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ATMs and Cash Facilities in Licensed Venues Bill 2008

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2008

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

ATMs and Cash Facilities in Licensed Venues Bill 2008

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator N Xenophon)

 

 

 

 

 

 



ATMS AND CASH FACILITIES IN LICENSED VENUES BILL 2008

 

Background:

 

The purpose of this bill is to limit and reduce the installation of automatic teller machines and cash facilities in licensed venues.

 

 

Part 1 - Preliminary

 

Part 1 of the bill relates to preliminary matters including the bill’s commencement, objects, application and relationship with State and Territory law.  It also provides for definitions.  The bill is intended to commence at the end of 28 days after the day on which it receives the Royal Assent.  It is not intended to exclude or limit the concurrent operation of any law of a State or Territory, unless the contrary intention appears. 

 

Part 2 - Automatic teller machines and other cash facilities

 

Part 2 of the bill applies to any financial institution, constitutional corporation and person, body corporate or corporation that uses an eligible communications service to provide cash facilities.

 

It provides that the abovementioned entities must not install or operate an automatic teller machine or other cash facility, or allow an automatic teller machine or other cash facility to be installed or operated on its behalf, at a licensed venue that allows a cardholder to obtain cash by means of that automatic teller machine or cash facility.   The bill does extend to private and franchised ATM operators.

 

Entities which breach those provisions may be liable to pay a civil penalty of up to 2000 penalty units.  Section 4AA of the Crimes Act 1914 provides that a penalty unit is $110. That equates to a maximum penalty of $220 000 for a breach of those provisions.

 

Part 2 of the bill also provides for certain exceptions to the provisions outlined above.  Those exceptions apply where the terminals or facilities do not permit cash withdrawals by, or cash advances to, a cardholder or, where the Minister has provided an exemption because there are no other cash facilities within a 5 kilometre radius of the licensed venue.  Any body that contravenes the exemptions may also be liable to pay a civil penalty of up to 2000 units (or $220 000).

 

 

Part 3 - Civil Penalties

 

Part 3 of the bill relates to civil penalties.  It provides that the Minister may apply to the Federal Court for an order that a wrongdoer pay the Commonwealth a pecuniary penalty within 6 years of a contravention of a civil penalty provision.  Further, it provides that where a Court is satisfied that the wrongdoer has contravened a civil penalty provision, the court may order that person to pay to the Commonwealth the pecuniary penalty that the court determines appropriate for each contravention but not more than the relevant amount specified for the provision. 

 

In determining the pecuniary penalty, the court must have regard to all relevant matters including, the nature and extent of the contravention, the circumstances in which the contravention took place and whether the person has previously been found to have engaged in any similar conduct in other proceedings under the bill.

 

Where the conduct constitutes a contravention of two or more civil penalty provisions, the bill provides that proceedings may be instituted against a person in relation to the contravention of any one or more of those provisions. However, the person will not be liable to pay more than one pecuniary penalty in respect of the same conduct.

 

For the purposes of this bill, contravening a civil penalty is not an offence. 

 

The bill further provides that a person must not aid, abet, counsel or procure or, induce by threats, promises or otherwise, or, be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision, or conspire to contravene a civil penalty provision. 

 

If the Federal Court orders a person to pay a pecuniary penalty the bill provides that the provision is payable to the Commonwealth and the Commonwealth may enforce the order as if it were a judgment of the Court.

 

The bill also provides for enforceable undertakings relating to contraventions of civil penalty provisions.  These provisions apply where the Minister considers that an action taken by a body corporate after the commencement of clause 14 contravened one or more civil penalty provisions. 

 

It provides that the Minister may, instead of instituting proceedings in the Federal Court (as described above), accept a written undertaking given by an executive officer on behalf of the body corporate in relation to the action, in which the body corporate undertakes to pay a specified amount within a specified period to the Commonwealth or any other undertaking in connection with a contravention.  It also provides that the executive officer, on behalf of the body corporate, may withdraw or vary the undertaking at any time with the consent of the Minister.

 

If the Minister considers that an executive officer who gave an undertaking or the relevant body corporate has breached any of the terms of that undertaking, the court may direct the executive officer or the body corporate to comply with that term of the undertaking or make any other order the Court considers appropriate.

 

PART 4 - Miscellaneous

 

Part 4 of the bill provides for the making of regulations prescribing matters required or permitted by the bill or necessary or convenient to be prescribed for carrying out or giving effect to the bill.