Part 13Enforcement

Part 13—Enforcement Division 1—Enforceable undertakings 288—Enforceable undertakings (1) The AER may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the AER has a function or power under this Law or the Rules. (2) A person may withdraw or vary the undertaking at any time, but only with the consent of the AER. (3) If the AER considers that the person who gave the undertaking has breached any of its terms, the AER may apply to the Court for an order under subsection (4). (4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders: (a) an order directing the person to comply with that term of the undertaking; (b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach; (c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach; (d) any other order that the Court considers appropriate. Division 2—Proceedings generally 289—Instituting civil proceedings under this Law (1) Proceedings may not be instituted in a court in respect of a breach of a provision of this Law, the National Regulations or the Rules that is not an offence provision by any person except as provided for in this Part. (2) The AER may, in accordance with Division 3, institute civil proceedings in respect of a breach of— (a) a provision of this Law that is not an offence provision (including a provision that is a civil penalty provision or conduct provision); or (b) a provision of the National Regulations that is not an offence provision (including a provision that is a civil penalty provision or conduct provision); or (c) a provision of the Rules (including a provision that is a civil penalty provision or a conduct provision). (3) A person other than the AER may, in accordance with Division 3, institute civil proceedings in respect of a breach of a conduct provision. 290—Time limit within which proceedings may be instituted (1) The AER may only institute a proceeding for a breach, by a person, of a provision of this Law, the National Regulations or the Rules that is not an offence provision within 6 years after the date on which the breach occurred. (2) A person, other than the AER, may only institute a proceeding for a breach of a conduct provision by another person within 6 years after the date on which the breach occurred. Division 3—Proceedings for breaches of this Law, the National Regulations or the Rules 291—AER proceedings for breaches of this Law, the National Regulations or the Rules that are not offences (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 National 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 section 39(2) of the Judiciary Act 1903 of the Commonwealth. (2) If the order declares a person has breached a provision of this Law, the National Regulations or the Rules that is not an offence provision, the order may include one or more of the following: (a) an order that the person pay a civil penalty determined in accordance with this Law, the National Regulations or the Rules if the breach is a breach of a civil penalty provision; (b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach; (c) 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; (d) an order that the person implement a specified program for compliance with this Law, the National Regulations or the Rules; (da) 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; (db) an order that the person, at the person's expense, engage— (i) another person specified in the order; or (ii) 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; (dc) 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— (i) 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 (ii) an order that the person revise the internal operations of the person's business that led to the person committing the breach; (dd) an order that the person— (i) 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 (ii) 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; (e) an order of a kind prescribed by the National Regulations. (2a) An order under subsection (2) paragraph (db) is not enforceable against a person mentioned in paragraph (db)(i) or (ii). (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 National 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— (a) restraining the person from engaging in the conduct; and (b) if, in the Court's opinion, it is desirable to do so—requiring the person to do something. (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— (a) 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 (b) 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. 292—Proceedings for declaration that a person has breached a conduct provision (1) The Court may make an order, on application by a person other than the AER, declaring that another person has breached a conduct provision. (2) If the order declares a person has breached a conduct provision, the order may include one or more of the following: (a) an order that the person cease, within a specified period, the act, activity or practice constituting the breach; (b) 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; (c) an order that the person implement a specified program for compliance with this Law, the National Regulations and the Rules; (d) an order of a kind prescribed by the National Regulations. (3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a conduct provision, the Court may, on application by another person (other than the AER), grant an injunction— (a) restraining the first mentioned person from engaging in the conduct; and (b) if, in the Court's opinion, it is desirable to do so—requiring the first mentioned person to do something. (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— (a) 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 (b) 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. 293—Actions for damages by persons for breach of conduct provision A person other than the AER who suffers loss or damage by conduct of another person that was done in breach of a conduct provision may recover the amount of the loss or damage by action against that other person in a court of competent jurisdiction. Division 4—Matters relating to breaches of this Law, the National Regulations or the Rules 294—Matters for which there must be regard in determining amount of civil penalty Every civil penalty ordered to be paid by a person declared to have breached a provision of this Law, the National Regulations or the Rules must be determined having regard to all relevant matters, including— (a) the nature and extent of the breach; and (b) the nature and extent of any loss or damage suffered as a result of the breach; and (ba) without limiting the operation of section 4A(1)(c)(ii)(B) or (C)—the value of any benefit reasonably attributable to the breach that the person or, in the case of a body corporate, any related body corporate, has obtained, directly or indirectly; and (c) the circumstances in which the breach took place; and (d) whether the person has engaged in any similar conduct and been found to have breached a provision of this Law, the National Regulations or the Rules in respect of that conduct; and (e) in the case of a regulated entity—whether the person has established, and has complied with, policies, systems and procedures under section 273. 295—Breach of a civil penalty provision is not an offence A breach of a civil penalty provision is not an offence. 296—Breaches of civil penalty provisions involving continuing failure For the purpose of determining the civil penalty for a breach of a civil penalty provision, if the breach consists of a failure to do something that is required to be done, the breach is to be regarded as continuing until the act is done despite the fact that any period within which, or time before which, the act is required to be done has expired or passed. 297—Conduct in breach of more than one civil penalty provision (1) If the conduct of a person constitutes a breach of 2 or more civil penalty provisions, proceedings may be instituted under this Law against the person in relation to the breach of any one or more of those provisions. (2) However, the person is not liable to more than one civil penalty under this Law in respect of the same conduct. 298—Persons involved in breach of civil penalty provision or conduct provision (1) A person must not— (a) aid, abet, counsel or procure a breach of a civil penalty provision or conduct provision by another person; or (b) be in any way directly or indirectly knowingly concerned in, or a party to, a breach of a civil penalty provision or conduct provision by another person. (2) This Law applies to a person who breaches subsection (1) in relation to a civil penalty provision or conduct provision as if the person were a person who has breached the civil penalty provision or conduct provision. (3) A civil penalty provision or conduct provision that does not itself directly impose an obligation on any person but that is associated with another provision that directly imposes an obligation on a person is taken to impose an obligation on that person. (4) A civil penalty provision or conduct provision that provides that a person— (a) may do something only in certain circumstances (however expressed) is taken to impose an obligation on the person not to do the thing except in those circumstances; or (b) may not do something in certain circumstances (however expressed) is taken to impose an obligation on the person not to do the thing in those circumstances. (5) Subsections (3) and (4) do not of themselves create offences and do not apply to provisions, or in circumstances, prescribed by the National Regulations. 299—Attempt to breach a civil penalty provision A person who attempts to commit a breach of a civil penalty provision commits a breach of that provision. 300—Civil penalties payable to the Commonwealth If a person is ordered to pay a civil penalty, the penalty is payable to the Commonwealth. 300A—Indexation of civil penalty amounts (1) Each civil penalty amount is to be adjusted in accordance with the method prescribed by the National Regulations for the purposes of this section. (2) The first adjustment is to occur on 1 July 2023. (3) The next adjustment is to occur on 1 July 2026 and an adjustment is to occur on 1 July every 3 years after that. (4) The AER must, on or as soon as practicable after the date of the first adjustment and before each subsequent adjustment, publish on its website the civil penalty amounts that apply on and from the date of the adjustment. However, a failure by the AER to do so does not invalidate an adjustment. (5) A civil penalty amount that is adjusted under this section applies to a breach of a civil penalty provision that occurs or is alleged to occur on or after the date of the adjustment. civil penalty amount means each amount specified in section 4A(1)(a), (b) or (c)(i) or (ii)(A). 300B—Indexation of criminal penalties (1) Each criminal penalty amount is to be adjusted in accordance with the method prescribed by the National Regulations for the purposes of this section. (2) The first adjustment is to occur on 1 July 2023. (3) The next adjustment is to occur on 1 July 2026 and an adjustment is to occur on 1 July every 3 years after that. (4) The AER must, on or as soon as practicable after the date of the first adjustment and before each subsequent adjustment, publish on its website the criminal penalty amounts that apply on and from the date of the adjustment. However, a failure by the AER to do so does not invalidate an adjustment. (5) A criminal penalty amount that is adjusted under this section applies to a breach of a provision that occurs or is alleged to occur on or after the date of the adjustment. criminal penalty amount means any amount, specified in this Law, which is the maximum monetary penalty that may be imposed on conviction for the commission of an offence against this Law. Division 5—Judicial review of decisions under this Law, the National Regulations and the Rules 301—Definition person aggrieved includes a person whose interests are adversely affected. 302—Applications for judicial review of decisions of the AEMC (1) A person aggrieved by— (a) a decision or determination of the AEMC under this Law, the National Regulations or the Rules; or (b) a failure by the AEMC to make a decision or determination under this Law, the National Regulations or the Rules; or (c) conduct engaged in, or proposed to be engaged in, by the AEMC for the purpose of making a decision or determination under this Law, the National Regulations or the Rules, may apply to the Court for judicial review of the decision or determination, failure or conduct or proposed conduct. The AER is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth. (2) Unless the Court otherwise orders, the making of an application to the Court under subsection (1) does not affect the operation of the decision or determination referred to in that subsection or prevent the taking of action to implement the decision or determination. Division 6—Further provision for corporate liability for breaches of this Law 303—Definition breach provision means an offence provision, a civil penalty provision or a conduct provision. 304—Offences and breaches by corporations (1) If a corporation contravenes a breach provision, each officer of the corporation is to be taken to have contravened the breach provision if the officer knowingly authorised or permitted the contravention or breach. (2) An officer of a corporation may be proceeded against under a breach provision pursuant to this section whether or not the corporation has been proceeded against under the provision. (3) Nothing in this section affects the liability of a corporation for a contravention of a breach provision. 305—Corporations also in breach if officers and employees are in breach If an officer or employee of a corporation commits an act, which is within the scope of the actual or apparent authority of the officer or employee, that would, if that act were committed by the corporation, constitute a breach of a provision of this Law, the National Regulations or the Rules, the corporation is to be taken to have contravened that provision. Division 7—Application of provisions of NGL 306—Tribunal review of information disclosure decision (1) This section applies to a decision to disclose information made by the AER under section 214. (2) The provisions of Division 3 of Part 5 of Chapter 8 of the NGL apply to a decision referred to in subsection (1) in the same way as they apply to an information disclosure decision as defined in that Part. (3) For that purpose— (a) (without limiting subsection (2)) a reference in that Division to the NGL (however expressed) is taken to be a reference to this Law; and (b) references in that Division to AEMO are taken to be omitted; and (c) the reference in section 263 of the NGL to "section 91GH or section 329 (as the case requires)" is taken to be a reference to section 214 of this Law; and (d) that Division applies with any other modifications prescribed by the National Regulations. 307—Costs in a review (1) This section applies to a review under the provisions applied by section 306. (2) Subject to this section, the Australian Competition Tribunal may order that a party to a review to which this section applies pay all or a specified part of the costs of another party to the review. (3) The Tribunal must not make an order requiring the AER to pay the costs of another party to the review unless the Tribunal considers that the AER has conducted its case in the review without due regard to— (a) the costs that would have to be incurred by another party to the review as a result of that conduct; or (b) the time required by— (i) the Tribunal to hear the review as a result of that conduct; or (ii) another party to prepare their case as a result of that conduct; or (c) the submissions or arguments made to the Tribunal by another party. 308—Infringement notices (1) This section applies in relation to civil penalty provisions within the meaning of this Law. (2) The provisions of Part 7 of Chapter 8 of the NGL apply in relation to civil penalty provisions referred to in subsection (1) in the same way as they apply in relation to civil penalty provisions within the meaning of the NGL. (3) For that purpose— (a) a reference in those provisions to the "Regulations" is taken to be a reference to the National Regulations within the meaning of this Law; and (b) those provisions apply with any modifications prescribed by the National Regulations. 309—Search warrants The provisions of Division 2 of Part 1 of Chapter 2 of the NGL apply, with such modifications as are prescribed by the National Regulations, in relation to the provisions of this Law, the National Regulations and the Rules in the same way as they apply in relation to a relevant provision within the meaning of section 31 of the NGL.