South Australian Numbered Acts South Australian Numbered Acts26—Insertion of sections 63BB and 63BC
After section 63B (now designated as section 63BA—see section 25
of this Act) insert:
63BB—Offence to act contrary to assurance
(1) A person who acts contrary to, or fails to comply with, an assurance accepted by the Commission or the Technical Regulator is guilty of an offence.
Maximum penalty: $20 000.
(2) Proceedings for an offence against subsection (1)
must not be commenced except—
(a) in the case of an assurance accepted by the Commission—on the authorisation of the Commission; or
(b) in the case of an assurance accepted by the Technical Regulator—on the authorisation of the Technical Regulator.
(3) An apparently genuine document purporting to be under the hand of the Commission or the Technical Regulator and to authorise the commencement of proceedings under this section must be accepted in legal proceedings, in the absence of proof to the contrary, as proof of the authorisation.
63BC—Enforcement orders in relation to assurances
(1) If the District Court is satisfied, on an application under this section, that a person has acted contrary to, or failed to comply with, an assurance accepted under this Division, the Court may make any or all of the following orders:
(a) an order prohibiting the person from engaging in specified conduct;
(b) an order directing the person to take specified action to comply with the assurance;
(c) an order directing the person to pay to the Crown an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach of, or non-compliance with, the assurance;
(d) any order that the Court considers appropriate directing the person to compensate any person who has suffered loss or damage as a result of the breach of, or non-compliance with, the assurance;
(e) any other order that the Court considers appropriate.
(2) An application under this section may be made—
(a) in the case of an assurance accepted by the Commission—by the Commission; or
(b) in the case of an assurance accepted by the Technical Regulator—by the Technical Regulator.
(3) The Court may make an interim order under subsection (1)(a)
pending final determination of the application.
(4) The Court may, on the application of the Commission, the Technical Regulator or a person, vary or discharge an order under subsection (1)(a)
.
(5) An order under subsection (1)(a)
may be made subject to such conditions as the Court thinks fit.
(6) The Court must not make an order under this section (other than an interim order) unless satisfied on the balance of probabilities that proper grounds for the order have been established.