We have previously written about the Regulatory Powers (Standard Provisions) Act 2014 (RP Act) which was enacted in June 2014. As many of you will be aware, the RP Act provides a framework of standard regulatory powers which can be adopted by Commonwealth regulators through primary legislation. This article looks at the progress so far in the adoption of standard regulatory powers by the Commonwealth.
Objective of the RP Act
By standardising regulatory powers across the Commonwealth, the RP 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
- facilitate the development of a common body of law.
The Civil Law Division of the Attorney General’s Department has administrative responsibility for the RP Act, including oversight of its implementation across Commonwealth regulatory frameworks. It was thought that the uptake of the standard regulatory powers would happen progressively as new Acts were made and as existing Acts were amended. We understand that Commonwealth agencies and departments have also been encouraged to proactively examine their existing legislation and determine whether the standard regulatory powers can be adopted.
An agency can choose to adopt a policy that differs from the standard, or add elements not currently in the RP Act, through provisions which apply the RP Act with specified variations. A proposal to adopt a policy that is different from that set out in the RP Act, or adds elements not currently in the RP Act, should be referred to the Civil Law Division.
Progress on adoption of the RP Act
There has been some progress on the adoption of the RP Act. Eleven Commonwealth Acts have been passed which trigger the application of RP Act powers. There have also been a number of bills that have been introduced into Parliament that provide for standard regularly powers to be triggered (which are presently lapsed). In particular, the Regulatory Powers (Standardisation Reform) Bill 2016, introduced into Parliament in March 2016, will amend 15 Acts so that they trigger standard regulatory powers.
The Offshore Petroleum and Greenhouse Gas Storage Amendment (Regulatory Powers and Other Measures) Act 2014 (OP Act) was the first Act to refer to and trigger the use of the regulatory powers in the RP Act, in July 2014. Since then, ten other Acts have picked up standard powers from the RP Act. One of the Acts is the Biosecurity Act 2015 which was passed in June 2016 (see our article on the Biosecurity Act). The Biosecurity Act triggers a range of provisions in the RP Act, and applies modifications to many of the standard powers.
Most Acts have triggered the civil penalty provisions in the RP Act and about half have triggered either the monitoring and investigating powers provisions or the enforceable undertakings and infringement notice provisions (and in some instances, both).
We attach a table showing which Acts have triggered the RP Act, and the Parts of the Act they have triggered.
Regulatory Powers (Standardisation Reform) Bill 2016
The Regulatory Powers (Standardisation Reform) Bill 2016 represents a significant tranche of Commonwealth Acts to trigger the operation of the RP Act. The Bill was introduced on 2 March 2016, however is presently lapsed at dissolution.
This Bill will amend 15 Commonwealth Acts to repeal existing provisions providing for regulatory regimes and instead apply the standard provisions of the RP Act. The Acts amended by the Bill are set out in the attached table.
In most instances, the Bill will not alter existing arrangements because application of the RP Act will result in either the substitution of an equivalent provision or a provision that is the same in effect with modernised terminology or minor technical changes reflecting current drafting standards. In some circumstances, the changes result in a minor expansion to existing regulatory powers of those Acts. Where necessary, the amendments will modify the operation of the RP Act to retain existing regulatory powers that do not have equivalent provisions in the RP Act.
As with the other Acts we refer to above that have already picked up the RP Act, the common approach seems to be to trigger the civil penalty provisions, along with a mixture of other Parts of the RP Act. In most cases there will also be an expansion of the original powers available under the respective Acts.