SCAMS PREVENTION FRAMEWORK BILL 2024

2022-2023-2024

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Scams Prevention Framework Bill 2024

No. , 2024

(Treasury)

A Bill for an Act to provide a framework for

preventing and responding to scams, and for

related purposes

No. , 2024

Scams Prevention Framework Bill 2024

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1

Amendments

Part 1

Main amendments

Competition and Consumer Act 2010

Part 2

Other amendments

Australian Communications and Media Authority Act 2005

Australian Securities and Investments Commission Act 2001

Competition and Consumer Act 2010

Corporations Act 2001

No. , 2024

Scams Prevention Framework Bill 2024

A Bill for an Act to provide a framework for

preventing and responding to scams, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Scams Prevention Framework

Act 2024

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Scams Prevention Framework Bill 2024

No. , 2024

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of

this Act

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

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Schedule

1--Amendments

Part

1--Main amendments

Competition and Consumer Act 2010

1 After Part IVE

Insert:

Part

IVF--Scams Prevention Framework

Division

1--Preliminary

Subdivision A

Object and simplified outline

58AA Object of this Part

The object of this Part is to prevent and respond to scams

impacting:

(a) either:

(i) natural persons while they are in Australia; or

(ii) persons who carry on small businesses in Australia;

if the scams relate to, are connected with, or use certain

services that are or may be provided or purportedly provided

to those persons; or

(b) natural persons while they are outside of Australia if:

(i) they are ordinarily resident in Australia; and

(ii) the scams relate to, are connected with, or use certain

services that are or may be provided or purportedly

provided to those persons by Australian service

providers or by foreign service providers through

permanent establishments in Australia.

58AB Simplified outline of this Part

The Scams Prevention Framework is a multifaceted approach for

protecting Australian consumers from scams. The Framework

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requires service providers in selected sectors of the economy to

take a variety of actions to combat scams relating to, connected

with, or using their services.

These service providers must comply with the overarching

principles of the Framework. These principles are about:

(a) governance arrangements relating to scams; and

(b) preventing, detecting, reporting, disrupting and

responding to scams.

Under the Framework, the Minister may make a code (an

SPF

code

) setting out sector-specific requirements for the service

providers in a selected sector of the economy relating to:

(a) governance arrangements relating to scams; and

(b) preventing, detecting, disrupting and responding to

scams.

Under the Framework, the Minister may authorise external dispute

resolution schemes for participation by these service providers.

The operator of such a scheme will be able to determine

complaints by consumers about how these service providers

respond to scams.

The Commission is to regulate and enforce compliance with the

overarching principles of the Framework. Other Commonwealth

entities will be selected by the Minister to regulate and enforce

compliance with SPF codes.

Subdivision B

Designating sectors subject to the Scams

Prevention Framework

58AC

Regulated sectors

subject to the Scams Prevention Framework

(1) The Minister may, by legislative instrument, designate one or more

businesses or services to be a

regulated sector

of the Australian

economy.

Note 1:

An individual business or service could be designated, or businesses

or services could be designated by class (see subsection 13(3) of the

Legislation Act 2003

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Note 2:

For variation and repeal, see subsection 33(3) of the

Acts

Interpretation Act 1901

(2) Without limiting subsection (1), the following classes of businesses

or services could be designated:

(a) businesses of banking, other than State banking (within the

meaning of paragraph 51(xiii) of the Constitution) not

extending beyond the limits of the State concerned;

(b) businesses of insurance, other than State insurance (within

the meaning of paragraph 51(xiv) of the Constitution) not

extending beyond the limits of the State concerned;

the meaning of paragraph 51(v) of the Constitution), such as

one or more of the following:

(i) carriage services (within the meaning of the

Telecommunications Act 1997

);

(ii) electronic services (within the meaning of the

Online

Safety Act 2021

), such as social media services (within

the meaning of that Act);

(iii) broadcasting services (within the meaning of the

Broadcasting Services Act 1992

Note:

This is not an exhaustive list. Similarly, a subset of paragraph (a), (b)

or (c) could be designated.

58AD

Regulated entities

for regulated sectors and their

regulated

services

Entities with businesses or services within the banking, insurance

or communications constitutional powers

(1) To the extent that a regulated sector includes a business or service

covered by paragraph 58AC(2)(a), (b) or (c):

(a) the person who carries on or provides that business or service

is a

regulated entity

for the sector; and

(b) that business or service is a

regulated service

of the regulated

entity for the sector.

Note 1:

This subsection extends to a regulated sector consisting of businesses

or services that are a subset of paragraph 58AC(2)(a), (b) or (c).

Note 2:

Sections 58GA to 58GC extend the meaning of

person

for

partnerships, unincorporated associations and trusts.

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Other entities who may be regulated entities

(2) Otherwise:

(a) the

regulated entities

for a regulated sector; and

(b) the

regulated services

of each of those regulated entities;

are as set out in the following table:

Other regulated entities, and their regulated services, for the regulated sector

Item

This person is a

regulated entity

for this

regulated service

a corporation that carries on or

provides a business or service that is

part of the regulated sector

that business or service.

a person to the extent that the person

is both:

(a) carrying on or providing a

business or service that is part of

the regulated sector; and

(b) acting using a postal, telegraphic,

telephonic or other like service

(within the meaning of

paragraph 51(v) of the

Constitution)

so much of that business or service

as relates to the person acting in that

way.

a person to the extent that the person

is both:

(a) carrying on or providing a

business or service that is part of

the regulated sector; and

(b) acting in the course of, or in

relation to, a kind of trade or

commerce mentioned in

subsection (3)

so much of that business or service

as relates to the person acting in that

way.

Note 1:

For the meaning of

corporation

, see section 4.

Note 2:

Sections 58GA to 58GC extend the meaning of

person

for

partnerships, unincorporated associations and trusts.

(3) For the purposes of item 3 of the table in subsection (2), the kinds

of trade or commerce are as follows:

(a) trade or commerce between Australia and places outside

Australia;

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(b) trade or commerce among the States;

Territory or between 2 Territories.

Exceptions

complete

(4) Despite subsections (1) and (2):

(a) a person is not a

regulated entity

for a regulated sector to the

extent that an exception prescribed by the SPF rules applies

to the person; and

(b) a business or service is not a

regulated service

of a person for

a regulated sector to the extent that an exception prescribed

by the SPF rules applies to the business or service.

Note:

A person, business or service may be specified by class (see

subsection 13(3) of the

Legislation Act 2003

Exceptions

partial

(5) Despite subsections (1) and (2), the instrument made under

subsection 58AC(1) designating a business or service to be all or

part of the regulated sector may declare that:

(a) the person who carries on or provides the business or service

is not a

regulated entity

for the regulated sector for the

purposes of specified SPF provisions; or

(b) the business or service is not a

regulated service

for the

regulated sector for the purposes of specified SPF provisions.

Note:

An individual person, business or service could be declared, or

persons, businesses or services could be declared by class (see

subsection 13(3) of the

Legislation Act 2003

58AE Minister must consider matters, and consult, before

designating a sector

(1) Before making an instrument under subsection 58AC(1) about a

sector of the economy, the Minister must:

(a) consider all of the following:

(i) scam activity in the sector;

(ii) the effectiveness of existing industry initiatives to

address scams in the sector;

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(iii) the interests of persons who would be SPF consumers of

regulated services for the sector if the instrument were

made;

(iv) the likely consequences (including benefits and risks) to

the public if the instrument were made;

(v) the likely consequences (including benefits and risks) to

the businesses or services making up the sector;

(vi) any other matters the Minister considers relevant; and

(b) consult the businesses or services making up the sector, or

such associations or other bodies representing them as the

Minister thinks appropriate; and

persons referred to in subparagraph (a)(iii) as the Minister

thinks appropriate.

Note:

For the meaning of

SPF consumer

, see section 58AH.

(2) A failure to comply with subsection (1) does not invalidate an

instrument made under subsection 58AC(1).

58AF Delegation

The Minister may, in writing, delegate the Minister's power to

make an instrument under subsection 58AC(1) to another Minister.

Note:

Sections 34AA to 34A of the

Acts Interpretation Act 1901

contain

provisions relating to delegations. For example, section 34A of that

Act means that section 58AE of this Act can be satisfied by the

delegate.

Subdivision C

Meanings of key terms

58AG Meaning of

scam

(1) A

scam

is a direct or indirect attempt (whether or not successful) to

engage an SPF consumer of a regulated service where it would be

reasonable to conclude that the attempt:

(a) involves deception (see subsection (2)); and

(b) would, if successful, cause loss or harm including obtaining

SPF personal information of, or a financial or other benefit

from, the SPF consumer or the SPF consumer's associates.

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(2) The attempt involves deception if the attempt:

(a) deceptively represents something to be (or to be related to)

the regulated service; or

(b) impersonates a regulated entity in connection with the

regulated service; or

(i) performing an action using the regulated service; or

(ii) facilitating another person to perform an action using

the regulated service; or

(d) is an attempt to deceive the SPF consumer that is made using

the regulated service.

(3) The attempt may be a single act or a course of conduct.

(4) However, the attempt is not a

scam

if the attempt is of a kind

prescribed by the SPF rules.

58AH Meaning of

SPF consumer

(1) An

SPF consumer

, of a regulated service, is any of the following:

(a) a natural person, or a small business operator, who is or may

be provided or purportedly provided the service in Australia;

(b) a natural person who:

(i) is ordinarily resident in Australia; and

(ii) is or may be provided or purportedly provided the

service outside of Australia by a regulated entity that

satisfies the residency requirements in subsection (2).

(2) The regulated entity satisfies the residency requirements if it:

(a) is an Australian resident (within the meaning of the Income

Tax Assessment Act 1997); or

(b) is so providing or purportedly providing the service through a

permanent establishment (within the meaning of the

Income

Tax Assessment Act 1997

) in Australia.

Note 1:

For paragraph (1)(a), a person who is a small business operator at the

time the person is impacted by a scam continues to be an SPF

consumer

for that time

even if the business later has 100 or more

employees.

Note 2:

Sections 58GA to 58GC extend the meaning of

person

for

partnerships, unincorporated associations and trusts.

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(3) Subsection (1) includes the provision or purported provision of a

regulated service:

(a) directly or indirectly to the person; or

(b) whether or not under a contract, arrangement or

understanding with the person; or

knows that the person is:

(i) a natural person; or

(ii) a small business operator; or

(d) that involves the supply of goods.

Note:

This is not an exhaustive list.

(4) However, the person is not an

SPF consumer

of the regulated

service if a condition prescribed by the SPF rules applies to the

person in relation to regulated services of that kind.

(5) In this section:

annual turnover

has the same meaning as in the

Corporations Act

2001

related body corporate

has the same meaning as in the

Corporations Act 2001

small business operator

means a person who carries on a business

if:

(a) in the case of the person being a body corporate:

(i)

the sum of the person's employees, and the employees

of any body corporate related to the person, is less than

100 employees; and

(ii)

the person's annual turnover during the last financial

year is less than $10 million; and

(b) in the case of the person not being a body corporate:

(i) the person has less than 100 employees; and

(ii)

the person's annual turnover

(worked out as if the

person were a body corporate) during the last financial

year is less than $10 million; and

the business has a principal place of business

in Australia.

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(6) Section 4B (about consumers) does not apply to this Part.

58AI Meaning of

actionable scam intelligence

A regulated entity identifies or has

actionable scam intelligence

(and when) there are reasonable grounds for the entity to suspect

that a communication, transaction or other activity relating to,

connected with, or using a regulated service of the entity is a scam.

Note 1:

Whether there are reasonable grounds for such a suspicion is an

objective test. Relevant information for this test may include:

(a) information about the mechanism or identifier being used to

scam SPF consumers, such as URLs, email addresses, phone

numbers, social media profiles, digital wallets and bank account

information of the scam promotors; and

(b) information about the suspected scammer; and

Note 2:

Gathering and reporting this information will minimise the harm from

scams (see SPF principles 4 and 5 in Subdivisions E and F of

Division 2).

Subdivision D

Extension to external Territories and outside of

Australia

58AJ Extension to external Territories and outside of Australia

(1) Each of the following provisions (the

SPF provisions

) extends to

every external Territory:

(a) a provision of this Part;

(b) a provision of a legislative instrument made under this Part;

provision covered by paragraph (a) or (b);

(d) a provision of the Regulatory Powers Act to the extent that it

applies in relation to a provision covered by paragraph (a) or

(b).

(2) The SPF provisions extend to acts, omissions, matters and things

outside Australia.

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Subdivision E

Application to acts done by or in relation to

agents etc. of regulated entities

58AK Acts done by or in relation to agents etc. of regulated entities

Conduct of agents etc. of a regulated entity is attributable to the

regulated entity

(1) For the purposes of the SPF provisions, section 97 of the

Regulatory Powers Act (to the extent that it applies in relation to

the SPF provisions) applies to a regulated entity who is not a body

corporate in a corresponding way to the way that provision applies

to a regulated entity who is a body corporate.

Acts done in relation to an agent of a regulated entity taken to be

done in relation to the regulated entity

(2) For the purposes of SPF provisions, if an act is done by a person in

relation to another person (the

agent

) who:

(a) is acting on behalf of a regulated entity; and

(b)

is so acting within the scope of the agent's actual or apparent

authority;

the act is taken to have also been done in relation to the regulated

entity.

Division

2--Overarching principles of the Scams

Prevention Framework

Subdivision A

Preliminary

58BA Simplified outline of this Division

Each regulated entity must comply with the overarching principles

of the Scams Prevention Framework.

These principles require each regulated entity to:

(a) document and implement governance arrangements to

combat scams; and

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(b) take reasonable steps to prevent, detect, report, disrupt

and respond to scams.

These requirements are civil penalty provisions. The Commission

(in its capacity as the SPF general regulator) will monitor,

investigate and enforce compliance with these provisions.

Division 6 sets out remedies for non-compliance with these

provisions.

58BB Meaning of

reasonable steps

Matters relevant to whether a regulated entity has taken

reasonable

steps

for the purposes of a provision of this Division include:

(a) the size of the regulated entity; and

(b) the kind of regulated services concerned; and

(d) the kinds of scam risks those services face; and

(e) whether the regulated entity has complied with any relevant

SPF code obligations relating to that provision.

Subdivision B

SPF principle 1: Governance

58BC Simplified outline of this Subdivision

Each regulated entity must document and implement governance

policies, procedures, metrics and targets for combatting scams.

These must be reviewed, and certified by a senior officer of the

entity, at least annually.

The entity must keep records and give reports about its compliance

with this principle.

The SPF code for the sector may include sector-specific provisions

for this principle.

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58BD Documenting and implementing governance policies and

procedures

civil penalty provision

(1) A regulated entity for a regulated sector contravenes this

subsection if the entity fails to do one or more of the following:

(a) document governance policies and procedures about:

(i) preventing, detecting and disrupting scams; and

(ii) responding to scams; and

(iii) reports relating to scams;

relating to, connected with, or using the entity's regulated

services for the sector;

(b) implement those governance policies and procedures;

(i) are for measuring the effectiveness of those governance

policies and procedures; and

(ii) comply with any requirements for those metrics and

targets that are prescribed by the SPF rules.

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BE Annual certification about SPF governance policies,

procedures, metrics and targets

civil penalty provision

(1) A regulated entity for a regulated sector contravenes this

subsection if:

(a) no senior officer of the entity certifies in writing, within 12

months of the day the entity becomes a regulated entity for

the sector, whether the entity's SPF governance po

licies,

procedures, metrics and targets for the sector comply with

this Subdivision; or

(b) no senior officer of the entity certifies in writing, within 7

days after each 12-month anniversary of the day the entity

becomes a regulated entity for the sector

, whether the entity's

SPF governance policies, procedures, metrics and targets for

the sector comply with this Subdivision.

(2) Subsection (1) is a civil penalty provision.

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Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BF Record keeping of compliance with SPF provisions

civil

penalty provision

(1) A regulated entity for a regulated sector contravenes this

subsection if the entity fails to keep records of information of a

material nature relating to each of the following activities for at

least 6 years after that activity happens:

(a) the initial documenting, and each revision of the

documenting, of the entity's SPF governance policies,

procedures, metrics and targets for the sector;

(b) the initial implementation, and each reimplementation, of

those SPF governance policies, procedures, metrics and

targets;

entity's senior officers of those SPF gov

ernance policies,

procedures, metrics and targets, including in relation to their

documenting, implementation and review;

(d) any other activities that are prescribed by the SPF rules.

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BG Reporting about compliance with this Subdivision

civil

penalty provision

(1) A regulated entity for a regulated sector contravenes this

subsection if:

(a) the SPF general regulator, or the SPF sector regulator for the

sector, gives the entity a written request for a copy of:

(i)

the entity's SPF governance policies, procedures,

metrics and targets for the sector; or

(ii) specified kinds of other records required by this

Subdivision to be kept for the sector by the entity; and

(b) the entity fails to comply with the request within:

(i) 10 business days after the day the entity is given the

request; or

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(ii) such longer period as is allowed by the SPF regulator.

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BH Sector-specific details can be set out in SPF codes

For the purposes of (but without limiting) subsection 58CC(1), the

SPF code for a regulated sector may include sector-specific

provisions describing:

(a) the matters that a regulated entity for the sector must include

in the entit

y's governance policies and procedures for the

purposes of this Subdivision; or

(b) the factors that a regulated entity for the sector must have

regard to when developing the entity's governance policies

and procedures for the purposes of this Subdivision.

Subdivision C

SPF principle 2: Prevent

58BI Simplified outline of this Subdivision

Each regulated entity for a regulated sector must take reasonable

steps to prevent scams.

The SPF code for the sector may include sector-specific provisions

for this principle.

58BJ Taking reasonable steps to prevent scams from being

committed

civil penalty provision

(1) A regulated entity contravenes this subsection if the entity fails to

take reasonable steps to prevent another person from committing a

scam relating to, connected with, or using a regulated service of the

entity.

Note:

Sections 58GA to 58GC extend the meaning of

person

for

partnerships, unincorporated associations and trusts.

(2) Subsection (1) is a civil penalty provision.

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Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BK Further detail about certain concepts

(1) Taking reasonable steps for the purposes of subsection 58BJ(1)

requires more than merely acting on actionable scam intelligence

in the form of information provided to the regulated entity by

another person.

Further sector-specific details can be set out in SPF codes

(2) For the purposes of (but without limiting) subsection 58CC(1), the

SPF code for a regulated sector may include sector-specific

provisions:

(a) describing what are reasonable steps for the purposes of this

Subdivision (see also section 58BB); or

(b) requiring each regulated entity for the sector to:

(i) identify its SPF consumers who are at risk of being

targeted by a scam; or

(ii) identify its SPF consumers who have a higher risk of

being targeted by a scam; or

information about such scams to an SPF consumer described

in subparagraph (b)(i) or (ii).

Subdivision D

SPF principle 3: Detect

58BL Simplified outline of this Subdivision

Each regulated entity for a regulated sector must take reasonable

steps to detect scams. This includes:

(a) investigating, in a timely way, activities that are the

subjects of its actionable scam intelligence; and

(b) identifying, in a timely way, its consumers that have or

may have been impacted by such activities.

The SPF code for the sector may include sector-specific provisions

for this principle.

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58BM Taking reasonable steps to detect scams

civil penalty

provision

(1) A regulated entity contravenes this subsection if the entity fails to

take reasonable steps to detect a scam relating to, connected with,

or using a regulated service of the entity.

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

(3) Without limiting subsection (1), the regulated entity fails to take

reasonable steps to detect a scam relating to, connected with, or

using a regulated service of the entity if the entity fails to take

reasonable steps to:

(a) detect such a scam as it happens; or

(b) detect such a scam after it happens.

Note:

For further details about the meaning of reasonable steps, see sections

58BB and 58BP.

58BN Investigating actionable scam intelligence

civil penalty

provision

(1) A regulated entity contravenes this subsection if the entity:

(a) has actionable scam intelligence about an activity relating to,

connected with, or using a regulated service of the entity; and

(b) fails to take reasonable steps to investigate whether or not the

activity is a scam during the 28-day period starting on the

day that the intelligence becomes actionable scam

intelligence for the entity.

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BO Identifying impacted SPF consumers

civil penalty provision

(1) A regulated entity contravenes this subsection if the entity:

(a) has actionable scam intelligence about an activity relating to,

connected with, or using a regulated service of the entity; and

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(b) fails to take reasonable steps within a reasonable time to

identify the persons who were SPF consumers of that service

at the time when the persons were or may have been

impacted by the activity.

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BP Sector-specific details can be set out in SPF codes

For the purposes of (but without limiting) subsection 58CC(1), the

SPF code for a regulated sector may include sector-specific

provisions describing:

(a) what are reasonable steps (see also section 58BB); or

(b) what is a reasonable time;

for the purposes of this Subdivision.

Subdivision E

SPF principle 4: Report

58BQ Simplified outline of this Subdivision

Each regulated entity must give the SPF general regulator reports

of any actionable intelligence the entity has about activities relating

to, connected with, or using the entity's regulated services.

A regulated entity must give an SPF regulator a report about a

scam if the SPF regulator requests.

The SPF general regulator may disclose information about scams

to certain other entities.

58BR Reporting actionable scam intelligence to SPF regulators

civil penalty provision

(1) This section applies if a regulated entity has actionable scam

intelligence about an activity relating to, connected with, or using a

regulated service of the entity.

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Civil penalty provision

(2) The entity contravenes this subsection if the entity fails to give a

report about the actionable scam intelligence:

(a) to the SPF general regulator within the period, and in the

manner and form, prescribed by the SPF rules; and

(b) that contains the kinds of information prescribed by the SPF

rules.

Note:

This subsection only applies to the entity when the SPF rules prescribe

matters for paragraphs (a) and (b) that apply to the entity.

(3) Subsection (2) is a civil penalty provision.

Note:

This means subsection (2) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

Defence

(4) Subsection (2) does not apply to the entity if circumstances of a

kind prescribed by the SPF rules apply to the entity.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see section 96 of the Regulatory Powers Act).

Matters relevant to reports

(5) For the purposes of (but without limiting) subsection (2), the SPF

rules may prescribe:

(a) that the report may be given via access to a specified data

gateway, portal or website; and

(b) that the report include the sources or evidence that the entity

has for that intelligence (see section 58AI); and

Note:

For more about the data gateways, portals or websites referred to in

paragraph (a), see section 58BT.

(6) The report may be required to include SPF personal information.

58BS Reporting scams to SPF regulators

civil penalty provisions

(1) This section applies if an SPF regulator gives a written request to a

regulated entity for the entity to give the SPF regulator a report

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about a scam relating to, connected with, or using a regulated

service of the entity.

Civil penalty provision

(2) The entity contravenes this subsection if the entity fails to give a

report about the scam:

(a) to the SPF regulator within the period, and in the manner and

form, set out in the request; and

(b) that contains the kinds of information set out in the request.

(3) Subsection (2) is a civil penalty provision.

Note:

This means subsection (2) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

(4) For the purposes of (but without limiting) subsection (2), the SPF

regulator's request may

(a) provide that the report may be given via access to a specified

data gateway, portal or website; and

(b) ask that the report set out:

(i) what loss or harm may have resulted from the scam,

what disruptive actions the entity has taken and whether

any of those actions have been reversed; and

(ii) what steps the entity is taking to disrupt similar scams,

and to prevent loss or harm resulting from similar

scams.

Note:

For more about the data gateways, portals or websites referred to in

paragraph (a), see section 58BT.

(5) The request may ask for the report to include SPF personal

information. If so, the request must require the entity to de-identify

the information unless the SPF regulator reasonably believes that

doing so would not achieve the object of this Part.

(6) If:

(a) a regulated entity gives a scam report to an SPF regulator

under this section; and

(b) another SPF regulator later requests a scam report under this

section from the regulated entity about the same matters;

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then, despite subsection (2), the later scam report need only state

that an earlier scam report about those matters was given to the

first-mentioned SPF regulator on a specified date and time.

Note:

The SPF regulators can share the earlier scam report under

Subdivision C of Division 5.

58BT Authorised third party data gateways, portals or websites for

accessing reports

(1) The SPF rules may prescribe a scheme for authorising third parties

to operate data gateways, portals or websites that give access to

reports under this Division.

(2) For the purposes of (but without limiting) subsection (1), the SPF

rules may include the following:

(a) provisions conferring functions or powers on the SPF general

regulator under the scheme;

(b) the criteria for a person to be authorised under the scheme;

subject to conditions, and that conditions may be imposed on

an authorisation after it has been granted;

(d) provisions providing that authorisations may be granted at

different levels corresponding to different risks;

(e) provisions specifying what a person authorised at a particular

level is authorised to do (or not authorised to do);

(f) provisions dealing with the period, renewal, transfer,

variation, suspension, revocation or surrender of

authorisations;

(g) notification requirements on persons whose authorisations

have been varied, suspended, revoked or surrendered;

(h) transitional rules for when an authorisation is varied, is

suspended or ends, including in relation to SPF personal

information;

(i) provisions for the making of applications for internal review,

or of applications to the Administrative Review Tribunal for

review, of decisions of a person under the scheme.

(3) A person authorised under the scheme may use or disclose SPF

personal information to the extent that this is reasonably necessary

to achieve the object of this Part.

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58BU Relationship with other duties and obligations

A duty of confidence owed under an agreement or arrangement is

of no effect to the extent that it is contrary to section 58BR or

58BS.

Note:

Each of sections 58BR and 58BS is also a requirement by law to

disclose the information contained in the report referred to in that

section. So, complying with that section can be a defence to a secrecy

provision such as section 276 of the

Telecommunications Act 1997

(see paragraph 280(1)(b) of that Act).

58BV SPF general regulator may share information relating to

scamming actions with relevant entities

(1) The SPF general regulator may disclose information relating to

either of the following actions (a

scamming action

(a) a scam (as defined in section 58AG);

(b) a scam (within the ordinary meaning of that expression);

to an entity mentioned in subsection (2).

Note 1:

This includes disclosing SPF personal information, but such

information may first need to be de-identified (see subsection (4)).

Note 2:

The SPF general regulator can also disclose the information to an SPF

sector regulator (see section 58EG).

(2) The entities are as follows:

(a) a regulated entity;

(b) a Commonwealth agency or authority involved in developing

Government policy relating to this Part;

State or Territory;

(d) an agency of a foreign country, or of part of a foreign

country, that:

(i) is a law enforcement agency; or

(ii) is a regulatory agency responsible for scam prevention;

if subsection (3) applies to a disclosure of information to the

agency.

(3) This subsection applies to a disclosure of information to a foreign

agency if the SPF general regulator is satisfied that:

(a) the agency has given an undertaking for the following:

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(i) controlling the storage and handling of the information;

(ii) controlling the use that will be made of the information;

(iii) ensuring that the information will be used only for the

purpose for which it is disclosed to the agency; and

(b) it is appropriate, in all the circumstances, to disclose the

information to the agency.

(4) SPF personal information may be disclosed under subsection (1).

However, for a disclosure to an entity mentioned in

paragraph (2)(b) such information must be de-identified unless the

SPF general regulator reasonably believes that doing so would not

achieve the object of this Part.

Subdivision F

SPF principle 5: Disrupt

58BW Simplified outline of this Subdivision

Each regulated entity for a regulated sector must take reasonable

steps to:

(a) disrupt an activity that is the subject of actionable scam

intelligence; and

(b) prevent losses from such an activity.

The entity will also need to report to the SPF general regulator the

outcomes of the entity's investigation about whether such an

activity is a scam. The report may also need to describe any

disruptive actions the entity has taken in relation to the activity.

The entity is not liable for damages etc. in taking certain actions to

disrupt such an activity.

The SPF code for the sector may include sector-specific provisions

for this principle.

58BX Taking reasonable steps to disrupt activities that are the

subjects of actionable scam intelligence

civil penalty

provision

(1) A regulated entity contravenes this subsection if the entity:

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(a) has actionable scam intelligence about an activity relating to,

connected with, or using a regulated service of the entity; and

(b) fails to take reasonable steps within a reasonable time to:

(i) disrupt the activity; or

(ii) prevent loss or harm (including further loss or harm)

arising from the activity.

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

(3) For the purposes of subsection (1), the steps taken should be

proportionate to the actionable scam intelligence that the entity has.

Note 1:

For example, if a bank has received a substantial number of similar

reports of suspicious activities, it may be appropriate to pause or delay

authorised push payments while the bank investigates these suspicious

activities.

Note 2:

For further details about the meaning of reasonable steps, see sections

58BB and 58BZ.

58BY Reporting about the outcomes of investigations of activities

that are the subjects of actionable scam intelligence

civil

penalty provision

(1) This section applies if a regulated entity has actionable scam

intelligence about an activity relating to, connected with, or using a

regulated service of the entity.

Civil penalty provision

(2) The entity contravenes this subsection if the entity fails to give a

report about the actionable scam intelligence:

(a) to the SPF general regulator:

(i) before the end of the period prescribed by the SPF rules

that starts at the end of the period referred to in

paragraph 58BZA(2)(d) for that intelligence; and

(ii) in the manner and form prescribed by the SPF rules; and

(b) that contains the kinds of information prescribed by the SPF

rules.

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Note:

This subsection only applies to the entity when the SPF rules prescribe

matters for paragraphs (a) and (b) that apply to the entity.

(3) Subsection (2) is a civil penalty provision.

Note:

This means subsection (2) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

(4) For the purposes of (but without limiting) subsection (2), the SPF

rules may prescribe:

(a) that the report may be given via access to a specified data

gateway, portal or website; and

(b) that the report set out whether the entity reasonably believes

that the activity that is the subject of the intelligence is a

scam; and

Note:

For more about the data gateways, portals or websites referred to in

paragraph (a), see section 58BT.

(5) The report may be required to include SPF personal information.

(6) A duty of confidence owed under an agreement or arrangement is

of no effect to the extent that it is contrary to this section.

58BZ Sector-specific details can be set out in SPF codes

For the purposes of (but without limiting) subsection 58CC(1), the

SPF code for a regulated sector may include sector-specific

provisions:

(a) describing what are reasonable steps (see also section 58BB),

or what is a reasonable time, for the purposes of this

Subdivision; or

(b) requiring each regulated entity for the sector to provide its

SPF consumers with information about activities that are the

subjects of the entity's actionable scam intelligence.

58BZA Safe harbour for taking actions to disrupt an activity while

investigating whether the activity is a scam

(1) This section applies if a regulated entity has actionable scam

intelligence about an activity relating to, connected with, or using a

regulated service of the entity.

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(2) The regulated entity is not liable in a civil action or civil

proceeding for taking action to disrupt the activity if the action:

(a) is taken in good faith; and

(b) is taken in compliance with the SPF provisions; and

that would reasonably be expected to be available to the

entity about the activity; and

(d) is taken during the period:

(i) starting on the day that the intelligence becomes

actionable scam intelligence for the entity; and

(ii) ending when the entity reasonably believes that the

activity is or is not a scam, or after 28 days, whichever

is the earlier; and

(e) is promptly reversed if:

(i) the entity identifies that the activity is not a scam; and

(ii) it is reasonably practicable to reverse the action.

Note:

Assume the regulated entity temporarily blocks

an SPF consumer's

website while investigating whether an activity relating to the website

is a scam. This subsection protects the regulated entity from civil

actions brought by the consumer when the regulated entity is acting

appropriately.

(3) For the purposes of paragraph (2)(c), matters relevant to whether

the action is reasonably proportionate to the activity include:

(a) the potential loss or damage to SPF consumers, or to persons

carrying on the activity, if the action is not taken; and

(b) the potential loss or damage to SPF consumers, or to persons

carrying on the activity, if the action is taken and the activity

is not a scam.

Subdivision G

SPF principle 6: Respond

58BZB Simplified outline of this Subdivision

Each regulated entity must have an accessible mechanism for its

consumers to report activities that are or may be scams.

The entity must have an accessible and transparent internal dispute

resolution mechanism for its consumers to complain about:

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(a) activities that are or may be scams; or

(b)

the entity's conduct relating to such activities.

The entity must publish information about these mechanisms.

When undertaking such internal dispute resolution, the entity must

have regard to:

(a) any processes prescribed by the SPF rules; and

(b) any guidelines prescribed by the SPF rules for

apportioning any liability.

The entity must become a member of an authorised external

dispute resolution scheme for dealing with complaints about scams

if the entity provides services regulated by the Scams Prevention

Framework.

The SPF code for the sector may include sector-specific provisions

for this principle.

58BZC Enabling SPF consumers to easily report activities that are

or may be scams

civil penalty provision

(1) A regulated entity contravenes this subsection if the entity does not

have an accessible mechanism for a person to report to the entity

an activity that:

(a) is or may be a scam; and

(b) relates to, is connected with, or uses a regulated service of the

entity; and

consumer of the service.

Note:

The reporting mechanism will need to extend to scams impacting the

person at a time when the regulated service is only purportedly being

provided to the person (see subsection 58AH(1) (about the meaning of

SPF consumer)).

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

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58BZD Having an accessible and transparent internal dispute

resolution mechanism

civil penalty provision

(1) A regulated entity contravenes this subsection if the entity does not

have an accessible and transparent internal dispute resolution

mechanism to deal with a person's complaint about

(a) an activity that:

(i) is or may be a scam; and

(ii) relates to, is connected with, or uses a regulated service

of the entity; and

(iii) impacts the person at a time when the person is an SPF

consumer of the service; or

(b)

the entity's conduct r

elating to an activity of a kind described

in paragraph (a).

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BZE Having regard to processes and guidelines when

undertaking internal dispute resolution

civil penalty

provision

(1) A regulated entity contravenes this subsection if the entity:

(a) is undertaking internal dispute resolution in dealing with a

person's co

mplaint of a kind described in paragraph

58BZD(1)(a) or (b); and

(b) in doing so, the entity fails to have regard to:

(i) any process prescribed by the SPF rules for undertaking

internal dispute resolution; or

(ii) any guidelines prescribed by the SPF rules for

apportioning any liability arising from the complaint.

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

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58BZF Publishing information about reporting and dispute

resolution mechanisms

civil penalty provision

(1) A regulated entity for a regulated sector contravenes this

subsection if the entity fails to make publicly accessible

information about the rights of

SPF consumers of the entity's

regulated services for the sector under:

(a) the reporting mechanism required by subsection 58BZC(1);

(b) the internal dispute resolution mechanism required by

subsection 58BZD(1); or

sector

the SPF EDR scheme.

(2) Subsection (1) is a civil penalty provision.

Note:

This means subsection (1) is a

civil penalty provision of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BZG SPF external dispute resolution schemes

civil penalty

provisions

Regulated entity must not provide a regulated service if the entity

is not a member of an SPF EDR scheme

(1) A regulated entity for a regulated sector contravenes this

subsection if the entity:

(a) provides a regulated service for the sector that has one or

more SPF consumers; and

(b) is not a member of an SPF EDR scheme for the sector.

Regulated entity that is a member of an SPF EDR scheme must

give reasonable assistance to, and cooperate with, the scheme

operator

(2) A regulated entity for a regulated sector contravenes this

subsection if the entity:

(a) is a member of an SPF EDR scheme for the sector; and

(b) fails to give reasonable assistance to, or cooperate with, the

operator of the scheme.

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Regulated entity that is a member of an SPF EDR scheme must

comply with related obligations in an SPF code

(3) A regulated entity for a regulated sector contravenes this

subsection if the entity:

(a) is a member of an SPF EDR scheme for the sector; and

(b) fails to comply with an obligation in the SPF code for the

sector that relates to the scheme.

Civil penalty provisions

(4) Subsections (1), (2) and (3) are civil penalty provisions.

Note:

This means these subsections are

civil penalty provisions of an SPF

principle

for the purposes of section 58FJ (about civil penalties).

58BZH Sector-specific details can be set out in SPF codes

For the purposes of (but without limiting) subsection 58CC(1), the

SPF code for a regulated sector may include sector-specific

provisions setting out:

(a) conditions that must be met for a reporting mechanism

required by subsection 58BZC(1); or

(b) conditions (such as standards and requirements) that must be

met for an internal dispute resolution mechanism required by

subsection 58BZD(1); or

scheme for the sector by a regulated entity for the sector that

is a member of the scheme.

Division

3--Sector

specific codes for the Scams Prevention

Framework

58CA Simplified outline of this Division

The Minister may make a code for each regulated sector.

Each code is to include sector-specific provisions for the following

overarching principles of the Scams Prevention Framework (see

Subdivisions B, C, D, F and G of Division 2):

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(a) SPF principle 1

governance;

(b) SPF principle 2

prevent;

detect;

(d) SPF principle 5

disrupt;

(e) SPF principle 6

respond.

Requirements in a code can be civil penalty provisions. The

relevant SPF sector regulator will monitor, investigate and enforce

compliance with these provisions. Division 6 sets out remedies for

non-compliance with these provisions.

58CB Sector-specific codes (SPF codes)

The Minister may, by legislative instrument, make a code (an

SPF

code

) for a regulated sector.

58CC Content of SPF codes

Main rule about the content of SPF codes

(1) An SPF code must:

(a) be consistent with the SPF principles; and

(b) deal with only:

(i) the themes or matters covered by Subdivisions B, C, D,

F and G of Division 2; and

(ii) related or incidental matters; and

matters of a kind (if any) prescribed by the SPF rules.

Related or incidental matters in SPF codes

(2) Without limiting subparagraph (1)(b)(ii), an SPF code for a

regulated sector may include the following:

(a) provisions relating to only certain kinds of regulated services

for the sector;

(b) provisions relating to only certain kinds of SPF consumers of

regulated services for the sector;

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are, or may be, relieved from complying with requirements in

the SPF code that would otherwise apply to them;

(d) a provision that:

(i) confers powers on the SPF sector regulator for the

sector or on another person; or

(ii) depends on the SPF sector regulator for the sector, or

another person, being satisfied of one or more specified

matters;

(e) provisions for the making of applications for internal review,

or of applications to the Administrative Review Tribunal for

review, of decisions of a person under the SPF code;

(f) provisions about the manner or form in which persons or

bodies:

(i) may exercise powers under the SPF code; or

(ii) must comply with requirements imposed by the SPF

code;

which could include requiring the use of a form approved by

the SPF sector regulator for the sector or by the SPF general

regulator;

(g) provisions about the following matters:

(i) whether a regulated entity for the sector may charge (or

cause to be charged) a fee for a matter covered by the

SPF code;

(ii) the manner in which such a fee may be charged;

(iii) the time for paying such a fee;

(iv) giving notice of, or publicising, such a fee or matters

about such a fee;

(h) provisions requiring agents of a regulated entity for the sector

to do or not to do specified things when acting on behalf of

the regulated entity and within the scope of the agent's actual

or apparent authority;

(i) provisions authorising a regulated entity for the sector to use

or disclose SPF personal information to the extent necessary

to comply with the entity's obligations under the code;

(j) provisions about any other matters that the provisions of this

Part provide may be included, or otherwise dealt with, in the

SPF code.

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Civil penalty provisions of the SPF code

(3) An SPF code may provide that specified provisions of the SPF

code are civil penalty provisions (within the meaning of the

Regulatory Powers Act).

Note:

Division 6 of this Part deals with enforcing the civil penalty

provisions.

Adopting matters in instruments as in force from time to time etc.

(4) An SPF code may make provision in relation to a matter by

applying, adopting or incorporating (with or without modification)

any matter contained in any other instrument or writing:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time.

(5) Subsection (4) has effect despite subsection 14(2) of the

Legislation Act 2003

58CD Delegation

The Minister may, in writing, delegate t

he Minister's power under

section 58CB to make a code for a regulated sector to:

(a) another Minister; or

(b) the Commission; or

sector.

Note:

Sections 34AA to 34A of the

Acts Interpretation Act 1901

contain

provisions relating to delegations.

Division

4--External dispute resolution for the Scams

Prevention Framework

58DA Simplified outline of this Division

One or more external dispute resolution schemes may be

authorised for dealing with consumer complaints about scams

relating to, connected with, or using regulated services.

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An existing scheme like the AFCA scheme could be authorised for

this purpose, or new schemes could be developed and authorised.

58DB Minister may authorise external dispute resolution schemes

for a regulated sector

(1) The Minister may, by legislative instrument, authorise an external

dispute resolution scheme (an

SPF EDR scheme

) for the purposes

of this Part and one or more regulated sectors if:

(a) the scheme is already authorised under a Commonwealth law

for another purpose; or

(b) the Minister is satisfied that the requirements prescribed by

the SPF rules for the purposes of subsection 58DC(1) are met

for the scheme.

Note 1:

For paragraph (a), the Minister could, for example, authorise the

AFCA scheme (within the meaning of the

Corporations Act 2001

) to

apply for the purposes of this Part and a regulated sector. If that

happens, ASIC's functions and powers relating to the AFCA scheme

(for example, under section 1052A of that Act) will also apply for the

purposes of this Part and the regulated sector.

Note 2:

For variation and repeal, see subsection 33(3) of the

Acts

Interpretation Act 1901

(2) Before authorising a scheme, the Minister must consider:

(a) the accessibility of the scheme; and

(b) the independence of the scheme; and

(d) the accountability of the scheme; and

(e) the efficiency of the scheme; and

(f) the effectiveness of the scheme; and

(g) any other matters the Minister considers relevant.

A failure to comply with this subsection does not invalidate an

instrument made under subsection (1) authorising the scheme.

(3) An instrument made under subsection (1) may make the

authorisation of the scheme subject to specified conditions.

(4) An instrument made under subsection (1) authorising a scheme for

which paragraph (1)(b) applies must set out the scheme.

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(5) More than one scheme may be authorised under subsection (1).

58DC Content, including requirements, of a scheme that is not

already authorised under a Commonwealth law

(1) The SPF rules may prescribe the following requirements for a

scheme for which paragraph 58DB(1)(b) is to apply:

(a) organisational requirements for membership of the scheme;

(b) requirements for the operator (the

operator

) of the scheme;

(d) requirements to be complied with by members of the scheme;

(e) requirements for making changes to the scheme.

(2) A scheme for which paragraph 58DB(1)(b) is to apply may also

include provisions dealing with the following:

(a) powers of one or more of the following under the scheme:

(i) the Minister;

(ii) an SPF regulator;

(iii) a Commonwealth entity (within the meaning of the

Public Governance, Performance and Accountability

Act 2013

);

(b) powers of the operator under the scheme, including powers

to:

(i) seek information; and

(ii) make determinations of complaints; and

(iii) make determinations imposing financial and

non-financial remedies; and

operator;

(d) information sharing and reporting;

(e) a provision that depends on the operator or another person

being satisfied of one or more specified matters;

(f) provisions about the following matters:

(i) the manner in which the operator may charge (or cause

to be charged) a fee under the scheme;

(ii) the time for paying such a fee;

(iii) giving notice of, or publicising, such a fee or matters

about such a fee;

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(g) provisions about any other matters that the provisions of this

Part provide may be specified, or otherwise dealt with, in the

scheme.

58DD Scheme operator to report to SPF regulators

Referring contraventions, failures and systemic issues

(1) If the operator of an SPF EDR scheme for a regulated sector

becomes aware that:

(a) a serious contravention of any law may have occurred in

connection with a complaint under the scheme; or

(b) a party to a complaint under the scheme may have failed to

give effect to a determination by the operator relating to the

complaint; or

complaints under the scheme;

the operator must give particulars of the contravention, failure or

issue to the SPF general regulator and to the SPF sector regulator

for the sector.

Referring settled complaints

(2) If:

(a) the parties to a complaint made under an SPF EDR scheme

for a regulated sector agree to a settlement of the complaint;

and

(b) the operator of the scheme thinks the settlement may require

investigation;

the operator may give particulars of the settlement to the SPF

general regulator and to the SPF sector regulator for the sector.

De-identifying any SPF personal information

(3) If any SPF personal information is to be given under subsection (1)

or (2) by the operator of the scheme, the operator must de-identify

the information unless the operator reasonably believes that doing

so would not achieve the object of this Part.

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58DE Disclosing information to the operator of an SPF EDR scheme

(1) An SPF regulator may disclose information to the operator of an

SPF EDR scheme for the purposes of enabling or assisting the

operator to perform any of the operator's functions or powers.

(2) The SPF regulator may impose conditions to be complied with by

the operator in relation to the information.

(3) If an SPF regulator is to disclose SPF personal information under

subsection (1), the SPF regulator must de-identify the information

unless the SPF regulator reasonably believes that doing so would

not achieve the object of this Part.

Division

5--Regulating the Scams Prevention Framework

Subdivision A

Preliminary

58EA Simplified outline of this Division

The Commission is the regulator (the

SPF general regulator

) of

most aspects of the Scams Prevention Framework, in particular of

the overarching principles of the Framework.

Other Commonwealth entities may be selected to be regulators

(

SPF sector regulators

) of each of the SPF codes.

The SPF general regulator must enter into arrangements with the

SPF sector regulators about the regulation and enforcement of the

Framework. These regulators may disclose relevant information

and documents to each other for this purpose.

Subdivision B

Regulators of the Scams Prevention

Framework

58EB General regulator of the Scams Prevention Framework

(1) The Commission is the

SPF general regulator

for all SPF

provisions apart from the provisions of SPF codes.

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(2) The functions and powers of the SPF general regulator include:

(a) reviewing, and advising the Minister about, the operation of

the SPF provisions; and

(b)

the Commission's functions and powers under section

155 to

the extent that section 155 relates to:

(i) the SPF provisions, other than the provisions of SPF

codes; or

(ii) a designated scams prevention framework matter

(within the meaning of that section), other than the

performance of a function, or the exercise of a power,

conferred by or under an SPF code; and

relating to the SPF provisions, other than the provisions of

SPF codes; and

(d) the functions and powers of the SPF general regulator

conferred by any other SPF provisions.

Note:

Paragraph

(d) includes the SPF general regulator's powers under the

Regulatory Powers Act that are referred to in Division 6.

58EC

Delegation of the SPF general regulator's functions and

powers

(1) The Commission may, by resolution, delegate any of:

(a)

the Commission's functions and powers (as the SPF general

regulator) under an SPF provision; or

(b)

the Commission's functions and powers under section

155 as

described in paragraph 58EB(2)(b);

to a person to whom subsection (3) applies.

(2) A member of the Commission may, by writing, delegate any of the

member's functions and powers under section

155 to the extent

that section 155 relates to:

(a) the SPF provisions, other than the provisions of SPF codes;

(b) a designated scams prevention framework matter (within the

meaning of that section), other than the performance of a

function, or the exercise of a power, conferred by or under an

SPF code;

to a person to whom any of paragraphs (3)(b) to (e) applies.

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(3) This subsection applies to the following persons:

(a) a member of the Commission;

(b) person who is an employee of the Commission who:

(i) is an SES employee or acting SES employee; or

(ii) holds or performs the duties of an Executive Level 1 or

2 position;

and who the Commission is satisfied has appropriate

qualifications, training, skills or experience to perform the

functions or exercise the powers;

(d) a member (if any) of an SPF sector regulator;

(e) an employee of an SPF sector regulator who holds or

performs the duties of a position that is equivalent to a

position mentioned in subparagraph (b)(i) or (ii).

(4) A delegation of functions or powers must not be made under

subsection (1) or (2) to a person to whom paragraph (3)(c), (d) or

(e) applies unless the relevant SPF sector regulator:

(a) has agreed to the delegation in writing; and

(b) in the case of a person to whom paragraph (3)(e) applies

satisfied that the person has appropriate qualifications,

training, skills or experience to perform the functions or

exercise the powers.

(5) In performing any functions or exercising any powers under a

delegation under subsection (1) or (2), the delegate must comply

with any directions of the delegator.

58ED Regulator of a regulated sector

(1) The Minister may, by legislative instrument, designate an entity

that:

(a) is a Commonwealth entity (within the meaning of the

Public

Governance, Performance and Accountability Act 2013

); and

(b) is already conferred functions by or under a law;

to be the

SPF sector regulator

for a regulated sector.

(2) The Commission is the

SPF sector regulator

for a regulated sector

if (and while) no instrument under subsection (1) is in force for the

sector.

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Note:

The Commission could also be designated under subsection (1) to be

the SPF sector regulator for a regulated sector.

(3) The functions and powers of the SPF sector regulator for a

regulated sector include those conferred:

(a) by the SPF code for the sector; or

(b) by any other SPF provisions; or

the

Commission's functions and powers under section

155 to the

extent that section 155 relates to:

(i) the provisions of the SPF code for the sector; or

(ii) a designated scams prevention framework matter

(within the meaning of that section) involving the

performance of a function, or the exercise of a power,

conferred by or under the SPF code for the sector.

Note:

The functions and powers of SPF regulators other than the

Commission include the monitoring and investigating functions and

powers referred to in Division 6 (see paragraph (b) of this subsection).

(4) The Mini

ster may, in writing, delegate the Minister's power under

subsection (1) to another Minister.

Note:

Sections 34AA to 34A of the

Acts Interpretation Act 1901

contain

provisions relating to delegations.

58EE

Delegation of an SPF sector regulator's functions

and powers

(1) An SPF sector regulator may, by writing, delegate any of the SPF

sector regulator's functions and powers under:

(a) an SPF provision, other than a provision of the Regulatory

Powers Act; or

(b) if the SPF sector regulator is the Commission

the

Commission's functions and powers under section

155 as

described in paragraph 58ED(3)(c);

to a person to whom subsection (3) applies.

Note:

A function or power of the SPF sector regulator under a provision of

the Regulatory Powers Act may be able to be delegated under the

Subdivision of Division 6 of this Part that refers to that provision of

that Act (for example, see subsection 58FE(5) of this Act).

(2) If an SPF sector regulator is the Commission, a member of the

Commission may, by writing, deleg

ate any of the member's

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functions and powers under section 155 to the extent that

section 155 relates to:

(a) the provisions of the SPF code for the sector; or

(b) a designated scams prevention framework matter (within the

meaning of that section) involving the performance of a

function, or the exercise of a power, conferred by or under

the SPF code for the sector;

to a person to whom paragraph (3)(b) applies.

(3) This subsection applies to the following persons:

(a) a member (if any) of the SPF sector regulator;

(b) person who is an employee of the SPF sector regulator who:

(i) is an SES employee or acting SES employee; or

(ii) holds or performs the duties of an Executive Level 1 or

2 position; or

(iii) holds or performs the duties of a position that is

equivalent to a position mentioned in subparagraph (i)

or (ii);

and who the SPF sector regulator is satisfied has appropriate

qualifications, training, skills or experience to perform the

functions or exercise the powers.

(4) In performing any functions or exercising any powers under a

delegation under subsection (1) or (2), the delegate must comply

with any directions of the delegator.

58EF Arrangements for regulating the Scams Prevention

Framework

(1) The SPF general regulator, and each SPF sector regulator, must

enter into an arrangement relating to the regulation and

enforcement of the SPF provisions.

(2) The SPF general regulator may choose to comply with

subsection (1) by entering into:

(a) a single arrangement with all, or one or more, SPF sector

regulators; or

(b) a separate arrangement with each SPF sector regulator.

However, subsection (1) does not apply to the extent that the

Commission is an SPF sector regulator.

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(3) The arrangement must include provisions relating to the matters (if

any) prescribed by the SPF rules.

Note:

For example, the SPF rules could require an SPF regulator that

requests a scam report under subsection 58BS(1) to:

(a) notify each other SPF regulator of the request; and

(b) give a copy of the scam report to any of those other SPF

regulators that asks for one.

(4) Each SPF regulator that is a party to such an arrangement must

publish the arrangement on its website.

(5) A failure to comply with this section does not invalidate the

performance or exercise of a function or power by an SPF

regulator.

Subdivision C

Information sharing between SPF regulators

58EG SPF regulators may disclose information to each other

(1) An SPF regulator may disclose to another SPF regulator:

(a) particular information or documents; or

(b) information or documents of a particular kind;

held by the first-mentioned SPF regulator that are relevant to the

operation (including enforcement) of the SPF provisions.

(2) An SPF regulator may make a disclosure under subsection (1) on

request or on its own initiative.

Note:

This section means such a disclosure is permitted by provisions like:

(a) paragraph 155AAA(1)(b); and

(b) section 59DB of the

Australian Communications and Media

Authority Act 2005

; and

Australian Securities and Investments

Commission Act 2001

Similarly, the exception in paragraph 6.2(b) of Australian Privacy

Principle 6 will apply to such a disclosure.

(3) SPF personal information may be disclosed under subsection (1).

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58EH Regard must be had to the object of this Part when

considering whether to make such a disclosure

An SPF regulator must have regard to the object of this Part when

deciding whether to make a disclosure under this Subdivision.

Note:

Arrangements made under section 58EF between SPF regulators could

deal with when disclosures should be made (see subsection 58EF(3) in

particular).

58EI Notice need not be given of a collection, use or disclosure of

information or documents under this Part

An SPF regulator need not notify any person that the SPF

regulator:

(a) has collected SPF personal information under this Part; or

(b) plans to make a disclosure of information or documents

under this Part; or

(d) plans to use information or documents disclosed under this

Part; or

(e) has used such information or documents under this Part.

58EJ Information that need not be disclosed

Nothing in this Part requires an SPF regulator to disclose

information or documents that:

(a) concern the internal administrative functioning of that

regulator; or

(b) disclose a matter in respect of which that regulator or any

other person has claimed legal professional privilege; or

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Division

6--Enforcing the Scams Prevention Framework

Subdivision A

Preliminary

58FA Simplified outline of this Division

The Commission, in its role as the SPF general regulator or an SPF

sector regulator, may use its powers under this Act (including

section 155) to monitor and investigate compliance with the

aspects of the Scams Prevention Framework that are relevant for

that role.

If the ACMA or ASIC is an SPF sector regulator, it must use

powers in its own legislation to monitor and investigate

compliance with an SPF code for the sector. Other SPF sector

regulators may monitor and investigate compliance with an SPF

code either using the powers in Subdivision B or, with the

Minister's permission, powers in their own legislation.

The maximum penalties for contraventions of the civil penalty

provisions of the Scams Prevention Framework are set out in

Subdivision C.

Other remedies for contraventions of the Framework are set out in

later Subdivisions of this Division, and include:

(a) infringement notices; and

(b) enforceable undertakings; and

(d) actions for damages; and

(e) public warning notices; and

(f) remedial directions; and

(g) adverse publicity orders; and

(h) other punitive and non-punitive orders.

Some of these remedies may also be available against a person

involved in a contravention of the Framework by a regulated

entity, such as a senior officer of the regulated entity (for example,

see subsection 58FW(1)).

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Note:

Sections 58GA to 58GC extend the meaning of

person

for

partnerships, unincorporated associations and trusts.

58FB Appointment of inspectors

(1) An SPF regulator may, in writing, appoint a person who is one of

the following to be an

inspector

of that regulator for the purposes

of one or more Subdivisions of this Division:

(a) a person who is an employee of that regulator who:

(i) is an SES employee or acting SES employee; or

(ii) holds or performs the duties of an Executive Level 1 or

2 position; or

(iii) holds or performs the duties of a position that is

equivalent to a position mentioned in subparagraph (i)

or (ii);

(b) a member or special member of the Australian Federal

Police.

(2) However, the SPF regulator must not appoint a person as an

inspector unless the SPF regulator is satisfied that the person has

appropriate qualifications, training, skills or experience to exercise

the powers of an inspector.

(3) A person must, in exercising powers as an inspector of an SPF

regulator, comply with any directions of the SPF regulator that are

of an administrative character.

(4) If (and while) no appointments under subsection (1) by an SPF

regulator are in force for the purposes of a Subdivision of this

Division, the SPF regulator is an

inspector

of the SPF regulator for

the purposes of that Subdivision.

58FC Multiple remedies can be sought for a single contravention

Subject to section 58FM (about civil penalties), a provision of this

Division does not limit a court's powers under any other provision

of this Act or of any other Act.

58FD Preference must be given to compensation for victims

If a court considers that:

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(a) it is appropriate to order a person (the

defendant

) to pay a

pecuniary penalty under an SPF civil penalty order in relation

to a contravention or conduct; and

(b) it is appropriate to order under Subdivision G the defendant

to pay compensation to a person who has suffered loss or

damage as result of that contravention or conduct; and

pay both the pecuniary penalty and the compensation;

the court must give preference to making an order for

compensation.

Subdivision B

Monitoring or investigating compliance with an

SPF code

58FE Monitoring compliance with an SPF code

default

No alternative monitoring powers apply

(1) This section applies for the SPF code for a regulated sector unless:

(a) the ACMA, ASIC or the Commission is the SPF sector

regulator for the sector; or

(b) a declaration is in force under subsection 58FI(2) declaring

that provisions that include monitoring powers of the kind

mentioned in subparagraph 58FI(1)(a)(i) apply in relation to

provisions of the SPF code.

Provisions subject to monitoring

(2) Each provision of the SPF code is subject to monitoring under

Part 2 of the Regulatory Powers Act.

Note:

Part 2 of the Regulatory Powers Act creates a framework for

monitoring whether these provisions have been complied with. That

Part includes powers of entry and inspection.

Information subject to monitoring

(3) Information given in compliance or purported compliance with the

SPF code is subject to monitoring under Part 2 of the Regulatory

Powers Act.

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Note:

Part 2 of the Regulatory Powers Act creates a framework for

monitoring whether the information is correct. It includes powers of

entry and inspection.

Related provisions, authorised applicant, authorised person,

issuing officer, relevant chief executive and relevant court

(4) For the purposes of Part 2 of the Regulatory Powers Act, as that

Part applies in relation to the provisions mentioned in

subsection (2) and the information mentioned in subsection (3):

(a) there are no related provisions; and

(b) an inspector of the SPF sector regulator is an authorised

applicant; and

person; and

(d) a magistrate is an issuing officer; and

(e) the SPF sector regulator is the relevant chief executive; and

(f) each of the following courts is a relevant court:

(i) the Federal Court;

(ii) the Federal Circuit and Family Court of Australia

(Division 2);

(iii) a court of a State or Territory that has jurisdiction in

relation to the matter.

(5) The relevant chief executive may, in writing, delegate the powers

and functions mentioned in subsection (6) to:

(a) an SES employee, or acting SES employee, of the SPF sector

regulator; or

(b) an employee of the SPF sector regulator who holds or

performs the duties of a position that is equivalent to an SES

employee;

if the relevant chief executive is satisfied that the employee has

appropriate qualifications, training, skills or experience to exercise

the powers and perform the functions.

(6) The powers and functions that may be delegated are:

(a) powers and functions under Part 2 of the Regulatory Powers

Act in relation to the provisions mentioned in subsection (2)

and the information mentioned in subsection (3); and

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(b) powers and functions under the Regulatory Powers Act that

are incidental to a power or function mentioned in

paragraph (a) of this subsection.

(7) A person exercising powers or performing functions under a

delegation under subsection (5) must comply with any directions of

the relevant chief executive.

Person assisting

(8) An authorised person may be assisted by other persons in

exercising powers or performing functions or duties under Part 2 of

the Regulatory Powers Act in relation to the provisions mentioned

in subsection (2) and the information mentioned in subsection (3).

58FF Investigating compliance with an SPF code

default

No alternative investigation powers apply

(1) This section applies for the SPF code for a regulated sector unless:

(a) the ACMA, ASIC or the Commission is the SPF sector

regulator for the sector; or

(b) a declaration is in force under subsection 58FI(2) declaring

that provisions that include investigation powers of the kind

mentioned in subparagraph 58FI(1)(a)(ii) apply in relation to

provisions of the SPF code.

Provisions subject to investigation

(2) Each civil penalty provision of the SPF code is subject to

investigation under Part 3 of the Regulatory Powers 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, authorised applicant, authorised person,

issuing officer, relevant chief executive and relevant court

(3) 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 (2):

(a) there are no related provisions; and

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(b) an inspector of the SPF sector regulator is an authorised

applicant; and

person; and

(d) a magistrate is an issuing officer; and

(e) the SPF sector regulator is the relevant chief executive; and

(f) each of the following courts is a relevant court:

(i) the Federal Court;

(ii) the Federal Circuit and Family Court of Australia

(Division 2);

(iii) a court of a State or Territory that has jurisdiction in

relation to the matter.

(4) The relevant chief executive may, in writing, delegate the powers

and functions mentioned in subsection (5) to:

(a) an SES employee, or acting SES employee, of the SPF sector

regulator; or

(b) an employee of the SPF sector regulator who holds or

performs the duties of a position that is equivalent to an SES

employee.

if the relevant chief executive is satisfied that the employee has

appropriate qualifications, training, skills or experience to exercise

the powers and perform the functions.

(5) The powers and functions that may be delegated are:

(a) powers and functions under Part 3 of the Regulatory Powers

Act in relation to evidential material that relates to a

provision mentioned in subsection (2); and

(b) powers and functions under the Regulatory Powers Act that

are incidental to a power or function mentioned in

paragraph (a).

(6) A person exercising powers or performing functions under a

delegation under subsection (4) must comply with any directions of

the relevant chief executive.

Person assisting

(7) An authorised person may be assisted by other persons in

exercising powers or performing functions or duties under Part 3 of

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the Regulatory Powers Act in relation to evidential material that

relates to a provision mentioned in subsection (2).

58FG Monitoring or investigating

the ACMA

(1) This section applies if the ACMA is the SPF sector regulator for a

regulated sector.

(2) Part 26 of the

Telecommunications Act 1997

also applies:

(a)

to the ACMA in the ACMA's capacity as the SPF sector

regulator; and

(b) in relation to a contravention of the SPF code for the sector in

a corresponding way to the way that Part applies in relation

to a contravention of that Act that does not relate to the

content of a content service.

(3) Part 27 of the

Telecommunications Act 1997

also applies:

(a) to the ACMA i

n the ACMA's capacity as the SPF sector

regulator; and

(b)

in relation to the performance of any of the ACMA's

functions under the SPF code for the sector in a

corresponding way to the way that Part applies in relation to

the performance of any of the ACM

A's telecommunications

functions; and

(c)

in relation to the exercise of any of the ACMA's powers

under the SPF code for the sector in a corresponding way to

the way that Part applies in relation to the exercise of any of

the ACMA's telecommunications pow

ers.

(3) For the purposes of this additional application of Parts 26 and 27 of

the

Telecommunications Act 1997

, the Minister may, by legislative

instrument, specify modifications of one or more provisions of

those Parts to remove any doubt about how those provisions apply

in such a corresponding way in relation to the SPF code.

Note:

The modifications are for this additional application of those Parts,

and are not modifications of those Parts as they ordinarily apply.

(4) The instrument has effect accordingly.

(5) In this section:

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ACMA's telecommunications functions

has the same meaning as

in the

Telecommunications Act 1997

ACMA's telecommunications powers

has the same meaning as in

the

Telecommunications Act 1997

content service

has the same meaning as in the

Telecommunications Act 1997

58FH Monitoring or investigating

ASIC

(1) This section applies if ASIC is the SPF sector regulator for a

regulated sector.

(2)

ASIC's alternative power provisions also apply:

(a)

to ASIC in ASIC's capacity as the SP

F sector regulator; and

(b) in relation to the provisions of the SPF code for the sector in

a corresponding way to the way:

(i)

ASIC's alternative power provisions (other than those

mentioned in subparagraph (ii)) apply in relation to the

corporations legislation (other than the excluded

provisions); and

(ii) sections 28, 30, 31 to 39, 39B and 39C and

subsection 67(2) of the ASIC Act apply in relation to

the corporations legislation.

(3)

For the purposes of this additional application of ASIC's

alternative power provisions, the Minister may, by legislative

instrument, specify modifications of one or more of those

provisions to remove any doubt about how those provisions apply

in such a corresponding way in relation to the provisions of the

SPF code.

Note:

The modifications are for this additional application of ASIC's

alternative power provisions, and are not modifications of those

provisions as they ordinarily apply.

(4) The instrument has effect accordingly.

(5) In this section:

ASIC Act

means the

Australian Securities and Investments

Commission Act 2001

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ASIC's alternative power provisions

means Divisions 1, 2, 3

(other than sections 30A, 30B and 39A), 7, 9 and 10 of Part 3 of

the ASIC Act.

corporations legislation

has the same meaning as in the ASIC Act.

excluded provisions

has the same meaning as in the ASIC Act.

58FI Monitoring or investigating

Minister may declare that

alternative powers apply for other SPF sector regulators

(1) This section applies if provisions of another law (the

alternative

power provisions

(a) provide an entity with powers to:

(i) monitor compliance or purported compliance with

provisions of a law (the

alternative regulatory

provisions

); or

(ii) investigate provisions of a law (also the

alternative

regulatory provisions

); or

(b) enable the effective operation and enforcement of such

powers.

Note:

Paragraph (b) covers, for example, a provision making it an offence to

fail to appear to answer questions in relation to an investigation.

(2) The Minister may, by legislative instrument, declare that specified

alternative power provisions (that relate to a specified entity and

specified alternative regulatory provisions) also apply:

(a)

to the entity in the entity's capacity as the SPF sector

regulator for a regulated sector; and

(b) in relation to specified provisions of the SPF code for the

sector in a corresponding way to the way the alternative

power provisions apply in relation to the alternative

regulatory provisions.

(3) For the purposes of this additional application of the alternative

power provisions, the instrument may specify modifications of one

or more of those provisions to remove any doubt about how those

provisions apply in such a corresponding way in relation to the

specified provisions of the SPF code.

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Note:

The modifications are for this additional application of the alternative

power provisions, and are not modifications of those provisions as

they ordinarily apply.

(4) The instrument has effect accordingly.

Subdivision C

Civil penalty provisions

58FJ Civil penalty provisions

Enforcing civil penalty provisions

(1) Each of the following is enforceable under Part 4 of the Regulatory

Powers Act:

(a) a civil penalty provision of an SPF principle;

(b) a civil penalty provision of an SPF code.

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:

(a) the SPF general regulator is an authorised applicant in

relation to each civil penalty provision of an SPF principle;

and

(b) the SPF sector regulator for a regulated sector is an

authorised applicant in relation to each civil penalty

provision of the SPF code for the sector.

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 each provision

referred to in subsection (1):

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia

(Division 2);

to the matter.

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58FK Maximum penalty for tier 1 contraventions

(1) Despite subsection 82(5) of the Regulatory Powers Act, the

pecuniary penalty payable by a person:

(a) under an SPF civil penalty order; and

(b) for a contravention of a civil penalty provision of an SPF

principle in any of Subdivisions C, D, F or G of Division 2 of

this Part;

must not be more than the maximum penalty amount worked out

under this section for such a contravention by the person.

Maximum amount of civil penalty for bodies corporate

(2) For the purposes of subsection (1), the maximum penalty amount

for such a contravention by a body corporate is the greater of the

following:

(a) 159,745 penalty units;

(b) if the relevant court (see subsection 58FJ(3)) can determine

the total value of the benefit that:

(i) the body corporate; and

(ii) any body corporate related to the body corporate;

have obtained directly or indirectly and that is reasonably

attributable to the contravention

3 times that total value;

30% of the

adjusted turnover of the body corporate during the breach

turnover period for the contravention.

Maximum amount of civil penalty for other persons

(3) For the purposes of subsection (1), the maximum penalty amount

for such a contravention by a person other than a body corporate is

7,990 penalty units.

58FL Maximum penalty for tier 2 contraventions

(1) Despite subsection 82(5) of the Regulatory Powers Act, the

pecuniary penalty payable by a person:

(a) under an SPF civil penalty order; and

(b) for a contravention of:

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(i) a civil penalty provision of an SPF principle in

Subdivision B or E of Division 2 of this Part; or

(ii) a civil penalty provision of an SPF code;

must not be more than the maximum penalty amount worked out

under this section for such a contravention by the person.

Maximum amount of civil penalty for bodies corporate

(2) For the purposes of subsection (1), the maximum penalty amount

for such a contravention by a body corporate is the greater of the

following:

(a) 31,950 penalty units;

(b) if the relevant court (see subsection 58FJ(3)) can determine

the total value of the benefit that:

(i) the body corporate; and

(ii) any body corporate related to the body corporate;

have obtained directly or indirectly and that is reasonably

attributable to the contravention

3 times that total value;

10% of the

adjusted turnover of the body corporate during the breach

turnover period for the contravention.

Maximum amount of civil penalty for other persons

(3) For the purposes of subsection (1), the maximum penalty amount

for such a contravention by a person other than a body corporate is

1,600 penalty units.

58FM Civil penalty double jeopardy

If a person is ordered under an SPF civil penalty order to pay a

pecuniary penalty in respect of particular conduct, the person is not

liable to:

(a) a pecuniary penalty for contravening another civil penalty

provision of an SPF principle or of an SPF code; or

(b) a pecuniary penalty under some other provision of a law of

the Commonwealth;

in respect of that conduct.

Note:

A court may make other kinds of orders under this Division, for

example under section 58FZC (actions for damages), in relation to

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particular conduct even if the court has made an SPF civil penalty

order in relation to that conduct.

Subdivision D

Infringement notices

58FN Purpose and effect of this Subdivision

(1) The purpose of this Subdivision is to provide for the issue of an

infringement notice to a person for an alleged contravention of:

(a) a civil penalty provision of an SPF principle in Subdivision B

or E of Division 2 of this Part; or

(b) a civil penalty provision of an SPF code;

as an alternative to proceedings for an SPF civil penalty order.

(2) This Subdivision does not:

(a) require an SPF infringement notice to be issued for an

alleged contravention of such a civil penalty provision; or

(b)

affect a person's liability to proceedings for an SPF civil

penalty order in relation to an alleged contravention of a civil

penalty provision if:

(i) an SPF infringement notice is not issued to the person

for the contravention; or

(ii) an SPF infringement notice issued to the person for the

contravention is withdrawn under section 58FU; or

penalty specified in the SPF infringement notice if the person

does not comply with the notice.

58FO Issuing an SPF infringement notice

Notices for contraventions of certain SPF principles

(1) If an inspector of the SPF general regulator reasonably believes

that a person has contravened a civil penalty provision of an SPF

principle in Subdivision B or E of Division 2 of this Part, the

inspector may issue a notice (an

SPF infringement notice

) to the

person.

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Notices for contraventions of SPF codes

(2) If an inspector of the SPF sector regulator for a regulated sector

reasonably believes that a person has contravened a civil penalty

provision of the SPF code for the sector, the inspector may issue a

notice (an

SPF infringement notice

) to the person.

Only one notice for each contravention

(3) Inspectors for an SPF regulator must not issue more than one SPF

infringement notice to the person for the same alleged

contravention of a civil penalty provision.

When notices do not have any effect

(4) An SPF infringement notice does not have any effect if the notice:

(a) is issued more than 12 months after the day that the relevant

contravention is alleged to have occurred; or

(b) relates to more than one alleged contravention of a civil

penalty provision by the person.

58FP Matters to be included in an SPF infringement notice

An SPF infringement notice must:

(a) be identified by a unique number; and

(b) state the day on which it is issued; and

(d) state the name of the inspector who issued the notice, that the

inspector is an inspector of the applicable SPF regulator, and

how that SPF regulator may be contacted; and

(e) give details of the alleged contravention, including:

(i) the day of the alleged contravention; and

(ii) the civil penalty provision that was allegedly

contravened; and

(f) state the maximum pecuniary penalty that a court could order

the person to pay if the court were to make an SPF civil

penalty order for the alleged contravention; and

(g) specify the penalty that is payable in relation to the alleged

contravention; and

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(h) state that the penalty is payable within the infringement

notice compliance period for the notice; and

(i) state that the penalty is payable to the SPF regulator on

behalf of the Commonwealth; and

(j) explain how payment of the penalty is to be made; and

(k) explain the effect of sections 58FR to 58FU.

58FQ Amount of penalty

The penalty to be specified in an SPF infringement notice that is to

be issued to a person must be equal to the following amount:

(a) if the person is a body corporate

60 penalty units;

(b) otherwise

12 penalty units.

58FR Effect of compliance with an SPF infringement notice

(1) This section applies if:

(a) an SPF infringement notice for an alleged contravention of a

civil penalty provision is issued to a person; and

(b) the person pays the penalty specified in the notice within the

infringement notice compliance period and in accordance

with the notice; and

(2) The person is not, merely because of the payment, regarded as

having contravened the civil penalty provision.

(3) No proceedings (whether criminal or civil) may be started or

continued against the person, by or on behalf of the

Commonwealth, in relation to the alleged contravention of the civil

penalty provision.

58FS Effect of failure to comply with an SPF infringement notice

If:

(a) an SPF infringement notice for an alleged contravention of a

civil penalty provision is issued to a person; and

(b) the person fails to pay the penalty specified in the notice

within the infringement notice compliance period and in

accordance with the notice; and

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the person is liable to proceedings for an SPF civil penalty order in

relation to the alleged contravention of the civil penalty provision.

58FT Infringement notice compliance period for infringement notice

(1) Subject to this section, the

infringement notice compliance period

for an SPF infringement notice issued to a person, is the period of

28 days beginning on the day after the day that the notice is so

issued by an inspector of an SPF regulator.

(2) The SPF regulator may, by giving written notice to the person,

extend that infringement notice compliance period if the SPF

regulator is satisfied that it is appropriate to do so.

(3) Only one extension may be given and the extension must not be for

longer than 28 days.

(4) A failure to give the person written notice of the extension does not

affect the validity of the extension.

(5) If an infringement notice compliance period for an SPF

infringement notice is extended under this section, a reference in

this Subdivision to the infringement notice compliance period is

taken to be a reference to that period as so extended.

58FU Withdrawal of an infringement notice

Representations to the SPF regulator

(1) A person to whom an SPF infringement notice has been issued:

(a) by an inspector of an SPF regulator; and

(b) for an alleged contravention of a civil penalty provision;

may make written representations to the SPF regulator seeking the

withdrawal of the notice.

(2) Evidence or information that:

(a) the person; or

(b) a representative of the person;

gives to the SPF regulator in the course of making representations

under subsection (1) is not admissible in evidence against the

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person or representative in any proceedings (other than

proceedings for an offence based on the evidence or information

given being false or misleading).

Withdrawal by the SPF regulator

(3) If an inspector of an SPF regulator issues an SPF infringement

notice to a person, the SPF regulator may, by giving written notice

withdrawal notice

) to the person, withdraw the SPF

infringement notice if the SPF regulator is satisfied that it is

appropriate to do so.

(4) Subsection (3) applies whether or not the person has made

representations seeking the withdrawal.

Content of withdrawal notices

(5) The withdrawal notice must state:

(a) the name and address of the person; and

(b) the day on which the SPF infringement notice was issued to

the person; and

(d) that proceedings for an SPF civil penalty order may be

started or continued against the person in relation to the

alleged contravention of the civil penalty provision.

Time limit for giving withdrawal notices

(6) To be effective, the withdrawal notice must be given to the person

within the infringement notice compliance period for the SPF

infringement notice.

Refunds

(7) If an SPF regulator withdraws an SPF infringement notice given to

a person after the person has paid the penalty specified in the SPF

infringement notice, the SPF regulator must refund to the person an

amount equal to the amount paid.

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Subdivision E

Enforceable undertakings

58FV Enforceable undertakings

Accepting an undertaking

(1) The SPF general regulator may accept a written undertaking given

by a person for the purposes of this section in connection with

compliance with a provision of the SPF principles.

(2) The SPF sector regulator for a regulated sector may accept a

written undertaking given by a person for the purposes of this

section in connection with compliance with a provision of the SPF

code for the sector.

Withdrawing or varying the undertaking

(3) The person who gave the undertaking may withdraw or vary it at

any time, but only with the consent of the SPF regulator who

accepted it.

Orders for enforcing the undertaking

(4) If an SPF regulator considers that the person who gave the SPF

regulator an undertaking has breached any of its terms, the SPF

regulator may apply to the Court for an order under subsection (5).

(5) If the Court is satisfied that the person has breached a term of the

undertaking, the Court may make all or any of the following

orders:

(a) an order directing the person to comply with that term of the

undertaking;

(b) an order directing the person to pay to the Commonwealth an

amount up to the amount of any financial benefit that the

person has obtained directly or indirectly and that is

reasonably attributable to the breach;

person to compensate any other person who has suffered loss

or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

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Definitions

(6) In this section:

Court

, in relation to a matter, means any court having jurisdiction

in the matter.

Subdivision F

Injunctions

58FW Granting injunctions

(1) The Court may, on application, grant an injunction in such terms as

the Court considers appropriate if the Court is satisfied that a

person has engaged, or is proposing to engage, in conduct that

constitutes or would constitute:

(a) a contravention of:

(i) a civil penalty provision of an SPF principle; or

(ii) a civil penalty provision of an SPF code; or

(b) attempting to contravene such a provision; or

contravene such a provision; or

(d) inducing, or attempting to induce, whether by threats,

promises or otherwise, a person to contravene such a

provision; or

(e) being in any way, directly or indirectly, knowingly concerned

in, or party to, the contravention by a person of such a

provision; or

(f) conspiring with others to contravene such a provision.

(2) In this Subdivision:

Court

, in relation to a matter, means any court having jurisdiction

in the matter.

58FX Particular kinds of injunctions

(1) The Court may grant an injunction under section 58FW restraining

a person from engaging in conduct:

(a) whether or not it appears to the Court that the person intends

to engage again, or to continue to engage, in conduct of that

kind; and

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(b) whether or not the person has previously engaged in conduct

of that kind; and

damage to any person if the first-mentioned person engages

in conduct of that kind.

(2) The Court may grant an injunction under section 58FW requiring a

person to do an act or thing:

(a) whether or not it appears to the Court that the person intends

to refuse or fail again, or to continue to refuse or fail, to do

that act or thing; and

(b) whether or not the person has previously refused or failed to

do that act or thing; and

damage to any person if the first-mentioned person refuses or

fails to do that act or thing.

(3) The Court may grant an injunction under section 58FW by consent

of all the parties to the proceedings whether or not the Court is

satisfied that a person has engaged, or is proposing to engage, in

conduct of a kind mentioned in that section.

58FY Interim injunctions

The Court may, if in the opinion of the Court it is desirable to do

so, grant an interim injunction pending determination of an

application for an injunction under section 58FW.

58FZ Rescinding or varying injunctions

The Court may rescind or vary an injunction granted under this

Subdivision.

58FZA Applying for injunctions

(1) An application for an injunction under this Subdivision may be

made by an SPF regulator or any other person.

(2) If an SPF regulator applies for such an injunction, the Court must

not require the applicant or any other person, as a condition of

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granting an interim injunction, to give any undertakings as to

damages.

(3) If:

(a) a person other than an SPF regulator:

(i) applies for such an injunction; and

(ii) apart from this subsection, would be required by the

Court to give an undertaking as to damages or costs; and

(b) an SPF regulator gives the undertaking;

the Court must accept the undertaking by the SPF regulator and

must not require a further undertaking from any other person.

58FZB Other powers of the Court unaffected

The powers conferred on the Court by this Subdivision are in

addition to, and not instead of, any other powers of the Court,

whether conferred by this Act or otherwise.

Subdivision G

Actions for damages

58FZC Actions for damages

general rule

(1) A person (the

victim

) who suffers loss or damage by conduct of

another person that was done in contravention of:

(a) a civil penalty provision of an SPF principle; or

(b) a civil penalty provision of an SPF code;

may recover the amount of the loss or damage by action against

that other person.

(2) An SPF regulator may make a claim under subsection (1) on behalf

of the victim if the SPF reg

ulator has the victim's written consent

to do so.

(3) A claim under subsection (1) may be made at any time within 6

years after the day the cause of action that relates to the conduct

accrued.

(4) However, this section applies subject to sections 58FZD to 58FZK

(about proportionate liability for concurrent wrongdoers).

Note:

See subsection 58FZF(1) in particular.

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58FZD Meaning of

concurrent wrongdoers

(1) In this Subdivision, a

concurrent wrongdoer

, in relation to a claim

under subsection 58FZC(1), is a person who is one of 2 or more

persons:

(a) who each contravened a civil penalty provision of an SPF

principle or a civil penalty provision of an SPF code (whether

or not the same civil penalty provision); and

(b) whose contraventions caused, independently of each other or

jointly, the loss or damage that is the subject of the claim.

(2) For the purposes of this Subdivision, a person can be a concurrent

wrongdoer if the person is insolvent, is being wound up or has

ceased to exist or died.

58FZE Certain concurrent wrongdoers not to have benefit of

apportionment

(1) Nothing in this Subdivision operates to exclude the liability of a

concurrent wrongdoer (an

excluded concurrent wrongdoer

) in

proceedings involving a claim under subsection 58FZC(1) to

recover an amount of loss or damage if:

(a) the concurrent wrongdoer intended to cause the loss or

damage; or

(b) the concurrent wrongdoer fraudulently caused the loss or

damage.

(2) The liability of an excluded concurrent wrongdoer is to be

determined in accordance with the legal rules (if any) that (apart

from sections 58FZD to 58FZK) are relevant.

(3) The liability of any other concurrent wrongdoer who is not an

excluded concurrent wrongdoer is to be determined in accordance

with the other provisions of this Subdivision.

58FZF Proportionate liability for claims involving concurrent

wrongdoers

(1) In any proceedings involving a claim under subsection 58FZC(1)

to recover an amount of loss or damage:

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(a) the liability of a defendant who is a concurrent wrongdoer in

relation to the claim is limited to an amount reflecting that

proportion of the loss or damage that the court considers just

having regard to the extent of the defendant's responsibility

for the loss or damage; and

(b) the court may give judgment against the defendant for not

more than that amount.

(2) If the proceedings also involve another claim that is not a claim

under subsection 58FZC(1), liability for the other claim is to be

determined in accordance with the legal rules, if any, that (apart

from this Subdivision) are relevant.

(3) In apportioning responsibility between defendants in the

proceedings:

(a) the court is to exclude that proportion of the loss or damage

in relation to which the victim is contributorily negligent

under any relevant law; and

(b) the court may have regard to the comparative responsibility

of any concurrent wrongdoer who is not a party to the

proceedings.

(4) This section applies in proceedings whether or not all concurrent

wrongdoers are parties to the proceedings.

(5) A reference in this Subdivision to a defendant in proceedings

includes any person joined as a defendant or other party in the

proceedings (except as a plaintiff) whether joined under this

Subdivision, under rules of court or otherwise.

58FZG Defendant to notify plaintiff of concurrent wrongdoer of

whom defendant aware

(1) If:

(a) a defendant in proceedings involving a claim under

subsection 58FZC(1) has reasonable grounds to believe that a

particular person (the

other person

) may be a concurrent

wrongdoer in relation to the claim; and

(b) the defendant fails to give the plaintiff, as soon as

practicable, written notice of the information that the

defendant has about:

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(i) the identity of the other person; and

(ii) the circumstances that may make the other person a

concurrent wrongdoer in relation to the claim; and

because the plaintiff was not aware that the other person may

be a concurrent wrongdoer in relation to the claim;

the court hearing the proceedings may order that the defendant pay

all or any of those costs of the plaintiff.

Note:

The plaintiff is the victim or an SPF regulator (see subsections

58FZC(1) and (2)).

(2) The court may order that the costs to be paid by the defendant be

assessed on an indemnity basis or otherwise.

58FZH Contribution not recoverable from defendant

A defendant against whom judgment is given under this

Subdivision as a concurrent wrongdoer in relation to a claim under

subsection 58FZC(1):

(a) cannot be required to contribute to any damages or

contribution recovered from another concurrent wrongdoer in

respect of the claim (whether or not the damages or

contribution are recovered in the same proceedings in which

judgment is given against the defendant); and

(b) cannot be required to indemnify any such wrongdoer.

58FZI Subsequent actions

(1) For a claim under subsection 58FZC(1), nothing in this

Subdivision or any other law prevents a plaintiff (or a victim) who

has previously recovered judgment against a concurrent wrongdoer

for an apportionable part of any loss or damage from bringing

another action against any other concurrent wrongdoer for that loss

or damage.

(2) However, in any proceedings in respect of any such action, an

amount of damages cannot be recovered by or for the victim that,

having regard to any damages previously recovered by or for the

victim in respect of the loss or damage, would result in the victim

receiving compensation for loss or damage that is greater than the

loss or damage actually sustained by the victim.

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58FZJ Joining non-party concurrent wrongdoer in the action

(1) The court may give leave for any one or more persons to be joined

as defendants in proceedings involving a claim under subsection

58FZC(1).

(2) The court is not to give leave for the joinder of any person who

was a party to any previously concluded proceedings in respect of

the claim.

58FZK Application of this Subdivision

Nothing in this Subdivision:

(a) prevents a person being held vicariously liable for a

proportion of a claim under subsection 58FZC(1) for which

another person is liable; or

(b) prevents a person from being held severally liable with

another person for that proportion of a claim under

subsection 58FZC(1) for which the other person is liable; or

any other Act to the extent that the provision imposes several

liability on any person in respect of what would otherwise be

a claim under subsection 58FZC(1).

Subdivision H

Public warning notices

58FZL Public warning notices

Suspected contraventions of a provision of the SPF principles

(1) The SPF general regulator may issue to the public a written notice

containing a warning about the conduct of a person if the SPF

general regulator:

(a)

reasonably suspects that the person's conduct may constitute

a contravention of a specified provision of the SPF

principles; and

(b) is satisfied that one or more persons has suffered, or is likely

to suffer, detriment as a result of the conduct; and

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Suspected contraventions of a provision of an SPF code

(2) The SPF sector regulator for a regulated sector may issue to the

public a written notice containing a warning about the conduct of a

person if the SPF sector regulator:

(a)

reasonably suspects that the person's conduct may constitute

a contravention of a specified provision of the SPF code for

the sector; and

(b) is satisfied that one or more persons has suffered, or is likely

to suffer, detriment as a result of the conduct; and

Related matters

(3) An SPF regulator that issues a notice under subsection (1) or (2)

must publish the notice o

n the SPF regulator's website.

(4) A notice under subsection (1) or (2) is not a legislative instrument.

Subdivision I

Remedial directions

58FZM Remedial directions

Giving directions

to comply with an SPF principle

(1) If the SPF general regulator reasonably suspects that a regulated

entity:

(a) is failing to comply with an SPF principle; or

(b) will fail to comply with an SPF principle;

the SPF general regulator may, by written notice given to the

entity, direct the entity to take specified action to comply with that

SPF principle.

Giving directions

to comply with an SPF code

(2) If the SPF sector regulator for a regulated sector reasonably

suspects that a regulated entity for the sector:

(a) is failing to comply with a provision of the SPF code for the

sector; or

(b) will fail to comply with such a provision;

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the SPF sector regulator may, by written notice given to the entity,

direct the entity to take specified action to comply with that

provision of the SPF code.

Complying with a direction

(3) A regulated entity given a direction under subsection (1) or (2)

must comply with the direction.

(a) within the time specified in the direction, which must be a

reasonable time; or

(b) if the direction does not specify a reasonable time

within a

reasonable time.

(4) Subsection (3) is a civil penalty provision.

Note:

To work out how sections 58FJ to 58FL (about civil penalties) apply

to subsection (3), see the definitions of

civil penalty provision of an

SPF principle

, and

civil penalty provision of an SPF code

subsection 4(1).

Extending the time for complying with a direction

(5) The SPF regulator who gives a direction under subsection (1) or

(2) to an entity may extend the time for complying with the

direction by written notice given to the entity.

Before giving a direction

(6) Before an SPF regulator gives an entity a direction under

subsection (1) or (2), the SPF regulator must give the entity an

opportunity to make submissions to the SPF regulator on the

matter.

Varying and revoking directions

(7) An SPF regulator may vary or revoke a direction given by the SPF

regulator under subsection (1) or (2) in like manner and subject to

like conditions.

Publishing directions

(8) As soon as practicable after an SPF regulator gives, varies or

revokes a direction under subsection (1) or (2), the SPF regulator

must publish a notice of its action on its website.

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Subdivision J

Adverse publicity orders

58FZN Adverse publicity orders

Making adverse publicity orders

(1) The Court may, on application, make an adverse publicity order

against a person who has been ordered to pay a pecuniary penalty

under an SPF civil penalty order.

(2) Such an order may require the person to:

(a) disclose, in the way and to the persons specified in the order,

specified information that the person has possession of or

access to; and

(b)

publish, at the person's expense and in in a specified way, an

advertisement in the terms specified in, or determined in

accordance with, the order.

Applying for adverse publicity orders

(3) An application for such an order may be made by:

(a) if the SPF civil penalty order was for a contravention of a

civil penalty provision of an SPF principle

the SPF general

regulator; or

(b) if the SPF civil penalty order was for a contravention of a

civil penalty provision of an SPF code for a regulated

sector

the SPF sector regulator for the sector.

Definitions

(4) In this section:

Court

, in relation to a matter, means any court having jurisdiction

in the matter.

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Subdivision K

Non-punitive orders

58FZO Non-punitive orders

Making non-punitive orders

(1) The Court may, on application, make one or more of the following

orders in relation to a person who has engaged in conduct

contravening an SPF principle or a provision of an SPF code:

(a) a community service order;

(b) a probation order for a period of no longer than 3 years;

the persons specified in the order, specified information that

the person has possession of or access to;

(d) an order re

quiring the person to publish, at the person's

expense and in a specified way, an advertisement in the terms

specified in, or determined in accordance with, the order.

Applying for non-punitive orders

(2) An application for such an order may be made by:

(a) for conduct contravening an SPF principle

the SPF general

regulator; or

(b) for conduct contravening a provision of the SPF code for a

regulated sector

the SPF sector regulator for the sector.

Definitions

(3) For the purposes of this section, a

probation order

is an order

made to ensure that a person does not engage in:

(a) the conduct that resulted in the order; or

(b) similar conduct or related conduct;

during the period of the order.

(4) Without limiting subsection (3), a

probation order

includes:

(a) an order directing a person to establish a compliance

program, or an education and training program, that:

(i) is for employees or other persons involved in the

person's business; and

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(ii) is designed to ensure awareness of responsibilities and

obligations relating to conduct covered by

paragraph (3)(a) or (b); and

(b) an order directing a person to revise the internal operations of

the person's business that lead to conduct covered by

paragraph (3)(a) or (b).

(5) In this section:

community service order

means an order directing a person to

perform a service that:

(a) is specified in the order; and

(b) is or relates to the conduct that resulted in the order;

for the benefit of the community or a section of the community.

contravening

: conduct

contravening

an SPF principle or a

provision of an SPF code includes conduct that constitutes being

involved in such a contravention.

Note:

For the meaning of

involved

, see subsection 4(1).

Court

, in relation to a matter, means any court having jurisdiction

in the matter.

Subdivision L

Orders (other than awards of damages) to

redress loss or damage

58FZP Orders (other than awards of damages) to redress loss or

damage

making such orders

Making orders

(1) The Court may, on application, make such orders (other than an

award of damages) as the Court thinks appropriate against a person

who:

(a) engaged in conduct (the

contravening conduct

) contravening

a civil penalty provision of an SPF principle or a civil penalty

provision of an SPF code; or

(b) is involved in the contravening conduct;

if the contravening conduct caused, or is likely to cause, a class of

persons (the

victims

) to suffer loss or damage.

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Note 1:

The orders that the court may make include all or any of the orders set

out in section 58FZQ.

Note 2:

For the meaning of

involved

, see subsection 4(1).

(2) Subsection (1) applies whether or not the victims include persons

(

non-parties

) who are not, or have not been, parties to a

proceeding (an

enforcement proceeding

) instituted under another

provision in or referred to in this Division in relation to the

contravening conduct.

(3) The Court must not make such an order unless the Court considers

that the order will:

(a) redress, in whole or in part, the loss or damage suffered by

the victims in relation to the contravening conduct; or

(b) prevent or reduce the loss or damage suffered, or likely to be

suffered, by the victims in relation to the contravening

conduct.

Applying for orders

(4) An application for such an order may be made:

(a) by the following:

(i) if the contravening conduct contravened a civil penalty

provision of an SPF principle

the SPF general

regulator;

(ii) if the contravening conduct contravened a civil penalty

provision of an SPF code for a regulated sector

the

SPF sector regulator for the sector; and

(b) even if an enforcement proceeding in relation to the

contravening conduct has not been instituted; and

action that relates to the contravening conduct accrues.

Working out whether to make an order

(5) In working out whether to make such an order against a person

referred to in paragraph (1)(a) or (b), the Court may have regard to

the conduct of:

(a) the person; and

(b) the victims;

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in relation to the contravening conduct since the contravention

occurred.

(6) However, the Court need not make a finding about either of the

following matters:

(a) which persons are victims in relation to the contravening

conduct;

(b) the nature of the loss or damage suffered, or likely to be

suffered, by such persons.

When a non-party victim is bound by an order etc.

(7) If all of the following happen:

(a) such an order is made against a person;

(b) the loss or damage suffered, or likely to be suffered, by a

non-party victim in relation to the contravening conduct has

been redressed, prevented or reduced in accordance with the

order;

reduction;

then:

(d) the non-party victim is bound by the order; and

(e) any other order made under subsection (1) relating to that

loss or damage has no effect in relation to the non-party

victim; and

(f) despite any other provision of this Act or any other law of the

Commonwealth, or a State or Territory, no claim, action or

demand may be made or taken against the person by the

non-party victim in relation to that loss or damage.

Definitions

(8) In this section:

Court

, in relation to a matter, means any court having jurisdiction

in the matter.

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58FZQ Orders (other than awards of damages) to redress loss or

damage

kinds of such orders

(1) Without limiting subsection 58FZP(1), the orders that the Court

may make under that subsection against a person (the

respondent

)

include all or any of the following:

(a) an order declaring the whole or any part of a contract made

between the respondent and a victim referred to in that

subsection, or a collateral arrangement relating to such a

contract:

(i) to be void; and

(ii) if the Court thinks fit

to have been void ab initio or

void at all times on and after such date as is specified in

the order (which may be a date that is before the date on

which the order is made);

(b) an order:

(i) varying such a contract or arrangement in such manner

as is specified in the order; and

(ii) if the Court thinks fit

declaring the contract or

arrangement to have had effect as so varied on and after

such date as is specified in the order (which may be a

date that is before the date on which the order is made);

such a contract or arrangement;

(d) an order directing the respondent to refund money or return

property to a victim referred to in that subsection;

(e)

an order directing the respondent, at the respondent's own

expense, to repair, or provide parts for, goods that have been

supplied under the contract or arrangement to a victim

referred to in that subsection;

(f)

an order directing the respondent, at the respondent's own

expense, to supply specified services to a victim referred to

in that subsection;

(g) an order, in relation to an instrument creating or transferring

an interest in land, directing the respondent to execute an

instrument that:

(i) varies, or has the effect of varying, the first-mentioned

instrument; or

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(ii) terminates or otherwise affects, or has the effect of

terminating or otherwise affecting, the operation or

effect of the first-mentioned instrument.

(2) In this section:

interest

, in land, means:

(a) a legal or equitable estate or interest in the land; or

(b) a right of occupancy of the land, or of a building or part of a

building erected on the land, arising by virtue of the holding

of shares, or by virtue of a contract to purchase shares, in an

incorporated company that owns the land or building; or

land.

Division

7--Other provisions

58GA Treatment of partnerships

(1) The SPF provisions apply to a partnership as if it were a person,

but with the changes set out in this section.

(2) An obligation that would otherwise be imposed on the partnership

by an SPF provision is imposed on each partner instead, but may

be discharged by any of the partners.

(3) If an SPF provision would otherwise permit something to be done

by the partnership, the thing may be done by one or more of the

partners on behalf of the partnership.

(4) For the purposes of the SPF provisions, a change in the

composition of a partnership does not affect the continuity of the

partnership.

58GB Treatment of unincorporated associations

(1) The SPF provisions apply to an unincorporated association as if it

were a person, but with the changes set out in this section.

(2) An obligation that would otherwise be imposed on the association

by an SPF provision is imposed on each member of the

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ssociation's committee of management instead, but may be

discharged by any of the members.

(3) If an SPF provision would otherwise permit something to be done

by the unincorporated association, the thing may be done by one or

more of the members of the as

sociation's committee of

management on behalf of the association.

58GC Treatment of trusts

(1) The SPF provisions apply to a trust as if it were a person, but with

the changes set out in this section.

Trusts with a single trustee

(2) If the trust has a single trustee:

(a) an obligation that would otherwise be imposed on the trust by

an SPF provision is imposed on the trustee instead; and

(b) if an SPF provision would otherwise permit something to be

done by the trust, the thing may be done by the trustee.

Trusts with multiple trustees

(3) If the trust has 2 or more trustees:

(a) an obligation that would otherwise be imposed on the trust by

an SPF provision is imposed on each trustee instead, but may

be discharged by any of the trustees; and

(b) if an SPF provision would otherwise permit something to be

done by the trust, the thing may be done by any of the

trustees.

58GD Compensation for acquisition of property

(1) This section applies if the operation of the SPF provisions would

result in an acquisition of property (within the meaning of

paragraph 51(xxxi) of the Constitution) from a person otherwise

than on just terms (within the meaning of that paragraph).

(2) The person who acquires the property is liable to pay a reasonable

amount of compensation to the first-mentioned person.

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(3) If the 2 persons do not agree on the amount of the compensation,

the person to whom compensation is payable may institute

proceedings in:

(a) the Federal Court; or

(b) the Supreme Court of a State or Territory;

for the recovery from the other person of such reasonable amount

of compensation as the Court determines.

58GE Rules for the purposes of this Part

(1) The Minister may, by legislative instrument, make rules (the

SPF

rules

) prescribing matters:

(a) required or permitted by this Part to be prescribed by the SPF

rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Part.

Note:

A matter may be prescribed by the SPF rules by class (see

subsection 13(3) of the

Legislation Act 2003

). For example, a specific

regulated entity or a class of regulated entities may be able to be

prescribed in some cases.

(2)

The Minister may, in writing, delegate the Minister's power to

make SPF rules to another Minister or to an SPF regulator.

(3) To avoid doubt, the SPF rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

58GF Report of the operation of the SPF provisions

(1) The Minister must cause a review to be conducted of the operation

of the SPF provisions.

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(2) The review must be conducted as soon as practicable after the end

of the 3-year period starting on the day the first SPF code is made

under section 58CB.

(3) The persons who conduct the review must give the Minister a

written report of the review.

(4) The Minister must cause a copy of the report of the review to be

tabled in each House of the Parliament within 15 sitting days of

that House after the Minister receives the report.

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No. , 2024

Part

2--Other amendments

Australian Communications and Media Authority Act 2005

2 At the end of paragraph 8(1)(j)

Add:

; or (vii) the SPF provisions (within the meaning of the

Competition and Consumer Act 2010

) if the ACMA is

designated as a SPF sector regulator under subsection

58ED(1) of that Act;

3 After section 59DA

Insert:

59DB Disclosure of information that relates to the Scams Prevention

Framework

An ACMA official authorised by the Chair, in writing, for the

purposes of this section may disclose authorised disclosure

information if the disclosure:

(a) is to:

(i) an SPF regulator (within the meaning of the

Competition and Consumer Act 2010

); or

(ii) the operator of an SPF EDR scheme (within the

meaning of that Act); and

(b) is for the purposes of the operation (including enforcement)

of the SPF provisions (within the meaning of that Act).

Australian Securities and Investments Commission Act 2001

4 At the end of subsection 12A(1)

Add:

; (o) the SPF provisions (within the meaning of the

Competition

and Consumer Act 2010

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Competition and Consumer Act 2010

5 Subsection 4(1)

Insert:

ACMA

means the Australian Communications and Media

Authority.

actionable scam intelligence

has the meaning given by section

58AI.

associate

, of an SPF consumer, means an associate (within the

meaning of section 318 of the

Income Tax Assessment Act 1936

) of

the SPF consumer who is:

(a) a natural person who is in Australia or is ordinarily resident

in Australia; or

(b) a person who carries on a business having a principal place

of business in Australia;

civil penalty provision of an SPF code

means:

(a) a provision of an SPF code (see Division 3 of Part IVF) that

is a civil penalty provision (within the meaning of the

Regulatory Powers Act); or

(b) subsection 58FZM(3) in relation to compliance with a

direction given under subsection 58FZM(2).

civil penalty provision of an SPF principle

means:

(a) a provision of Division 2 of Part IVF (about the Scams

Prevention Framework) that is a civil penalty provision

(within the meaning of the Regulatory Powers Act); or

(b) subsection 58FZM(3) in relation to compliance with a

direction given under subsection 58FZM(1).

de-identified

: information is

de-identified

if the information is no

longer about an identifiable individual or an individual who is

reasonably identifiable.

infringement notice compliance period

for an SPF infringement

notice: see section 58FT.

inspector

, of an SPF regulator, has the meaning given by section

58FB.

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involved

, in a contravention of a civil penalty provision of an SPF

principle or of a civil penalty provision of an SPF code, means:

(a) aiding, abetting, counselling or procuring a contravention of

the provision; or

(b) inducing, whether by threats or promises or otherwise, such a

contravention; or

in, or party to, such a contravention; or

(d) conspiring with others to effect such a contravention.

reasonable steps

, for the purposes of Division 2 of Part IVF (about

overarching principles of the Scams Prevention Framework), has a

meaning affected by section 58BB.

regulated entity

has the meaning given by section 58AD.

regulated sector

has the meaning given by subsection 58AC(1).

regulated service

has the meaning given by section 58AD.

scam

has the meaning given by section 58AG.

senior officer

, of a regulated entity, means:

(a) an officer (within the meaning of the

Corporations Act 2001

)

of the entity; or

(b) a senior manager (within the meaning of that Act) of the

entity.

SPF civil penalty order

means a civil penalty order under Part 4 of

Regulatory Powers Act (as that Part applies because of

section 58FJ of this Act).

SPF code

has the meaning given by section 58CB.

SPF consumer

has the meaning given by section 58AH.

SPF EDR scheme

, for a regulated sector, means an external

dispute resolution scheme authorised under subsection 58DB(1) for

the sector.

SPF general regulator

has the meaning given by section 58EB.

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SPF governance policies, procedures, metrics and targets

, for a

regulated entity for a regulated sector, means the entity's:

(a) policies and procedures required under paragraph 58BD(1)(a)

for the sector; and

(b) performance metrics and targets required under paragraph

58BD(1)(c) for those policies and procedures.

SPF infringement notice

means an infringement notice issued

under subsection 58FO(1) or (2).

SPF personal information

means:

(a) personal information; or

(b) information relating to a person that may be used (whether

alone or in conjunction with other information) to access:

(i) a service or an account; or

(ii) funds, credit or other financial benefits.

SPF principles

means the provisions in Subdivisions B to G of

Division 2 of Part IVF (about the Scams Prevention Framework).

SPF provisions

has the meaning given by section 58AJ.

SPF regulator

means:

(a) the SPF general regulator; or

(b) the SPF sector regulator for a regulated sector.

SPF rules

means rules made under section 58GE.

SPF sector regulator

has the meaning given by section 58ED.

6 Section 52A (definition of

ACMA

)

Repeal the definition.

7 Section 151AB (definition of

ACMA

)

Repeal the definition.

8 Section 152AC (definition of

ACMA

)

Repeal the definition.

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9 At the end of paragraph 155(2)(a)

Add:

(v) an SPF code; or

10 After subparagraph 155(2)(b)(ib)

Insert:

(ic) a designated scams prevention framework matter (as

defined by subsection (9AC) of this section); or

11 After subsection 155(9AB)

Insert:

(9AC) A reference in this section to a

designated scams prevention

framework matter

is a reference to the performance of a function,

or the exercise of a power, conferred on the Commission (as an

SPF regulator) by or under:

(a) Part IVF; or

(b) a legislative instrument (such as an SPF code) made under

that Part; or

relation to a provision of that Part.

12 Paragraph 155AAA(12)(b)

Omit "Australian Communications and Media Authority", substitute

"ACMA".

Corporations Act 2001

13 At the end of subsection 1051(2)

Add:

Note:

A law, instrument or condition referred to in paragraph (a) that

requires entities to be members of the scheme need not be a law,

instrument or condition regulating providers of financial products or

services. The constitutional basis for that law, instrument or condition

would need to support the scheme's application to such entities.

14 At the end of section 1052A

Add:

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Note:

This power to issue regulatory requirements extends to any

application of the AFCA scheme in relation to members of the scheme

that are not providers of financial products or services.

15 Subsection 1052B(1) (note)

Omit "Note", substitute "Note 1".

16 At the end of subsection 1052B(1)

Add:

Note 2:

This power to give directions extends to any application of the AFCA

scheme in relation to members of the scheme that are not providers of

financial products or services.

17 At the end of subsections 1052BA(1) and 1052C(1)

Add:

Note:

This power to give directions extends to any application of the AFCA

scheme in relation to members of the scheme that are not providers of

financial products or services.

18 Subsection 1052D(1) (note)

Omit "Note", substitute "Note 1".

19 At the end of subsection 1052D(1)

Add:

Note 2:

This right to make requests extends to any application of the AFCA

scheme in relation to members of the scheme that are not providers of

financial products or services.

20 At the end of subsection 1052E(1)

Add:

Note:

This subsection extends to any application of the AFCA scheme in

relation to members of the scheme that are not providers of financial

products or services.

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SCAMS PREVENTION FRAMEWORK BILL 2024