Commonwealth Numbered Regulations - Explanatory Statements
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REGULATORY POWERS (STANDARD PROVISIONS) REGULATION 2015 (SLI NO 138 OF 2015)
Regulatory Powers (Standard Provisions) Regulation 2015
EXPLANATORY STATEMENT
Select Legislative Instrument No. 138, 2015
Issued by the Attorney-General
in compliance with section 26 of the Legislative Instruments Act 2003
INTRODUCTION
This regulation was made under section 126 of the Regulatory Powers (Standard Provisions) Act 2014 (the Act) and is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA).
OUTLINE
The Act established a framework of standard regulatory powers exercised by agencies across the Commonwealth. The Act only applies to regulatory schemes that trigger its provision through primary legislation. The key features of the Act include monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions.
Section 126 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Regulation prescribes a minimum form for identity cards.
The purpose of the Regulation is to give effect to sections 35 and 76 of the Act, which require an identity card to be issued to an authorised person exercising regulatory powers under the Act.
Subsections 35(2) and 76(2) of the Act provide in identical terms that an identity card must contain a photograph of the authorised person that is no more than 1 year old, and that the card must be in a form prescribed by the regulations.
The Regulation provides for the minimum form specifications that identity cards must comply with when used by authorised persons exercising regulatory powers under the Act. The minimum form specifications in the Regulation are necessary due to the nature of the powers that may be exercised under the Act.
PROCESS BEFORE REGULATION WAS MADE
Regulatory impact analysis
Before this regulation was made, its expected impact was assessed using the Preliminary Assessment tool approved by the Office of Best Practice Regulation (OBPR). That assessment indicated that it would have no or low impact on business, individuals and the economy. This assessment has been confirmed by the OBPR (OBPR reference 18022).
Statement of compatibility with human rights obligations
Before this regulation was made, its impact on human rights was assessed using tools and guidance published by the Attorney-General's Department. It is fully compatible with human rights as defined in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Consultation before making
Before this regulation was made, the Attorney-General considered the general obligation to consult imposed by section 17 of the LIA, including the extent to which the consultation would draw on the knowledge of persons with relevant fields of expertise. The Attorney-General ensured that persons likely to be affected by this regulation had an adequate opportunity to comment on its proposed content by consulting the Departments of Agriculture, Finance, Industry and Prime Minister and Cabinet.
Statutory preconditions and Parliamentary undertakings relevant to this regulation
There are no other statutory preconditions or Parliamentary undertakings relevant to the making of this regulation.
PROCESSES FOR REVIEW OF THIS REGULATION
This regulation is subject to tabling and disallowance under Part 5 of the LIA, and will cease as if repealed on the day after the last of its provisions commence.
OTHER ISSUES
Matter incorporated by reference
This regulation does not apply, adopt or incorporate other matter by reference.
More information
A provision by provision explanation of the regulation is provided in Attachment A.
NOTES ON SECTIONS ATTACHMENT A
Section 1 Name of regulation
This section provides for the regulation to be named as the Regulatory Powers (Standard Provisions) Regulation 2015. The regulation may be cited by that name.
Section 2 Commencement
This section provides for the regulation to commence on the day after it is registered on the Federal Register of Legislative Instruments. This is the day that would apply under subsection 12(1) of the LIA, if no commencement provision were made.
Section 3 Authority
This section identifies the Act that authorises the making of the regulation.
Section 4 Definitions
This section provides a list of key terms used in the Regulation, to assist in the interpretation and implementation of the Regulation.
Section 5 Identity cards--prescribed form
This section provides a list of elements that identity cards must contain on the front and back of the cards in order to comply with this section, except to the extent that non-compliance is authorised by the Minister under section 6. Elements include the Australian Government logo, personal identifiers, a tamper-proof security feature and other necessary particulars. Prescribing these elements establishes a minimum set of requirements that ensure a person exercising regulatory powers can be confidently identified as an authorised person. These elements also ensure a consistent standard applies for identity cards across regulatory schemes which trigger powers under the Act.
The front of the card must contain the Australian Government logo, a photograph of the authorised person, the full name of the authorised person, the body that employs the authorised person, the date the card expires and a statement that the cardholder is an authorised person under the relevant authorising provision of the Act.
The Commonwealth Coat of Arms in the Australian Government logo must be the Conventional Version 3A Solid, and large enough to be recognisable as the Commonwealth Coat of Arms. These requirements are consistent with the Australian Government Branding Guidelines administered by the Department of the Prime Minister and Cabinet.
The photograph must show the authorised person's full face and satisfy certain specifications. These specifications are consistent with the Identity Management for Australian Government Employees (IMAGE) Framework administered by the Australian Government Information Management Office (AGIMO).
The back of the card must contain a serial number and an address for the card to be returned to if found.
The identity card is also required to contain at least one feature intended to reduce the risk of counterfeiting or tampering, or to provide visual evidence of attempted tampering. Examples of tamper-evident security features include optical varying structures, optical varying inks, laser etching and engraving, holograms, holographic images and watermarks. This specification is consistent with the IMAGE Framework.
This section also provides that the identity card may contain other information or features. This reflects the fact that the Regulation provides for the minimum form specifications for the identity card and is not intended to be an exhaustive list of requirements. Agencies are still required to comply with applicable government policies and guidelines relevant to identity cards when incorporating other information or features in their cards.
Section 6 Identity cards--authorisation by Minister
This section allows the Minister to authorise, in writing, that identity cards do not have to comply with either subsection 5(2)(a) or (d) if the Minister is satisfied that it is appropriate to do so in the circumstances. This means that the Minister may exempt requirements involving identity cards being required to display the Australian Government logo or whether the person is an employee or contractor of the relevant regulatory body.
For the purposes of obtaining an exemption from compliance with subsection 5(2)(a), the relevant chief executive will need to demonstrate that they are not required to comply with Australian Government Branding Guidelines.
Section 7 Identity cards--transitional prescribed form
This section provides for transitional arrangements for identity cards issued for the purposes of section 35 or 76 of the Act before the commencement of the Regulation. This section is repealed on the day after the end of the 12 months beginning on the day this section commences, which is when it ceases to have effect.
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