(a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
205PAA Mistake of fact
(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision (other than subsection 202(1A) or (2AA)) if:
(a) at or before the time of the conduct constituting the contravention, the person:
(i) considered whether or not facts existed; and
(ii) was under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
(2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
(3) A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
Part 14C—Injunctions
205PA Simplified outline
The following is a simplified outline of this Part:
• The Federal Court may grant injunctions in relation to contraventions of subsection 121FG(3) or section 136A, 136B, 136C, 136D or 136E or subclause 49(3) of Schedule 6 (which deal with the provision of unlicensed services).
• The Federal Court may also grant injunctions in relation to contraventions of section 26AA (which deals with television licence area plans).
• The Federal Court may also grant injunctions in relation to transactions that are prohibited under Division 5A of Part 5 (which deals with media diversity).
205Q Injunctions
If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of section 26AA or 61AH or subsection 121FG(3) or section 136A, 136B, 136C, 136D or 136E or subclause 49(3) of Schedule 6, the Federal Court may, on the application of the ACMA, 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 something.
205R Interim injunctions
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction under section 205Q, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that section.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction under section 205Q, as a condition of granting an interim injunction, to give any undertakings as to damages.
205S Discharge etc. of injunctions
The Federal Court may discharge or vary an injunction granted under this Part.
205T Certain limits on granting injunctions not to apply
The power of the Federal Court under this Part to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—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; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
205U Other powers of the Federal Court unaffected
The powers conferred on the Federal Court under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
Part 14D—Enforceable undertakings
205V Simplified outline
The following is a simplified outline of this Part:
• A person may give the ACMA an enforceable undertaking about compliance with this Act or a registered code of practice.
205W Acceptance of undertakings
(1) The ACMA may accept any of the following undertakings:
(a) a written undertaking given by a person that the person will, in order to comply with this Act, take specified action;
(b) a written undertaking given by a person that the person will, in order to comply with this Act, refrain from taking specified action;
(c) a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene this Act, or is unlikely to contravene this Act, in the future;
(d) a written undertaking given by a person that the person will, in order to comply with a registered code of practice, take specified action;
(e) a written undertaking given by a person that the person will, in order to comply with a registered code of practice, refrain from taking specified action;
(f) a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene a registered code of practice, or is unlikely to contravene a registered code of practice, in the future.
(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 ACMA.
(4) The ACMA may, by written notice given to the person, cancel the undertaking.
(5) The ACMA may publish the undertaking on its website.
205X Enforcement of undertakings
(1) If:
(a) a person has given an undertaking under section 205W; and
(b) the undertaking has not been withdrawn or cancelled; and
(c) the ACMA considers that the person has breached the undertaking;
the ACMA may apply to the Federal Court for an order under subsection (2).
(2) If the Federal 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 ACMA, 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.
Part 14E—Infringement notices
205XAA Simplified outline
The following is a simplified outline of this Part:
• This Part sets up a system of infringement notices for contraventions of a designated infringement notice provision as an alternative to the institution of court proceedings.
205XA Formal warning
If an authorised infringement notice officer has reasonable grounds to believe that a person has contravened a designated infringement notice provision (other than a designated infringement notice provision in Part 9E), the officer may, by written notice given to the person:
(a) inform the person accordingly; and
(b) warn the person that the officer, or another authorised infringement notice officer, may be entitled to give the person an infringement notice relating to the contravention.
Note: See subsection 205Y(4).
205Y When an infringement notice can be given
(1) If an authorised infringement notice officer has reasonable grounds to believe that a person has contravened a designated infringement notice provision, the officer may give the person an infringement notice relating to the contravention.
(2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.
(3) Subsection (1) has effect subject to subsections (4) and (5).
(4) An authorised infringement notice officer must not give a person an infringement notice relating to a contravention of a designated infringement notice provision unless the officer, or another authorised infringement notice officer, has previously given a notice to the person under section 205XA in relation to:
(a) the contravention; or
(b) a similar contravention.
(5) Subsection (4) does not apply in relation to a contravention of a designated infringement notice provision in Part 9E.
205Z Matters to be included in an infringement notice
An infringement notice must:
(a) set out the name of the person to whom the notice is given; and
(b) set out the name of the person who gave the notice; and
(c) set out brief details relating to the alleged contravention of a designated infringement notice provision, including the date of the alleged contravention; and
(d) contain a statement to the effect that proceedings will not be brought in relation to the alleged contravention if the penalty specified in the notice is paid to the ACMA, on behalf of the Commonwealth, within:
(i) 28 days after the notice is given; or
(ii) if the ACMA allows a longer period—that longer period; and
(e) give an explanation of how payment of the penalty is to be made; and
(f) set out the effect of section 205ZB; and
(g) set out such other matters (if any) as are specified in the regulations.
205ZA Amount of penalty
(1) The penalty to be specified in an infringement notice given to a person must be a pecuniary penalty equal to:
(aaa) if the infringement notice relates to subsection 130ZZP(3) and the person is a body corporate—60 penalty units; or
(aab) if the infringement notice relates to subsection 130ZZQ(3) and the person is a body corporate—30 penalty units; or
(aac) if the infringement notice relates to subsection 146Z(3) and the person is a body corporate—30 penalty units; or
(aa) if the infringement notice relates to subclause 25(1) of Schedule 8 and the person is a body corporate—60 penalty units; or
(a) if the infringement notice does not relate to a provision mentioned in paragraph (aaa), (aab), (aac) or (aa) and the person is a commercial television broadcasting licensee or a subscription television broadcasting licensee—60 penalty units; or
(b) in any other case—10 penalty units.
(2) Subsection (1) does not apply to an infringement notice that relates to subsection 74F(1), 74G(1), 74H(1), 74J(1), 74K(1), 121FZP(1), 121FZS(1) or 121FZT(3).
(3) If an infringement notice given to a person relates to subsection 74F(1), 74G(1), 74H(1), 74J(1) or 74K(1), the penalty to be specified in the infringement notice must be a pecuniary penalty equal to:
(a) if the person is a body corporate—60 penalty units; or
(b) in any other case—10 penalty units.
(4) If an infringement notice given to a person relates to subsection 121FZP(1), 121FZS(1) or 121FZT(3), the penalty to be specified in the infringement notice must be a pecuniary penalty equal to:
(a) if the person is a body corporate—60 penalty units; or
(b) in any other case—12 penalty units.
205ZB Withdrawal of an infringement notice
(1) This section applies if an infringement notice is given to a person.
(2) An authorised infringement notice officer may, by written notice (the withdrawal notice) given to the person, withdraw the infringement notice.
(3) To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.
Refund of penalty if infringement notice withdrawn
(4) 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.
205ZC What happens if the penalty is paid
(1) This section applies if:
(a) an infringement notice relating to an alleged contravention of a designated infringement notice 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) Proceedings may not be brought against the person for the alleged contravention.
205ZD Effect of this Part on criminal proceedings
This Part does not:
(a) require an infringement notice to be given in relation to an alleged contravention of a designated infringement notice provision; or
(b) affect the liability of a person to have proceedings brought against the person for an alleged contravention of a designated infringement notice 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 to have contravened a designated infringement notice provision.
205ZE Appointment of authorised infringement notice officer
The ACMA may, by writing, appoint a member of the staff of the ACMA as an authorised infringement notice officer for the purposes of this Act.
205ZF Regulations
The regulations may make further provision in relation to infringement notices.
Part 14F—Grants
205ZG Simplified outline of this Part
• The ACMA may, on behalf of the Commonwealth, make a grant of financial assistance to:
(a) a publisher of a newspaper, magazine or other periodical; or
(b) a content service provider.
• A grant must be in respect of:
(a) the financial year commencing on 1 July 2018; or
(b) the financial year commencing on 1 July 2019; or
(c) the financial year commencing on 1 July 2020.
• The Minister may constitute an advisory committee to advise the ACMA.
205ZH Grants
(1) The ACMA may, on behalf of the Commonwealth, make a grant of financial assistance to:
(a) a constitutional corporation that publishes a newspaper, magazine or other periodical; or
(b) a content service provider (within the meaning of Schedule 7);
in respect of:
(c) the financial year commencing on 1 July 2018; or
(d) the financial year commencing on 1 July 2019; or
(e) the financial year commencing on 1 July 2020; or
(f) the financial year commencing on 1 July 2021.
(2) A grant of financial assistance must not be made to a person under this section unless the person is party to an agreement under subsection 205ZJ(2).
(3) The total amount of financial assistance granted under this section must not exceed $50,100,000.
(4) Payments under this section are to be made out of money appropriated by the Parliament by another Act.
Note: The other Act will usually be an Annual Appropriation Act.
205ZJ Terms and conditions for grants
Scope
(1) This section applies to a grant of financial assistance under section 205ZH.
Terms and conditions
(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the recipient.
(3) An agreement under subsection (2) may be entered into by the ACMA on behalf of the Commonwealth.
Core condition
(4) An agreement under subsection (2) must set out a condition to the effect that the recipient will spend the amount of the grant in connection with a matter specified in the agreement.
(5) If the grant is made to the recipient in the recipient’s capacity as a constitutional corporation that publishes a newspaper, magazine or other periodical, the specified matter must concern the recipient’s activities, so far as those activities relate to the newspaper, magazine or other periodical.
(6) If the grant is made to the recipient in the recipient’s capacity as a content service provider (within the meaning of Schedule 7), the specified matter must concern the recipient’s activities, so far as those activities relate to the provision of a content service (within the meaning of Schedule 7).
205ZK Advisory committee
(1) The Minister may constitute a committee to advise the ACMA in relation to the exercise of the ACMA’s powers under this Part.
(2) In exercising its powers under this Part, the ACMA must have regard to any relevant advice given to it by the committee.
(3) Subsection (2) does not, by implication, limit the matters to which the ACMA may have regard.
Remuneration
(4) A member of the committee is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, a member of the committee is to be paid such remuneration as the Minister determines in writing.
(5) A member of the committee is to be paid such allowances as the Minister determines in writing.
(6) Subsections (4) and (5) have effect subject to the Remuneration Tribunal Act 1973.
(7) A determination made by the Minister under subsection (4) or (5) is a legislative instrument.
Sunsetting
(8) The committee ceases to exist at the end of 30 June 2021.
205ZL Annual report
The Chair of the ACMA must include in the annual report on the ACMA given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a financial year mentioned in subsection 205ZH(1):
(a) the name of each person who received one or more grants of financial assistance under section 205ZH in respect of the financial year; and