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Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2009

Part 3 Enforcement

Division 1 Civil penalty orders

23   Civil penalty provisions

                   The following are civil penalty provisions for the purposes of this Act:

                     (a)  a subsection of this Act (or a section of this Act that is not divided into subsections) if the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section);

                     (b)  a subsection of this Act if another provision of this Act specifies that the subsection is a civil penalty provision.

24   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)  If, under sections 11 and 13 or under subsection 21(5), an act or thing is required to be done within a particular period, or before a particular time, and a person fails to comply with that requirement, the person is liable for a civil penalty for each day that the person fails to comply.

Civil penalty:

                     (a)  for an individual—1,000 penalty units per day or such amount as is prescribed by the regulations;

                     (b)  for a body corporate—5,000 penalty units per day or such amount as is prescribed by the regulations.

             (3)  To avoid doubt, a person’s failure to comply with such a requirement on a particular day is taken, for the purposes of this Act, not to be the same conduct as the person’s failure to comply with that requirement on a different day.

25   Court may order person to pay pecuniary penalty for contravening civil penalty provision

Application for order

             (1)  Within 6 years of a person contravening a civil penalty provision, the department may apply, on behalf of the Commonwealth, to a Court for an order that the person pay the Commonwealth a pecuniary penalty.

Court may order person to pay pecuniary penalty

             (2)  If the Court is satisfied that the person has contravened a civil penalty provision, the Court may order the person to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate.

Maximum pecuniary penalty

             (3)  The pecuniary penalty must not exceed the sum of:

                     (a)  the relevant amount specified for the civil penalty provision; and

                     (b)  the amount (if any) for which the person is liable under section 24 at the time the Court makes the order.

Determining amount of pecuniary penalty

             (4)  In determining the pecuniary penalty, the 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 the Court in proceedings under this Act to have engaged in any similar conduct.

Conduct contravening more than one civil penalty provision

             (5)  If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

26   Contravening a civil penalty provision is not an offence

                   A contravention of a civil penalty provision is not an offence.

27   Persons involved in contravening civil penalty provision

             (1)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of a civil penalty provision; or

                     (b)  induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

                     (c)  be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision; or

                     (d)  conspire to contravene a civil penalty provision.

             (2)  This Division applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.

28   Recovery of a pecuniary penalty

                   If a Court orders a person to pay a pecuniary penalty:

                     (a)  the penalty is payable to the Commonwealth; and

                     (b)  the Commonwealth may enforce the order as if it were a judgment of the Court.

Division 2 Infringement notices

29   When an infringement notice can be given

             (1)  If the secretary of the department has reasonable grounds to believe that a person has contravened a civil penalty provision, the department may give to the person an infringement notice relating to the alleged contravention.

             (2)  An 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 may be given to a person in respect of:

                     (a)  2 or more alleged contraventions of a civil penalty provision; and

                     (b)  alleged contraventions of 2 or more civil penalty provisions.

However, the notice must not require the person to pay more than one penalty in respect of the same conduct.

30   Matters to be included in an infringement notice

             (1)  An infringement notice must:

                     (a)  identify the person to whom the notice is given; and

                     (b)  set out brief details of:

                              (i)  the alleged contravention of the civil penalty provision; or

                             (ii)  if the infringement notice relates to 2 or more alleged contraventions of a civil penalty provision or alleged contraventions of 2 or more civil penalty provisions—each alleged contravention; and

                     (c)  contain a statement to the effect that proceedings will not be brought under this Part in relation to the alleged contravention or contraventions if the penalty specified in the notice is paid to the department, on behalf of the Commonwealth, within:

                              (i)  28 days after the notice is given; or

                             (ii)  if the Secretary of the department allows a longer period—that longer period; and

                     (d)  contain a statement to the effect that the person to whom the notice is given may choose not to pay the penalty and, if the person does so, proceedings may be brought under this Part in relation to the alleged contravention or contraventions; and

                     (e)  give an explanation of how payment of the penalty is to be made; and

                      (f)  set out such other matters (if any) as are specified by the regulations.

Note:          For the amount of penalty, see section 31.

             (2)  For the purposes of paragraph (1)(b), the brief details must include the following information in relation to each alleged contravention:

                     (a)  the date of the contravention;

                     (b)  the civil penalty provision that was allegedly contravened.

31   Amount of penalty

                   The penalty to be specified in an infringement notice relating to a person’s alleged contravention of a civil penalty provision must be a pecuniary penalty equal to one-fifth of the maximum penalty that a Court could impose on the person for that contravention.

Note:          To work out this maximum penalty, see subsection 25(3).

32   Withdrawal of an infringement notice

             (1)  This section applies if an infringement notice is given to a person.

             (2)  The department may, by written notice given to the person, withdraw the infringement notice.

Refund of penalty if infringement notice withdrawn

             (3)  If:

                     (a)  the penalty specified in the infringement notice is paid; and

                     (b)  the infringement notice is withdrawn after the penalty is paid;

the Commonwealth is liable to refund the penalty.

33   Paying the penalty in accordance with the notice

             (1)  This section applies if:

                     (a)  an infringement notice relating to an alleged contravention of a civil penalty provision is given to a person; and

                     (b)  the penalty is paid in accordance with the infringement notice; and

                     (c)  the infringement notice is not withdrawn.

             (2)  Any liability of the person for the alleged contravention is discharged.

             (3)  The payment of the penalty is not to be taken as an admission by the person of liability for the alleged contravention.

             (4)  Proceedings under this Part may not be brought against the person for the alleged contravention.

34   Effect of this Division on civil proceedings

                   This Division does not:

                     (a)  require an infringement notice to be given in relation to an alleged contravention of a civil penalty provision; or

                     (b)  affect the liability of a person to have proceedings under this Part brought against the person for an alleged contravention of a civil penalty provision if:

                              (i)  the person does not comply with an infringement notice relating to the contravention; or

                             (ii)  an infringement notice relating to the contravention is not given to the person; or

                            (iii)  an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or

                     (c)  limit a Court’s discretion to determine the amount of a penalty to be imposed on a person who is found in proceedings under this Part to have contravened a civil penalty provision.

Division 3 Enforceable undertakings

35   Acceptance of undertakings relating to contraventions

             (1)  The secretary of the department may accept any of the following undertakings given by a person:

                     (a)  a written undertaking that the person will take specified action, in order to comply with the provisions of this Act or the regulations;

                     (b)  a written undertaking that the person will refrain from taking specified action in order to comply with the provisions of this Act or the regulations;

                     (c)  a written undertaking that the person will take specified action directed towards ensuring that the person:

                              (i)  does not commit a contravention of this Act or the regulations; or

                             (ii)  is unlikely to commit a contravention of this Act or the regulations;

                            in the future;

                     (d)  a written undertaking of a kind specified in regulations made for the purposes of this paragraph.

             (2)  The undertaking must be expressed to be an undertaking under this section.

             (3)  The person may withdraw or vary the undertaking at any time, but only with the consent of the secretary of the department.

             (4)  The secretary of the department may, by written notice given to the person, cancel the undertaking.

             (5)  The undertaking may be published on an appropriate website.

36   Enforcement of undertakings

             (1)  If:

                     (a)  a person has given an undertaking under section 35; and

                     (b)  the undertaking has not been withdrawn or cancelled; and

                     (c)  the secretary of the department considers that the person has breached the undertaking;

the secretary of the department may apply to a Court for an order under subsection (2).

             (2)  If the Court is satisfied that the person has breached the undertaking, the Court may make any or all of the following orders:

                     (a)  an order directing the person to comply with the undertaking;

                     (b)  an order directing the person to pay to the department, on behalf of the Commonwealth, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (c)  any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the Court considers appropriate.

Division 4 Liability of chief executive officers of corporations

37   Civil penalties for chief executive officers of corporations

             (1)  If:

                     (a)  a corporation contravenes a civil penalty provision; and

                     (b)  a chief executive officer of the corporation knew that, or was reckless or negligent as to whether, the contravention would occur; and

                     (c)  the officer was in a position to influence the conduct of the corporation in relation to the contravention; and

                     (d)  the officer failed to take all reasonable steps to prevent the contravention;

the officer contravenes this subsection.

             (2)  Subsection (1) is a civil penalty provision.

             (3)  Under section 25, a Court may order a person contravening subsection (1) to pay a pecuniary penalty not more than the pecuniary penalty the Court could order a corporation to pay for contravening the civil penalty provision mentioned in paragraph (1)(a).

38   Did a chief executive officer take reasonable steps to prevent contravention?

             (1)  For the purposes of section 37, in determining whether a chief executive officer of a corporation failed to take all reasonable steps to prevent a contravention, a Court is to have regard to:

                     (a)  what action (if any) the officer took directed towards ensuring the following (to the extent that the action is relevant to the contravention):

                              (i)  that the corporation regularly assesses its compliance with this Act or the regulations;

                             (ii)  that the corporation implements any appropriate recommendations arising from such an assessment;

                            (iii)  that the corporation’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations in so far as those requirements affect the employees, agents or contractors concerned; and

                     (b)  what action (if any) the officer took when he or she became aware that the corporation was contravening this Act or the regulations.

             (2)  This section does not, by implication, limit the generality of section 37