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Carbon Pollution Reduction Scheme Bill 2009

Part 21 Civil penalty orders

   

326   Simplified outline

                   The following is a simplified outline of this Part:

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

326A   References to Court

                   In this Part:

Court means:

                     (a)  the Federal Court of Australia; or

                     (b)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

327   Civil penalty orders

             (1)  If a Court is satisfied that a person has contravened a civil penalty provision, the 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 Court may 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 to have engaged in any similar conduct; and

                     (e)  the extent to which the person has co-operated with the authorities; and

                      (f)  if the person is a body corporate:

                              (i)  the level of the employees, officers or agents of the body corporate involved in the contravention; and

                             (ii)  whether the body corporate exercised due diligence to avoid the contravention; and

                            (iii)  whether the body corporate had a corporate culture conducive to compliance.

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

                     (a)  in the case of a contravention of subsection 68(1) or (2)—the amount worked out under subsection (5); or

                     (b)  in the case of a contravention of subsection 50A(1) or 68(3) or (4)—500 penalty units for each contravention; or

                     (c)  in the case of a contravention of subsection 163(1), (2) or (5)—500 penalty units for each contravention; or

                     (d)  otherwise—10,000 penalty units for each contravention.

             (5)  For the purposes of paragraph (4)(a), the amount is whichever is the greater of the following amounts:

                     (a)  if the court can determine the total value of the benefits that:

                              (i)  have been obtained by one or more persons; and

                             (ii)  are reasonably attributable to the contravention;

                            3 times that total value;

                     (b)  in any case—10,000 penalty units.

             (6)  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 68(3) or (4)—100 penalty units for each contravention; or

                     (b)  in the case of a contravention of subsection 50A(1) or 163(1), (2) or (5)—100 penalty units for each contravention; or

                     (c)  otherwise—2,000 penalty units for each contravention.

Civil enforcement of penalty

             (7)  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.

328   Who may apply for a civil penalty order

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

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

329   2 or more proceedings may be heard together

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

330   Time limit for application for an order

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

331   Civil evidence and procedure rules for civil penalty orders

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

332   Civil proceedings after criminal proceedings

                   The 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.

333   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.

334   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.

335   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.

336   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.

337   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 civil penalty provisions:

                    (aa)  subsection 50A(1);

                     (a)  subsection 52(1);

                     (b)  subsection 53(1);

                     (c)  subsection 54(1);

                     (d)  subsection 55(1);

                     (e)  subsection 65(2);

                    (ea)  subsection 66A(1);

                    (ea)  subsection 66A(2);

                      (f)  subsection 67(1);

                     (g)  subsection 68(1);

                     (h)  subsection 68(2);

                      (i)  subsection 163(1);

                      (j)  subsection 163(2);

                     (k)  subsection 164(4);

                      (l)  subsection 173(1);

                    (m)  subsection 173(2);

                     (n)  subsection 225(2);

                     (o)  subsection 226(2);

                     (p)  subsection 226(4);

                     (q)  subsection 235(2);

                      (r)  subsection 293(2);

                      (s)  subsection 294(2);

                      (t)  subsection 296(4);

                     (u)  subsection 302(2);

                     (v)  subsection 303(2);

                    (w)  subsection 303(3);

                     (x)  subsection 304(2).

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 336.

338   Continuing contraventions

             (1)  If an act or thing is required, under a civil penalty provision of this Act, to be done within a particular period, or before a particular time, then the obligation to do that act or thing continues (even if the period has expired or the time has passed) until the act or thing is done.

             (2)  A person who contravenes any of the following civil remedy provisions:

                    (aa)  subsection 50A(1);

                     (a)  subsection 164(4), so far as that subsection relates to a requirement mentioned in subsection 164(2);

                     (b)  subsection 173(1);

                     (c)  subsection 225(2);

                     (d)  subsection 235(2);

                     (e)  subsection 293(2);

                      (f)  subsection 294(2);

                     (g)  subsection 296(4);

commits a separate contravention of that provision in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.

             (3)  The pecuniary penalty payable under subsection 327(1) for such a separate contravention in respect of a particular day must not exceed:

                     (a)  in the case of a contravention of subsection 296(4)—10% of the maximum pecuniary penalty that could have been imposed for the contravention if subsection (2) had not been enacted; or

                     (b)  otherwise—5% of the maximum pecuniary penalty that could have been imposed for the contravention if subsection (2) had not been enacted.