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This is a Bill, not an Act. For current law, see the Acts databases.


ENVIRONMENT PROTECTION (BEVERAGE CONTAINER DEPOSIT AND RECOVERY SCHEME) BILL 2010

2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Environment Protection (Beverage
Container Deposit and Recovery
Scheme) Bill 2010
No. , 2010
(Senator Ludlam)
A Bill for an Act to provide for environmentally
sustainable use of resources and best practice in
waste management by establishing a national
beverage container deposit and recovery scheme,
and for related purposes
i Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
Contents
Part 1--Preliminary
2
1 Short
title
...........................................................................................
2
2 Commencement
.................................................................................
2
3 Objects
...............................................................................................
2
4 Constitutional
basis for Act ............................................................... 2
5 Application
to
external Territories ..................................................... 2
6
States and Territories are bound ........................................................ 2
7
State and Territory laws may operate concurrently ........................... 3
8 Interpretation......................................................................................
3
Part 2--Beverage Container Deposit and Recovery Scheme
5
9 Beverage
Container
Deposit
and Recovery Scheme .......................... 5
10
Functions of the department in administering Scheme ...................... 5
11
Beverage container environmental deposit payable by
importer or producer of beverage container ....................................... 6
12
Amount of beverage container environmental deposit ...................... 6
13
When beverage container environmental amount must be
paid .................................................................................................... 7
14 Beverage
containers
must
be labelled as refundable .......................... 7
15 Prescribed
labelling requirements ...................................................... 7
16 Authorised
collection depots ............................................................. 8
17 Authorised
transfer stations ............................................................... 9
18
Offence to claim refund on beverage container purchased
outside Australia ................................................................................ 9
19
Authorised collection depot or authorised transfer station to
pay refund ........................................................................................ 11
20
Review of refund amount ................................................................ 11
21
Exemption from beverage container environmental deposit ............ 12
22
Act does not extend to existing beverage containers ....................... 13
Part 3--Enforcement
14
Division 1--Civil penalty orders
14
23 Civil
penalty
provisions ................................................................... 14
24 Continuing
contraventions ............................................................... 14
25
Court may order person to pay pecuniary penalty for
contravening civil penalty provision ................................................ 15
26
Contravening a civil penalty provision is not an offence ................. 16
27
Persons involved in contravening civil penalty provision ............... 16
28
Recovery of a pecuniary penalty ...................................................... 16
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 ii
Division 2--Infringement notices
17
29
When an infringement notice can be given ...................................... 17
30
Matters to be included in an infringement notice............................. 17
31
Amount of penalty ........................................................................... 18
32
Withdrawal of an infringement notice ............................................. 18
33
Paying the penalty in accordance with the notice ............................ 19
34
Effect of this Division on civil proceedings ..................................... 19
Division 3--Enforceable undertakings
20
35
Acceptance of undertakings relating to contraventions ................... 20
36 Enforcement
of
undertakings ........................................................... 20
Division 4--Liability of chief executive officers of corporations
22
37
Civil penalties for chief executive officers of corporations ............. 22
38
Did a chief executive officer take reasonable steps to prevent
contravention? .................................................................................. 22
Part 4--Miscellaneous
24
39 Annual
report
by Minister ................................................................ 24
40 Regulations
......................................................................................
24
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 1
A Bill for an Act to provide for environmentally
1
sustainable use of resources and best practice in
2
waste management by establishing a national
3
beverage container deposit and recovery scheme,
4
and for related purposes
5
The Parliament of Australia enacts:
6
Part 1 Preliminary
Section 1
2 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
Part 1--Preliminary
1
2
1 Short title
3
This Act may be cited as the Environment Protection (Beverage
4
Container Deposit and Recovery Scheme) Act 2010.
5
2 Commencement
6
This Act commences on the day on which it receives the Royal
7
Assent.
8
3 Objects
9
The objects of this Act are to:
10
(a) promote the principles of environment protection by
11
regulating the use, sale and recovery of beverage containers;
12
and
13
(b) ensure the environmentally sustainable management and
14
reuse of used beverage containers; and
15
(c) support economic recycling options for used beverage
16
containers.
17
4 Constitutional basis for Act
18
This Act relies on:
19
(a) the Commonwealth's legislative powers under paragraphs
20
51(xx), (xxix) and (xxxix) of the Constitution; and
21
(b) any implied legislative powers of the Commonwealth.
22
5 Application to external Territories
23
This Act extends to all the external Territories.
24
6 States and Territories are bound
25
This Act binds the Crown in each of its capacities, but does not
26
make the Crown liable to be prosecuted for an offence.
27
Preliminary Part 1
Section 7
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 3
7 State and Territory laws may operate concurrently
1
This Act is not intended to exclude or limit the operation of a law
2
of a State or Territory to the extent that the law is capable of
3
operating concurrently with this Act.
4
8 Interpretation
5
In this Act:
6
authorised collection depot means a premises authorised by the
7
department under section 16 for the collection of empty beverage
8
containers.
9
authorised transfer station means a premises authorised by the
10
department under section 17 to be an authorised transfer station.
11
beverage means:
12
(a) any carbonated or non-carbonated soft drink, fruit juice or
13
water; or
14
(b) any alcoholic drink, including brandy, gin, rum, whisky,
15
cordials containing spirits, wine, cider, perry, mead, ale,
16
porter, beer or any other spirituous, malt, vinous or fermented
17
liquor; or
18
(c) milk, including animal milk, soy milk or processed milk; or
19
(d) any other liquid intended for human consumption by drinking
20
that is prescribed to be a beverage for the purposes of this
21
Act;
22
but does not include a beverage of a class that is prescribed not to
23
be a beverage.
24
beverage container means a container containing a beverage that is
25
produced for the sale of the beverage in a sealed form to the
26
consumer, being a container which has a capacity not exceeding 4
27
litres and is of any of the following types:
28
(a) a plastic or glass bottle;
29
(b) an aluminium or steel can;
30
(c) a liquid paperboard or composite carton;
31
(d) a composite container;
32
Part 1 Preliminary
Section 8
4 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
but does not include a beverage container of a class that is
1
prescribed not to be a beverage container.
2
beverage container environmental deposit means the
3
environmental deposit set out in paragraph 12(a) or prescribed
4
under paragraph 12(b), as the case may be.
5
department means the department administered by the Minister
6
who administers this Act.
7
import means import or bring into Australia from another country.
8
labelled includes embossed, painted or stamped.
9
penalty unit has the meaning given by section 4AA of the Crimes
10
Act 1914.
11
refund amount means 10 cents, or any higher amount prescribed
12
for the purposes of this definition or following a review conducted
13
in accordance with section 20.
14
reverse vending machine means an automated mechanical device
15
which accepts one or more types of empty beverage containers by
16
scanning the label, and issues coins or a redeemable credit slip with
17
a value not less than the container's refund amount. A reverse
18
vending machine may sort and process containers mechanically
19
provided that the entire process is enclosed within the machine.
20
Scheme means the Beverage Container Deposit and Recovery
21
Scheme established by section 9.
22
Beverage Container Deposit and Recovery Scheme Part 2
Section 9
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 5
Part 2--Beverage Container Deposit and Recovery
1
Scheme
2
3
9 Beverage Container Deposit and Recovery Scheme
4
This section establishes the Beverage Container Deposit and
5
Recovery Scheme which is to be administered by the department.
6
10 Functions of the department in administering Scheme
7
(1) The functions of the department in administering the Scheme are
8
to:
9
(a) manage the operation of the Scheme having regard to the
10
objects specified in section 3;
11
(b) collect the beverage container environmental deposit under
12
section 13;
13
(c) grant exemptions under section 21;
14
(d) authorise premises to be authorised collection depots;
15
(e) authorise premises to be authorised transfer stations;
16
(f) enter into agreements with the operators of authorised
17
collection depots and authorised transfer stations;
18
(g) facilitate and promote the Scheme;
19
(h) provide grants or other financial incentives to encourage the
20
use of recyclable and reusable containers and the increased
21
use of recycled material from beverage containers;
22
(i) provide information and advice to the Minister in relation to
23
the operation of the Scheme.
24
(2) Without limiting the generality of paragraphs (1)(g) and (h), the
25
department may fund any of the following:
26
(a) market creation and support for collected beverage containers
27
and materials;
28
(b) financial support for kerbside recycling services (that is,
29
services involving the collection by or on behalf of local
30
government councils and other entities of containers that
31
Part 2 Beverage Container Deposit and Recovery Scheme
Section 11
6 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
have been separated for recycling by occupants of residences
1
or businesses);
2
(c) further offsetting the collection industry costs for the
3
operation of the Scheme;
4
(d) product development to improve the recyclability and
5
reusability of beverage containers;
6
(e) other activities and programs connected with recycling which
7
the department considers will facilitate environmentally
8
sustainable uses of resources and promote best practices in
9
waste management.
10
(3) Payments for the purposes of paragraphs (1)(g) and (h) and
11
subsection (2) are to be met from funds appropriated by the
12
Parliament for those purposes.
13
11 Beverage container environmental deposit payable by importer
14
or producer of beverage container
15
Unless an exemption granted under section 21 applies, a person
16
who imports a beverage container into Australia or produces a
17
beverage container in Australia must pay a beverage container
18
environmental deposit for each beverage container in accordance
19
with section 13.
20
Civil penalty:
21
(a) for an individual--2,000 penalty units or such amount as is
22
prescribed by the regulations;
23
(b) for a body corporate--10,000 penalty units or such amount
24
as is prescribed by the regulations.
25
Note:
Under section 24 the person may be liable for an additional civil
26
penalty for each day after the day mentioned in section 13 for which
27
the person fails to comply with this section.
28
12 Amount of beverage container environmental deposit
29
The amount of the beverage container environmental deposit for
30
each beverage container is:
31
(a) 10 cents; or
32
Beverage Container Deposit and Recovery Scheme Part 2
Section 13
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 7
(b) if the regulations prescribe a higher amount for the purposes
1
of this section, that amount.
2
13 When beverage container environmental amount must be paid
3
A person who is required to pay the beverage container
4
environmental deposit must pay the deposit to the department
5
within 14 days after the end of the month in which the beverage
6
container was sold by the person in Australia to a wholesaler,
7
retailer or individual, or to a producer or distributor of beverages in
8
beverage containers.
9
Civil penalty:
10
(a) for an individual--100 penalty units or such amount as is
11
prescribed by the regulations;
12
(b) for a body corporate--500 penalty units or such amount as is
13
prescribed by the regulations.
14
14 Beverage containers must be labelled as refundable
15
A person must not sell a beverage container unless the container is
16
labelled "X refund at an authorised collection depot or transfer
17
station when sold in Australia", where "X" is the refund amount.
18
Civil penalty:
19
(a) for an individual--100 penalty units or such amount as is
20
prescribed by the regulations;
21
(b) for a body corporate--500 penalty units or such amount as is
22
prescribed by the regulations.
23
15 Prescribed labelling requirements
24
If any additional labelling requirements are prescribed in relation
25
to beverage containers, a person must not sell a beverage container
26
unless the container is labelled in accordance with the relevant
27
prescribed labelling requirements.
28
Civil penalty:
29
Part 2 Beverage Container Deposit and Recovery Scheme
Section 16
8 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
(a) for an individual--100 penalty units or such amount as is
1
prescribed by the regulations;
2
(b) for a body corporate--500 penalty units or such amount as is
3
prescribed by the regulations.
4
16 Authorised collection depots
5
(1) The department may approve a premises to be an authorised
6
collection depot.
7
(2) The department may enter into an agreement with the operator of
8
an authorised collection depot in respect of the location, operation
9
and functions of the authorised collection depot.
10
(3) Without limiting the generality of subsection (2), an agreement
11
may include provisions relating to:
12
(a) the delivery of sorted empty beverage containers to an
13
authorised transfer station;
14
(b) the payment to the operator of the authorised collection depot
15
of the refund amount paid by the authorised collection depot;
16
(c) the payment of any penalty by the operator of the authorised
17
collection depot for a failure to comply with the agreement.
18
(4) Without limiting the types of collection depots that may be
19
authorised under this section:
20
(a) collection depots may involve manual or mechanised
21
handling facilities, including reverse vending machines; and
22
(b) any of the following may be authorised as collection depots:
23
(i)
council
sites;
24
(ii) community centres and community-based facilities;
25
(iii) shopping centres and centre car parks;
26
(iv) service stations or other retailers;
27
(v)
schools;
28
(vi) drive-through recycling centres;
29
(vii) authorised transfer stations.
30
Beverage Container Deposit and Recovery Scheme Part 2
Section 17
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 9
17 Authorised transfer stations
1
(1) The department may approve a premises to be an authorised
2
transfer station.
3
(2) The department may enter into an agreement with the operator of
4
an authorised transfer station in respect of the location, operation
5
and functions of the authorised transfer station.
6
(3) Without limiting the generality of subsection (2), an agreement
7
may include provisions relating to:
8
(a) the receipt and processing of empty beverage containers;
9
(b) the payment to the operator of the authorised transfer station
10
of the refund amount paid by the authorised transfer station;
11
(c) the sale of processed materials;
12
(d) the payment of any penalty by the operator of the authorised
13
transfer station for a failure to comply with the agreement;
14
(e) the submission of a monthly report to the department on the
15
number and types of empty beverage containers received and
16
processed.
17
(4) At the end of 12 months after the commencement of this Act, an
18
agreement entered into under subsection (2) may include, or may
19
be amended to include, provisions relating to accepting and paying
20
a refund amount on crushed and broken empty beverage containers
21
using an estimate of the refund amount payable.
22
18 Offence to claim refund on beverage container purchased outside
23
Australia
24
(1) A person must not present to an authorised collection depot or
25
authorised transfer station for the purpose of claiming the refund
26
amount a beverage container which the person knows or has reason
27
to believe was not purchased in Australia.
28
Civil penalty:
100 penalty units.
29
(2) Subject to subsection (3), the operator of an authorised collection
30
depot or authorised transfer station may request any person
31
presenting a beverage container for the purpose of claiming the
32
Part 2 Beverage Container Deposit and Recovery Scheme
Section 18
10 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
refund amount to complete a declaration in the prescribed form
1
stating that the person has no reason to believe that the beverage
2
container was not purchased in Australia.
3
(3) If within any period of 48 hours a person presents 3,000 or more
4
beverage containers to an authorised collection depot or authorised
5
transfer station for the purpose of claiming the refund amount, the
6
operator of the authorised collection depot or authorised transfer
7
station must request the person to complete the declaration referred
8
to in subsection (2).
9
Civil penalty:
10
(a) for an individual--100 penalty units or such amount as is
11
prescribed by the regulations;
12
(b) for a body corporate--500 penalty units or such amount as is
13
prescribed by the regulations.
14
(4) The operator of an authorised collection depot or authorised
15
transfer station must not pay the refund amount to a person who
16
has not complied with a request made under subsection (2) or (3).
17
Civil penalty:
18
(a) for an individual--100 penalty units or such amount as is
19
prescribed by the regulations;
20
(b) for a body corporate--500 penalty units or such amount as is
21
prescribed by the regulations.
22
(5) The operator of an authorised collection depot or authorised
23
transfer station must:
24
(a) keep any declaration made under this section for a period of 3
25
years after it is made; and
26
(b) have the declaration readily available for inspection at any
27
reasonable time by an authorised officer.
28
Civil penalty:
29
(a) for an individual--300 penalty units or such amount as is
30
prescribed by the regulations;
31
(b) for a body corporate--1,500 penalty units or such amount as
32
is prescribed by the regulations.
33
Beverage Container Deposit and Recovery Scheme Part 2
Section 19
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 11
19 Authorised collection depot or authorised transfer station to pay
1
refund
2
(1) A person who accepts the return of an unbroken empty beverage
3
container at an authorised collection depot or authorised transfer
4
station must pay the person who returns it the refund amount.
5
(2) Subject to subsections (3) and (4), the operator of an authorised
6
collection depot must not unreasonably refuse to accept any
7
unbroken empty beverage container labelled in accordance with
8
section 14 that is returned to the authorised collection depot.
9
Civil penalty:
10
(a) for an individual--300 penalty units or such amount as is
11
prescribed by the regulations;
12
(b) for a body corporate--1,500 penalty units or such amount as
13
is prescribed by the regulations.
14
(3) The operator of an authorised collection depot may refuse to accept
15
the return of a beverage container if:
16
(a) the beverage container is in an unsafe condition; or
17
(b) the operator has reason to believe that the beverage container
18
was not sold to a wholesaler, retailer or individual, or to a
19
producer or distributor of beverages in beverage containers,
20
in Australia; or
21
(c) a request to complete a declaration under section 18 in
22
respect of the beverage container has not been complied with.
23
(4) A reverse vending machine may be operated so as to not accept the
24
return of a beverage container labelled in accordance with
25
section 14 which is returned in a condition which prevents the
26
reverse vending machine from scanning the label.
27
20 Review of refund amount
28
(1) The Minister must cause a review of the refund amount to be
29
carried out at least once in each period of 5 years after the
30
commencement of this Act.
31
Part 2 Beverage Container Deposit and Recovery Scheme
Section 21
12 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
(2) The person or persons carrying out that review must have regard to
1
the minimum refund amount necessary to maintain the appropriate
2
level of incentive:
3
(a) for producers, distributors and consumers of beverages in
4
beverage containers to reuse or recycle beverage containers;
5
(b) to ensure high rates of recovery of beverage containers;
6
(c) to reduce litter and litter-related costs;
7
(d) to reduce waste, disposal and recycling costs;
8
(e)
to
conserve
resources.
9
21 Exemption from beverage container environmental deposit
10
(1) A person may apply to the department in the prescribed form for an
11
exemption wholly or partly from the requirement to pay the
12
beverage container environmental deposit under section 11.
13
(2) The department must within the prescribed period grant an
14
exemption under this section if the secretary of the department is
15
satisfied that the criteria and considerations prescribed for the
16
purposes of this section apply.
17
(3) The department must within the prescribed period advise the
18
applicant in writing of:
19
(a) the decision of the department;
20
(b) if the department grants the exemption--the terms and
21
conditions applying to the exemption;
22
(c) if the department refuses to grant the exemption--the reasons
23
for refusing to grant the exemption.
24
(4) If any of the criteria and considerations prescribed for the purposes
25
of this section cease to apply, the department:
26
(a) may by notice in writing to the holder of the exemption
27
revoke the exemption granted under this section;
28
(b) must specify in the notice:
29
(i) the reason for revoking the exemption; and
30
(ii) a reasonable period of time within which the person
31
must comply with this Act.
32
Beverage Container Deposit and Recovery Scheme Part 2
Section 22
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 13
(5) If an exemption is revoked under subsection (4), the person who
1
held the exemption must begin to comply with this Act within the
2
period specified in the notice under subsection (4).
3
Civil penalty:
4
(a) for an individual--2,000 penalty units or such amount as is
5
prescribed by the regulations;
6
(b) for a body corporate--10,000 penalty units or such amount
7
as is prescribed by the regulations.
8
Note:
Under section 24 the person may be liable for an additional civil
9
penalty for each day after the day specified in the notice for which the
10
person fails to comply with this Act in accordance with this section.
11
22 Act does not extend to existing beverage containers
12
This Act does not apply to beverage containers imported into
13
Australia or produced in Australia before the commencement of
14
this Act.
15
Part 3 Enforcement
Division 1 Civil penalty orders
Section 23
14 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
Part 3--Enforcement
1
Division 1--Civil penalty orders
2
23 Civil penalty provisions
3
The following are civil penalty provisions for the purposes of this
4
Act:
5
(a) a subsection of this Act (or a section of this Act that is not
6
divided into subsections) if the words "civil penalty" and one
7
or more amounts in penalty units are set out at the foot of the
8
subsection (or section);
9
(b) a subsection of this Act if another provision of this Act
10
specifies that the subsection is a civil penalty provision.
11
24 Continuing contraventions
12
(1) If an act or thing is required, under a civil penalty provision of this
13
Act, to be done within a particular period, or before a particular
14
time, then the obligation to do that act or thing continues (even if
15
the period has expired or the time has passed) until the act or thing
16
is done.
17
(2) If, under sections 11 and 13 or under subsection 21(5), an act or
18
thing is required to be done within a particular period, or before a
19
particular time, and a person fails to comply with that requirement,
20
the person is liable for a civil penalty for each day that the person
21
fails to comply.
22
Civil penalty:
23
(a) for an individual--1,000 penalty units per day or such
24
amount as is prescribed by the regulations;
25
(b) for a body corporate--5,000 penalty units per day or such
26
amount as is prescribed by the regulations.
27
(3) To avoid doubt, a person's failure to comply with such a
28
requirement on a particular day is taken, for the purposes of this
29
Act, not to be the same conduct as the person's failure to comply
30
with that requirement on a different day.
31
Enforcement Part 3
Civil penalty orders Division 1
Section 25
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 15
25 Court may order person to pay pecuniary penalty for
1
contravening civil penalty provision
2
Application for order
3
(1) Within 6 years of a person contravening a civil penalty provision,
4
the department may apply, on behalf of the Commonwealth, to a
5
Court for an order that the person pay the Commonwealth a
6
pecuniary penalty.
7
Court may order person to pay pecuniary penalty
8
(2) If the Court is satisfied that the person has contravened a civil
9
penalty provision, the Court may order the person to pay to the
10
Commonwealth for each contravention the pecuniary penalty that
11
the Court determines is appropriate.
12
Maximum pecuniary penalty
13
(3) The pecuniary penalty must not exceed the sum of:
14
(a) the relevant amount specified for the civil penalty provision;
15
and
16
(b) the amount (if any) for which the person is liable under
17
section 24 at the time the Court makes the order.
18
Determining amount of pecuniary penalty
19
(4) In determining the pecuniary penalty, the Court must have regard
20
to all relevant matters, including:
21
(a) the nature and extent of the contravention; and
22
(b) the nature and extent of any loss or damage suffered as a
23
result of the contravention; and
24
(c) the circumstances in which the contravention took place; and
25
(d) whether the person has previously been found by the Court in
26
proceedings under this Act to have engaged in any similar
27
conduct.
28
Part 3 Enforcement
Division 1 Civil penalty orders
Section 26
16 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
Conduct contravening more than one civil penalty provision
1
(5) If conduct constitutes a contravention of 2 or more civil penalty
2
provisions, proceedings may be instituted under this Act against a
3
person in relation to the contravention of any one or more of those
4
provisions. However, the person is not liable to more than one
5
pecuniary penalty under this section in respect of the same
6
conduct.
7
26 Contravening a civil penalty provision is not an offence
8
A contravention of a civil penalty provision is not an offence.
9
27 Persons involved in contravening civil penalty provision
10
(1) A person must not:
11
(a) aid, abet, counsel or procure a contravention of a civil
12
penalty provision; or
13
(b) induce (by threats, promises or otherwise) a contravention of
14
a civil penalty provision; or
15
(c) be in any way directly or indirectly knowingly concerned in,
16
or party to, a contravention of a civil penalty provision; or
17
(d) conspire to contravene a civil penalty provision.
18
(2) This Division applies to a person who contravenes subsection (1)
19
in relation to a civil penalty provision as if the person had
20
contravened the provision.
21
28 Recovery of a pecuniary penalty
22
If a Court orders a person to pay a pecuniary penalty:
23
(a) the penalty is payable to the Commonwealth; and
24
(b) the Commonwealth may enforce the order as if it were a
25
judgment of the Court.
26
Enforcement Part 3
Infringement notices Division 2
Section 29
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 17
Division 2--Infringement notices
1
29 When an infringement notice can be given
2
(1) If the secretary of the department has reasonable grounds to believe
3
that a person has contravened a civil penalty provision, the
4
department may give to the person an infringement notice relating
5
to the alleged contravention.
6
(2) An infringement notice must be given within 12 months after the
7
day on which the contravention is alleged to have taken place.
8
(3) A single infringement notice may be given to a person in respect
9
of:
10
(a) 2 or more alleged contraventions of a civil penalty provision;
11
and
12
(b) alleged contraventions of 2 or more civil penalty provisions.
13
However, the notice must not require the person to pay more than
14
one penalty in respect of the same conduct.
15
30 Matters to be included in an infringement notice
16
(1) An infringement notice must:
17
(a) identify the person to whom the notice is given; and
18
(b) set out brief details of:
19
(i) the alleged contravention of the civil penalty provision;
20
or
21
(ii) if the infringement notice relates to 2 or more alleged
22
contraventions of a civil penalty provision or alleged
23
contraventions of 2 or more civil penalty provisions--
24
each alleged contravention; and
25
(c) contain a statement to the effect that proceedings will not be
26
brought under this Part in relation to the alleged
27
contravention or contraventions if the penalty specified in the
28
notice is paid to the department, on behalf of the
29
Commonwealth, within:
30
(i) 28 days after the notice is given; or
31
Part 3 Enforcement
Division 2 Infringement notices
Section 31
18 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
(ii) if the secretary of the department allows a longer
1
period--that longer period; and
2
(d) contain a statement to the effect that the person to whom the
3
notice is given may choose not to pay the penalty and, if the
4
person does so, proceedings may be brought under this Part
5
in relation to the alleged contravention or contraventions; and
6
(e) give an explanation of how payment of the penalty is to be
7
made; and
8
(f) set out such other matters (if any) as are specified by the
9
regulations.
10
Note:
For the amount of penalty, see section 31.
11
(2) For the purposes of paragraph (1)(b), the brief details must include
12
the following information in relation to each alleged contravention:
13
(a) the date of the contravention;
14
(b) the civil penalty provision that was allegedly contravened.
15
31 Amount of penalty
16
The penalty to be specified in an infringement notice relating to a
17
person's alleged contravention of a civil penalty provision must be
18
a pecuniary penalty equal to one-fifth of the maximum penalty that
19
a Court could impose on the person for that contravention.
20
Note:
To work out this maximum penalty, see subsection 25(3).
21
32 Withdrawal of an infringement notice
22
(1) This section applies if an infringement notice is given to a person.
23
(2) The department may, by written notice given to the person,
24
withdraw the infringement notice.
25
Refund of penalty if infringement notice withdrawn
26
(3)
If:
27
(a) the penalty specified in the infringement notice is paid; and
28
(b) the infringement notice is withdrawn after the penalty is paid;
29
the Commonwealth is liable to refund the penalty.
30
Enforcement Part 3
Infringement notices Division 2
Section 33
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 19
33 Paying the penalty in accordance with the notice
1
(1) This section applies if:
2
(a) an infringement notice relating to an alleged contravention of
3
a civil penalty provision is given to a person; and
4
(b) the penalty is paid in accordance with the infringement
5
notice; and
6
(c) the infringement notice is not withdrawn.
7
(2) Any liability of the person for the alleged contravention is
8
discharged.
9
(3) The payment of the penalty is not to be taken as an admission by
10
the person of liability for the alleged contravention.
11
(4) Proceedings under this Part may not be brought against the person
12
for the alleged contravention.
13
34 Effect of this Division on civil proceedings
14
This Division does not:
15
(a) require an infringement notice to be given in relation to an
16
alleged contravention of a civil penalty provision; or
17
(b) affect the liability of a person to have proceedings under this
18
Part brought against the person for an alleged contravention
19
of a civil penalty provision if:
20
(i) the person does not comply with an infringement notice
21
relating to the contravention; or
22
(ii) an infringement notice relating to the contravention is
23
not given to the person; or
24
(iii) an infringement notice relating to the contravention is
25
given to the person and subsequently withdrawn; or
26
(c) limit a Court's discretion to determine the amount of a
27
penalty to be imposed on a person who is found in
28
proceedings under this Part to have contravened a civil
29
penalty provision.
30
Part 3 Enforcement
Division 3 Enforceable undertakings
Section 35
20 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
Division 3--Enforceable undertakings
1
35 Acceptance of undertakings relating to contraventions
2
(1) The secretary of the department may accept any of the following
3
undertakings given by a person:
4
(a) a written undertaking that the person will take specified
5
action, in order to comply with the provisions of this Act or
6
the regulations;
7
(b) a written undertaking that the person will refrain from taking
8
specified action in order to comply with the provisions of this
9
Act or the regulations;
10
(c) a written undertaking that the person will take specified
11
action directed towards ensuring that the person:
12
(i) does not commit a contravention of this Act or the
13
regulations; or
14
(ii) is unlikely to commit a contravention of this Act or the
15
regulations;
16
in the future;
17
(d) a written undertaking of a kind specified in regulations made
18
for the purposes of this paragraph.
19
(2) The undertaking must be expressed to be an undertaking under this
20
section.
21
(3) The person may withdraw or vary the undertaking at any time, but
22
only with the consent of the secretary of the department.
23
(4) The secretary of the department may, by written notice given to the
24
person, cancel the undertaking.
25
(5) The undertaking may be published on an appropriate website.
26
36 Enforcement of undertakings
27
(1)
If:
28
(a) a person has given an undertaking under section 35; and
29
(b) the undertaking has not been withdrawn or cancelled; and
30
Enforcement Part 3
Enforceable undertakings Division 3
Section 36
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 21
(c) the secretary of the department considers that the person has
1
breached the undertaking;
2
the secretary of the department may apply to a Court for an order
3
under subsection (2).
4
(2) If the Court is satisfied that the person has breached the
5
undertaking, the Court may make any or all of the following
6
orders:
7
(a) an order directing the person to comply with the undertaking;
8
(b) an order directing the person to pay to the department, on
9
behalf of the Commonwealth, an amount up to the amount of
10
any financial benefit that the person has obtained directly or
11
indirectly and that is reasonably attributable to the breach;
12
(c) any order that the Court considers appropriate directing the
13
person to compensate any other person who has suffered loss
14
or damage as a result of the breach;
15
(d) any other order that the Court considers appropriate.
16
Part 3 Enforcement
Division 4 Liability of chief executive officers of corporations
Section 37
22 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
Division 4--Liability of chief executive officers of
1
corporations
2
37 Civil penalties for chief executive officers of corporations
3
(1)
If:
4
(a) a corporation contravenes a civil penalty provision; and
5
(b) a chief executive officer of the corporation knew that, or was
6
reckless or negligent as to whether, the contravention would
7
occur; and
8
(c) the officer was in a position to influence the conduct of the
9
corporation in relation to the contravention; and
10
(d) the officer failed to take all reasonable steps to prevent the
11
contravention;
12
the officer contravenes this subsection.
13
(2) Subsection (1) is a civil penalty provision.
14
(3) Under section 25, a Court may order a person contravening
15
subsection (1) to pay a pecuniary penalty not more than the
16
pecuniary penalty the Court could order a corporation to pay for
17
contravening the civil penalty provision mentioned in
18
paragraph (1)(a).
19
38 Did a chief executive officer take reasonable steps to prevent
20
contravention?
21
(1) For the purposes of section 37, in determining whether a chief
22
executive officer of a corporation failed to take all reasonable steps
23
to prevent a contravention, a Court is to have regard to:
24
(a) what action (if any) the officer took directed towards
25
ensuring the following (to the extent that the action is
26
relevant to the contravention):
27
(i) that the corporation regularly assesses its compliance
28
with this Act or the regulations;
29
(ii) that the corporation implements any appropriate
30
recommendations arising from such an assessment;
31
Enforcement Part 3
Liability of chief executive officers of corporations Division 4
Section 38
Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 No.
, 2010 23
(iii) that the corporation's employees, agents and contractors
1
have a reasonable knowledge and understanding of the
2
requirements to comply with this Act and the
3
regulations in so far as those requirements affect the
4
employees, agents or contractors concerned; and
5
(b) what action (if any) the officer took when he or she became
6
aware that the corporation was contravening this Act or the
7
regulations.
8
(2) This section does not, by implication, limit the generality of
9
section 37.
10
Part 4 Miscellaneous
Section 39
24 Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010
No. , 2010
Part 4--Miscellaneous
1
2
39 Annual report by Minister
3
(1) As soon as practicable after each 30 June, the Minister must cause
4
to be prepared a report on the operation of this Act for the 12
5
months ending on that 30 June.
6
(2) The Minister must cause a copy of a report prepared under
7
subsection (1) to be laid before each House of the Parliament
8
within 15 sitting days of that House after the day on which the
9
Minister receives the report.
10
40 Regulations
11
The Governor-General may make regulations prescribing matters:
12
(a) required or permitted by this Act to be prescribed; or
13
(b) necessary or convenient to be prescribed for carrying out or
14
giving effect to this Act.
15

 


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