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Wheat Export Marketing Bill 2008

Part 8 Civil penalty orders

   

75   Simplified outline

                   The following is a simplified outline of this Part:

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

76   Civil penalty orders

             (1)  If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Federal 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 Federal Court must 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 or the Customs Act 1901 to have engaged in any similar conduct.

             (4)  The pecuniary penalty payable under subsection (1) by a body corporate must not exceed:

                     (a)  in the case of a contravention of subsection 7(1) or (4)—3,000 penalty units for each contravention; or

                     (b)  in the case of a contravention of any of the following provisions:

                              (i)  subsection 18(3);

                             (ii)  subsection 18(4);

                            (iii)  subsection 25(5);

                            (iv)  subsection 25(6);

                             (v)  subsection 31(7);

                            (vi)  subsection 31(8);

                            1,500 penalty units for each contravention; or

                     (c)  in the case of a contravention of:

                              (i)  subsection 18(1) or (2); or

                             (ii)  subsection 21(6) or (7);

                            1,000 penalty units for each contravention.

             (5)  The pecuniary penalty payable under subsection (1) by a person other than a body corporate must not exceed:

                     (a)  in the case of a contravention of subsection 7(1) or (4)—600 penalty units for each contravention; or

                     (b)  in the case of a contravention of subsection 18(4), 25(6) or 31(8)—300 penalty units for each contravention; or

                     (c)  in the case of a contravention of subsection 18(2) or 21(7)—200 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 judgment debt.

77   Who may apply for a civil penalty order

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

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

78   2 or more proceedings may be heard together

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

79   Time limit for application for an order

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

80   Civil evidence and procedure rules for civil penalty orders

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

81   Civil proceedings after criminal proceedings

                   The Federal 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.

82   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.

83   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.

84   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.

85   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.

86   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 provisions:

                     (a)  subsection 7(1);

                     (b)  subsection 18(1);

                     (c)  subsection 18(3);

                     (d)  subsection 21(6);

                     (e)  subsection 25(5);

                      (f)  subsection 31(7).

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 85.