Commonwealth Consolidated Acts Commonwealth Consolidated ActsTobacco Plain Packaging Act 2011
1 Subsection 4(1) (definition of civil penalty order )
Repeal the definition.
2 Subsection 4(1) (definition of civil penalty provision )
Repeal the definition, substitute:
"civil penalty provision" has the same meaning as in the Regulatory Powers Act.
3 Subsection 4(1)
Repeal the following definitions:
(a) definition of evidential burden ;
(b) definition of evidential material ;
(c) definition of Federal Court ;
(d) definition of issuing officer ;
(e) definition of person assisting .
4 Subsection 4(1)
Insert:
"Regulatory Powers Act" means the Regulatory Powers (Standard Provisions) Act 2014 .
5 Subsection 4(1)
Repeal the following definitions:
(a) definition of search powers ;
(b) definition of warrant .
6 Subsection 7(1)
Omit "(1) For", substitute "For".
7 Subsection 7(2)
Repeal the subsection.
8 Subsection 9(2)
Repeal the subsection, substitute:
(2) This Act does not make the Crown liable to be prosecuted for an offence.
9 Section 30
Omit:
It is up to the Commonwealth to decide whether to prosecute a person for one of the offences or bring proceedings in relation to the contravention of the civil penalty provision. (Division 2 of Part 2 of Chapter 5 has rules about bringing civil proceedings and criminal proceedings.)
substitute:
It is up to the Commonwealth to decide whether to prosecute a person for one of the offences or bring proceedings in relation to the contravention of the civil penalty provision. (Division 3 of Part 4 of the Regulatory Powers Act has rules about bringing civil proceedings and criminal proceedings.)
10 Subsections 31(5) and 32(6) (notes)
Omit "section 98", substitute "section 94 of the Regulatory Powers Act".
11 Subsection 32(7)
Repeal the subsection.
12 Subsections 33(5), 34(5) and 35(5) (notes)
Omit "section 98", substitute "section 94 of the Regulatory Powers Act".
13 Subsection 35(6)
Repeal the subsection.
14 Subsections 36(6), 37(4) and 38(5) (notes)
Omit "section 98", substitute "section 94 of the Regulatory Powers Act".
15 Subsection 38(6)
Repeal the subsection.
16 Subsections 39(4), 40(5) and 41(6) (notes)
Omit "section 98", substitute "section 94 of the Regulatory Powers Act".
17 Subsection 41(7)
Repeal the subsection.
18 Subsections 42(5), 43(5), 44(5), 45(5), 46(6), 47(5) and 48(6) (notes)
Omit "section 98", substitute "section 94 of the Regulatory Powers Act".
19 Subsection 48(7)
Repeal the subsection.
20 Subsection 49(1)
Omit "(1) Subsection", substitute "Subsection".
21 Subsection 49(2)
Repeal the subsection.
22 Section 51
Repeal the section, substitute:
The following is a simplified outline of this Chapter:
This Chapter applies the Regulatory Powers Act to enable authorised officers to enter premises and exercise investigation powers to determine whether there has been a contravention of any of the provisions of this Act or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.
Entry must be with the consent of the occupier of the premises or under an investigation warrant.
An authorised officer exercising investigation powers may be assisted by other persons if that assistance is necessary and reasonable.
An authorised officer can require information or documents to be produced under Part 3 of this Chapter.
Authorised officers are appointed by the Secretary.
23 Part 2 of Chapter 4
Repeal the Part, substitute:
Part 2 -- Investigation powers
Provisions subject to investigation
(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:
(a) an offence against this Act; or
(b) a civil penalty provision of this Act; or
(c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Related provisions
(2) For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection ( 1), there are no related provisions.
Authorised applicant and authorised person
(3) For the purposes of Part 3 of the Regulatory Powers Act, an authorised officer is both an authorised applicant and an authorised person in relation to evidential material that relates to a provision mentioned in subsection ( 1).
Issuing officer
(4) For the purposes of Part 3 of the Regulatory Powers Act, a person is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection ( 1) if:
(a) the person is:
(i) a Judge of a court created by the Parliament; or
(ii) a Deputy President of the Administrative Appeals Tribunal; or
(iii) a non - presidential member of the Administrative Appeals Tribunal who is enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, and has been so enrolled for at least 5 years; and
(b) the person has consented to exercise powers conferred by that Part in relation to evidential material that relates to a provision mentioned in subsection ( 1); and
(c) the Attorney - General has, by writing, nominated the person to exercise those powers.
(5) An issuing officer who is a Deputy President or non - presidential member of the Administrative Appeals Tribunal exercising a power conferred by Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection ( 1), has the same protection and immunity as a Justice of the High Court.
Note: Subsection 75(3) of the Regulatory Powers Act confers protection and immunity on a judge exercising the powers of an issuing officer.
Relevant chief executive
(6) 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).
(7) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary's powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection ( 1).
(8) In exercising powers or functions delegated under subsection ( 7), the delegate must comply with any directions of the Secretary.
Relevant court
(9) 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 Court of Australia.
Additional investigation powers
(10) The additional power mentioned in subsection ( 11) is taken to be included in the investigation powers under Part 3 of the Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection ( 1).
(11) The additional investigation power is the power to take samples of evidential material on premises entered under section 48 of the Regulatory Powers Act as that section applies in relation to evidential material that relates to a provision mentioned in subsection ( 1).
Use of force in executing a warrant
(12) In executing an investigation warrant under Part 3 of the Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection ( 1):
(a) an authorised person may use such force against things as is necessary and reasonable in the circumstances; and
(b) a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.
Person assisting
(13) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection ( 1).
Self - incrimination
(14) Despite section 47 of the Regulatory Powers Act, a person is not excused from giving information, producing a document or answering a question under subsection 54(3) of the Regulatory Powers Act, as Part 3 of that Act applies in relation to this Act, on the ground that the information, the production of the document, or answer to the question, might tend to incriminate the person or expose the person to a penalty.
(15) However, in the case of an individual none of the following is admissible in evidence against the individual in criminal proceedings:
(a) the information given, the document produced or the answer given;
(b) giving the information, producing the document or answering the question;
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question.
Extension to external Territories
(16) Part 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection ( 1), extends to every external Territory.
24 Subsection 80(2) (note)
Repeal the note.
25 At the end of Part 3 of Chapter 4
Add:
(1) A person is not excused from giving information, producing a document or answering a question under subsection 80(2) on the ground that the information, the production of the document, or answer to the question, might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual none of the following is admissible in evidence against the individual in criminal proceedings:
(a) the information given, the document produced or the answer given;
(b) giving the information, producing the document or answering the question;
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question.
26 Part 4 of Chapter 4 (heading)
Repeal the heading, substitute:
27 Sections 82 and 83
Repeal the sections.
28 Section 84
Repeal the section, substitute:
The following is a simplified outline of this Chapter:
• This Chapter provides for civil penalty orders for contraventions of civil penalty provisions and for infringement notices.
• A civil penalty provision is enforceable under Part 4 of the Regulatory Powers Act (see section 85).
• A civil penalty order may be sought from the Federal Court of Australia for the contravention of a civil penalty provision.
• A strict liability offence is subject to an infringement notice under Part 5 of the Regulatory Powers Act (see section 86).
• A person can be given an infringement notice for an alleged contravention of a strict liability offence. The person can choose to pay an amount as an alternative to proceedings being brought against the person in relation to the alleged contravention. However, if the person chooses not to do so, proceedings can be brought against the person in relation to the alleged contravention.
29 Parts 2 and 3 of Chapter 5
Repeal the Parts, substitute:
Part 2 -- Civil penalties and infringement notices
Enforceable civil penalty provisions
(1) Each civil penalty provision in this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: 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.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions of this Act.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia.
Extension to external Territories
(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions in this Act, extends to every external Territory.
Liability of Crown
(5) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions in this Act, does not make the Crown liable to be subject to civil proceedings for a contravention of a civil penalty provision.
Provisions subject to an infringement notice
(1) A strict liability offence against Chapter 3 is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act, an authorised officer is an infringement officer in relation to the offences mentioned in subsection ( 1).
Relevant chief executive
(3) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the offences mentioned in subsection ( 1).
(4) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary's powers and functions under Part 5 of the Regulatory Powers Act as the relevant chief executive officer in relation to the provisions mentioned in subsection ( 1).
(5) In exercising powers or functions delegated under subsection ( 4), the delegate must comply with any directions of the Secretary.
Extension to external Territories
(6) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the offences mentioned in subsection ( 1), extends to every external Territory.
Liability of Crown
(7) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the offences mentioned in subsection ( 1), does not make the Crown liable to be given an infringement notice.
Part 2 -- Application and saving provisions
30 Saving provision--identity cards
Despite the repeal of section 82 of the Tobacco Plain Packaging Act 2011 made by this Schedule, that section, as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to a person who ceased to be an authorised officer before that commencement.
31 Application and saving provision--investigation
(1) Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under Part 2 of Chapter 4 of the Tobacco Plain Packaging Act 2011 , applies in relation to evidential material that relates to a provision mentioned in subsection 52(1) of the Tobacco Plain Packaging Act 2011 , if the suspected contravention of the provision occurred before, on or after the commencement of this Schedule.
(2) Chapter 4 of the Tobacco Plain Packaging Act 2011 , as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to the following:
(a) an application for a warrant made, but not decided, under subsection 75(1) of that Act before the commencement of this Schedule;
(b) a warrant issued under subsection 75(2) of that Act, or completed and signed under subsection 76(4) of that Act before, on or after the commencement of this Schedule as a result of an application made before that day;
(c) powers exercised, rights created and duties imposed, under Part 2 of Chapter 4 of that Act before, on or after the commencement of this Schedule in relation to:
(i) an entry onto premises before that commencement with the consent of the occupiers of the premises; or
(ii) an entry onto premises before, on or after that commencement as a result of a warrant referred to in paragraph ( b); or
(iii) things secured or seized under Division 1 or 3 of Part 2 of Chapter 4 before the commencement of this Schedule; or
(iv) a requirement made under subsection 58(2) of that Act before the commencement of this Schedule.
32 Application and saving provision--civil penalties
(1) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under section 85 of the Tobacco Plain Packaging Act 2011 , applies in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule.
(2) Part 2 of Chapter 5 of the Tobacco Plain Packaging Act 2011 , as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule.
33 Application and saving provision--infringement notices
(1) Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under section 86 of the Tobacco Plain Packaging Act 2011 , applies in relation to alleged contraventions of provisions mentioned in subsection 86(1) of the Tobacco Plain Packaging Act 2011 occurring on or after the commencement of this Schedule.
(2) Part 3 of Chapter 5 of the Tobacco Plain Packaging Act 2011 , as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to alleged contraventions of strict liability offence provisions occurring before the commencement of this Schedule.