ENVIRONMENT PROTECTION ACT 1993 - SECT 104A

ENVIRONMENT PROTECTION ACT 1993 - SECT 104A

104A—Authority may recover civil penalty in respect of contravention

        (1)         Subject to this section, if the Authority is satisfied that a person has committed an offence by contravening a provision of this Act, the Authority may, as an alternative to criminal proceedings, recover, by negotiation or by application to the Environment, Resources and Development Court, an amount as a civil penalty in respect of the contravention.

        (2)         The Authority may not recover an amount under this section in respect of a contravention if the relevant offence requires proof of intention or some other state of mind, and must, in respect of any other contravention, determine whether to initiate proceedings for an offence or take action under this section, having regard to the seriousness of the contravention, the previous record of the offender and any other relevant factors.

        (3)         The Authority may not make an application to the Court under this section to recover an amount from a person as a civil penalty in respect of a contravention—

            (a)         unless the Authority has served on the person a notice in the prescribed form advising the person that the person may, by written notice to the Authority, elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the Authority's notice to make such an election; or

            (b)         if the person serves written notice on the Authority, before the making of such an application, that the person elects to be prosecuted for the contravention.

        (4)         The maximum amount that the Authority may recover by negotiation as a civil penalty in respect of a contravention is—

            (a)         the amount specified by this Act as the criminal penalty in relation to that contravention; or

            (b)         $120 000,

whichever is the lesser.

        (5)         If, on an application by the Authority, the Environment, Resources and Development Court is satisfied on the balance of probabilities that a person has contravened a provision of this Act, the Court may order the person to pay to the Authority an amount as a civil penalty (but not exceeding the amount specified by this Act as the criminal penalty in relation to that contravention).

        (6)         In determining the amount to be paid by a person as a civil penalty, the Court must have regard to—

            (a)         the nature and extent of the contravention; and

            (b)         any environmental harm or detriment to the public interest resulting from the contravention; and

            (c)         any financial saving or other benefit that the person stood to gain by committing the contravention; and

            (d)         whether the person has previously been found, in proceedings under this Act, to have engaged in any similar conduct; and

            (e)         any other matter it considers relevant.

        (7)         The jurisdiction conferred by this section is to be part of the civil jurisdiction of the Court.

        (8)         If conduct of a person constitutes a contravention of two or more provisions of this Act, an amount may be recovered from the person under this section in relation to the contravention of any one or more of those provisions (provided that the person is not liable to pay more than one amount as a civil penalty in respect of the same conduct).

        (9)         Proceedings for an order under this section that a person pay an amount as a civil penalty in relation to a contravention of this Act, or for enforcement of such an order, are stayed if criminal proceedings are started or have already been started against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

        (10)         Proceedings referred to in subsection (9) may only be resumed if the criminal proceedings do not result in a formal finding of guilt being made against the person.

        (11)         Evidence of information given or evidence of the production of documents by a person is not admissible in criminal proceedings against the person if—

            (a)         the person gave the evidence or produced the documents in the course of negotiations or proceedings under this section for the recovery of an amount as a civil penalty in relation to a contravention of this Act; and

            (b)         the conduct alleged to constitute the offence is substantially the same as the conduct that was alleged to constitute the contravention.

        (12)         However, subsection (11) does not apply to criminal proceedings in respect of the making of a false or misleading statement.

        (13)         Proceedings for an order under this section may be commenced at any time within three years after the date of the alleged contravention or, with the authorisation of the Attorney-General, at any later time within 10 years after the date of the alleged contravention.

        (14)         An apparently genuine document purporting to be under the hand of the Attorney-General and to authorise the commencement of proceedings for an order under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation.

        (15)         The Court may, in any proceedings under this section, make such orders in relation to the costs of the proceedings as it thinks just and reasonable.