiple Commonwealth agencies would
need to be amended to rely on this Bill. It would be useful for the
Attorney-General's Department to provide more information on both their
progress in discussions with other Commonwealth agencies and the specific areas
of deregulation it has already identified.
Recommendation 1
2.7
The committee recommends that the EM be amended to provide more detail
on the government's strategy for progressively implementing the Bill including
outlining any discussions, proposals or agreements with other agencies to
develop or amend legislation to trigger the provisions in the Bill.
The committee's previous
consideration of the Bill
2.8
The committee considered the precursor to this Bill, the 2012 Bill, in
March 2013. The committee recommended, subject to a number of amendments,
that the 2012 Bill be passed.
2.9
The committee recommended in its March 2013 report:
Recommendation 1
2.36 The committee recommends that the Regulatory Powers
(Standard Provisions) Bill 2013 be amended to remove the power to trigger the
provisions of the Bill by regulation.[5]
2.10
The Bill before the committee has been amended to remove this power.
Accordingly, the provisions of the Bill must be triggered through primary
legislation.[6]
The explanatory memorandum accompanying the Bill stated that:
This will mean that any future legislation that proposes to
trigger provisions in this Bill will be introduced and scrutinised by
Parliament.[7]
2.11
In addition, the committee recommended in its March 2013 report:
Recommendation 2
2.37 The committee recommends that the Explanatory Memorandum
to the Regulatory Powers (Standard Provisions) Bill 2012 be revised and
reissued to stipulate that each time a bill is introduced into the parliament
that provides for the triggering of the provisions in the Regulatory Powers
(Standard Provisions) Bill 2012, this must be explicitly articulated and
explained in the Explanatory Memorandum to the relevant bill.
Recommendation 3
2.37 The committee recommends that in the future, each time a
bill is introduced into the parliament that seeks to trigger the provisions of
the Regulatory Powers (Standard Provisions) Bill 2012, the Explanatory
Memorandum to that bill must clearly set out the relevant agency's current regulatory
powers, a comparison with the powers in the Regulatory Powers (Standard
Provisions) Bill 2012 that will be triggered, and, in the case of any expansion
of that agency's powers, a detailed explanation of the reasons for the
expansions of the power. [8]
2.12
The EM to the Bill clearly addressed these recommendations. Specifically,
the EM stated that:
For the regulatory provisions in this Bill to be activated,
new or existing legislation would need to be amended to remove existing
regulatory powers and trigger the provisions of this Bill....The Explanatory
Memorandum to each Bill should clearly set out the relevant agency’s current
regulatory powers, a comparison with the powers in the Regulatory Powers Bill
that will 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.[9]
2.13
The committee acknowledges that the government has considered the
committee's previous recommendations in this iteration of the Bill.
Accordingly, the committee recommends that the Bill be passed.
Recommendation 2
2.14
The committee recommends that the Bill be passed, but urges the
government to seriously and urgently consider the preceding recommendation.
Senator the Hon Ian
Macdonald
Chair
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