Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 5.
1 Declarations of contravention
(1) If the Court is satisfied that a controlling corporation has contravened 1 of the following provisions, it must make a declaration of contravention:
(a) subsection 9(1);
(b) subsection 15(5);
(c) subsection 20(4);
(d) subsection 22(1);
(e) subsection 23(1).
These provisions are the civil penalty provisions .
Note: Once a declaration has been made, the Minister can then seek a pecuniary penalty order (see clause 3).
(2) A declaration of contravention must specify the following:
(a) the Court that made the declaration;
(b) the civil penalty provision that was contravened;
(c) the controlling corporation who contravened the provision;
(d) the conduct that constituted the contravention.
2 Declaration of contravention is conclusive evidence
A declaration of contravention is conclusive evidence of the matters referred to in subclause 1(2).
(1) The Court may order a controlling corporation to pay the Commonwealth a pecuniary penalty of up to 1000 penalty units if:
(a) a declaration of contravention by the controlling corporation has been made under clause 1; and
(b) the contravention is serious.
(2) The penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the order as if it were an order made in civil proceedings against the controlling corporation to recover a debt due by the controlling corporation. The debt arising from the order is taken to be a judgment debt.
4 Who may apply for a declaration or order
Application by Minister
(1) The Minister, or some other person authorised in writing by the Minister under this subclause to make the application, may apply for a declaration of contravention or a pecuniary penalty order.
No one else may apply
(2) No person may apply for a declaration of contravention or a pecuniary penalty order unless permitted by this clause.
(3) Subclause (2) does not exclude the operation of the Director of Public Prosecutions Act 1983 .
5 Time limit for application for a declaration or order
Proceedings for a declaration of contravention or a pecuniary penalty order may be started no later than 6 years after the contravention.
6 Civil evidence and procedure rules for declarations of contravention and civil penalty orders
The Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for:
(a) a declaration of contravention; or
(b) a pecuniary penalty order.
7 Civil proceedings after criminal proceedings
The Court must not make a declaration of contravention or a pecuniary penalty order against a controlling corporation for a contravention if the controlling corporation has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
8 Criminal proceedings during civil proceedings
(1) Proceedings for a declaration of contravention or pecuniary penalty order against a controlling corporation are stayed if:
(a) criminal proceedings are started or have already been started against the controlling corporation 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 declaration or order may be resumed if the controlling corporation is not convicted of the offence. Otherwise, the proceedings for the declaration or order are dismissed.
9 Criminal proceedings after civil proceedings
Criminal proceedings may be started against a controlling corporation for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether:
(a) a declaration of contravention has been made against the controlling corporation; or
(b) a pecuniary penalty order has been made against the controlling corporation.
10 Minister requiring person to assist
(1) The Minister may require a person to give all reasonable assistance in connection with:
(a) an application for a declaration of contravention or a pecuniary penalty order; or
(b) criminal proceedings for an offence against this Act.
The person must comply with the request.
Penalty: 5 penalty units.
(2) The Minister can require the person to assist in connection with an application for a declaration or order if, and only if:
(a) it appears to the Minister that:
(i) a controlling corporation may have contravened a civil penalty provision; and
(ii) the person required to assist is not that controlling corporation; and
(b) the Minister suspects or believes that the person required to assist can give information relevant to the application.
(3) The Minister can require the person to assist in connection with criminal proceedings if, and only if:
(a) it appears to the Minister that the person required to assist is unlikely to be a defendant in the proceedings; and
(b) the person required to assist is, in relation to a person who is or should be a defendant in the proceedings:
(i) an employee or agent (including a banker or auditor) of the other person; or
(ii) if the other person is an individual--a partner of the other person.
(4) The Minister can require the person to assist regardless of whether:
(a) an application for the declaration or penalty order has actually been made; or
(b) criminal proceedings for the offence have actually begun.
(5) The person cannot be required to assist if they are or have been a lawyer for:
(a) in an application for a declaration or penalty order--the controlling corporation suspected of the contravention; or
(b) in criminal proceedings--a defendant or likely defendant in the proceedings.
(6) The requirement to assist must be given in writing.
(7) The Court may order the person to comply with the requirement in a specified way. Only the Minister may apply to the Court for an order under this subsection .
11 Relief from liability for contravention of civil penalty provision
(1) In this section:
"eligible proceedings" :
(a) means proceedings for a contravention of a civil penalty provision; and
(b) does not include proceedings for an offence.
(2) If:
(a) eligible proceedings are brought against a controlling corporation; and
(b) in the proceedings it appears to the court that the controlling corporation has, or may have, contravened a civil penalty provision but that:
(i) the controlling corporation has acted honestly; and
(ii) having regard to all the circumstances of the case, the controlling corporation ought fairly to be excused for the contravention;
the court may relieve the controlling corporation either wholly or partly from a liability to which the controlling corporation would otherwise be subject, or that might otherwise be imposed on the controlling corporation, because of the contravention.
(3) If a controlling corporation thinks that eligible proceedings will or may be begun against it, the controlling corporation may apply to the Court for relief.
(4) On an application under subclause (3), the Court may grant relief under subclause (2) as if the eligible proceedings had been begun in the Court.
(5) For the purposes of subclause (2) as applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subclause to the court is a reference to the judge; and
(b) the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.