Div 18Compliance with Part II

Division 18—Compliance with Part II Subdivision 1—Improvement notices S. 55AA inserted by No. 39/2024 s. 89. 55AA Power to give improvement notice (1) The Secretary or an authorized officer may give a written notice to a regulated person requiring the regulated person to take specified action if the Secretary or authorized officer reasonably believes that— (a) the regulated person has contravened, is contravening or is likely to contravene— (i) a provision of Part II or the regulations; or (ii) a term, condition, limitation or restriction to which a licence, permit or warrant issued to the person under section 19 is subject; or (iii) a term, condition, limitation or restriction to which an approval under section 20A is subject; and (b) taking the action is necessary— (i) to rectify a contravention; or (ii) to cease a contravention; or (iii) to prevent a likely contravention from occurring; or (iv) to address the matters or activities that caused a contravention. (2) The Secretary or an authorized officer may require a regulated person to whom an improvement notice is given— (a) to give a copy of the notice to a person or class of person; or (b) to display a copy of the notice in a manner specified in the notice. S. 55AAB inserted by No. 39/2024 s. 89. 55AAB Content of improvement notice An improvement notice must— (a) specify the name, and if known, the address, of the regulated person to whom the notice is given; and (b) specify— (i) the provision of Part II or the regulations that the Secretary or authorized officer reasonably believes the regulated person has contravened, is contravening or is likely to contravene; or (ii) the term, condition, limitation or restriction to which the licence, permit or warrant issued to the regulated person under section 19 is subject that the Secretary or authorized officer reasonably believes the regulated person has contravened, is contravening or is likely to contravene; or (iii) the term, condition, limitation or restriction to which an approval under section 20A is subject that the Secretary or authorized officer reasonably believes the regulated person has contravened, is contravening or is likely to contravene; and (c) describe the conduct or circumstances the Secretary or authorized officer reasonably believes constitutes the contravention or likely contravention; and (d) specify the action that the regulated person must take; and (e) specify the period within which the regulated person must take the action; and (f) include information about the regulated person's right to seek review of the Secretary's or authorized officer's decision to— (i) give the improvement notice to the person; or (ii) give a notice to the person— (A) amending or revoking an action specified in the improvement notice that the regulated person must take; or (B) amending the period specified in the improvement notice within which the regulated person must take the action; and (g) state that the notice does not affect any criminal proceeding for an offence against a provision of Part II or the regulations constituted by conduct or circumstances in respect of which the notice is given; and (h) state that it is an offence to contravene the notice without reasonable excuse and that the maximum penalty for the offence is 120 penalty units in the case of a natural person or 600 penalty units in the case of a body corporate; and (i) include any prescribed information. S. 55AAC inserted by No. 39/2024 s. 89. 55AAC Amendment of improvement notice The Secretary or an authorized officer may give a written notice to a regulated person to whom an improvement notice is given— (a) amending or revoking an action specified in the improvement notice that the regulated person must take; or (b) amending the period specified in the improvement notice within which the regulated person must take the action. S. 55AAD inserted by No. 39/2024 s. 89. 55AAD Withdrawal of improvement notice The Secretary or an authorized officer— (a) may withdraw an improvement notice at any time in writing; and (b) must withdraw an improvement notice in writing if the Secretary or authorized officer is satisfied that the regulated person to whom the notice is given has taken the specified action. S. 55AAE inserted by No. 39/2024 s. 89. 55AAE Criminal proceeding not affected by improvement notice An improvement notice does not affect any criminal proceeding for an offence against a provision of Part II or the regulations constituted by conduct or circumstances in respect of which the notice is given. S. 55AAF inserted by No. 39/2024 s. 89. 55AAF Offence to contravene improvement notice A regulated person to whom an improvement notice is given must not contravene the notice without reasonable excuse. Penalty: In the case of a natural person, 120 penalty units; Subdivision 2—Prohibition notices S. 55AAG inserted by No. 39/2024 s. 89. 55AAG Power to give prohibition notice (1) The Secretary or an authorized officer may give a written notice to a regulated person prohibiting the regulated person from engaging in a specified activity if the Secretary or authorized officer reasonably believes— (a) the regulated person has contravened, is contravening or is likely to contravene— (i) a provision of Part II or the regulations; or (ii) a term, condition, limitation or restriction to which a licence, permit or warrant issued to the person under section 19 is subject; or (iii) a term, condition, limitation or restriction to which an approval under section 20A is subject; and (b) that, having regard to the immediacy of the risk of harm and the degree of harm to health or safety that may be caused by the contravention or likely contravention, prohibiting the person from engaging in the specified activity is necessary to prevent or minimise that risk. (2) In addition, the Secretary or an authorized officer may require a regulated person to whom a prohibition notice is given to take any specified action the Secretary or authorized officer reasonably believes is necessary— (a) to prevent or minimise the risk to health or safety; or (b) to rectify the contravention; or (c) to cease the contravention; or (d) to prevent a likely contravention from occurring; or (e) to address the matters or activities that caused a contravention. (3) The Secretary or an authorized officer may require a regulated person to whom a prohibition notice is given to— (a) give a copy of the notice to a person or class of person; or (b) display a copy of the notice in a manner specified in the notice. S. 55AAH inserted by No. 39/2024 s. 89. 55AAH Content of prohibition notice A prohibition notice must— (a) specify the grounds on which the notice is given; and (b) state the name of the regulated person to whom the notice is given and, if known, the person's address; and (c) specify— (i) the activity that the regulated person is prohibited from engaging in; or (ii) the action that the regulated person must take; and (d) specify the period within which— (i) the activity is prohibited; or (ii) the action must be taken; and (e) include information about the regulated person's right to seek review of the Secretary's or authorized officer's decision to— (i) give the prohibition notice to the person; or (ii) give a notice to the person— (A) amending or revoking an activity specified in the prohibition notice that the regulated person is prohibited from engaging in; or (B) amending or revoking an action specified in the prohibition notice that the regulated person must take; or (C) amending the period specified in the prohibition notice within which the regulated person is prohibited from engaging in the activity or must take the action specified in the notice; and (f) state that the notice does not affect any criminal proceeding for an offence against a provision of Part II or the regulations constituted by conduct or circumstances in respect of which the notice is given; and (g) state that it is an offence to contravene the notice without reasonable excuse and that the maximum penalty for the offence is 120 penalty units in the case of a natural person or 600 penalty units in the case of a body corporate; and (h) include any prescribed information. S. 55AAI inserted by No. 39/2024 s. 89. 55AAI Amendment of prohibition notice The Secretary or an authorized officer may give a written notice to a regulated person to whom a prohibition notice is given— (a) amending or revoking an activity specified in the prohibition notice that the regulated person is prohibited from engaging in; or (b) amending or revoking an action specified in the prohibition notice that the regulated person must take; or (c) amending the period specified in the prohibition notice within which the regulated person is prohibited from engaging in the activity or must take the action specified in the notice. S. 55AAJ inserted by No. 39/2024 s. 89. 55AAJ Withdrawal of prohibition notice The Secretary or an authorized officer— (a) may withdraw a prohibition notice at any time in writing; and (b) must withdraw a prohibition notice in writing if the Secretary or the authorized officer reasonably believes that the prohibition notice is no longer necessary to prevent or minimise the risk of harm to health or safety. S. 55AAK inserted by No. 39/2024 s. 89. 55AAK Criminal proceeding not affected by prohibition notice A prohibition notice does not affect any criminal proceeding for an offence against a provision of Part II or the regulations constituted by conduct or circumstances in respect of which the notice is given. S. 55AAL inserted by No. 39/2024 s. 89. 55AAL Offence to contravene prohibition notice A regulated person to whom a prohibition notice is given must not contravene the notice without reasonable excuse. Penalty: In the case of a natural person, 120 penalty units; Subdivision 3—Enforceable undertakings S. 55AAM inserted by No. 39/2024 s. 89. 55AAM Power to accept an enforceable undertaking (1) The Secretary may accept an undertaking given by a regulated person relating to a contravention or alleged contravention of a provision of Part II or the regulations by the regulated person, under which the regulated person undertakes to take certain action, or not take certain action, to comply with this Act. (2) An enforceable undertaking must— (b) state the name of the regulated person; and (c) be signed by the Secretary and the regulated person; and (d) specify the date on which the undertaking is given; and (e) specify the action to be taken or not taken by the regulated person; and (f) specify the period within which the action is to be taken or not taken by the regulated person; and (g) include any other prescribed details. (3) The Secretary may publish details of an enforceable undertaking on the Department's Internet site. S. 55AAN inserted by No. 39/2024 s. 89. 55AAN Amendment or withdrawal of enforceable undertaking A regulated person, with the Secretary's consent, may by written notice given to the Secretary— (a) amend an enforceable undertaking given by the person; or (b) withdraw an enforceable undertaking given by the person. S. 55AAO inserted by No. 39/2024 s. 89. 55AAO No criminal proceeding if enforceable undertaking is complied with If a regulated person complies with an enforceable undertaking, a criminal proceeding must not be commenced against the person for an offence constituted by the person's contravention or alleged contravention of a provision of Part II or the regulations in relation to which the undertaking is given. S. 55AAP inserted by No. 39/2024 s. 89. 55AAP No criminal proceeding while enforceable undertaking is in force While an enforceable undertaking is in force, a criminal proceeding must not be commenced against a regulated person for an offence constituted by the person's contravention or alleged contravention of a provision of Part II or the regulations in relation to which the undertaking is given. S. 55AAQ inserted by No. 39/2024 s. 89. 55AAQ Criminal proceeding if enforceable undertaking is withdrawn A criminal proceeding may be commenced against a regulated person for an offence constituted by the person's contravention or alleged contravention of a provision of Part II or the regulations in relation to which the undertaking is given if the person withdraws the undertaking. S. 55AAR inserted by No. 39/2024 s. 89. 55AAR Enforcement of enforceable undertaking by Magistrates' Court (1) If the Secretary reasonably believes that a regulated person has contravened an enforceable undertaking given by the person, the Secretary may apply to the Magistrates' Court for an enforceable undertaking order to enforce the undertaking. (2) If the Magistrates' Court is satisfied that the regulated person has contravened the enforceable undertaking, the Magistrates' Court may make any of the following orders— (a) an order that the regulated person must comply with the undertaking; (b) an order that the regulated person take specified action to comply with the undertaking; (c) any other order that the Court considers appropriate in the circumstances. S. 55AAS inserted by No. 39/2024 s. 89. 55AAS Enforcement of enforceable undertaking order by Secretary (1) If the Secretary reasonably believes that a regulated person has contravened an enforceable undertaking order, the Secretary, by written notice given to the regulated person, may— (a) advise the person of the Secretary's intention to carry out the action required to comply with the order; and (b) give the person 10 business days after the notice is given to satisfy the Secretary that the person— (i) has carried out the action required to comply with the order; or (ii) will carry out the action required to comply with the order within a specified period acceptable to the Secretary. (2) The Secretary may do any thing that is necessary or expedient to carry out the action required to comply with the order that is still practicable to carry out if a regulated person to whom notice under subsection (1) is given— (a) does not agree to carry out the action; or (b) fails to carry out the action within the specified period. (3) Nothing in this section— (a) prevents a proceeding from being commenced or continued against a regulated person for the person's contravention of an enforceable undertaking order; or (b) affects any power of a court in relation to contempt. (4) If a person is found in contempt of court for contravening an enforceable undertaking order, the Secretary may— (a) do any thing that is necessary or expedient to carry out the action required to comply with the order that is still practicable to carry out; and (b) publicise on the Department's Internet site that the regulated person contravened the order. (5) The Secretary may recover any reasonable costs incurred by the Secretary in taking action under subsection (2) or (4) as a debt due to the Crown and payable by the regulated person. Subdivision 4—Information or document production notices S. 55AAT inserted by No. 39/2024 s. 89. 55AAT Power to give information or document production notice (1) The Secretary or an authorized officer may give a written notice to a person requiring the person to provide to the Secretary or authorized officer specified information or information belonging to a specified class of information, or a specified document or a document belonging to a specified class of document, if the Secretary or authorized officer reasonably believes that— (a) the information or document is in the person's knowledge, possession, custody or control; and (b) the information is, or the document contains information that is, necessary— (i) for monitoring a regulated person's compliance with Part II or the regulations; or (ii) for determining whether the person or another person has committed an offence against a provision of Part II or the regulations. (2) An information or document production notice must— (a) state the name of the person to whom the notice is given; and (b) specify the grounds on which the notice is given; and (c) specify the information or document required to be provided or produced under the notice; and (d) specify the time period, being not less than 10 business days after the notice is given, within which the person must comply with the notice; and (e) state that it is an offence to contravene the notice without reasonable excuse and that the maximum penalty for the offence is 60 penalty units in the case of a natural person or 300 penalty units in the case of a body corporate; and (f) include information about the person's right to seek review of the Secretary's or an authorized officer's decision— (i) to give the information or document production notice to the person; or (ii) to give a notice to the person— (A) amending the period within which the person must comply with the information or document production notice; or (B) amending or revoking the requirement to provide or produce particular information or a particular document; and (g) state that a natural person to whom an information or document production notice is given— (i) may refuse or fail to provide any information specified in the notice if doing so would tend to incriminate the person; and (ii) may not refuse or fail to produce a document specified in the notice if doing so would tend to incriminate the person; and (h) include any other prescribed details. (3) The Secretary or an authorized officer may give a written notice to a person to whom an information or document production notice is given— (a) amending the period within which the person must comply with the notice; or (b) amending or revoking the requirement to provide or produce particular information or a particular document; or (c) withdrawing the notice. S. 55AAU inserted by No. 39/2024 s. 89. 55AAU Offence to contravene information or document production notice A person to whom an information or document production notice is given must not contravene the notice without reasonable excuse. S. 55AAV inserted by No. 39/2024 s. 89. 55AAV Protection against self‑incrimination (1) A natural person to whom an information or document production notice is given may refuse or fail to provide any information specified in the notice if doing so would tend to incriminate the person. (2) A natural person to whom an information or document production notice is given may not refuse or fail to produce a document specified in the notice if doing so would tend to incriminate the person. S. 55AAW inserted by No. 39/2024 s. 89. 55AAW Admissibility of document produced under information or document production notice A document produced by a natural person, under an information or document production notice, that would tend to incriminate the person is not admissible in evidence against the person in a criminal proceeding unless— (a) the person is required by law to keep the document; or (b) the proceeding is in respect of false or misleading information included in the document. S. 55AAX inserted by No. 39/2024 s. 89. 55AAX Offence to provide false or misleading information (1) A person (other than a section 49 applicant) must not— (a) provide information to the Secretary or an authorized officer, as required by or under a provision of Part II or the regulations, that is false or misleading in a material way; or (b) produce a document to the Secretary or an authorized officer, as required by or under a provision of Part II or the regulations, that is false or misleading in a material way— without indicating the respect in which it is false or misleading and, if practicable, providing correct information. (2) Subsection (1) does not apply to a person if, at the time at which the information is provided or the document is produced, the person believes on reasonable grounds that the information or document is true or is not misleading. (3) In this section— ***section 49 applicant*** means a person who gives information or produces a document to the Secretary or an authorized officer for the purpose of obtaining the issue, grant or renewal of a licence, warrant or permit under this Act or an authority under Part IVA. Subdivision 5—Review by VCAT S. 55AAY inserted by No. 39/2024 s. 89. 55AAY Application for review by VCAT (1) A regulated person may apply to VCAT for review of the Secretary's or an authorized officer's decision— (a) to give an improvement notice to the regulated person; or (b) to give a notice to the regulated person— (i) amending or revoking an action specified in an improvement notice that the regulated person must take; or (ii) amending the period specified in an improvement notice within which the regulated person must take the action; or (c) to give a prohibition notice to the regulated person; or (d) to give a notice to the regulated person— (i) amending or revoking an activity specified in a prohibition notice that the regulated person is prohibited from engaging in; or (ii) amending or revoking an action specified in a prohibition notice that the regulated person must take; or (iii) amending the period specified in a prohibition notice within which the regulated person is prohibited from engaging in the activity or must take the action specified in the notice. (2) A person to whom an information or document production notice is given may apply to VCAT for review of the Secretary's or an authorized officer's decision— (a) to give the information or document production notice to the person; or (b) to give a notice to the person— (i) amending the period within which the person must comply with the information or document production notice; or (ii) amending or revoking the requirement to provide or produce particular information or a particular document. (3) An application for review under this section must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) if, under the **Victorian Civil and Administrative Tribunal Act 1998**, the applicant requests a statement of reasons for the decision, the day on which— (i) the statement of reasons is given to the applicant; or (ii) the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given. Subdivision 6—Infringement notices S. 55AAZ inserted by No. 39/2024 s. 89. 55AAZ Infringement notice (1) The Secretary or an authorized officer may serve an infringement notice on a person whom the Secretary or authorized officer reasonably believes has committed a prescribed offence. (2) An offence referred to in subsection (1) is an infringement offence within the meaning of the **Infringements Act 2006**. (3) The infringement penalty for an infringement offence is the prescribed infringement penalty for that infringement offence. Pt 2A (Heading) substituted by No. 7/2023 s. 4. Pt 2A (Headings and ss 55A–55R inserted by No. 66/2017 s. 7. Part IIA—Medically supervised injecting centre S. 55A inserted by No. 66/2017 s. 7, amended by No. 7/2023 s. 5.