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Shipping Registration Amendment (Australian International Shipping Register) Bill 2012

Schedule 3 Enforcement

   

Shipping Registration Act 1981

1  Subsection 3(1)

Insert:

civil penalty order has the meaning given by subsection 61BA(4).

2  Subsection 3(1)

Insert:

civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.

3  Subsection 3(1)

Insert:

relevant court , in relation to a matter, means any of the following courts:

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Magistrates Court;

                     (c)  a superior court, or lower court, of a State or Territory;

that has jurisdiction in relation to the matter (see section 61BZD).

4  Before Part VI

Insert:

Part VB Enforcement

Division 1 Civil penalty provisions

Subdivision A Obtaining a civil penalty order

61BA   Civil penalty orders

Application for order

             (1)  The Authority may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay a pecuniary penalty.

             (2)  The Authority must make the application within 6 years of the alleged contravention.

Relevant court may order person to pay pecuniary penalty

             (3)  If the relevant court is satisfied that the person has contravened the civil penalty provision, the relevant court may order the person to pay such pecuniary penalty for the contravention as the relevant court determines to be appropriate.

Note:          Subsection (5) sets out the maximum penalty that the relevant court may order the person to pay.

             (4)  An order under subsection (3) is a civil penalty order .

Determining pecuniary penalty

             (5)  The pecuniary penalty must not be more than:

                     (a)  if the person is a body corporate—5 times the pecuniary penalty specified for the civil penalty provision; and

                     (b)  otherwise—the pecuniary penalty specified for the civil penalty provision.

             (6)  In determining the pecuniary penalty, the relevant court may take into account all relevant matters, including:

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

                     (b)  the nature and extent of any loss or damage suffered because 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 one or more of the following Acts to have engaged in any similar conduct:

                              (i)  this Act;

                             (ii)  the Navigation Act;

                            (iii)  the Crimes Act 1914 or the Criminal Code in relation to this Act.

61BB   Civil enforcement of penalty

             (1)  A pecuniary penalty is a debt payable to the Authority on behalf of the Commonwealth.

             (2)  The Authority may enforce a 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.

61BC   Conduct contravening more than one civil penalty provision

             (1)  If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Division against a person in relation to the contravention of any one or more of those provisions.

             (2)  However, the person is not liable to more than one pecuniary penalty under this Division in relation to the same conduct.

61BD   Multiple contraventions

             (1)  A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.

             (2)  However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.

61BE   Proceedings may be heard together

                   A relevant court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

61BF   Civil evidence and procedure rules for civil penalty orders

                   A relevant court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

61BG   Contravening a civil penalty provision is not an offence

                   A contravention of a civil penalty provision is not an offence.

Subdivision B Civil proceedings and criminal proceedings

61BH   Civil proceedings after criminal proceedings

                   A relevant court may 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 the same, or substantially the same, as the conduct constituting the contravention.

61BI   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 commenced or have already been commenced against the person for an offence; and

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

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

61BJ   Criminal proceedings after civil proceedings

                   Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against the person in relation to the contravention.

61BK   Evidence given in civil proceedings not admissible in criminal proceedings

             (1)  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 an alleged contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

             (2)  However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.

Subdivision C Miscellaneous

61BL   Ancillary contravention of civil penalty provisions

             (1)  A person must not:

                     (a)  attempt to contravene a civil penalty provision; or

                     (b)  aid, abet, counsel or procure a contravention of a civil penalty provision; or

                     (c)  induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

                     (d)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or

                     (e)  conspire with others to effect a contravention of a civil penalty provision.

Note:          Section 61BN (which provides that a person’s state of mind does not need to be proven in relation to a civil penalty provision) does not apply to this subsection.

             (2)  A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision.

61BM   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 a matter in subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.

61BN   State of mind

             (1)  In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision (other than because of subsection 61BL(1)), 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;

other than as expressly provided.

             (2)  Subsection (1) does not affect the operation of section 61BM (mistake of fact).

61BO   Civil penalty provisions contravened by employees, agents or officers

                   If an element of a civil penalty provision is done by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the element must also be attributed to the body corporate.

61BP   Continuing contraventions of civil penalty provisions

             (1)  If an act or thing is required under a civil penalty provision to be done:

                     (a)  within a particular period; or

                     (b)  before a particular time;

then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).

             (2)  A person who contravenes a civil penalty provision that requires an act or thing to be done:

                     (a)  within a particular period; or

                     (b)  before a particular time;

commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day).

Division 2 Infringement notices, voluntary enforceable undertakings and injunctions

Subdivision A Infringement notices

61BQ   When an infringement notice may be given

             (1)  If the Authority has reasonable grounds to believe that a person has contravened a civil penalty provision, the Authority may give to the person an infringement notice for the alleged contravention.

             (2)  The infringement notice must be given within 12 months after the day the contravention is alleged to have taken place.

             (3)  A single infringement notice must relate only to a single contravention of a single civil penalty provision unless subsection (4) applies.

             (4)  The Authority may give a person a single infringement notice relating to multiple contraventions of a single provision if:

                     (a)  the provision requires the person to do a thing within a particular period or before a particular time; and

                     (b)  the person fails or refuses to do that thing within that period or before that time; and

                     (c)  the failure or refusal occurs on more than one day; and

                     (d)  each contravention is constituted by the failure or refusal on one of those days.

Note:          For continuing offences, see subsection 4K(2) of the Crimes Act 1914 . For continuing contraventions of civil penalty provisions, see section 61BP of this Act.

61BR   Matters to be included in an infringement notice

             (1)  An infringement notice must:

                     (a)  be identified by a unique number; and

                     (b)  state the day it is given; and

                     (c)  state the name of the person to whom the notice is given; and

                     (d)  state the name of the person who gave the notice; and

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

                              (i)  the provision that was allegedly contravened; and

                             (ii)  the maximum penalty a court could impose for the contravention; and

                            (iii)  the time (if known) and day of, and the place of, the alleged contravention; and

                      (f)  state the amount that is payable under the notice; and

                     (g)  give an explanation of how payment of the amount is to be made; and

                     (h)  state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn):

                              (i)  if the provision is an offence provision and does not also constitute a civil penalty provision—the person will not be liable to be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is an offence provision that can also constitute a civil penalty provision—the person is not liable to be prosecuted in a court, and proceedings seeking a civil penalty order will not be brought, in relation to the alleged contravention; or

                            (iii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order will not be brought in relation to the alleged contravention; and

                      (i)  state that payment of the amount is not an admission of guilt or liability; and

                      (j)  state that the person may apply to the Authority to have the period in which to pay the amount extended; and

                     (k)  state that the person may choose not to pay the amount and, if the person does so:

                              (i)  if the provision is an offence provision and does not also constitute a civil penalty provision—the person may be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is an offence provision and can also constitute a civil penalty provision—the person may be prosecuted in a court, or proceedings seeking a civil penalty order may be brought, in relation to the alleged contravention; or

                            (iii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and

                      (l)  set out how the notice can be withdrawn; and

                    (m)  state that if the notice is withdrawn:

                              (i)  if the provision is an offence provision and does not also constitute a civil penalty provision—the person may be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is an offence provision and can also constitute a civil penalty provision—the person may be prosecuted in a court, or proceedings seeking a civil penalty order may be brought, in relation to the alleged contravention; or

                            (iii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and

                     (n)  state that the person may make written representations to the Authority seeking the withdrawal of the notice.

             (2)  For the purposes of paragraph (1)(f), the amount to be stated in the notice for the alleged contravention of the provision must be equal to one-fifth of the maximum penalty that the court could impose on the person for that contravention.

61BS   Extension of time to pay amount

             (1)  A person to whom an infringement notice has been given may apply to the Authority for an extension of the period referred to in paragraph 61BR(1)(h).

             (2)  If the application is made before the end of that period, the Authority may, in writing, extend that period. The Authority may do so before or after the end of that period.

             (3)  If the Authority extends that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 61BR(1)(h) is taken to be a reference to that period so extended.

             (4)  If the Authority does not extend that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 61BR(1)(h) is taken to be a reference to the period that ends on the later of the following days:

                     (a)  the day that is the last day of the period referred to in paragraph 61BR(1)(h);

                     (b)  the day that is 7 days after the day the person was given notice of the Authority’s decision not to extend.

             (5)  The Authority may extend the period more than once under subsection (2).

61BT   Withdrawal of an infringement notice

Representations seeking withdrawal of notice

             (1)  A person to whom an infringement notice has been given may make written representations to the Authority seeking the withdrawal of the notice.

Withdrawal of notice

             (2)  The Authority may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).

             (3)  When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the Authority:

                     (a)  must take into account any written representations seeking the withdrawal that were given by the person to the Authority; and

                     (b)  may take into account the following:

                              (i)  whether a court has previously imposed a penalty on the person for a contravention of a civil penalty provision;

                             (ii)  the circumstances of the alleged contravention;

                            (iii)  whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a civil penalty provision if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;

                            (iv)  any other matter the Authority considers relevant.

Notice of withdrawal

             (4)  Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:

                     (a)  the person’s name and address; and

                     (b)  the day the infringement notice was given; and

                     (c)  the identifying number of the infringement notice; and

                     (d)  that the infringement notice is withdrawn; and

                     (e)  that:

                              (i)  if the provision is an offence provision and does not also constitute a civil penalty provision—the person may be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is an offence provision and can also constitute a civil penalty provision—the person may be prosecuted in a court, or proceedings seeking a civil penalty order may be brought, in relation to the alleged contravention; or

                            (iii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order may be brought in relation to the alleged contravention.

Refund of amount if infringement notice withdrawn

             (5)  If:

                     (a)  the Authority withdraws the infringement notice; and

                     (b)  the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to the amount paid.

61BU   Effect of payment of amount

             (1)  If the person to whom an infringement notice for an alleged contravention of a civil penalty provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 61BR(1)(h), then:

                     (a)  any liability of the person for the alleged contravention is discharged; and

                     (b)  either:

                              (i)  if the provision is an offence provision—the person may not be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order may not be brought against the person in relation to the alleged contravention; and

                     (c)  the person is not regarded as having admitted guilt or liability for the alleged contravention; and

                     (d)  if the provision is an offence provision—the person is not regarded as having been convicted of the alleged offence.

             (2)  Subsection (1) does not apply if the notice has been withdrawn.

61BV   Effect of this Division

                   This Division does not:

                     (a)  require an infringement notice to be given to a person for an alleged contravention of a civil penalty provision; or

                     (b)  affect the liability of a person for an alleged contravention of a civil penalty provision if:

                              (i)  the person does not comply with an infringement notice given to the person for the contravention; or

                             (ii)  an infringement notice is not given to the person for the contravention; or

                            (iii)  an infringement notice is given to the person for the contravention and is subsequently withdrawn; or

                     (c)  prevent the giving of 2 or more infringement notices to a person for an alleged contravention of a civil penalty provision; or

                     (d)  limit the court’s discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened a civil penalty provision.

Subdivision B Enforceable undertakings

61BW   Acceptance of undertakings

             (1)  The Authority may accept any of the following undertakings:

                     (a)  a written undertaking given by a person that the person will, in order to comply with a civil penalty provision, take specified action;

                     (b)  a written undertaking given by a person that the person will, in order to comply with a civil penalty provision, refrain from taking specified action;

                     (c)  a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene a civil penalty provision, or is unlikely to contravene such a provision, in the future.

             (2)  The undertaking must be expressed to be an undertaking under this section.

             (3)  The person may withdraw or vary the undertaking at any time, but only with the written consent of the Authority.

             (4)  The consent of the Authority is not a legislative instrument.

             (5)  The Authority may, by written notice given to the person, cancel the undertaking.

61BX   Enforcement of undertakings

             (1)  If:

                     (a)  a person has given an undertaking under section 61BW; and

                     (b)  the undertaking has not been withdrawn or cancelled; and

                     (c)  the Authority considers that the person has breached the undertaking;

the Authority may apply to a relevant court for an order under subsection (2).

             (2)  If the relevant court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:

                     (a)  an order directing the person to comply with 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;

                     (c)  any order that the court considers appropriate directing the 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.

Subdivision C Injunctions

61BY   Grant of injunctions

Restraining injunctions

             (1)  If a person has engaged, is engaging or is proposing to engage, in conduct in contravention of a civil penalty provision, a relevant court may, on application by the Authority, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the court’s opinion, it is desirable to do so—requiring the person to do a thing.

Performance injunctions

             (2)  If:

                     (a)  a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and

                     (b)  the refusal or failure was, is or would be a contravention of a civil penalty provision;

the court may, on application by the Authority, grant an injunction requiring the person to do that thing.

61BZ   Interim injunctions

Grant of interim injunctions

             (1)  Before deciding an application for an injunction under section 61BY, a relevant court may grant an interim injunction:

                     (a)  restraining a person from engaging in conduct; or

                     (b)  requiring a person to do a thing.

No undertakings as to damages

             (2)  The court must not require an applicant for an injunction under section 61BY to give an undertaking as to damages as a condition of granting an interim injunction.

61BZA  Discharging or varying injunctions

                   A relevant court may discharge or vary an injunction granted by that court under this Division.

61BZB   Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of a relevant court under this Division to grant an injunction restraining a person from engaging in conduct may be exercised:

                     (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

                     (b)  whether or not the person has previously engaged in conduct of that kind; and

                     (c)  whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.

Performance injunctions

             (2)  The power of a relevant court under this Division to grant an injunction requiring a person to do a thing may be exercised:

                     (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 thing; and

                     (b)  whether or not the person has previously refused or failed to do that thing; and

                     (c)  whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that thing.

61BZC   Other powers of a relevant court unaffected

                   The powers conferred on a relevant court under this Division are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.

Division 3 Civil jurisdiction of courts

61BZD   Civil jurisdiction of courts

             (1)  Jurisdiction is conferred on a court referred to in an item in the following table in relation to civil matters arising under this Part, subject to the limits on the court’s jurisdiction (if any) specified in the item:

 

Civil jurisdiction of courts

Item

Court on which civil jurisdiction is conferred

Limits of jurisdiction

1

The Federal Court of Australia

No specified limits.

2

The Federal Magistrates Court

No specified limits.

3

A superior court, or lower court, of a State or Territory

The court’s general jurisdictional limits, including limits as to locality and subject matter.

             (2)  Jurisdiction is conferred on the courts of a Territory only to the extent that the Constitution permits.

             (3)  Section 15C of the Acts Interpretation Act 1901 does not apply to civil proceedings under this Part.