Part 8Offences and penalties

Part 8—Offences and penalties 98—False or misleading statements A person must not, in giving any information under this Act— (a) make a statement knowing it to be false or misleading; or (b) omit any matter from a statement knowing that without that matter the statement is false or misleading. 99—Offence relating to licence (1) A licensee must not contravene a term or condition of their licence. (2) A licensee must not undertake authorised operations otherwise than in accordance with the terms and conditions of their licence. (3) A person must not, without lawful excuse, obstruct or hinder a licensee in the reasonable exercise of rights conferred under this Act. 100—Offences regarding authorised officers (1) A person must not obstruct, hinder, threaten or attempt to influence an authorised officer in the exercise of a power under this Act. Maximum penalty: $15 000. (2) A person must not impersonate an authorised officer. Maximum penalty: $15 000. 101—Civil penalties (1) Subject to this section, if the Minister is satisfied that a person has committed an offence by contravening a provision of this Act, the Minister may, as an alternative to criminal proceedings, recover, by negotiation or by application to the ERD Court, an amount as a civil penalty in respect of the contravention. (2) The Minister 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 Minister may not make an application to the ERD Court under this section to recover an amount from a person as a civil penalty in respect of a contravention— (a) unless the Minister has served on the person a notice in the prescribed form advising the person that the person may, by written notice to the Minister, elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the Minister's notice to make such an election; or (b) if the person serves written notice on the Minister, before the making of such an application, that the person elects to be prosecuted for the contravention. (4) The maximum amount that the Minister 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) $150 000, whichever is the lesser. (5) If, on an application by the Minister, the ERD 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 Minister 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 ERD Court must have regard to— (a) the nature and extent of the contravention; and (b) any 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 ERD Court. (8) If conduct of a person constitutes a contravention of 2 or more provisions of this Act, an amount may be recovered from the person under this section in relation to the contravention of any 1 or more of those provisions (provided that the person is not liable to pay more than 1 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 3 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 signed by the Attorney‑General authorising 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 ERD 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. (16) An amount recovered as a civil penalty under this section will be paid into the Fund. 102—Additional orders on conviction (1) If a person is convicted of an offence against this Act, the court by which the conviction is recorded may, in addition to any penalty that it may impose, and to any other order that may be made under this or any other Act, make 1 or more of the following orders: (a) an order requiring the person to take any specified action (including an order to rectify the consequences of any contravention of this Act, or to ensure that a further contravention does not occur); (b) without limiting paragraph (a)—an order requiring the person to make good any environmental damage and, if appropriate, to take specified action to prevent or mitigate further harm to the environment; (c) an order requiring the person to publicise the contravention of this Act and any environmental or other consequences, and the other orders (if any) made against the person; (d) an order requiring the person to pay into the Fund an amount determined by the court to be equal to a fair assessment or estimate of the financial benefit that the person, or a related body corporate, has gained, or can reasonably be expected to gain, as a result of the contravention of this Act; (e) an order requiring the person to pay to any person who has suffered loss or damage to property as a result of the acts or omissions constituting the offence, or incurred costs or expenses in taking action to prevent or mitigate such loss or damage, compensation for that loss or damage and reasonable reimbursement for those costs or expenses. (2) For the purposes of subsection (1)(d), a financial benefit obtained by delaying or avoiding costs will be taken to be a financial benefit gained as a result of a contravention of this Act if the contravention can be attributed (in whole or in part) to that delay or avoidance. (3) The court may, by an order under this section, fix a period for compliance and impose other requirements the court considers necessary or expedient for the enforcement of the order. 103—Continuing offences (1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission— (a) is liable, subject to any determination of a court, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continued of not more than one-tenth of the maximum penalty prescribed for that offence; and (b) is, if the act or omission continues after the conviction, subject to any determination of a court, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continued after the conviction of not more than one-tenth of the maximum penalty prescribed for the offence. (2) If an offence consists of an omission to do something that is required to be done, the omission will be taken to continue for as long as the thing required to be done remains undone after the end of the period for compliance with the requirement. 104—Offences by bodies corporate If a body corporate is guilty of an offence against this Act, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that— (a) the director knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and (b) the director was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and (c) the director failed to exercise due diligence to prevent the commission of the offence. 105—Time limits (1) Criminal proceedings under this Act may be commenced at any time within 3 years after the date of the alleged offence or, with the authorisation of the Attorney‑General, at any later time within 10 years after the alleged offence. (2) An apparently genuine document purporting to be signed by the Attorney‑General authorising the commencement of criminal proceedings under this Act will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. 106—Evidentiary provisions (1) In proceedings for an offence against this Act, an apparently genuine document purporting to be a certificate signed by the Minister certifying— (a) that a person named in the certificate was or was not at a specified time a licensee; or (b) that a specified provision was a term or condition of a specified licence at a specified time; or (c) that a specified provision was a requirement or condition of an operational management plan; or (d) that a specified determination, direction, decision, order or requirement was made or given on a specified day; or (e) that at a specified time the Minister gave notice of any specified matter under or in connection with the operation of this Act; or (f) that at a specified time the Minister had not received a notice, instrument or other document, or had not received any information of a specified kind; or (g) that at a specified time a specified person was an authorised officer under this Act; or (h) that a particular delegation was in force under this Act at a specified time, is, in the absence of proof to the contrary, proof of the matter so certified. (2) In any proceedings for an offence against this Act, a document purporting to be a licence under this Act will be accepted as such in the absence of evidence to the contrary. (3) If in any proceedings for an offence against this Act in relation to any operations it is proved that there has been a contravention of— (a) a term or condition of a licence; or (b) a requirement or condition of an operational management plan applying in respect of a licence, it must be presumed, in the absence of evidence to the contrary, that the contravention occurred as a result of an act of the relevant licensee. (4) In any proceedings for an offence against this Act, if it appears that an alleged fact has been determined by the use of an electronic, sonic, optical, mechanical, measuring or other device or technique by an authorised officer or a person assisting an authorised officer, the alleged fact must be accepted as proved in the absence of evidence to the contrary.