Western Australian Current Acts Western Australian Current Acts (1) In this section
—
financial assurance means a financial assurance
provided pursuant to a condition imposed under section 81 or a requirement
under section 98.
(2) This section
applies if the CEO incurs costs in taking action under section 102, 103,
116(5) or 117 and the person from whom those costs are or would be recoverable
under this Act (the responsible person ) is a person who has provided a
financial assurance.
(3) The CEO may
recover the reasonable costs of taking the action by making a claim on or
realising the financial assurance or part of it.
(4) Before making the
claim on or realising the financial assurance or part of it, the CEO must make
reasonable endeavours to give the responsible person a written notice under
this section.
(5) The written notice
must —
(a)
state details of the action taken; and
(b)
state the amount of the financial assurance to be claimed or realised; and
(c)
invite the responsible person to make representations in writing to the CEO to
show why the financial assurance should not be claimed or realised as
proposed; and
(d)
state the period (at least 30 days after the notice is given to the
responsible person) within which representations may be made.
(6) After the end of
the period stated in the notice, the CEO must consider any representations in
writing made by the responsible person.
(7) If the CEO decides
to make a claim on or realise the financial assurance or part of it, the CEO
must make reasonable endeavours to give written notice to the responsible
person of the decision and the reasons for the decision.
(8) Any costs
recovered under this section must be paid into the Consolidated Account.
(9) Subject to
subsection (11), a financial assurance may be called on and used, despite and
without affecting —
(a) any
liability of the responsible person to any penalty for an offence for a
contravention to which the financial assurance relates; and
(b) any
other action that might be taken or is required to be taken in relation to any
contravention or other circumstances to which the financial assurance relates.
(10) If the amount of
the financial assurance claimed or realised does not cover all the costs
concerned, the CEO may recover the excess from the responsible person under
section 102, 103, 116(5) or 117, as the case requires.
(11) The CEO is not
entitled —
(a) to
recover costs under section 102, 103, 116(5) or 117 if a financial assurance
has been called on and used in respect of those costs (except to the extent
that the financial assurance does not cover all the costs); or
(b) to
call on or use a financial assurance in respect of costs which have been
recovered under section 102, 103, 116(5) or 117.
[Section 118 amended: No. 6 of 2015 s. 42, 51 and
53.]