Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Part 9A Enforcement of civil penalty provisions
Division 9A.1 Preliminary
54A Definitions—pt 9A
In this part:
"conduct" means an act or a failure to act.
"corresponding offence", in relation to a contravention of a civil penalty provision, means an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
"court" means the Supreme Court.
54B Part does not limit other powers of court
Nothing in this part is to be interpreted as limiting any other power of the court.
Division 9A.2 Enforceable undertakings
54C Enforceable undertakings
(1) The commission may accept a written undertaking given by a person for this division in relation to the person's compliance with a civil penalty provision.
(2) The person may withdraw or amend the undertaking at any time, but only with the commission's consent.
54D Application for enforcement of undertakings
(1) If the commission considers that a person has contravened an undertaking given by the person under section 54C, it may apply to the court for an order under subsection (2).
(2) If the court is satisfied the person has contravened the undertaking, the court may make 1 or more of the following orders:
(a) an order that the person comply with the undertaking;
(b) an order that the person pay the Territory an amount up to the amount of any financial benefit the person has obtained directly or indirectly and that is reasonably attributable to the contravention;
(c) an order the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the contravention;
(d) any other order the court considers appropriate.
(3) An amount ordered to be paid under subsection (2) (b) is a debt payable to the Territory.
Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act
, s 177).
Division 9A.3 Civil penalty notices
54E Service of civil penalty notice
(1) If the commission believes on reasonable grounds that a person has contravened a civil penalty provision, it may serve the person with a notice to pay a penalty for the contravention (a civil penalty notice ).
(2) The commission must serve the notice within 12 months after the day it forms the belief that the person has contravened the civil penalty provision.
54F Contents of civil penalty notice
A civil penalty notice must state the following:
(a) the date it is served;
(b) the name and address of the person served with the notice;
(c) that the person is alleged to have engaged in conduct that constitutes a contravention of a stated civil penalty provision;
(d) a brief description of the alleged contravention, including when and where it is alleged to have occurred;
(e) the amount payable under the notice for the alleged contravention;
(f) how the person may pay the amount;
(g) the time for payment of the amount (being within 28 days or a stated longer period);
(h) that if the person pays the amount within the time for payment, unless the notice is withdrawn under section 54J—
(i) the commission will not start an enforcement order proceeding against the person in relation to the alleged contravention; and
(ii) the person will not be prosecuted for a corresponding offence;
(i) that if the person fails to pay the amount within the time for payment, or the notice is withdrawn under section 54J—
(i) the commission may start an enforcement order proceeding against the person in relation to the alleged contravention; or
(ii) the person may be prosecuted for a corresponding offence;
(j) anything else prescribed by regulation.
54G Amount payable under civil penalty notice
(1) The amount payable under a civil penalty notice for an alleged contravention of a tier 1 civil penalty provision or tier 2 civil penalty provision is—
(a) for an individual—$15 000 or a lesser amount prescribed by regulation; and
(b) for a corporation—$75 000 or a lesser amount prescribed by regulation.
(2) The amount payable under a civil penalty notice for an alleged contravention of a tier 3 civil penalty provision is—
(a) for an individual—$7 510 or a lesser amount prescribed by regulation; and
(b) for a corporation—$37 500 or a lesser amount prescribed by regulation.
(3) However, the commission may decide that the amount payable under a civil penalty notice for an alleged contravention of a tier 3 civil penalty provision for a corporation is the amount mentioned in subsection (2) (a) if—
(a) the corporation is not a listed corporation, or is subject to the payment only because it is a related corporation; and
(b) the commission considers the lesser amount is appropriate after taking into account the following:
(i) the nature of the alleged contravention;
(ii) the degree of financial impact on the corporation if the higher amount were to apply;
(iii) the extent to which the higher amount appears excessive in the circumstances;
(iv) any other matter the commission considers relevant.
(4) In this section:
"listed corporation—"see the Corporations Act
, section 9.
tier 1 civil penalty provision means a civil penalty provision to which a tier 1 civil penalty applies under schedule 5.
tier 2 civil penalty provision means a civil penalty provision to which a tier 2 civil penalty applies under schedule 5.
tier 3 civil penalty provision means a civil penalty provision to which a tier 3 civil penalty applies under schedule 5.
54H Time for payment of amount
(1) A person served with a civil penalty notice must pay the amount payable under the notice within—
(a) 28 days after the day the notice is served; or
(b) a longer period stated in the notice.
(2) The commission may accept payment of the amount after the time for payment stated in the notice if—
(a) the commission has not started an enforcement order proceeding against the person in relation to the alleged contravention; and
(b) the person has not been prosecuted for a corresponding offence; and
(c) the notice has not been withdrawn under section 54J.
54I Effect of payment of amount
(1) If a person served with a civil penalty notice pays the amount payable under the notice in accordance with the notice—
(a) any liability of the person for the alleged contravention is discharged; and
(b) the person must not be prosecuted for a corresponding offence; and
(c) the person is not taken to have been convicted of a corresponding offence; and
(d) the commission must not start an enforcement order proceeding against the person in relation to the alleged contravention; and
(e) the person is not taken to have admitted guilt or liability for the alleged contravention.
(2) Subsection (1) does not apply if the notice is withdrawn under section 54J.
54J Withdrawal of civil penalty notice
(1) The commission may withdraw a civil penalty notice by serving a notice (a withdrawal notice ) on the person served with the civil penalty notice—
(a) if the time for payment stated in the civil penalty notice has not ended; and
(b) whether or not the amount payable under the civil penalty notice has been paid.
(2) If the commission serves a withdrawal notice, it must refund any amount paid under the civil penalty notice.
54K Conduct contravening multiple civil penalty provisions
(1) If a person is alleged to have engaged in conduct constituting a contravention of 2 or more civil penalty provisions, the commission may serve the person with a civil penalty notice in relation to the contravention of 1 or more of those provisions.
(2) However, the person is not liable to pay more than 1 amount for contraventions in relation to the same conduct.
54L Effect of civil penalty notice on enforcement order proceeding
The commission must not start an enforcement order proceeding against a person in relation to an alleged contravention of a civil penalty provision if—
(a) it has served a person with a civil penalty notice in relation to the alleged contravention; and
(b) the time for payment stated in the notice has not ended; and
(c) the notice has not been withdrawn under section 54J.
Division 9A.4 Enforcement orders
54M Application for enforcement order
(1) The commission may apply to the court for an order under subsection (3) (an enforcement order ) in relation to an alleged contravention of a civil penalty provision by a person.
(2) The commission must make the application within 6 years of the alleged contravention.
(3) If the court is satisfied the person has contravened the civil penalty provision, it may make 1 or more of the following orders:
(a) an order that the person pay the Territory a civil penalty for the contravention decided in accordance with section 54N;
(b) an order that the person stop engaging in the conduct constituting the contravention within a stated period;
(c) an order that the person take stated action to remedy the contravention or prevent the contravention from recurring;
(d) an order that the person implement a stated program for compliance with civil penalty provisions;
(e) an order that the person perform a stated service relating to the contravention for the benefit of the community or a part of the community;
(f) an order that the person engage a person or kind of person to perform a service mentioned in paragraph (e);
(g) an order to ensure that the person does not engage in conduct constituting the contravention, or similar or related conduct, for up to 3 years, including—
(i) an order that the person set up a compliance or education and training program for employees or other people involved in the person's business, that is designed to ensure their awareness of the responsibilities and obligations in relation to the conduct; or
(ii) an order that the person revise the internal operations of their business that led to the contravention;
(h) an order that the person—
(i) disclose stated information to which the person has access in a stated way to stated people; and
(ii) publish an advertisement in a stated way and in terms stated in, or determined in accordance with, the order;
(i) an order prescribed by regulation.
(4) A civil penalty payable under subsection (3) (a) is a debt payable to the Territory.
Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act
, s 177).
(5) An order under subsection (3) (f) is not enforceable against the person engaged to perform the service.
54N Deciding civil penalty for enforcement order
(1) The maximum civil penalty payable for a contravention of a civil penalty provision is the penalty mentioned in schedule 5, section 5.3, column 3 for the provision.
(2) Without limiting the matters the court may consider, in deciding the amount of the civil penalty for an enforcement order, the court must consider the following:
(a) the nature and extent of the contravention;
(b) the circumstances in which the contravention took place;
(c) any loss or damage suffered because of the contravention;
(d) any benefit the person and, for a corporation, a related corporation, has obtained directly or indirectly that is reasonably attributable to the contravention;
(e) whether the person has previously engaged in conduct similar to the conduct constituting the contravention.
54O Enforcement order proceeding is civil proceeding
An enforcement order proceeding is a civil proceeding for all purposes.
54P Proceedings may be heard together
The court may direct that 2 or more enforcement order proceedings be heard together.
54Q Civil proceeding after criminal proceeding
The court must not make an enforcement order against a person for a contravention of a civil penalty provision if the person has been convicted of a corresponding offence.
54R Criminal proceeding during civil proceeding
(1) An enforcement order proceeding is stayed if—
(a) a criminal proceeding is started or has already been started against a person alleged to have contravened a civil penalty provision; and
(b) the criminal proceeding is for a corresponding offence.
(2) If the person—
(a) is not convicted of the offence—the enforcement order proceeding may be resumed; or
(b) is convicted of the offence—the enforcement order proceeding is dismissed and costs must not be awarded in relation to the proceeding.
54S Criminal proceeding after civil proceeding
A criminal proceeding may be started against a person for a corresponding offence whether or not an enforcement order has been made against the person for a related contravention of a civil penalty provision.
54T Evidence given in civil proceeding not admissible in criminal proceeding
(1) This section applies to information given and documents produced by an individual in an enforcement order proceeding (whether or not an enforcement order was made).
(2) The information and documents are not admissible in evidence in a criminal proceeding against the individual for a corresponding offence.
(3) However, subsection (2) does not apply to a criminal proceeding in relation to the falsity of the evidence given by the individual in the enforcement order proceeding.
54U Conduct contravening multiple civil penalty provisions
(1) If a person contravenes 2 or more civil penalty provisions, an enforcement order proceeding against the person may be started in relation to the contravention of 1 or more of those provisions.
(2) However, the person is not liable to more than 1 civil penalty in relation to the same conduct.
54V Multiple contraventions
(1) The court may order that a person pay a single civil penalty for multiple contraventions of a civil penalty provision if the contraventions—
(a) are based on the same facts; or
(b) form, or are part of, a series of contraventions of the same or a similar kind.
(2) However, the single civil penalty must not exceed the sum of the maximum penalties that the court may have ordered if separate civil penalties were ordered for each of the contraventions.
Division 9A.5 Injunctions
54W Application for injunction
(1) If a person has engaged, is engaging or is proposing to engage, in conduct constituting a contravention of a civil penalty provision, the court may, on application by the commission, grant an injunction—
(a) restraining the person from engaging in the conduct; and
(b) if, in the court's opinion, it is desirable to do so—requiring the person to do a thing.
(2) The court's power to grant an injunction restraining a person from engaging in conduct may be exercised—
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.
54X Discharging or varying injunctions
The court may discharge or vary an injunction granted under section 54W.
Division 9A.6 Other provisions about liability
54Y Meaning of evidential burden —div 9A.6
In this division:
"evidential burden", in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
54Z Ancillary contraventions
(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) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision.
(2) A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the civil penalty provision.
54ZA State of mind
(1) It is not necessary to prove a person's state of mind in a proceeding against the person under this part.
(2) Subsection (1) does not apply—
(a) to the extent that the proceeding relates to a contravention of section 54Z (1) (Ancillary contraventions); and
(b) to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise.
(3) In this section:
"state of mind", of a person, includes the person's intention, knowledge, recklessness or negligence.
54ZB Mistake of fact
(1) A person is not liable for a contravention of a civil penalty provision if—
(a) when engaging in the conduct constituting the contravention, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts; and
(b) had the facts existed, the conduct would not have constituted a contravention.
(2) A person may be taken to have considered whether or not facts existed when engaging in conduct if the person—
(a) had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) honestly and reasonably believed that the circumstances surrounding the present occasion were substantially the same as those surrounding the previous occasion.
(3) The person has an evidential burden in relation to the matters mentioned in subsection (1) and (2).
54ZC Burden of proof for exceptions etc
A person wishing to rely on any exception, exemption, excuse, qualification or justification provided by the law creating a civil penalty provision has an evidential burden in relation to the matter.
54ZD Extended liability of corporations
Conduct is taken to be engaged in by a corporation if it is engaged in by an employee, agent or officer of the corporation acting within—
(a) the actual or apparent scope of their employment; or
(b) their actual or apparent authority.
54ZE Limited liability of individuals
An individual is not liable under this part for a contravention of a civil penalty provision if the contravention has a corresponding offence.