144Commercial benefits order [non‑core provision]

144 Commercial benefits order [non‑core provision]

(1) The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the Rail Safety Regulator, make an order under this section. (2) The court may make a commercial benefits order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that— (a) was received or receivable, by the person or by an associate of the person, from the commission of the offence; and (b) in the case of a journey that was interrupted or not commenced because of action taken by a rail safety officer in connection with the commission of the offence, would have been received or receivable, by the person or by an associate of the person, from the commission of the offence had the journey been completed. (3) In estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court may take into account— (a) benefits of any kind, whether monetary or otherwise; and (b) monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of the commission of the offence; and (c) any other matters that it considers relevant, including (for example)— (i) the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight; and (ii) the distance over which any such goods were or were to be carried. (4) However, in estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person. (5) Nothing in this section prevents the court from ordering payment of an amount that is— (a) less than 3 times the estimated gross commercial benefit; or (b) less than the estimated gross commercial benefit. (6) For the purposes of this section, a person is an associate of another if— (a) one is a spouse, parent, brother, sister or child of the other; or (b) they are members of the same household; or (c) they are partners; or (d) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or (e) one is a body corporate and the other is a director or member of the governing body of the body corporate; or (f) one is a body corporate (other than a public company whose shares are listed on a stock exchange) and the other is a shareholder in the body corporate; or (g) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or (h) a chain of relationships can be traced between them under any one or more of the above paragraphs. (7) For the purposes of sub‑section (6), a beneficiary of a trust includes an object of a trust.