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Regulatory Powers (Standard Provisions) Bill 2014

Part 5 Infringement notices

Division 1 Outline and operation of this Part

98   Simplified outline

                   The following is a simplified outline of this Part:

This Part creates a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened.

For this Part to operate, a provision must be made subject to an infringement notice under this Part. This is to be done by another Act.

A person can be given an infringement notice in relation to a contravention of a provision that is subject to an infringement notice under this Part. The provision may be a strict liability offence or a civil penalty provision, or both.

A person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against the person for a contravention of a provision subject to an infringement notice under this Part. If the person does not choose to pay the amount, proceedings can be brought against the person in relation to the contravention.

99   Purpose and operation of this Part

             (1)  The principal purpose of this Part is to create a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened.

             (2)  However, for this Part to operate, a provision of an Act or a legislative instrument must be made subject to an infringement notice under this Part.

100   Provisions subject to infringement notices

                   A provision that is an offence of strict liability or a civil penalty provision in an Act or a legislative instrument is subject to an infringement notice under this Part if an Act provides that the provision is subject to an infringement notice under this Part.

101   Infringement officer

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

             (2)  A person who is an infringement officer for the purpose of exercising powers mentioned in subsection (1) is also an infringement officer 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 infringement officer in relation to a provision for the purposes of this Part by:

                     (a)  providing that a person of a specified class is an infringement officer in relation to the provision for the purposes of this Part; or

                     (b)  authorising another person to specify that a person, or a person of a specified class, is an infringement officer in relation to the provision for the purposes of this Part.

102   Relevant chief executive

             (1)  A person is the relevant chief executive for the purposes of exercising powers under this Part in relation to a contravention of a provision if an Act provides that the person is the relevant chief executive in relation to that provision for the purposes of this Part.

             (2)  A person who is the relevant chief executive for the purpose of exercising powers mentioned in subsection (1) is also the relevant chief executive 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 the relevant chief executive in relation to a provision for the purposes of this Part by:

                     (a)  providing that a person who holds a specified office is the relevant chief executive in relation to the provision for the purposes of this Part; or

                     (b)  authorising another person to specify that a person, or a person who holds a specified office, is the relevant chief executive in relation to the provision for the purposes of this Part.

Division 2 Infringement notices

103   When an infringement notice may be given

             (1)  If an infringement officer believes on reasonable grounds that a person has contravened a provision subject to an infringement notice under this Part, the infringement officer 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 on which the contravention is alleged to have taken place.

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

             (4)  An infringement officer 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 1 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 93 of this Act.

             (5)  If a single provision can constitute both a civil penalty provision and an offence provision, the infringement notice must relate to the provision as an offence provision.

104   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 on which it is given; and

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

                     (d)  state the name and contact details of the person who gave the notice, and that the person is an infringement officer for the purposes of issuing the infringement notice; and

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

                              (i)  the provision that was allegedly contravened; and

                             (ii)  the maximum penalty that a court could impose if the provision were contravened; 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 relevant chief executive 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 relevant chief executive seeking the withdrawal of the notice.

             (2)  Unless another Act expressly provides otherwise, the amount to be stated in the notice for the purposes of paragraph (1)(f) for the alleged contravention of the provision by the person must be the lesser of:

                     (a)  one-fifth of the maximum penalty that a court could impose on the person for that contravention; and

                     (b)  12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate.

105   Extension of time to pay amount

             (1)  A person to whom an infringement notice has been given may apply to the relevant chief executive for an extension of the period referred to in paragraph 104(1)(h).

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

             (3)  If the relevant chief executive extends that period, a reference in this Part, or in a notice or other instrument under this Part, to the period referred to in paragraph 104(1)(h) is taken to be a reference to that period so extended.

             (4)  If the relevant chief executive does not extend that period, a reference in this Part, or in a notice or other instrument under this Part, to the period referred to in paragraph 104(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 104(1)(h);

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

             (5)  The relevant chief executive may extend the period more than once under subsection (2).

106   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 relevant chief executive seeking the withdrawal of the notice.

Withdrawal of notice

             (2)  The relevant chief executive 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 relevant chief executive:

                     (a)  must take into account any written representations seeking the withdrawal that were given by the person to the relevant chief executive; 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 provision subject to an infringement notice under this Part that is included in the same Act or legislative instrument as the provision in relation to which the infringement notice is given;

                             (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 provision subject to an infringement notice under this Part 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 relevant chief executive 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 relevant chief executive 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.

107   Effect of payment of amount

             (1)  If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 104(1)(h):

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

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

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

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

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

                      (f)  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.

108   Effect of this Part

                   This Part does not:

                     (a)  require an infringement notice to be given to a person for an alleged contravention of a provision subject to an infringement notice under this Part; or

                     (b)  affect the liability of a person for an alleged contravention of a provision subject to an infringement notice under this Part 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 provision subject to an infringement notice under this Part; or

                     (d)  limit a court’s discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened a provision subject to an infringement notice under this Part.