85Mistake of fact

85 Mistake of fact

(1) A person is not liable to have a civil 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 civil penalty order bears an evidential burden in relation to that matter.