Note: Section 154C (which provides that a person’s state of mind does not need to be proven in relation to a civil penalty provision) does not apply to the extent that proceedings relate to a contravention of subsection (1) of this section (see subsection 154C(2)).
154B Continuing contraventions of civil penalty provisions
(1) If an act or thing is required under a civil penalty provision to be done:
(a) within a particular period; or
(b) before a particular time;
then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).
(2) A person who contravenes a civil penalty provision that requires an act or thing to be done:
(a) within a particular period; or
(b) before a particular time;
commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant pecuniary penalty order is made or any later day).
154C State of mind
(1) In proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision, it is not necessary to prove:
(a) the person’s intention; or
(b) the person’s knowledge; or
(c) the person’s recklessness; or
(d) the person’s negligence; or
(e) any other state of mind of the person.
(2) Subsection (1) does not apply to the extent that the proceedings relate to a contravention of subsection 154A(1) (ancillary contravention of civil penalty provisions).
(3) Subsection (1) does not affect the operation of section 154D (mistake of fact).
(4) Subsection (1) does not apply to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise.
154D Mistake of fact
(1) A person is not liable to have a pecuniary penalty order made against the person for a contravention of a civil penalty provision if:
(a) at or before the time of the conduct constituting the contravention, the person:
(i) considered whether or not facts existed; and
(ii) was under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
(2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
(3) A person who wishes to rely on subsection (1) or (2) in proceedings for a pecuniary penalty order bears an evidential burden in relation to that matter.
154E Exceptions etc. to civil penalty provisions—burden of proof
If, in proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision, the person wishes to rely on any exception, exemption, excuse, qualification or justification that applies in relation to the civil penalty provision, then the person bears an evidential burden in relation to that matter.
Division 5—Infringement notices
155 Object
The object of this Division is to set up a system of infringement notices for contraventions of civil penalty provisions as an alternative to the institution of proceedings in a Court.
155A Relevant chief executive
The relevant chief executive for the purpose of exercising powers under this Division in relation to an infringement notice that has been given to a person by an appropriate enforcement agency is:
(a) if the infringement notice was given by the Inspector‑General—the Inspector‑General; or
(b) if the infringement notice was given by the ACCC—the ACCC; or
(c) if the infringement notice was given by the Minister—the Secretary of the Department.
156 When an infringement notice can be given
(1) If the appropriate enforcement agency has reasonable grounds to believe that a person has contravened a civil penalty provision (a designated civil penalty provision):
(a) set out in:
(i) the water charge rules or the water market rules; or
(ia) Part 5 or the Water Markets Intermediaries Code; or
(ii) Part 7; or
(iii) Part 7A; or
(b) referred to in regulations made for the purposes of this paragraph;
the appropriate enforcement agency may give to the person an infringement notice relating to the alleged contravention.
(2) An infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.
(3) A single infringement notice must relate only to a single contravention of a single designated civil penalty provision unless subsection (4) applies.
(4) The appropriate enforcement agency may give a person a single infringement notice relating to multiple contraventions of a single designated civil penalty provision if:
(a) the provision requires the person to do a thing within a particular period or before a particular time; and
(b) the person fails or refuses to do that thing within that period or before that time; and
(c) the failure or refusal occurs on more than 1 day; and
(d) each contravention is constituted by the failure or refusal on one of those days.
However, the infringement notice must not require the person to pay more than one penalty in respect of the same conduct.
Note: For continuing contraventions of civil penalty provisions, see section 154B.
157 Matters to be included in an infringement notice
(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is given; and
(c) state the name of the person to whom the notice is given; and
(d) state the name and contact details of the appropriate enforcement agency that gave the notice; and
(e) give brief details of the alleged contravention, or each alleged contravention, to which the notice relates, including:
(i) the civil penalty provision that was allegedly contravened; and
(ii) the maximum penalty that a court could impose for each contravention, if the provision were contravened; and
(iii) the time (if known) and day of, and the place of, each alleged contravention; and
(f) state the amount that is payable under the notice; and
(g) give an explanation of how payment of the amount is to be made; and
(h) state that, if the person to whom the notice is given pays the amount to the appropriate enforcement agency, on behalf of the Commonwealth, within 28 days after the day the notice is given, then (unless the notice is withdrawn), proceedings seeking a pecuniary penalty order will not be brought in relation to the alleged contravention; and
(i) state that payment of the amount is not an admission of liability; and
(j) state that the person may apply to the relevant chief executive to have the period in which to pay the amount extended; and
(k) state that the person may choose not to pay the amount and, if the person does so, proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention; and
(l) set out how the notice can be withdrawn; and
(m) state that, if the notice is withdrawn, proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention; and
(n) state that the person may make written representations to the relevant chief executive seeking the withdrawal of the notice; and
(o) set out such other matters (if any) as are prescribed by the regulations.
Amount of penalty
(2) If the infringement notice relates to only one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph (1)(f) is the lesser of the following:
(a) one‑fifth of the maximum penalty that a court could impose on the person for that contravention;
(b) 12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate.
Note: To work out the maximum penalty for the purposes of paragraph (a) of this subsection, see subsection 147(3).
(3) If the infringement notice relates to more than one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph (1)(f) is the lesser of the following:
(a) one‑fifth of the amount worked out by adding together the maximum penalty that a court could impose on the person for each alleged contravention;
(b) either:
(i) if the person is an individual—the number of penalty units worked out by multiplying the number of alleged contraventions by 12; or
(ii) if the person is a body corporate—the number of penalty units worked out by multiplying the number of alleged contraventions by 60.
Note 1: Under subsection 156(4), a single infringement notice may only deal with multiple contraventions if they are contraventions of a single provision continuing over a period.
Note 2: To work out the maximum penalty for the purposes of paragraph (a) of this subsection, see subsection 147(3).
158 Extension of time to pay amount
(1) A person to whom an infringement notice has been given may apply to the relevant chief executive for an extension of the period referred to in paragraph 157(1)(h).
(2) If the application is made before the end of that period, the relevant chief executive may, in writing, extend that period. The relevant chief executive may do so before or after the end of that period.
(3) If the relevant chief executive extends that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 157(1)(h) is taken to be a reference to that period so extended.
(4) If the relevant chief executive does not extend that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 157(1)(h) is taken to be a reference to the period that ends on the later of the following days:
(a) the day that is the last day of the period referred to in paragraph 157(1)(h);
(b) the day that is 7 days after the day the person was given notice of the relevant chief executive’s decision not to extend the period.
(5) The relevant chief executive may extend the period more than once under subsection (2).
159 Withdrawal of an infringement notice
Representations seeking withdrawal of infringement notice
(1) A person to whom an infringement notice has been given may make written representations to the relevant chief executive seeking the withdrawal of the notice.
Withdrawal of infringement notice
(2) The relevant chief executive may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).
(3) When deciding whether or not to withdraw an infringement notice (the relevant infringement notice), the relevant chief executive:
(a) must take into account any written representations seeking the withdrawal that were given by the person to the relevant chief executive; and
(b) may take into account the following:
(i) whether a court has previously imposed a penalty on the person for a contravention of a provision subject to an infringement notice under this Division;
(ii) the circumstances of the alleged contravention;
(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a provision subject to an infringement notice under this Division if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;
(iv) any other matter the relevant chief executive considers relevant.
Notice of withdrawal of infringement notice
(4) Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:
(a) the person’s name and address; and
(b) the day the infringement notice was given; and
(c) the identifying number of the infringement notice; and
(d) that the infringement notice is withdrawn; and
(e) that proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention.
Refund of amount if infringement notice withdrawn
(5) If:
(a) the relevant chief executive withdraws the infringement notice; and
(b) the person has already paid the amount stated in the notice;
the Commonwealth must refund to the person an amount equal to the amount paid.
160 Paying the penalty in accordance with the notice
(1) This section applies if:
(a) an infringement notice relating to an alleged contravention of a civil penalty provision is given to a person; and
(b) the penalty is paid in accordance with the infringement notice; and
(c) the infringement notice is not withdrawn.
(2) Any liability of the person for the alleged contravention is discharged.
(3) The payment of the penalty is not to be taken as an admission by the person of liability for the alleged contravention.
(4) Proceedings under this Part may not be brought against the person for the alleged contravention.
161 Effect of this Division on civil proceedings
This Division does not:
(a) require an infringement notice to be given in relation to an alleged contravention of a civil penalty provision; or
(b) affect the liability of a person to have proceedings under this Part brought against the person for an alleged contravention of a civil penalty provision if:
(i) the person does not comply with an infringement notice relating to the contravention; or
(ii) an infringement notice relating to the contravention is not given to the person; or
(iii) an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or
(c) limit a Court’s discretion to determine the amount of a penalty to be imposed on a person who is found in proceedings under this Part to have contravened a civil penalty provision.
162 Regulations
The regulations may make further provision in relation to infringement notices.
Division 6—Enforceable undertakings
163 Acceptance of undertakings relating to contraventions to which this Part applies
(1) This section applies if the appropriate enforcement agency considers that an action taken by, or an omission of, a person constituted a contravention to which this Part applies.
(2) The appropriate enforcement agency may accept any of the following undertakings given by the person:
(a) a written undertaking that the person will take specified action, in order to comply with the provisions of this Act, the Basin Plan, the regulations, the water charge rules or the water market rules;
(b) a written undertaking that the person will refrain from taking specified action in order to comply with the provisions of this Act, the Basin Plan, the regulations, the water charge rules or the water market rules;
(c) a written undertaking that the person will take specified action directed towards ensuring that the person:
(i) does not commit a contravention to which this Part applies; or
(ii) is unlikely to commit a contravention to which this Part applies;
in the future;
(d) a written undertaking of a kind specified in regulations made for the purposes of this paragraph.
(3) The undertaking must be expressed to be an undertaking under this section.
(4) The person may withdraw or vary the undertaking at any time, but only with the consent of the appropriate enforcement agency.
(5) The appropriate enforcement agency may, by written notice given to the person, cancel the undertaking.
(6) The undertaking may be published:
(a) on the appropriate enforcement agency’s website; and
(b) if the appropriate enforcement agency is the Minister—on the Department’s website.
164 Enforcement of undertakings
(1) If:
(a) a person has given an undertaking under section 163; and
(b) the undertaking has not been withdrawn or cancelled; and
(c) the appropriate enforcement agency considers that the person has breached the undertaking;
the appropriate enforcement agency may apply to a Court for an order under subsection (2).
(2) If the Court is satisfied that the person has breached the undertaking, the Court may make any or all of the following orders:
(a) an order directing the person to comply with the undertaking;
(b) an order directing the person to pay to the enforcement agency, on behalf of 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 6A—Relinquishment orders
164A Relinquishing the benefit derived and detriment avoided from contravening a civil penalty provision
Relinquishment order
(1) A Court may order a person to pay to the Commonwealth an amount equal to the benefit derived and detriment avoided because of a contravention of a civil penalty provision of Part 5, a civil penalty provision of regulations made for the purposes of Part 5, or a civil penalty provision of the Water Markets Intermediaries Code, if a declaration of contravention by the person has been made under section 144. The order is a relinquishment order.
(2) The Court may make a relinquishment order:
(a) on its own initiative, during proceedings before the Court; or
(b) on application by the ACCC, made within 6 years after the alleged contravention.
Relationship between relinquishment orders and pecuniary penalty orders