Commonwealth Numbered Acts Commonwealth Numbered Acts
Antarctic Treaty (Environment Protection) Act 1980
1 Title
Repeal the title, substitute:
An Act relating to the Antarctic and the protection and conservation of the environment of the Antarctic, and for related purposes
2 Preamble
After "a party to the", insert "Antarctic Treaty and the".
3 Preamble
Omit "that Protocol", substitute "that Treaty and Protocol".
4 Subsection 3(1)
Insert:
"civil penalty order" has the meaning given by subsection 22(4).
5 Subsection 3(1)
Insert:
"civil penalty provision" : a provision of this Act is a civil penalty provision if:
(a) the provision sets out at its foot a pecuniary penalty, or penalties, indicated by the words "Civil penalty"; and
(b) the provision is a subsection, or a section that is not divided into subsections.
6 Subsection 3(1)
Insert:
"Court" means:
(a) the Federal Court of Australia; or
(b) the Federal Magistrates Court; or
(c) the Supreme Court of a State or Territory; or
(d) a District, County or Local Court of a State or Territory; or
(e) a Magistrates Court of a State or Territory.
7 Subsection 3(1)
Insert:
"evidential burden" , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
8 Subsection 3(1)
Insert:
"penalty unit" has the meaning given by section 4AA of the Crimes Act 1914 .
9 Section 6
Repeal the section, substitute:
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
10 After section 6A
Insert:
6B Contravening offence and civil penalty provisions
(1) This section applies if a provision of this Act declares that a person contravening another provision of this Act (the conduct rule provision ):
(a) commits an offence; or
(b) is liable for a civil penalty.
(2) For the purposes of this Act, the person is taken to contravene the offence or the civil penalty provision (as the case requires) if the person contravenes the conduct rule provision.
11 Paragraph 17(1)(b)
After "evidence as to", insert "the contravention of a civil penalty provision or".
12 After paragraph 17(4)(a)
Insert:
(aa) require any person whom he or she finds contravening, or whom he or she reasonably suspects of having contravened, a civil penalty provision to state his or her full name and usual place of residence; and
13 Subsection 17(6)
Omit "in pursuance of subsection (4)", substitute "under this section".
14 Subsection 18(1)
After "involved in", insert "the contravention of a civil penalty provision or".
15 Subsection 18(1)
Omit all the words after "and may", substitute:
retain the article:
(a) if proceedings for:
(i) an offence against this Act in the commission of which it may have been involved; or
(ii) a contravention of a civil penalty provision in the contravention of which it may have been involved;
are commenced within 60 days after it is seized--until the proceedings (including any appeal) are completed; or
(b) otherwise--for up to 60 days.
16 Part 5 (heading)
Repeal the heading, substitute:
Part 5 -- Offences relating to the environment etc.
17 After Part 5
Insert:
Part 5A -- Civil penalty provisions
Division 1 -- Obtaining a civil penalty order
Application for order
(1) The Minister may apply to a Court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.
(2) The Minister must make the application within 6 years of the alleged contravention.
Court may order person to pay pecuniary penalty
(3) If the Court is satisfied that the person has contravened the civil penalty provision, the Court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the Court determines to be appropriate.
Note: Subsection (5) sets out the maximum penalty that the Court may order the person to pay.
(4) An order under subsection (3) is a civil penalty order .
Determining pecuniary penalty
(5) The pecuniary penalty must not be more than:
(a) if the person is a body corporate--5 times the pecuniary penalty specified for the civil penalty provision; and
(b) otherwise--the pecuniary penalty specified for the civil penalty provision.
(6) In determining the pecuniary penalty, the Court must take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered because of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by a court to have engaged in any similar conduct.
22A Civil enforcement of penalty
(1) A pecuniary penalty is a debt payable to the Commonwealth.
(2) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.
22B Conduct contravening more than one civil penalty provision
(1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.
(2) However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.
(1) A Court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
(2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.
22D Proceedings may be heard together
A Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
22E Civil evidence and procedure rules for civil penalty orders
A Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
22F Contravening a civil penalty provision is not an offence
A contravention of a civil penalty provision is not an offence.
Division 2 -- Civil proceedings and criminal proceedings
22G Civil proceedings after criminal proceedings
A Court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.
22H Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are commenced or have already been commenced against the person for an offence; and
(b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) The proceedings for the order (the civil proceedings ) may be resumed if the person is not convicted of the offence. Otherwise:
(a) the civil proceedings are dismissed; and
(b) costs must not be awarded in relation to the civil proceedings.
22J Criminal proceedings after civil proceedings
Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to the contravention.
22K Evidence given in civil proceedings not admissible in criminal proceedings
(1) Evidence of information given, or evidence of production of documents by an individual, is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
22L Ancillary contravention of civil penalty provisions
(1) A person must not:
(a) attempt to contravene a civil penalty provision; or
(b) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or
(e) conspire with others to effect a contravention of a civil penalty provision.
Note: Section 22N (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 subsection (1) of this section.
Civil penalty
(2) A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision.
(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 the matters in that subsection.
(1) In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision (other than subsection 22L(1)), 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 affect the operation of section 22M (which is about mistake of fact).
18 At the end of section 27
Add:
; or (d) the power under section 22 to apply for a civil penalty order.
19 At the end of paragraphs 29(2)(a) and (ab)
Add "and".
20 After paragraph 29(2)(ab)
Insert:
(ac) providing for the refund of a fee referred to in paragraph (ab); and
21 At the end of paragraphs 29(2)(b) to (i)
Add "and".
22 After subsection 29(2)
Insert:
(2A) A fee under subsection (2) must not be such as to amount to taxation.