Triggering the Regulatory Powers Act
When provisions of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) are applied to another Act, this is known as ‘triggering’. This means that the actual regulatory powers provisions are contained within the Regulatory Powers Act, while the ‘triggering Act’ sets out how the Regulatory Powers Act would apply to the ‘triggering Act’. An example of an Act that has triggered the Regulatory Powers Act is the Biosecurity Act 2015, which triggered Parts 2 to 7 of the Regulatory Powers Act.
The Regulatory Powers Act is an Act of general application and there is no express requirement to trigger its provisions. However, the standard provisions of the Regulatory Powers Act represent best practice in relation to regulatory powers, providing a standard baseline of regulatory powers while protecting important common law privileges. New or amending Acts that require monitoring, investigation or enforcement powers of the kind available under the Regulatory Powers Act should be drafted to trigger the relevant provisions of that Act unless there are compelling policy reasons to the contrary.
Exemptions from triggering the Regulatory Powers Act
There are no automatic exemptions from the Regulatory Powers Act. However, there may be reasons why an Act is not suitable to trigger the Regulatory Powers Act. If an agency or regulator considers that a strong policy justification exists for not triggering the Regulatory Powers Act, that agency or regulator should discuss that rationale with the Administrative Law Section.
It is not necessary to trigger all of the Regulatory Powers Act. An Act can trigger one or several or all of the Parts of the Regulatory Powers Act. For example, an Act that only has an infringement notices scheme for criminal penalties could trigger Part 5 of the Regulatory Powers Act to provide for that scheme.
Modifications to the standard provisions of the Regulatory Powers Act
There is scope to modify the operation of the Regulatory Powers Act to suit a particular regime as the Act applies to that regime, such as to exclude the application of particular provisions or to provide for additional powers. However, this is only appropriate where it is necessary in the circumstances of the particular regulatory regime and where there are strong policy justifications. It is the responsibility of the relevant agency or regulator to justify why proposed modifications are appropriate in their specific regulatory context.
Revisiting human rights implications
When the Parliamentary Joint Committee on Human Rights considered the Regulatory Powers (Standard Provisions) Bill 2014, it noted that it is necessary to consider the human rights impact in the specific context of each legislative regime that triggers the Regulatory Powers Act. As such, in preparing Bills and legislative instruments that trigger the Regulatory Powers Act, departments, agencies and regulators are required to prepare a Statement of Compatibility with Human Rights to explain and to justify why particular regulatory powers are appropriate in their specific regulatory context.
Regulatory powers and delegated legislation
The standard provisions of the Regulatory Powers Act cannot be triggered by legislative instruments. Where regulatory powers are proposed, principal Acts should be drafted or amended to trigger the standard provisions of the Regulatory Powers Act.
If existing regulatory powers are provided by legislative instrument, it is recommended that the principal Act under which the legislative instrument is made, be amended to trigger the Regulatory Powers Act. The existing provisions in the legislative instrument would be repealed following migration of the regime to the principal Act. This is consistent with the overall objective of the Regulatory Powers Act, which is to streamline regulatory powers across the Commonwealth statute book by ensuring greater consistency between different regulatory regimes.
Application to civil and criminal context
In the context of the Regulatory Powers Act, regulatory powers can apply in a civil and/or criminal context. That is, monitoring or investigation powers can be used to ensure compliance with a provision that is subject to a criminal penalty, as well as a provision that is subject to a civil penalty. Enforcement mechanisms may also be used for both civil and criminal provisions. The only exception to this broad application is in relation to the use of civil penalty orders. A civil penalty order may only be used as an enforcement mechanism for a civil penalty provision.