Division 11.6Demerit points system

## Part 11—Enforcement ### Division 11.2—Infringement notices #### 11.05 Purpose and effect of Division (1) The purpose of this Division is to create a system of infringement notices for certain offences against the Act and these Regulations as an alternative to prosecution. (2) This Division does not: (a) require an infringement notice to be issued to a person for an offence; or (b) affect the liability of a person to be prosecuted for an offence if an infringement notice is not issued to the person for the offence; or (c) prevent the issue of 2 or more infringement notices to a person for an offence; or (d) affect the liability of a person to be prosecuted for an offence if the person does not comply with an infringement notice for the offence; or (e) limit or otherwise affect the penalty that may be imposed by a court on a person convicted of an offence. #### 11.10 Definition for Division—authorised person In this Division: > authorised person means: (a) a law enforcement officer; or (b) a maritime security inspector. #### 11.15 Amount of penalty if infringement notice issued The penalty for an offence payable under an infringement notice issued to a person for the offence is one‑fifth of the maximum penalty that a court could impose on the person for the offence. #### 11.20 Authorised persons may issue infringement notices (1) In this regulation: > infringement notice offence means an offence: (a) against any provision of the Act (other than subsection 43(1), 62(1) or 100C(1)) a contravention of which is an offence of strict liability; or (b) against a provision of these Regulations (being an offence that is an offence of strict liability). (2) If an authorised person has reason to believe that a person has committed an infringement notice offence, the authorised person may issue a notice (called an infringement notice) to the person for the offence. #### 11.25 Contents of infringement notice (1) An infringement notice: (a) must bear a unique number; and (b) must state the name of the authorised person who issued it, and: (i) if he or she is a law enforcement officer (other than a customs officer)—the name of the police force or police service of which he or she is a member; or (ii) if he or she is a customs officer or a maritime security inspector—that fact; and (c) must state its date of issue; and (d) must state the full name, or the surname and initials, and the address, of the person to whom it is issued; and (e) must give brief details of the alleged offence for which it is issued, including: (i) the date and time of the offence; and (ii) where the offence happened; and (iii) the provision of the Act or these Regulations contravened; and (f) must state the penalty for the offence payable under the notice; and (g) must state where and how that penalty can be paid (including, if the penalty can be paid by posting the payment, the place to which it should be posted); and (h) must state that if the person to whom it is issued (the recipient) pays the penalty within 28 days after the day when the notice is served (or any longer time allowed in writing by the Secretary), then: (i) any liability of the recipient for the offence will be discharged; and (ii) the recipient will not be prosecuted in a court for the offence; and (iii) the recipient will not be taken to have been convicted of the offence; and (i) must state the greatest penalty that a court could impose on the recipient for the offence; and (j) must state the number of demerit points that the recipient will accrue for the offence; and (k) must state that if the recipient is prosecuted in court and found guilty of the offence: (i) the recipient may be convicted of the offence and ordered to pay a penalty and costs; and (ii) will be subject to any other order that the court makes; and (iii) will accrue the number of demerit points specified in the notice; and (l) must state how and to whom the recipient can apply to be allowed more time to pay the penalty; and (m) must be signed by the authorised person who issued it. (2) An infringement notice may contain any other information that the authorised person who issues it thinks necessary. #### 11.30 Service of infringement notices (1) An infringement notice must be served on the person to whom it is issued. (2) An infringement notice may be served on an individual: (a) by giving it to the individual; or (b) by leaving it at, or by sending it by post, telex, fax or similar facility to, the address of the place of residence or business (the relevant place) of the individual last known to the authorised person who issues it; or (c) by giving it, at the relevant place, to someone who: (i) lives or is employed, or apparently lives or is employed, there; and (ii) is, or the authorised person who issues it has reason to believe is, over 16 years of age. (3) An infringement notice may be served on a corporation: (a) by leaving it at, or by sending it by post, telex, fax or similar facility to, the address of the head office, a registered office or a principal office of the corporation; or (b) by giving it, at an office mentioned in paragraph (a), to someone who is, or the authorised person who issues it has reason to believe is, an officer or employee of the corporation. #### 11.35 Time for payment of penalty The penalty stated in an infringement notice must be paid: (a) within 28 days after the day on which the notice is served on the person to whom it is issued; or (b) if the person applies for a further period of time in which to pay the penalty, and that application is granted—within the further period allowed; or (c) if the person applies for a further period of time in which to pay the penalty, and the application is refused—within 7 days after the notice of the refusal is served on the person; or (d) if the person applies for the notice to be withdrawn, and the application is refused—within 28 days after the notice of the refusal is served on the person. #### 11.40 Extension of time to pay penalty (1) The person to whom an infringement notice is issued (the recipient) may apply, in writing, to the Secretary for a further period of up to 28 days in which to pay the penalty stated in the notice. (2) Within 14 days after receiving the application, the Secretary: (a) must grant or refuse a further period not longer than the period sought; and (b) must notify the recipient in writing of the decision and, if the decision is a refusal, the reasons for it. (3) Notice of the decision may be served on the recipient in any way in which the infringement notice could have been served on the recipient. #### 11.45 Payment of penalty (1) An infringement notice penalty is not paid until the whole of the amount of the penalty has been received by the Commonwealth. (2) In particular, if the Commonwealth accepts a cheque in payment of a penalty or part of a penalty, the penalty is not paid until the cheque has been honoured. #### 11.50 Effect of payment of penalty (1) If the person to whom an infringement notice is issued for an offence pays the penalty stated in the notice: (a) any liability of the person for the offence is discharged; and (b) the person may not be prosecuted in a court for the offence; and (c) the person is not taken to have been convicted of the offence. (2) If 2 or more infringement notices are issued to a person for the same offence, the person’s liability to be prosecuted for the offence ceases if the person pays the penalty stated in any of the notices. #### 11.55 Withdrawal of infringement notice (1) Before the end of 28 days after receiving an infringement notice, a person may apply, in writing, to the Secretary for the infringement notice to be withdrawn. (2) The application must set out the facts or matters that the person believes the Secretary should take into account in relation to the offence alleged in the infringement notice. (3) Within 14 days after receiving the application, the Secretary must: (a) withdraw or refuse to withdraw the notice; and (b) notify the person in writing of the decision and, if the decision is a refusal, the reasons for the decision. (4) If the Secretary has not approved, or refused to approve, the withdrawal of the notice within the period allowed by subregulation (3), the Secretary is taken to have refused to approve the withdrawal of the notice. (5) Before withdrawing or refusing to withdraw a notice, the Secretary must consider: (a) whether the person has been convicted previously of an offence against the Act or these Regulations; and (b) the circumstances of the offence stated in the notice; and (c) whether the person has previously paid a penalty under an infringement notice issued to the person for an offence of the same type as the offence mentioned in the notice; and (d) any other relevant matter. (6) The Secretary may also withdraw an infringement notice on his or her own initiative. #### 11.60 Notice of withdrawal of infringement notices (1) Notice of the withdrawal of an infringement notice may be served on a person in any way in which the infringement notice could have been served on the person. (2) A notice withdrawing an infringement notice: (a) must include the following information: (i) the full name, or surname and initials, and address of the person on whom the infringement notice was served; (ii) the number of the infringement notice; (iii) the date of issue of the infringement notice; and (b) must state that the notice is withdrawn; and (c) if the Secretary intends to prosecute the person in a court for the relevant offence, must state that the person may be prosecuted in a court for the offence. #### 11.65 Refund of penalty etc if infringement notice withdrawn (1) If an infringement notice is withdrawn after the penalty stated in it has been paid: (a) the Commonwealth must refund the amount of the penalty to the person who paid it; and (b) any demerit points accrued because of the payment are cancelled. (2) If the cancelled demerit points had been accumulated in respect of a ship, the number of demerit points accumulated in respect of the ship decreases by that number of demerit points. #### 11.70 Evidence of certain matters in relation to infringement notices (1) At the hearing of a prosecution for an offence in relation to which an infringement notice has been issued, a certificate of any of the following kinds, signed by or on behalf of the Secretary, is evidence of the facts stated in it: (a) a certificate stating that: (i) the infringement notice was served on the alleged offender; and (ii) the infringement notice penalty has not been paid in accordance with this Division; (b) a certificate stating that the notice was withdrawn on a day specified in the certificate; (c) a certificate stating that: (i) a further period was refused for payment of the infringement notice penalty; and (ii) the infringement notice penalty has not been paid in accordance with this Division; (d) a certificate stating that: (i) the further time mentioned in the certificate for payment of the infringement notice penalty was granted; and (ii) the infringement notice penalty was not paid in accordance with the notice or within the further time. (2) A certificate that purports to have been signed by or on behalf of the Secretary is presumed to have been so signed unless the contrary is proved. #### 11.75 Effect of certain admissions Evidence of an admission made by a person in an application under regulation 11.55 is not admissible in proceedings against the person for the relevant alleged offence unless the person introduces the application into evidence. #### 11.80 Matter not to be taken into account in determining sentence If a person to whom an infringement notice has been issued: (a) does not pay the infringement notice penalty; and (b) is prosecuted for, and convicted of, the alleged offence mentioned in the infringement notice; the court must not, in determining the penalty to be imposed, take into account the fact that the person did not pay the infringement notice penalty. ### Division 11.6—Demerit points system #### 11.300 Purpose of Division This Division establishes a demerit points system under which the approval of a maritime security plan, a ship security plan or an offshore security plan may be cancelled. #### 11.305 Accrual of demerit points by maritime industry participants (1) If a maritime industry participant: (a) is issued with an infringement notice, and pays the infringement notice penalty; or (b) is convicted or found guilty of an offence; the participant accrues 1 demerit point for each penalty unit of: (c) the maximum number of penalty units that a court could impose on the participant for the alleged offence; or (d) if the penalty for the offence is a term of imprisonment—the maximum number of penalty units that the court could impose in lieu of imprisonment. (2) To avoid doubt, a reference in subregulation (1) to the maximum number of penalty units that a court could impose is, if the alleged offender is a corporation, the maximum number that the court could impose taking into account subsection 4B(3) of the Crimes Act 1914. #### 11.310 Accumulation of demerit points in respect of ships Demerit points are accumulated in respect of a ship only if a ship operator accrues the demerit points because the operator: (a) has been convicted or found guilty of an offence against section 62 or 63 of the Act in respect of the ship; or (b) has been issued with an infringement notice for an offence against section 63 of the Act in respect of the ship, and has paid the infringement notice penalty as an alternative to prosecution. #### 11.315 Expiry of demerit points A demerit point expires 5 years after it is accrued. #### 11.320 Demerit points—maritime security plans For section 199 of the Act, the approval of the maritime security plan of a maritime industry participant may be cancelled if the participant accrues: (a) in the case of a maritime industry participant who is an individual—600 demerit points; or (b) in any other case—3 000 demerit points. #### 11.325 Demerit points—ship security plans For section 200 of the Act, the approval of a ship security plan may be cancelled if 3 000 demerit points are accumulated in respect of the ship. #### 11.330 Demerit points—offshore security plans For section 200A of the Act, the approval of the offshore security plan of an offshore industry participant may be cancelled if the participant accrues: (a) in the case of an offshore industry participant who is an individual—600 demerit points; or (b) in any other case—3 000 demerit points. #### 11.335 Register of demerit points (1) The Secretary must keep a register of demerit points accrued. (2) The register may be kept by means of, or partly by means of, a computer system. (3) The register must record, for each maritime industry participant: (a) for each offence against the Act or these Regulations of which the participant has been convicted or found guilty: (i) the number of demerit points accrued for the offence; and (ii) the basis on which the number of demerit points was calculated; and (iii) the dates on which those demerit points were accrued, and will expire; and (iv) whether the demerit points were accumulated in respect of a ship and if so what ship; and (b) for each alleged offence against the Act or these Regulations for which an infringement notice has been issued to the participant, and for which the participant has paid the infringement notice penalty: (i) the number of demerit points accrued for the alleged offence; and (ii) the basis on which the number of demerit points was calculated; and (iii) the dates on which those demerit points were accrued, and will expire; and (iv) whether the demerit points were accumulated in respect of a ship and if so what ship; and (c) the total number of demerit points, other than demerit points that have expired, that the participant has accrued. (4) The register must also record, for each ship in respect of which demerit points have been accumulated: (a) a reference to the record in the register of each relevant accrual of demerit points by a maritime industry participant; and (b) the total number of demerit points, other than demerit points that have expired, accumulated in respect of the ship. (5) The Secretary must allow a maritime industry participant, at a reasonable time and on reasonable notice, to inspect the record of the participant’s accrued demerit points. (6) The Secretary must allow a ship operator, at a reasonable time and on reasonable notice, to inspect the record of demerit points accumulated in respect of a ship operated by the operator. ## Part 12—Review of decisions #### 12.01 Review of decisions by Administrative Review Tribunal Application may be made to the Administrative Review Tribunal for a review of a decision made by the Secretary under subregulation 6.85(3) not to declare that a ship security zone is to operate around a security regulated ship. ## Part 13—Miscellaneous #### 13.05 Ship security alert systems (1) A regulated Australian ship must be provided with a ship security alert system: (a) for a ship constructed on or after 1 July 2004—before registration of the ship under the Shipping Registration Act 1981; and (b) for a passenger ship (including a high‑speed passenger craft) constructed before 1 July 2004—not later than the first survey of the ship’s radio installation after 1 July 2004; and (c) for an oil tanker, chemical tanker, gas carrier, bulk carrier or a cargo high speed craft, 500 gross tonnage or more, constructed before 1 July 2004—not later than the first survey of the ship’s radio installation after 1 July 2004; and (d) for any other cargo ship 500 gross tonnage or more or mobile offshore drilling unit constructed before 1 July 2004—not later than the first survey of the ship’s radio installation after 1 July 2006. (2) A ship security alert: (a) must be capable of transmitting a ship‑to‑shore security alert identifying the ship, giving its location and indicating that the security of the ship is, or was, under threat; and (b) must otherwise comply with regulation XI‑2/6 of the SOLAS Convention. > Note: For the definition of SOLAS Convention, see section 10 of the Act. ## Part 14—Transitional arrangements #### 14.01 Operation of Schedule 2 Schedule 2 makes transitional arrangements in relation to amendments of these Regulations.