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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ATMs and Cash Facilities in Licensed Venues Bill 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator N Xenophon)
ATMS AND CASH FACILITIES IN LICENSED VENUES BILL 2008
Background:
The purpose of this bill is to limit and reduce the installation of
automatic teller machines and cash facilities in licensed venues.
Part 1 - Preliminary
Part 1 of the bill relates to preliminary matters including the bill's
commencement, objects, application and relationship with State and
Territory law. It also provides for definitions. The bill is intended to
commence at the end of 28 days after the day on which it receives the Royal
Assent. It is not intended to exclude or limit the concurrent operation of
any law of a State or Territory, unless the contrary intention appears.
Part 2 - Automatic teller machines and other cash facilities
Part 2 of the bill applies to any financial institution, constitutional
corporation and person, body corporate or corporation that uses an eligible
communications service to provide cash facilities.
It provides that the abovementioned entities must not install or operate an
automatic teller machine or other cash facility, or allow an automatic
teller machine or other cash facility to be installed or operated on its
behalf, at a licensed venue that allows a cardholder to obtain cash by
means of that automatic teller machine or cash facility. The bill does
extend to private and franchised ATM operators.
Entities which breach those provisions may be liable to pay a civil penalty
of up to 2000 penalty units. Section 4AA of the Crimes Act 1914 provides
that a penalty unit is $110. That equates to a maximum penalty of $220 000
for a breach of those provisions.
Part 2 of the bill also provides for certain exceptions to the provisions
outlined above. Those exceptions apply where the terminals or facilities
do not permit cash withdrawals by, or cash advances to, a cardholder or,
where the Minister has provided an exemption because there are no other
cash facilities within a 5 kilometre radius of the licensed venue. Any
body that contravenes the exemptions may also be liable to pay a civil
penalty of up to 2000 units (or $220 000).
Part 3 - Civil Penalties
Part 3 of the bill relates to civil penalties. It provides that the
Minister may apply to the Federal Court for an order that a wrongdoer pay
the Commonwealth a pecuniary penalty within 6 years of a contravention of a
civil penalty provision. Further, it provides that where a Court is
satisfied that the wrongdoer has contravened a civil penalty provision, the
court may order that person to pay to the Commonwealth the pecuniary
penalty that the court determines appropriate for each contravention but
not more than the relevant amount specified for the provision.
In determining the pecuniary penalty, the court must have regard to all
relevant matters including, the nature and extent of the contravention, the
circumstances in which the contravention took place and whether the person
has previously been found to have engaged in any similar conduct in other
proceedings under the bill.
Where the conduct constitutes a contravention of two or more civil penalty
provisions, the bill provides that proceedings may be instituted against a
person in relation to the contravention of any one or more of those
provisions. However, the person will not be liable to pay more than one
pecuniary penalty in respect of the same conduct.
For the purposes of this bill, contravening a civil penalty is not an
offence.
The bill further provides that a person must not aid, abet, counsel or
procure or, induce by threats, promises or otherwise, or, be in any way
directly or indirectly knowingly concerned in, or party to, a contravention
of a civil penalty provision, or conspire to contravene a civil penalty
provision.
If the Federal Court orders a person to pay a pecuniary penalty the bill
provides that the provision is payable to the Commonwealth and the
Commonwealth may enforce the order as if it were a judgment of the Court.
The bill also provides for enforceable undertakings relating to
contraventions of civil penalty provisions. These provisions apply where
the Minister considers that an action taken by a body corporate after the
commencement of clause 14 contravened one or more civil penalty provisions.
It provides that the Minister may, instead of instituting proceedings in
the Federal Court (as described above), accept a written undertaking given
by an executive officer on behalf of the body corporate in relation to the
action, in which the body corporate undertakes to pay a specified amount
within a specified period to the Commonwealth or any other undertaking in
connection with a contravention. It also provides that the executive
officer, on behalf of the body corporate, may withdraw or vary the
undertaking at any time with the consent of the Minister.
If the Minister considers that an executive officer who gave an undertaking
or the relevant body corporate has breached any of the terms of that
undertaking, the court may direct the executive officer or the body
corporate to comply with that term of the undertaking or make any other
order the Court considers appropriate.
PART 4 - Miscellaneous
Part 4 of the bill provides for the making of regulations prescribing
matters required or permitted by the bill or necessary or convenient to be
prescribed for carrying out or giving effect to the bill.