Commonwealth Numbered Acts Commonwealth Numbered ActsA New Tax System (Family Assistance) (Administration) Act 1999
1 Subsection 3(1)
Insert:
"civil penalty order" has the meaning given by section 219TSC.
2 Subsection 3(1) (definition of civil penalty provision )
Repeal the definition, substitute:
"civil penalty provision" means any of the following:
(a) subsection 204(1);
(b) subsection 219AC(1A) or (1B);
(c) subsection 219AG(1A);
(d) subsection 219B(2);
(e) subsection 219BB(1);
(f) subsection 219BC(1);
(g) subsection 219BD(1);
(h) subsection 219E(1);
(i) subsection 219EA(2);
(j) subsection 219F(1) or (2);
(k) subsection 219G(1), (3) or (4);
(l) subsection 219L(1), (2) or (3);
(m) subsection 219M(1);
(n) subsection 219N(5A);
(o) subsection 219NA(4);
(p) subsection 219NB(1);
(q) subsection 219P(1);
(r) subsection 219QB(1);
(s) section 219TSB.
3 Subsection 3(1)
Insert:
"penalty unit" has the meaning given by section 4AA of the Crimes Act 1914 .
4 Subsection 196(2)
After "offence", insert "or is of a civil penalty provision".
5 At the end of subsection 196(2)
Add:
Note: Enforcement under this Division of this and other conditions is not limited or affected by other compliance measures in this Act (for example, infringement notices, proceedings for civil penalty orders and prosecutions).
6 Section 204
Before "If", insert "(1)".
7 Section 204 (penalty)
Repeal the penalty.
8 At the end of section 204
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
(2) An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 20 penalty units.
9 Before subsection 219AC(1)
Insert:
Civil penalties
(1A) An approved child care service contravenes this subsection if:
(a) the service is required to give notice under section 219A; and
(b) the service does not give the notice in accordance with that section and section 219AB.
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
(1B) An approved child care service contravenes this subsection if:
(a) the service is required to give notice under section 219AA; and
(b) the service does not give the notice in accordance with that section and section 219AB.
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
Note 1: The heading to section 219AC is replaced by the heading " Failure to notify ".
Note 2: The following heading to subsection 219AC(1) is inserted " Offences ".
10 Before subsection 219AG(1)
Insert:
Civil penalty
(1A) An approved child care service contravenes this subsection if:
(a) the service is required to notify the Secretary of a correction or available information under section 219AF; and
(b) the service does not notify the Secretary in accordance with that section.
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
Note 1: The heading to section 219AG is replaced by the heading " Failure to update enrolment information ".
Note 2: The following heading to subsection 219AG(1) is inserted " Offence ".
11 Subsection 219B(2) (penalty)
Repeal the penalty.
12 Subsection 219B(2) (note)
Repeal the note, substitute:
Note 1: This amount must be passed on, even if the payment of amounts to the service in respect of fee reduction has been suspended under paragraph 200(1)(h).
Note 2: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
13 After subsection 219B(2)
Insert:
(2A) An approved child care service commits an offence if the service contravenes subsection (2).
Penalty: 60 penalty units.
(2B) Subsection (2A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
14 Subsection 219B(6)
Repeal the subsection.
15 Subsection 219BB(1) (penalty)
Repeal the penalty.
16 At the end of subsection 219BB(1)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
17 Subsection 219BB(2)
Repeal the subsection, substitute:
(2) An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
18 Subsection 219BC(1) (penalty)
Repeal the penalty.
19 At the end of subsection 219BC(1)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
20 Subsection 219BC(2)
Repeal the subsection, substitute:
(2) An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
21 Subsection 219BD(1) (penalty)
Repeal the penalty.
22 At the end of subsection 219BD(1)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
23 After subsection 219BD(1)
Insert:
(1A) An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
(1B) Subsection (1A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
24 Subsection 219BD(3)
Repeal the subsection.
25 Subsection 219E(1) (penalty)
Repeal the penalty.
26 At the end of subsection 219E(1)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
27 Subsection 219E(1A)
Repeal the subsection, substitute:
(1A) An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
(1B) Subsection (1A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
28 At the end of subsection 219EA(2)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
29 Subsection 219EA(3)
Repeal the subsection.
30 Subsection 219F(1) (penalty)
Repeal the penalty.
Note: The following heading to subsection 219F(1) is inserted " Records must be kept ".
31 At the end of subsection 219F(1)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
32 After subsection 219F(1)
Insert:
(1A) An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
(1B) Subsection (1A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
33 Subsections 219F(2) and (2A)
Repeal the subsections, substitute:
Records to be kept for at least 36 months--civil penalty
(2) An approved child care service contravenes this subsection if the service stops keeping the records referred to in subsection (1) before the later of the following times:
(a) the end of the period of 36 months starting at the end of the year in which the care was provided to which the information or event related;
(b) a time ordered by a court during proceedings for an offence against this Act, or for the contravention of a civil penalty provision, if an application for the order is made during:
(i) the period mentioned in paragraph (a); or
(ii) proceedings relevant to a previous application of this paragraph.
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
Records to be kept for at least 36 months--offence
(2A) An approved child care service commits an offence if the service stops keeping the records referred to in subsection (1) before the later of the following times:
(a) the end of the period of 36 months starting at the end of the year in which the care was provided to which the information or event related;
(b) a time ordered by a court during proceedings for an offence against this Act, or for the contravention of a civil penalty provision, if an application for the order is made during:
(i) the period mentioned in paragraph (a); or
(ii) proceedings relevant to a previous application of this paragraph.
Penalty: 60 penalty units.
(2B) Subsection (2A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
34 At the end of section 219F
Add:
Meaning of offence against this Act
(4) In this section:
"offence against this Act" includes an offence against Chapter 7 of the Criminal Code that relates to this Act.
35 Subsection 219G(1) (penalty)
Repeal the penalty.
36 At the end of subsection 219G(1)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
37 Subsection 219G(1A)
Repeal the subsection, substitute:
(1A) A person commits an offence if the person contravenes subsection (1).
Penalty: 60 penalty units.
(1B) Subsection (1A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
38 Subsection 219G(3) (penalty)
Repeal the penalty.
39 At the end of subsection 219G(3)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
40 After subsection 219G(3)
Insert:
(3A) A person commits an offence if the person contravenes subsection (3).
Penalty: 60 penalty units.
(3B) Subsection (3A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
41 Subsection 219G(4) (penalty)
Repeal the penalty.
Note: The following heading to subsection 219G(4) is inserted " Notification if premises changes ".
42 At the end of subsection 219G(4)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
43 After subsection 219G(4)
Insert:
(4A) A person commits an offence if the person contravenes subsection (4).
Penalty: 60 penalty units.
(4B) Subsection (4A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
44 Subsection 219G(6)
Repeal the subsection.
45 Section 219J
Repeal the section, substitute:
(1) The Secretary must issue an identity card to an authorised officer.
Form of identity card
(2) The identity card must:
(a) be in the form approved by the Secretary; and
(b) contain a recent photograph of the authorised officer.
Offence
(3) A person commits an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an authorised officer; and
(c) the person does not, as soon as practicable after so ceasing, return the identity card to the Secretary.
Penalty: 1 penalty unit.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
Defence: card lost or destroyed
(5) Subsection (3) does not apply if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code .
Authorised officer must carry card
(6) An authorised officer must carry his or her identity card at all times when exercising powers as an authorised officer.
46 After subsection 219K(1)
Insert:
Access to monitor compliance
(1A) An authorised officer may enter the premises of an approved child care service, at any time during the service's hours of operation, for the purposes of monitoring the service's compliance with a condition for the continued approval of the service.
Note: The authorised officer could also inspect certain records while on the premises (see paragraph (1)(a)).
Note: The following heading to subsection 219K(1) is inserted " Access to inspect records ".
47 Subsections 219K(2) and (3)
Repeal the subsections, substitute:
Access must be by consent
(2) An authorised officer is not authorised to enter premises under subsection (1) or (1A) unless the occupier of the premises, or another person who apparently represents the occupier, has consented to the entry and the officer has shown his or her identity card to that occupier or person.
(3) An authorised officer must, before obtaining the consent of the occupier or another person in accordance with subsection (2), inform that occupier or person that he or she may refuse consent.
(3A) A consent has no effect unless the consent is voluntary.
(3B) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(3C) A consent that is not limited as mentioned in subsection (3B) has effect until the consent is withdrawn.
(3D) The authorised officer must leave the premises if the consent ceases to have effect.
Note: The following heading to subsection 219K(4) is inserted " Services must cooperate with authorised officers ".
48 Subsection 219L(1) (penalty)
Repeal the penalty.
Note: The following heading to subsection 219L(1) is inserted " Obligation to produce records referred to in subsection 219F(1) ".
49 At the end of subsection 219L(1)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
50 After subsection 219L(1)
Insert:
(1A) A person commits an offence if the person contravenes subsection (1).
Penalty: 60 penalty units.
(1B) Subsection (1A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
51 Subsection 219L(2) (penalty)
Repeal the penalty.
Note: The following heading to subsection 219L(2) is inserted " Obligation to produce records referred to in subsection 219G(2) ".
52 At the end of subsection 219L(2)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
53 After subsection 219L(2)
Insert:
(2A) A person commits an offence if the person contravenes subsection (2).
Penalty: 60 penalty units.
(2B) Subsection (2A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
54 Subsection 219L(3)
Omit "power to inspect the records", substitute "powers under section 219K".
Note: The following heading to subsection 219L(3) is inserted " Obligation to provide reasonable facilities and assistance ".
55 Subsection 219L(3) (penalty)
Repeal the penalty.
56 At the end of subsection 219L(3)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
57 After subsection 219L(3)
Insert:
(3A) A person commits an offence if the person contravenes subsection (3).
Penalty: 10 penalty units.
(3B) Subsection (3A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
58 Subsection 219L(3A)
Repeal the subsection.
59 Subsection 219M(1) (penalty)
Repeal the penalty.
60 At the end of subsection 219M(1)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
61 At the end of section 219M
Add:
(3) A person commits an offence if the person contravenes subsection (1).
Penalty for an offence against subsection (3): 60 penalty units.
62 After subsection 219N(5)
Insert:
(5A) An approved child care service contravenes this subsection if:
(a) the service is required to give a report under subsection (1) or (2); and
(b) the service does not give the report in accordance with this section.
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
63 At the end of subsection 219NA(4)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
64 Section 219NB
Before "If", insert "(1)".
65 Section 219NB (penalty)
Repeal the penalty.
66 At the end of section 219NB
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
(2) An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
67 Section 219P
Before "If", insert "(1)".
68 Section 219P (penalty)
Repeal the penalty.
69 At the end of section 219P
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 60 penalty units.
70 Subsection 219QB(1) (penalty)
Repeal the penalty.
71 At the end of subsection 219QB(1)
Add:
Note: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
72 After subsection 219QB(1)
Insert:
(1A) An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
73 Section 219TSA
Repeal the section.
74 Subsection 219TSB(1)
Omit "(1)".
75 At the end of subsection 219TSB(1)
Add:
Note: This is a civil penalty provision. This Part provides for pecuniary penalties for breaches of civil penalty provisions.
76 Subsection 219TSB(2)
Repeal the subsection.
77 At the end of subsection 219TSC(1)
Add:
Note: These proceedings before the court do not limit, nor are they affected by, other compliance measures in this Act (for example, sanctions under section 200).
78 At the end of subsection 219TSC(3)
Add:
; and (e) the likely impact of the penalty on:
(i) the person; and
(ii) if the person is an approved child care service--the continued operation of the service.
79 Section 219TSD
Repeal the section, substitute:
219TSD Maximum penalties for civil penalty provisions
General rule
(1) The pecuniary penalty payable by a person, in respect of the person's contravention of a civil penalty provision, must not exceed:
(a) if the person is not a body corporate--200 penalty units; or
(b) if the person is a body corporate--400 penalty units.
Exception for certain civil penalty provisions
(2) Subsection (1) does not apply to subsection 219EA(2) or 219L(3). The pecuniary penalty payable by a person, in respect of the person's contravention of either of these civil penalty provisions, must not exceed:
(a) if the person is not a body corporate--30 penalty units; or
(b) if the person is a body corporate--60 penalty units.
80 After section 219TSG
Insert:
219TSGA 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 Act 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 Act in respect of the same conduct.
Note: This subsection does not prevent other compliance measures under this Act (for example, sanctions under section 200) from being imposed in respect of the same conduct.
219TSGB Civil proceedings after criminal proceedings
Neither the Federal Court of Australia nor the Federal Magistrates Court may 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 substantially the same as the conduct constituting the contravention.
219TSGC 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 started or have already been started 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.
219TSGD Criminal proceedings after civil proceedings
Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.
219TSGE Evidence given in proceedings for penalty not admissible in criminal proceedings
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 a 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.
However, this does not apply to criminal proceedings in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
219TSGF Minister requiring person to assist in applications for civil penalty orders
(1) A person commits an offence if:
(a) the Minister requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and
(b) the person fails to comply with the request.
Penalty: 10 penalty units.
Note: This section does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, document or other things.
(2) A request under subsection (1) is not a legislative instrument.
(3) The Minister can request a person to assist under subsection (1) if, and only if:
(a) it appears to the Minister that the person is unlikely to have:
(i) contravened the civil penalty provision to which the application relates; or
(ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
(b) the Minister suspects or believes that the person can give information relevant to the application.
(4) The Minister cannot request a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates.
(5) The Federal Court of Australia or the Federal Magistrates Court may order a person to comply with a request under subsection (1) in a specified way. Only the Minister may apply to the court for an order under this subsection .
(6) For the purposes of this section, it does not matter whether the application for the civil penalty order has actually been made.
81 Section 219TSH (definition of penalty unit )
Repeal the definition.
82 Subsection 219TSK(1) (table)
Repeal the table, substitute:
83 Subsection 219TSK(2) (table)
Repeal the table, substitute:
|
Number of penalty units |
||
|
Item |
In this case ... |
the number of penalty units is ... |
|
1 |
The notice relates to a single alleged contravention of a civil penalty provision (other than subsection 219EA(2), 219L(3) or 219M(1)) |
15. |
|
2 |
The notice relates to more than 1 alleged contravention of a civil penalty provision (other than subsection 219EA(2), 219L(3) or 219M(1)) |
the number obtained by multiplying 15 by: (a) if the number of alleged contraventions is less than 8--that number; or (b) otherwise--8. |
|
3 |
The notice relates to a single alleged contravention of subsection 219EA(2) or 219L(3) |
2. |
|
4 |
The notice relates to more than 1 alleged contravention of subsection 219EA(2) or 219L(3) |
the number obtained by multiplying 2 by: (a) if the number of alleged contraventions is less than 8--that number; or (b) otherwise--8. |
|
5 |
The notice relates to a single alleged contravention of subsection 219M(1) |
40. |
|
6 |
The notice relates to more than 1 alleged contravention of subsection 219M(1) |
the number obtained by multiplying 40 by: (a) if the number of alleged contraventions is less than 8--that number; or (b) otherwise--8. |
84 At the end of section 219TSN
Add:
Note: This Division also does not limit, nor is it affected by, other compliance measures in this Act (for example, sanctions under section 200).
85 After section 220
Insert:
220A Minister requiring person to assist in criminal proceedings
(1) A person commits an offence if:
(a) the Minister requests, in writing, the person to give all reasonable assistance in connection with criminal proceedings for an offence against this Act; and
(b) the person fails to comply with the request.
Penalty: 10 penalty units.
Note: This section does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, document or other things.
(2) A request under subsection (1) is not a legislative instrument.
(3) The Minister can request a person to assist under subsection (1) if, and only if:
(a) it appears to the Minister that the person is unlikely:
(i) to be a defendant in the proceedings; or
(ii) to have contravened a civil penalty provision constituted by the same, or substantially the same, conduct as the conduct to which the proceedings relates; and
(b) the Minister suspects or believes that the person can give information relevant to the proceedings.
(4) The Minister cannot request a person to assist under subsection (1) if the person is or has been a lawyer for a defendant or likely defendant in the proceedings.
(5) A court may order a person to comply with a request under subsection (1) in a specified way. Only the Minister may apply to the court for an order under this subsection .
(6) For the purposes of this section, it does not matter whether criminal proceedings for the offence have actually begun.
(7) In this section:
"offence against this Act" includes an offence against Chapter 7 of the Criminal Code that relates to this Act.
86 Application of amendments--general
(1) Subject to item 87, the amendments made by this Schedule apply in relation to conduct happening wholly after the commencement of this Schedule.
(2) In this item:
conduct means an act, an omission to perform an act or a state of affairs.
87 Application of amendments about keeping records
(1) This item applies if:
(a) immediately before the commencement of this Schedule, subsection 219F(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 required an approved child care service to keep records for a period; and
(b) but for the repeal of that subsection by this Schedule, that period would have ended at a time (the retention time ) after that commencement.
Note: Different records will have different retention times depending on when the period for keeping them started (see subsections 219F(1) and (2) of the A New Tax System (Family Assistance) (Administration) Act 1999 as in force immediately before the commencement of this Schedule).
Application of civil penalty provision
(2) Subsection 219F(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (as amended by this Schedule) applies in relation to the service and those records as if the period mentioned in paragraph (a) of that subsection were the period:
(a) starting at commencement; and
(b) ending at the retention time.
Application of offence provision
(3) Subsection 219F(2A) of the A New Tax System (Family Assistance) (Administration) Act 1999 (as amended by this Schedule) applies in relation to the service and those records as if the period mentioned in paragraph (a) of that subsection were the period:
(a) starting at commencement; and
(b) ending at the retention time.