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Carbon Credits (Carbon Farming Initiative) Bill 2011

Part 21 Civil penalty orders

   

219   Simplified outline

                   The following is a simplified outline of this Part:

•      Pecuniary penalties are payable for contraventions of civil penalty provisions.

220   References to Court

                   In this Part:

Court means:

                     (a)  the Federal Court; or

                     (b)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

221   Civil penalty orders

             (1)  If a Court is satisfied that a person has contravened a civil penalty provision, the Court may order the person to pay the Commonwealth a pecuniary penalty.

             (2)  An order under subsection (1) is to be known as a civil penalty order .

Determining amount of pecuniary penalty

             (3)  In determining the pecuniary penalty, the Court may have regard to all relevant matters, including:

                     (a)  the nature and extent of the contravention; and

                     (b)  the nature and extent of any loss or damage suffered as a result of the contravention; and

                     (c)  the circumstances in which the contravention took place; and

                     (d)  whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct; and

                     (e)  the extent to which the person has co-operated with the authorities; and

                      (f)  if the person is a body corporate:

                              (i)  the level of the employees, officers or agents of the body corporate involved in the contravention; and

                             (ii)  whether the body corporate exercised due diligence to avoid the contravention; and

                            (iii)  whether the body corporate had a corporate culture conducive to compliance.

             (4)  The pecuniary penalty payable under subsection (1) by a body corporate must not exceed 10,000 penalty units for each contravention.

             (5)  The pecuniary penalty payable under subsection (1) by a person other than a body corporate must not exceed 2,000 penalty units for each contravention.

Civil enforcement of penalty

             (6)  A pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.

222   Who may apply for a civil penalty order

             (1)  Only the Administrator may apply for a civil penalty order.

             (2)  Subsection (1) does not exclude the operation of the Director of Public Prosecutions Act 1983 .

223   Two or more proceedings may be heard together

                   The Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

224   Time limit for application for an order

                   Proceedings for a civil penalty order may be started no later than 6 years after the contravention.

225   Civil evidence and procedure rules for civil penalty orders

                   The Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

226   Civil proceedings after criminal proceedings

                   The Court must not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

227   Criminal proceedings during civil proceedings

             (1)  Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:

                     (a)  criminal proceedings are started or have already been started against the person for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

             (2)  The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

228   Criminal proceedings after civil proceedings

                   Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.

229   Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings

                   Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.

230   Mistake of fact

             (1)  A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:

                     (a)  at or before the time of the conduct constituting the contravention, the person:

                              (i)  considered whether or not facts existed; and

                             (ii)  was under a mistaken but reasonable belief about those facts; and

                     (b)  had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.

             (2)  For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:

                     (a)  the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

                     (b)  the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

             (3)  A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.

231   State of mind

Scope

             (1)  This section applies to proceedings for a civil penalty order against a person for a contravention of any of the following civil penalty provisions:

                     (a)  subsection 76(1);

                     (b)  subsection 78(2);

                     (c)  subsection 79(2);

                     (d)  subsection 80(2);

                     (e)  subsection 81(2);

                      (f)  subsection 82(2);

                     (g)  subsection 82(3);

                     (h)  subsection 83(2);

                      (i)  subsection 84(2);

                      (j)  subsection 85(5);

                     (k)  subsection 97(9);

                      (l)  subsection 97(10);

                    (m)  subsection 185(4);

                     (n)  subsection 191(2);

                     (o)  subsection 192(3);

                     (p)  subsection 193(2);

                     (q)  subsection 194(2);

                      (r)  subsection 214(4);

                      (s)  subsection 214(5);

                      (t)  subsection 215(3).

State of mind

             (2)  In the proceedings, it is not necessary to prove:

                     (a)  the person’s intention; or

                     (b)  the person’s knowledge; or

                     (c)  the person’s recklessness; or

                     (d)  the person’s negligence; or

                     (e)  any other state of mind of the person.

             (3)  Subsection (2) does not affect the operation of section 230.

232   Continuing contraventions

             (1)  If an act or thing is required, under a civil penalty provision of this Act, to be done within a particular period, or before a particular time, then the obligation to do that act or thing continues (even if the period has expired or the time has passed) until the act or thing is done.

             (2)  A person who contravenes any of the following civil penalty provisions:

                     (a)  subsection 76(1);

                     (b)  subsection 78(2);

                     (c)  subsection 79(2);

                     (d)  subsection 80(2);

                     (e)  subsection 81(2);

                      (f)  subsection 82(2);

                     (g)  subsection 82(3);

                     (h)  subsection 83(2);

                      (i)  subsection 84(2);

                      (j)  subsection 85(5);

                     (k)  subsection 185(4);

                      (l)  subsection 193(2);

                    (m)  subsection 194(2);

                     (n)  subsection 214(4);

                     (o)  subsection 214(5);

commits a separate contravention of that provision in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.

             (3)  The pecuniary penalty payable under subsection 221(1) for such a separate contravention in respect of a particular day must not exceed:

                     (a)  in the case of a contravention of subsection 185(4)—10% of the maximum pecuniary penalty that could have been imposed for the contravention if subsection (2) of this section had not been enacted; or

                     (b)  otherwise—5% of the maximum pecuniary penalty that could have been imposed for the contravention if subsection (2) of this section had not been enacted.