Part 7—Miscellaneous

This Part deals with miscellaneous matters, such as delegations and rules.

How permissions and rights are conferred and exercised

• (1) If this Act purports to confer a permission or right on an entity that is not a legal person, the permission or right:
• (a) is conferred on each person who is an accountable person for the entity at the time the permission or right may be exercised; and
• (b) may be exercised by:
  • (i) any person who is an accountable person for the entity at the time the permission or right may be exercised; or
  • (ii) any person who is authorised by a person referred to in subparagraph (i) to exercise the permission or right.

How obligations and duties are imposed and discharged

• (2) If this Act purports to impose an obligation or duty on an entity that is not a legal person, the obligation or duty:
• (a) is imposed on each person who is an accountable person for the entity at the time the obligation or duty arises or is in operation; and
• (b) may be discharged by:
  • (i) any person who is an accountable person for the entity at the time the obligation or duty arises or is in operation; or
  • (ii) any person who is authorised by a person referred to in subparagraph (i) to discharge the obligation or duty.

How non‑legal persons contravene this Act

• (3) A provision of this Act (including a civil penalty provision) that is purportedly contravened by an entity that is not a legal person is instead contravened by each accountable person for the entity who:
• (a) did the relevant act or made the relevant omission; or
• (b) aided, abetted, counselled or procured the relevant act or omission; or
• (c) was in any way knowingly concerned in, or party to, the relevant act or omission.

Meaning of accountable person

• (4) For the purposes of this section, a person is an accountable person for an entity at a particular time if:
• (a) in the case of a partnership in which one or more of the partners is an individual—the individual is a partner in the partnership at that time; or
• (b) in the case of a partnership in which one or more of the partners is a body corporate—the person is a director of the body corporate at that time; or
• (c) in the case of a trust in which the trustee, or one or more of the trustees, is an individual—the individual is a trustee of the trust at that time; or
• (d) in the case of a trust in which the trustee, or one or more of the trustees, is a body corporate—the person is a director of the body corporate at that time; or
• (e) in the case of an unincorporated association—the person is a member of the governing body of the unincorporated association at that time.

• (1) The Secretary may, in writing, delegate all or any of the Secretary’s functions or powers under section 17, 18, 19, 21 or 23 to an SES employee, or acting SES employee, in the Department.

Note 1: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

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

• (2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Secretary.

• (1) The Minister may, by legislative instrument, make rules prescribing matters:
• (a) required or permitted by this Act to be prescribed by the rules; or
• (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
• (2) To avoid doubt, the rules may not do the following:
• (a) create an offence or civil penalty;
• (b) provide powers of:
  • (i) arrest or detention; or
  • (ii) entry, search or seizure;
• (c) impose a tax;
• (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
• (e) directly amend the text of this Act.
• (3) Before making or amending the rules, the Minister must:
• (a) cause to be published on the Department’s website a notice:
  • (i) setting out the draft rules or amendments; and
  • (ii) inviting persons to make submissions to the Minister about the draft rules or amendments within the period specified in the notice; and
• (b) consider any submissions received within the period mentioned in subparagraph (a)(ii).
• (4) The period specified in the notice must not be shorter than 28 days.

The Parliamentary Joint Committee on Intelligence and Security may:

• (a) review the operation, effectiveness and implications of this Act; and
• (b) report the Committee’s comments and recommendations to each House of the Parliament;

so long as the Committee begins the review as soon as practicable after 1 December 2027.

[Minister’s second reading speech made in—

House of Representatives on 9 October 2024

Senate on 25 November 2024]

(116/24)