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HERITAGE (HERITAGE DIRECTIONS) AMENDMENT ACT 2005 (NO 39 OF 2005) - SECT 46

46—Insertion of section 38A

After section 38 insert:

38A—ERD Court orders

        (1)         If a person has engaged in conduct in contravention of this Act, an application may be made to the Court for 1 or more of the following orders:

            (a)         an order restraining the person, or an associate of the person, from engaging in the conduct and, if the Court considers it appropriate to do so, requiring the person, or an associate of the person, to take such action as may appear appropriate to the Court in the circumstances (including an order to rectify the consequences of any conduct (including an order to make good, to the satisfaction of the Minister, any damage caused by any conduct), or to ensure that a further contravention does not occur);

            (b)         an order that the person pay into the Fund an amount, determined by the Court to be appropriate in the circumstances, on account of any financial benefit that the person, or an associate of the person, has gained, or can reasonably be expected to gain, as a result of the contravention;

            (c)         an order that the person pay into the Fund an amount as a monetary penalty on account of the contravention.

        (2)         Any question that falls to be determined for the purposes of an application under subsection (1) will be determined on the balance of probabilities.

        (3)         The power conferred by subsection (1) may only be exercised by a Judge of the Court.

        (4)         The power of the Court to make an order restraining a person from engaging in conduct of a particular kind may be exercised whether or not it appears to the Court that the person intends to continue to engage in conduct of that kind.

        (5)         The following additional provisions apply in connection with the operation of paragraph (c) of subsection (1):

            (a)         an application may not be made under that paragraph to recover an amount from a person as a civil penalty in respect of a contravention of a provision that constitutes an offence—

                  (i)         unless the Minister has served on the person a notice in the prescribed form advising the person that the person may, by written notice to the Minister, elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the Minister's notice to make such an election; or

                  (ii)         if the person serves written notice on the Minister, before the making of such an application, that the person elects to be prosecuted for the contravention;

            (b)         the maximum amount that may be required to be paid under that paragraph in respect of a contravention of a provision that constitutes an offence is the amount specified by this Act as the criminal penalty in relation to that contravention;

            (c)         if conduct of a person constitutes a contravention of 2 or more provisions of this Act, an amount may be recovered in relation to the contravention of any one or more of those provisions (provided that the person is not liable to pay more than one amount under that paragraph in respect of the same conduct);

            (d)         in determining the amount to be paid by a person, regard must be had to the following matters:

                  (i)         the nature and extent of the contravention;

                  (ii)         the heritage significance of any place or object affected by the contravention and any detriment to the public interest resulting from the contravention;

                  (iii)         whether the relevant person has previously been found, in proceedings under this Act, to have engaged in similar conduct;

                  (iv)         any other matter considered to be relevant;

            (e)         the recovery of an amount under that paragraph constitutes an alternative to any relevant criminal proceedings and accordingly:

                  (i)         if an amount is paid under that paragraph, criminal proceedings may not be initiated against the relevant person for an offence constituted by conduct that is the same (or substantially the same) as the conduct alleged to constitute the contravention in relation to which the amount has been paid; and

                  (ii)         proceedings for an order under that paragraph, or for the enforcement of such an order, are stayed if criminal proceedings are started or have already been started against the relevant person for an offence constituted by conduct that is the same (or substantially the same) as the conduct alleged to constitute the contravention to which the proceedings relate, and may only be resumed if the criminal proceedings do not result in a formal finding of guilt being made against the person;

            (f)         evidence of information given or evidence of the production of documents by a person in the course of discussions or proceedings with respect to the making of an order under that paragraph in relation to a contravention of this Act is not admissible in criminal proceedings against the relevant person if the conduct alleged to constitute the offence is the same (or substantially the same) as the conduct alleged to constitute the contravention, other than where the criminal proceedings relate to the making of a false or misleading statement.

        (6)         An application under this section may be made—

            (a)         by the Minister; or

            (b)         by a local council; or

            (c)         by any other person acting with the leave of the Court.

        (7)         The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.

        (8)         The Court may, in any proceedings under this section, make such orders in relation to the costs of the proceedings as it thinks just and reasonable.

        (9)         A person who fails to comply with an order under subsection (1)(a) is guilty of an offence.

Maximum penalty: $120 000.

        (10)         If a person fails to carry out any work required by an order under subsection (1), the Minister may cause the necessary work to be carried out and recover the cost of doing so, as a debt, from the person against whom the order was made.

        (11)         For the purposes of this section, a person is an associate of another if—

            (a)         they are partners; or

            (b)         one is a spouse, parent or child of another; or

            (c)         they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or

            (d)         one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body corporate or other entity; or

            (e)         one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5 per cent or more of the share capital of the body corporate or other entity; or

            (f)         they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or

            (g)         a chain of relationships can be traced between them under any one or more of the above paragraphs.

        (12)         For the purposes of subsection (11), a "beneficiary" of a trust includes an object of a discretionary trust.



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