sec.61Proceedings for breaches of a provision of this Law, the Regulations or the Rules that are not offences

sec.61 Proceedings for breaches of a provision of this Law, the Regulations or the Rules that are not offences

The Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person has breached a provision of this Law, the Regulations or the Rules that is not an offence provision. A Supreme Court of a participating jurisdiction that is a State may hear an application by the AER under subsection (1) by operation of sub section 39 (2) of the Judiciary Act 1903 of the Commonwealth. If the order declares the person has breached a provision of this Law, the Regulations or the Rules that is not an offence provision, the order may include one or more of the following— an order that the person pay a civil penalty determined in accordance with this Law, the Regulations and the Rules; an order that the person cease, within a specified period, the act, activity or practice constituting the breach; an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach; an order that the person implement a specified program for compliance with this Law, the Regulations and the Rules; an order that the person perform a specified service that relates to the breach and that is for the benefit of the community or a section of the community; an order that the person, at the person’s expense, engage— another person specified in the order; or another person in a class of persons specified in the order, to perform a service that is specified in the order and that relates to the breach and that is for the benefit of the community or a section of the community; an order to ensure that the person does not engage in further conduct of the same nature, or similar or related conduct, during the period of the order (which cannot exceed 3 years), including— an order that the person establish a compliance program or an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the conduct constituting the breach, or similar or related conduct; or an order that the person revise the internal operations of the person’s business that led to the person committing the breach; an order that the person— disclose, in the way and to the persons specified in the order, specified information, being information that the person has possession of or access to; and publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order; an order of a kind prescribed by the Regulations. An order under subsection (2) paragraph (db) is not enforceable against a person mentioned in paragraph (db) (i) or (ii) . If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a provision of this Law, the Regulations or the Rules that is not an offence provision, the Court may, on application by the AER on behalf of the Commonwealth, grant an injunction— restraining the person from engaging in the conduct; and if, in the Court’s opinion, it is desirable to do so—requiring the person to do something. The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised— 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 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. s 61 amd 2007 No. 53 (SA) s 41 ; 2011 No. 7 (SA) s 31 ; 2020 No. 37 (SA) s 14 (sec.61-ssec.1) The Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person has breached a provision of this Law, the Regulations or the Rules that is not an offence provision. A Supreme Court of a participating jurisdiction that is a State may hear an application by the AER under subsection (1) by operation of sub section 39 (2) of the Judiciary Act 1903 of the Commonwealth. (sec.61-ssec.2) If the order declares the person has breached a provision of this Law, the Regulations or the Rules that is not an offence provision, the order may include one or more of the following— an order that the person pay a civil penalty determined in accordance with this Law, the Regulations and the Rules; an order that the person cease, within a specified period, the act, activity or practice constituting the breach; an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach; an order that the person implement a specified program for compliance with this Law, the Regulations and the Rules; an order that the person perform a specified service that relates to the breach and that is for the benefit of the community or a section of the community; an order that the person, at the person’s expense, engage— another person specified in the order; or another person in a class of persons specified in the order, to perform a service that is specified in the order and that relates to the breach and that is for the benefit of the community or a section of the community; an order to ensure that the person does not engage in further conduct of the same nature, or similar or related conduct, during the period of the order (which cannot exceed 3 years), including— an order that the person establish a compliance program or an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the conduct constituting the breach, or similar or related conduct; or an order that the person revise the internal operations of the person’s business that led to the person committing the breach; an order that the person— disclose, in the way and to the persons specified in the order, specified information, being information that the person has possession of or access to; and publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order; an order of a kind prescribed by the Regulations. (sec.61-ssec.2a) An order under subsection (2) paragraph (db) is not enforceable against a person mentioned in paragraph (db) (i) or (ii) . (sec.61-ssec.3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a provision of this Law, the Regulations or the Rules that is not an offence provision, the Court may, on application by the AER on behalf of the Commonwealth, grant an injunction— restraining the person from engaging in the conduct; and if, in the Court’s opinion, it is desirable to do so—requiring the person to do something. (sec.61-ssec.4) The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised— 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 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.