Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a pecuniary penalty order has been made against the person.
486D Evidence given in proceedings for penalty not admissible in criminal proceedings
Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary 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 pecuniary penalty order.
Subdivision C—Enforceable undertakings relating to contraventions of Part 3 civil penalty provisions
486DA Acceptance of undertakings relating to contraventions of Part 3 civil penalty provisions
(1) This section applies if the Minister considers that an action taken by a person after the commencement of this section contravened a civil penalty provision of Part 3.
(2) The Minister may accept a written undertaking given by the person in relation to the action, in which the person undertakes to pay a specified amount, within a specified period:
(a) to the Commonwealth; or
(b) to some other specified person, for the purpose of activities directed towards the protection and conservation of the matter protected by the civil penalty provision referred to in subsection (1).
(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the Minister.
486DB Enforcement of undertakings
(1) If the Minister considers that a person who gave an undertaking under section 486DA has breached any of its terms, the Minister may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the person has breached a term of the undertaking, the Court may make one or more of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) any other order that the Court considers appropriate.
Division 15A—Notices to produce or attend
486E Application of Division
(1) This Division applies if the Minister believes, on reasonable grounds, that a person is capable of giving information, or producing books, records or documents, that are relevant for the purposes of investigating or preventing:
(a) an offence against an environmental law; or
(b) a contravention of an environmental penalty provision.
(2) In this Division:
official means any of the following:
(a) the Minister;
(b) an officer or employee in the Department;
(c) the Director;
(d) the Chief Executive Officer of the Great Barrier Reef Marine Park Authority;
(e) a member of the staff of the Great Barrier Reef Marine Park Authority.
486F Minister may require person to provide information etc.
(1) The Minister may, by written notice, require the person to give to an official specified in the notice, in the manner and within the period specified in the notice:
(a) such information as is specified in the notice; or
(b) any book, record or document that is specified in the notice.
The period must end not less than 14 days after the notice is given.
(2) A notice under subsection (1) must set out the effect of section 491 of this Act and of sections 137.1 and 137.2 of the Criminal Code.
(3) A person commits an offence if:
(a) the person is required to give information or a book, record or document to an official under subsection (1); and
(b) the person does not give the information, book, record or document to the official.
Penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
486G Minister may require person to appear before Minister
(1) The Minister may, by written notice, require the person to appear before an official specified in the notice, at a time and place specified in the notice:
(a) to answer any questions put by the official; and
(b) to produce to the official such books, records or documents as are specified in the notice.
The time must not be earlier than 14 days after the notice is given.
(2) A notice under subsection (1) must set out the effect of section 491 of this Act and of sections 137.1 and 137.2 of the Criminal Code.
(3) A person commits an offence if:
(a) the person is required to appear before an official under subsection (1); and
(b) the person does not appear before the official.
Penalty: Imprisonment for 6 months.
(4) A person commits an offence if:
(a) the person is required to appear before an official under subsection (1); and
(b) when appearing before the official, the person does not:
(i) answer a question put by the official; or
(ii) produce a book, record or document to the official as required by the notice given under that subsection.
Penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
486H Persons to whom notices may not be given
A notice under subsection 486F(1) or 486G(1) must not be given to a person if the person is, or has been, a lawyer for:
(a) if the notice relates to the investigation or prevention of an offence against an environmental law—the person suspected of having committed the offence; or
(b) if the notice relates to the investigation or prevention of a contravention of an environmental penalty provision—the person suspected of having contravened the provision.
486J Self‑incrimination
(1) An individual is not excused from giving information (including by answering a question), or from giving or producing a book, record or document, under this Division on the ground that the information, or the giving or production of the book, record or document, might tend to incriminate the individual or expose the individual to a penalty.
(2) However:
(a) the information given, or the book, record or document given or produced; or
(b) giving the information, or giving or producing the book record or document; or
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information, or giving or producing the book, record or document;
is not admissible in evidence against the person:
(d) in any civil proceedings; or
(e) in any criminal proceedings other than:
(i) proceedings for an offence against subsection 486F(3) or 486G(3) or (4); or
(ii) proceedings for an offence against section 491 that relates to a requirement under this Division; or
(iii) proceedings for an offence against section 137.1 or 137.2 (false or misleading information or documents) of the Criminal Code that relates to a requirement under this Division.
Division 16—Review of administrative decisions
487 Extended standing for judicial review
(1) This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:
(a) a decision made under this Act or the regulations; or
(b) a failure to make a decision under this Act or the regulations; or
(c) conduct engaged in for the purpose of making a decision under this Act or the regulations.
(2) An individual is taken to be a person aggrieved by the decision, failure or conduct if:
(a) the individual is an Australian citizen or ordinarily resident in Australia or an external Territory; and
(b) at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment.
(3) An organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision, failure or conduct if:
(a) the organisation or association is incorporated, or was otherwise established, in Australia or an external Territory; and
(b) at any time in the 2 years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment; and
(c) at the time of the decision, failure or conduct, the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment.
(4) A term (except person aggrieved) used in this section and in the Administrative Decisions (Judicial Review) Act 1977 has the same meaning in this section as it has in that Act.
488 Applications on behalf of unincorporated organisations
(1) A person acting on behalf of an unincorporated organisation that is a person aggrieved (for the purposes of the Administrative Decisions (Judicial Review) Act 1977) by:
(a) a decision made under this Act or the regulations; or
(b) a failure to make a decision under this Act or the regulations; or
(c) conduct engaged in for the purpose of making a decision under this Act or the regulations;
may apply under that Act for a review of the decision, failure or conduct.
(2) The Administrative Decisions (Judicial Review) Act 1977 applies in relation to the person as if he or she were a person aggrieved.
Division 17—Duty to provide accurate information
489 Providing false or misleading information to obtain approval or permit
(1) A person commits an offence if:
(a) the person provides information in response to a requirement or request under Part 7, 8, 9, 13 or 13A; and
(b) the person is reckless as to whether the information is false or misleading in a material particular.
Note: The fault element in paragraph (1)(b) can be demonstrated by proof of knowledge. See subsection 5.4(4) of the Criminal Code.
(2) An offence against subsection (1) is punishable on conviction by:
(a) imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both, if it is proved the person knew the information was false or misleading; or
(b) imprisonment for a term not more than 1 year, a fine not more than 60 penalty units, or both, if it is proved the person was reckless as to whether the information was false or misleading.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(2A) A person commits an offence if:
(a) the person provides information in response to a requirement or request under Part 7, 8, 9, 13 or 13A; and
(b) the person is negligent as to whether the information is false or misleading in a material particular.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2B) An offence against subsection (2A) is punishable on conviction by a fine not more than 30 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(3) Subsections (1) and (2A) do not apply to a requirement to provide information that is imposed by a condition attached to an environmental authority.
Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.
490 Providing false or misleading information in response to a condition on an approval or permit
(1) A person commits an offence if:
(a) the person is the holder of an environmental authority; and
(b) a condition attached to the environmental authority requires the person to provide information; and
(c) the person provides information in response (or purportedly in response) to the requirement; and
(d) the person is reckless as to whether the information is false or misleading in a material particular.
Note: The fault element in paragraph (1)(d) can be demonstrated by proof of knowledge. See subsection 5.4(4) of the Criminal Code.
(2) The offence is punishable on conviction by:
(a) imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both, if it is proved the person knew the information was false or misleading; or
(b) imprisonment for a term not more than 1 year, a fine not more than 60 penalty units, or both, if it is proved the person was reckless as to whether the information was false or misleading.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
491 Providing false or misleading information to authorised officer etc.
(1) A person commits an offence if the person:
(a) provides information or a document to another person (the recipient); and
(b) knows the recipient is:
(i) an authorised officer; or
(ii) the Minister; or
(iii) an employee or officer in the Department; or
(iv) a commissioner;
performing a duty or carrying out a function under this Act or the regulations; and
(c) knows the information or document is false or misleading in a material particular.
(2) The offence is punishable on conviction by imprisonment for a term not more than 1 year, a fine not more than 60 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Division 18—Liability of executive officers for corporations
493 Who is an executive officer of a body corporate?
In this Act:
executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.
494 Civil penalties for executive officers of bodies corporate
(1) If:
(a) a body corporate contravenes:
(i) a civil penalty provision of Part 3 (requirements for approval); or
(ii) section 142 (condition of approval); or
(iii) section 390SA (declared commercial fishing activity); and
(b) an executive officer of the body knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention;
the officer contravenes this subsection.
(2) Subsection (1) is a civil penalty provision. Under section 481, the Federal Court may order a person contravening subsection (1) to pay a pecuniary penalty not more than the pecuniary penalty the Court could order an individual to pay for contravening the civil penalty provision contravened by the body corporate.
495 Criminal liability of executive officers of bodies corporate
(1) If:
(a) a body corporate contravenes:
(i) section 489 (Providing false or misleading information to obtain approval or permit); or
(ii) section 490 (Providing false or misleading information in response to a condition on an approval or permit); or
(iii) section 491 (Providing false or misleading information to authorised officer etc.); and
(b) an executive officer of the body knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention;
the officer commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
(2) If:
(a) a body corporate contravenes:
(i) section 15A (Offences relating to declared World Heritage properties); or
(ia) section 15C (Offences relating to National Heritage places); or
(ii) section 17B (Offences relating to declared Ramsar wetlands); or
(iii) section 18A (Offences relating to threatened species etc.); or
(iv) section 20A (Offences relating to listed migratory species); or
(v) section 22A (Offences relating to nuclear actions); or
(vi) section 24A (Offences relating to marine areas); or
(via) section 24E (Offences relating to water resources); or
(vii) section 27A (Offences relating to Commonwealth land); or
(viia) section 27C (Offences relating to Commonwealth heritage places overseas); or
(viii) section 142A (Offence of breaching conditions on approval); or
(ix) section 390SB (Offence relating to declared commercial fishing activity); and
(b) an executive officer of the body was reckless as to whether the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention;
the officer commits an offence.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3) An offence against subsection (2) is punishable on conviction by imprisonment for a term not exceeding the term specified in the provision contravened by the body corporate.