December 2021 Modernising the regulatory framework In 2014, the Australian Government introduced the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act) to provide ‘a framework of standard regulatory powers exercised by agencies across the Commonwealth’. Regulatory powers are the suite of different tools used by government agencies to ensure individuals and industry comply with legislative requirements. The key features of the Regulatory Powers Act include monitoring and investigation powers as well as enforcement provisions, through the use of civil penalty provisions, infringement notices, enforceable undertakings and injunctions.3 The Regulatory Powers Act commenced on 1 October 2014, but only has effect where Commonwealth Acts are drafted or amended to trigger its provisions. As the Attorney-General’s Department explained, Implementation of the Regulatory Powers Act supports the government’s regulatory reform agenda, as it simplifies and streamlines Commonwealth regulatory powers across the statute book.4 The range of powers included in the Act are: • monitoring powers, which can be used to monitor compliance with provisions of an Act and to monitor whether information given to the Commonwealth is correct (Part 2) • investigation powers, which can be used to gather material that relates to the contravention of an offence or civil penalty provision (Part 3) • the power to apply to a court for civil penalty orders and injunctions (Parts 4 and 7) • the power to issue infringement notices (Part 5) • the power to accept and seek enforcement of undertakings relating to compliance with legislative provisions (Part 6).5 The Explanatory Memorandum for the Bill noted that it was expected that, over time, ‘existing regulatory regimes will be reviewed and, if appropriate, amended to instead trigger the relevant provisions of the Regulatory Powers Bill’.6 Provisions in existing legislation would be replaced with references to the standard provisions as appropriate – some legislative schemes would wholly adopt these standard provisions, and some would adopt some of the provisions while maintaining their own unique provisions as appropriate. In the period since 2014, there has been no consideration as to whether federal discrimination law should be amended by adding new regulatory provisions covered in this legislation. Accordingly, federal discrimination law relies on the regulatory framework as it was in the 1980s to address the challenges of the 2020s. The modern approach to regulation has bypassed federal discrimination law. In this section, the Commission considers how the regulatory framework for federal discrimination law should be modernised and which of these standard provisions should be considered for the Commission to bring regulation into line with other areas of federal law. 92 FREE AND EQUAL An Australian Conversation on Human Rights