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Regulatory Powers (Standard Provisions) Bill 2014

Part 4 Civil penalty provisions

Division 1 Outline and operation of this Part

77   Simplified outline

                   The following is a simplified outline of this Part:

This Part creates a framework for the use of civil penalties to enforce civil penalty provisions.

For this Part to operate for the purposes of that framework, a civil penalty provision must be made enforceable under this Part. This is done by another Act.

Civil penalty orders may be sought from a court in relation to contraventions of civil penalty provisions.

This Part also contains some rules of general application in relation to civil penalty provisions (such as the state of mind that must be proved and the defence of mistake of fact).

78   Purposes and operation of this Part

             (1)  The principal purposes of this Part are to create a framework for the use of civil penalties to enforce civil penalty provisions.

             (2)  However, for this Part to operate, a civil penalty provision must be made enforceable under this Part.

79   Enforceable civil penalty provisions

             (1)  A provision is enforceable under this Part if:

                     (a)  it is a civil penalty provision, as defined in subsection (2); and

                     (b)  an Act provides that the civil penalty provision is enforceable under this Part.

             (2)  A provision of an Act or a legislative instrument is a civil penalty provision if:

                     (a)  either:

                              (i)  the provision sets out at its foot a pecuniary penalty, or penalties, indicated by the words “Civil penalty”; or

                             (ii)  another provision of an Act or a legislative instrument provides that the provision is a civil penalty provision, or that a person is liable to a civil penalty if the person contravenes the provision; and

                     (b)  the provision is:

                              (i)  a subsection, or a section that is not divided into subsections; or

                             (ii)  a subregulation, or a regulation that is not divided into subregulations; or

                            (iii)  a subclause (however described) of a Schedule to an Act or of a legislative instrument; or

                            (iv)  a clause (however described) of a Schedule to an Act, or of a legislative instrument, that is not divided into subclauses.

80   Authorised applicant

             (1)  A person is an authorised applicant for the purposes of exercising powers under this Part in relation to the contravention of a civil penalty provision if an Act provides that the person is an authorised applicant in relation to the civil penalty provision for the purposes of this Part.

             (2)  A person who is an authorised applicant for the purpose of exercising powers mentioned in subsection (1) is also an authorised applicant for the purposes of:

                     (a)  exercising other powers under this Part; or

                     (b)  performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

             (3)  Without limiting subsection (1), an Act may provide that a person is an authorised applicant in relation to a civil penalty provision for the purposes of this Part by:

                     (a)  providing that a person of a specified class is an authorised applicant in relation to the civil penalty provision for those purposes; or

                     (b)  authorising another person to specify that a person, or a person of a specified class, is an authorised applicant in relation to the civil penalty provision for those purposes.

81   Relevant court

                   A court is a relevant court for the purposes of exercising powers under this Part in relation to the contravention of a civil penalty provision, if an Act provides that the court is a relevant court in relation to the civil penalty provision for the purposes of this Part.

Division 2 Obtaining a civil penalty order

82   Civil penalty orders

Application for order

             (1)  An authorised applicant may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

             (2)  The authorised applicant must make the application within 4 years of the alleged contravention.

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 court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.

Note:          Subsection (5) sets out the maximum penalty that the 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 court must 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 (including a court in a foreign country) to have engaged in any similar conduct.

83   Civil enforcement of penalty

             (1)  A pecuniary penalty is a debt payable to the Commonwealth.

             (2)  The Commonwealth 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.

84   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 Part 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 Part in relation to the same conduct.

85   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.

Note:          For continuing contraventions of civil penalty provisions, see section 93.

             (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.

86   Proceedings may be heard together

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

87   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.

Division 3 Civil proceedings and criminal proceedings

88   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.

89   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:

                     (a)  the civil proceedings are dismissed; and

                     (b)  costs must not be awarded in relation to the civil proceedings.

90   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.

91   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 information 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.

Division 4 Miscellaneous

92   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.

Civil penalty

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

Note:          Section 94 (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 the extent that proceedings relate to the contravention of subsection (1).

93   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).

94   State of mind

             (1)  In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, 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.

             (2)  Subsection (1) does not apply to the extent that the proceedings relate to a contravention of subsection 92(1) (which is about ancillary contravention of civil penalty provisions).

             (3)  Subsection (1) does not affect the operation of section 95 (which is about mistake of fact).

             (4)  Subsection (1) does not apply to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise.

95   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.

96   Exceptions etc. to civil penalty provisions—burden of proof

                   If, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, the person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision, then the person bears an evidential burden in relation to that matter.

97   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.