CLEAN ENERGY ACT 2011 (NO. 131, 2011) - SECT 252 Civil penalty orders

CLEAN ENERGY ACT 2011 (NO. 131, 2011) - SECT 252

             (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 64(1) or (2)--the amount worked out under subsection (5); or

                     (b)  in the case of a contravention of subsection 47(1) or (2) or 64(3) or (4)--500 penalty units for each contravention; or

                     (c)  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 47(1) or (2) or 64(3) or (4)--100 penalty units for each contravention; or

                     (b)  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 judgement debt.