Part 6—Regulatory powers

:::box Each civil penalty provision of this Act, and of Division 1A of Part 6 of the Intelligence Services Act 2001, is subject to:

• (a) monitoring under Part 2 of the Regulatory Powers Act; and
• (b) investigation under Part 3 of the Regulatory Powers Act.

Sections 15 and 16 of this Act (regarding security standards) are also subject to monitoring under Part 2 of the Regulatory Powers Act.

Civil penalty orders may be sought under Part 4 of the Regulatory Powers Act from a relevant court in relation to contraventions of such civil penalty provisions.

Infringement notices may be given under Part 5 of the Regulatory Powers Act for alleged contraventions of such civil penalty provisions.

Undertakings to comply with such civil penalty provisions, and sections 15 and 16 (regarding security standards), may be accepted and enforced under Part 6 of the Regulatory Powers Act.

Injunctions under Part 7 of the Regulatory Powers Act may be used to restrain a person from contravening, or to compel compliance with, such civil penalty provisions. :::

Enforceable provisions

• (1) Each civil penalty provision of this Act, and each civil penalty provision of Division 1A of Part 6 of the Intelligence Services Act 2001, is enforceable:
• (a) under Part 4 of the Regulatory Powers Act (civil penalty provisions); and
• (b) Part 7 (injunctions) of the Regulatory Powers Act.

Note 1: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Note 2: Part 7 of that Act creates a framework for using injunctions to enforce provisions.

• (2) The following provisions are enforceable under Part 6 (enforceable undertakings) of the Regulatory Powers Act:
• (a) each civil penalty provision of this Act, and each civil penalty provision of Division 1A of Part 6 of the Intelligence Services Act 2001;
• (b) sections 15 and 16 of this Act.

Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Authorised applicant

• (3) For the purposes of Parts 4 and 7 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the civil penalty provisions mentioned in subsection (1):
• (a) the Secretary;
• (b) a person who is appointed under subsection (4).
• (4) For the purposes of paragraph (3)(b), the Secretary may, by writing, appoint a person who:
• (a) is the chief executive officer (however described) of a designated Commonwealth body; or
• (b) is an SES employee, or an acting SES employee, in:
  • (i) the Department; or
  • (ii) a designated Commonwealth body; or
• (c) holds, or is acting in, a position in a designated Commonwealth body that is equivalent to, or higher than, a position occupied by an SES employee;

to be an authorised applicant for the purposes of Part 4 of the Regulatory Powers Act.

Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Authorised person

• (5) For the purposes of Part 6 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (2), each of the following persons is an authorised person:
• (a) the Secretary;
• (b) a person who is appointed under subsection (6).
• (6) For the purposes of paragraph (5)(b), the Secretary may, by writing, appoint a person who is an SES employee, or an acting SES employee in:
• (a) the Department; or
• (b) a designated Commonwealth body.

Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Relevant court

• (7) For the purposes of Parts 4, 6 and 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsections (1) and (2):
• (a) the Federal Court of Australia;
• (b) the Federal Circuit and Family Court of Australia (Division 2);
• (c) a court of a State or Territory that has jurisdiction in relation to the matter.

Liability of Crown

• (8) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions mentioned in subsection (1), does not make the Crown liable to a pecuniary penalty.
• (9) The protection in subsection (8) does not apply to an authority of the Crown.

Provisions subject to monitoring

• (1) The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:
• (a) each civil penalty provision of this Act;
• (b) each civil penalty provision of Division 1A of Part 6 of the Intelligence Services Act 2001;
• (c) sections 15 and 16 of this Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions have been complied with. It includes powers of entry and inspection.

Information subject to monitoring

• (2) Information given in compliance or purported compliance with a provision mentioned in subsection (1) is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Authorised applicant

• (3) For the purposes of Part 2 of the Regulatory Powers Act, a person who is appointed under subsection (4) is an authorised applicant in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).
• (4) The Secretary may, by writing, appoint a person who:
• (a) is an SES employee, or an acting SES employee, in:
  • (i) the Department; or
  • (ii) a designated Commonwealth body; or
• (b) holds, or is acting in, a position in a designated Commonwealth body that is equivalent to, or higher than, a position occupied by an SES employee;

to be an authorised applicant in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Authorised person

• (5) For the purposes of Part 2 of the Regulatory Powers Act, a person who is appointed under subsection (6) is an authorised person in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).
• (6) The Secretary may, by writing, appoint a person who is:
• (a) an APS employee in:
  • (i) the Department; or
  • (ii) a designated Commonwealth body; or
• (b) an officer or employee of a designated Commonwealth body;

to be an authorised person in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

Issuing officer

• (7) For the purposes of Part 2 of the Regulatory Powers Act, a magistrate is an issuing officer in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

Relevant chief executive

• (8) For the purposes of Part 2 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

Relevant court

• (9) For the purposes of Part 2 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2):
• (a) the Federal Court of Australia;
• (b) the Federal Circuit and Family Court of Australia (Division 2);
• (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Premises

• (10) An authorised person must not enter premises under Part 2 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2), if the premises are used solely or primarily as a residence.

Provisions subject to investigation

• (1) Each civil penalty provision of this Act, and each civil penalty provision of Division 1A of Part 6 of the Intelligence Services Act 2001, is subject to investigation under Part 3 of the Regulatory Powers Act.

Authorised applicant

• (2) For the purposes of Part 3 of the Regulatory Powers Act, a person who is appointed under subsection (3) is an authorised applicant in relation to evidential material that relates to a provision mentioned in subsection (1).
• (3) The Secretary may, by writing, appoint a person who:
• (a) is an SES employee, or an acting SES employee, in:
  • (i) the Department; or
  • (ii) a designated Commonwealth body; or
• (b) holds, or is acting in, a position in a designated Commonwealth body that is equivalent to, or higher than, a position occupied by an SES employee;

to be an authorised applicant in relation to evidential material that relates to a provision mentioned in subsection (1).

Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Authorised person

• (4) For the purposes of Part 3 of the Regulatory Powers Act, a person who is appointed under subsection (5) is an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).
• (5) The Secretary may, by writing, appoint a person who is:
• (a) an APS employee in:
  • (i) the Department; or
  • (ii) a designated Commonwealth body; or
• (b) an officer or employee of a designated Commonwealth body;

to be an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).

Issuing officer

• (6) For the purposes of Part 3 of the Regulatory Powers Act, a magistrate is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection (1).

Relevant chief executive

• (7) For the purposes of Part 3 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1).

Relevant court

• (8) For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):
• (a) the Federal Court of Australia;
• (b) the Federal Circuit and Family Court of Australia (Division 2);
• (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Provisions subject to an infringement notice

• (1) A civil penalty provision of this Act or of Division 1A of Part 6 of the Intelligence Services Act 2001 is subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer

• (2) For the purposes of Part 5 of the Regulatory Powers Act, a person authorised under subsection (3) is an infringement officer in relation to the civil penalty provisions mentioned in subsection (1).
• (3) The Secretary may, by writing, authorise a person who:
• (a) is an SES employee, or an acting SES employee, in:
  • (i) the Department; or
  • (ii) a designated Commonwealth body; or
• (b) holds, or is acting in, a position in a designated Commonwealth body that is equivalent to, or higher than, a position occupied by an SES employee;

to be an infringement officer in relation to the civil penalty provisions mentioned in subsection (1).

Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Relevant chief executive

• (4) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the civil penalty provisions mentioned in subsection (1).
• (5) The relevant chief executive may, in writing, delegate any or all of the relevant chief executive’s powers and functions under Part 5 of the Regulatory Powers Act to a person who is an SES employee or an acting SES employee in:
• (a) the Department; or
• (b) a designated Commonwealth body.

Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

• (6) A person exercising powers or performing functions under a delegation under subsection (5) must comply with any directions of the relevant chief executive.

Liability of Crown

• (7) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions mentioned in subsection (1), does not make the Crown liable to be given an infringement notice.
• (8) The protection in subsection (7) does not apply to an authority of the Crown.

• (1) This section applies if a provision of this Act provides that an entity contravening another provision of this Act (the conduct provision) is liable to a civil penalty.
• (2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of a civil penalty provision includes a reference to a contravention of the conduct provision.