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The Retail Leases Amendment Bill 2019 – ESMs, rent reviews and cooling off December 12, 2019

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Standard regulatory powers: progress and prospects

Four years ago, the Abbott government identified the unnecessary complexity, inconsistency and duplication across the Commonwealth statute book as a result of the rapid development of regulatory powers over the preceding 20 years. Not only had this increased the difficulty faced by regulators in performing their functions and exercising their powers across different regulatory regimes, but further imposed unnecessary compliance burdens on entities subject to scrutiny by them. Cue the introduction of the Regulatory Powers (Standard Provisions) Act 2014 (RP Act).

In October 2014, the RP Act entered into force to provide a framework of standard regulatory powers exercised by regulators across the Commonwealth.

By standardising regulatory powers across the Commonwealth, the RP Act was intended to:

  • reduce the length of legislation governing each regulatory regime (by up to 80 pages for some regimes)
  • provide greater clarity and consistency for regulators that need to exercise powers with respect to multiple regulatory regimes
  • make it easier for entities subject to multiple regimes to understand and comply with the law
  • facilitate the development of a common body of law.

The standard provisions of the RP Act form a baseline of powers required for an effective monitoring, investigation or enforcement regulatory regime, whilst providing adequate safeguards and protecting important common law privileges.

The RP Act itself does not confer any powers on regulators, nor impose any duties or liabilities on regulated entities. Rather, to trigger the RP Act’s provisions, a new or existing Commonwealth Act must expressly provide for the application of the relevant RP Act provisions.

In November 2017, the Regulatory Powers (Standardisation Reform) Act 2017 (Standardisation Reform Act) was enacted to amend 15 Commonwealth Acts to trigger the operation of the standard provisions of the RP Act. This was lauded as the first substantial tranche of Commonwealth Acts to trigger the operation of the RP Act.

To date, a further 30 pieces of Commonwealth legislation have been enacted or amended to trigger the standard regulatory provisions of the RP Act. Traversing an extensive array of subject matters – from migration to marriage equality – the adoption of the RP Act is progressively streamlining the Commonwealth’s regulatory frameworks.

The most common approach among these Acts has been to trigger the civil penalty provisions, along with a mixture of other Parts of the RP Act (in some instances, all of them).

We attach a table showing which Acts have triggered the RP Act, and the Parts of the Act they have triggered. Six of these 45 Acts trigger the application of all Parts of the RP Act.

Moving forward, the Attorney-General’s Department is developing a Guide to the Regulatory Powers Act to be published on its website. The guide will consider the use of civil and administrative penalties and is intended to be the primary resource for matters relating to the RP Act.

We expect that, over time, the amount of duplication across the Commonwealth statute book will continue to be reduced, while accessibility and consistency of the regulatory regimes will progressively improve.

Authors
Krista Weymouth | Special Counsel
T +61 3 9258 3884
E krista.weymouth@maddocks.com.au
Monique Failla | Graduate Lawyer 
T +61 3 9258 3367
E monique.failla@maddocks.com.au

Four years ago, the Abbott government identified the unnecessary complexity, inconsistency and duplication across the Commonwealth statute book as a result of the rapid development of regulatory powers over the preceding 20 years. Not only had this increased the difficulty faced by regulators in performing their functions and exercising their powers across different regulatory regimes, but further imposed unnecessary compliance burdens on entities subject to scrutiny by them. Cue the introduction of the Regulatory Powers (Standard Provisions) Act 2014 (RP Act).

In October 2014, the RP Act entered into force to provide a framework of standard regulatory powers exercised by regulators across the Commonwealth.

By standardising regulatory powers across the Commonwealth, the RP Act was intended to:

  • reduce the length of legislation governing each regulatory regime (by up to 80 pages for some regimes)
  • provide greater clarity and consistency for regulators that need to exercise powers with respect to multiple regulatory regimes
  • make it easier for entities subject to multiple regimes to understand and comply with the law
  • facilitate the development of a common body of law.

The standard provisions of the RP Act form a baseline of powers required for an effective monitoring, investigation or enforcement regulatory regime, whilst providing adequate safeguards and protecting important common law privileges.

The RP Act itself does not confer any powers on regulators, nor impose any duties or liabilities on regulated entities. Rather, to trigger the RP Act’s provisions, a new or existing Commonwealth Act must expressly provide for the application of the relevant RP Act provisions.

In November 2017, the Regulatory Powers (Standardisation Reform) Act 2017 (Standardisation Reform Act) was enacted to amend 15 Commonwealth Acts to trigger the operation of the standard provisions of the RP Act. This was lauded as the first substantial tranche of Commonwealth Acts to trigger the operation of the RP Act.

To date, a further 30 pieces of Commonwealth legislation have been enacted or amended to trigger the standard regulatory provisions of the RP Act. Traversing an extensive array of subject matters – from migration to marriage equality – the adoption of the RP Act is progressively streamlining the Commonwealth’s regulatory frameworks.

The most common approach among these Acts has been to trigger the civil penalty provisions, along with a mixture of other Parts of the RP Act (in some instances, all of them).

We attach a table showing which Acts have triggered the RP Act, and the Parts of the Act they have triggered. Six of these 45 Acts trigger the application of all Parts of the RP Act.

Moving forward, the Attorney-General’s Department is developing a Guide to the Regulatory Powers Act to be published on its website. The guide will consider the use of civil and administrative penalties and is intended to be the primary resource for matters relating to the RP Act.

We expect that, over time, the amount of duplication across the Commonwealth statute book will continue to be reduced, while accessibility and consistency of the regulatory regimes will progressively improve.

Authors
Krista Weymouth | Special Counsel
T +61 3 9258 3884
E krista.weymouth@maddocks.com.au
Monique Failla | Graduate Lawyer 
T +61 3 9258 3367
E monique.failla@maddocks.com.au