Schedule 1 Amendments

(regulation 3)

[1] Regulation 1.7, after definition of Act

insert

authorised person, for Part 6, means:

(a) the Chairman; or

(b) a member of the staff of the ACA authorised in writing by the Chairman for that Part.

[2] Part 6

substitute

Part 6 Technical regulation

6.1 Purpose of Part

This Part provides a procedure under which a person who is alleged to have committed an offence against a provision mentioned in section 453A of the Act may, as an alternative to having the matter dealt with by a court, dispose of the matter by paying a monetary penalty (an infringement notice penalty) specified in a notice (an infringement notice) served on the person.

6.2 Use of infringement notices

If there are reasonable grounds for believing that a person has committed an offence against a provision mentioned in section 453A of the Act, an authorised person may issue an infringement notice for that person.

6.3 Contents of infringement notice

(1) An infringement notice must be signed by the authorised person who issues it and set out the following information:

(a) the name of the authorised person who issues it;

(b) the nature of the offence, the provision of the Act containing the offence and when and where the offence is alleged to have been committed;

(c) a statement to the effect that, if the person on whom the notice is served does not wish the matter to be dealt with by a court, he or she may pay a penalty of the amount mentioned in section 453A of the Act for the alleged offence within 28 days after service of the notice unless the notice is sooner withdrawn;

(d) the maximum penalty that a court could impose for the offence;

(e) the amount payable as the infringement notice penalty;

(f) where and how the infringement notice penalty may be paid;

(g) a statement setting out the procedures under these Regulations for the withdrawal of notices and the consequences of the withdrawal of a notice;

(h) a statement setting out the procedures under these Regulations for extending the period within which the penalty must be paid;

(i) a statement that, if the person pays the penalty within the period mentioned in the notice or any further period allowed under regulation 6.5 or subregulation 6.6 (3), or if the notice is withdrawn after the person has paid the penalty:

(i) any liability of the person for the alleged offence is regarded as being discharged; and

(ii) no further proceedings may be taken for the alleged offence; and

(iii) the person is not to be regarded as having been convicted of the alleged offence.

(2) An infringement notice may contain any other matters that the ACA considers relevant.

6.4 Service of an infringement notice

(1) An authorised person may serve an infringement notice on an individual:

(a) by giving it to the individual personally; or

(b) by leaving it at, or sending it by post to, the residential or business address of the individual that is last known to the authorised person; or

(c) by giving it, at the place of residence or business that is last known to the authorised person, to a person who the authorised person reasonably believes:

(i) is over the age of 16 years; and

(ii) lives or works at the place.

(2) An authorised person may serve an infringement notice on a body corporate:

(a) by sending it by post to the head office, registered office, principal office or other postal address of the body corporate; or

(b) by giving it, at the head office, registered office, principal office or other place of business of the body corporate, to a person who the authorised person reasonably believes is:

(i) over the age of 16 years; and

(ii) an officer of, or in the service of, the body corporate.

(3) An infringement notice may also be served:

(a) by another person acting for an authorised person in the manner mentioned in subregulation (1) or (2); or

(b) by an authorised person, or by another person acting for an authorised person, by fax to the fax number last known to the person sending the fax as the number at which the person being served receives fax transmissions.

(4) In the absence of evidence to the contrary, a fax transmission is taken to have been given to a person when the transmission is sent to the number mentioned in paragraph (3) (b).

(5) An infringement notice must be served not later than 10 months after the alleged commission of the offence.

6.5 Extension of time to pay

(1) On written application by a person within 28 days after service of an infringement notice on the person, an authorised person may grant, if satisfied that in all the circumstances it is reasonable to do so, a further period of up to 14 days for payment of the infringement notice penalty.

(2) The authorised person must:

(a) grant or refuse a further period; and

(b) give the applicant written notice of the decision; and

(c) if the decision is a refusal — mention in the notice the reasons for refusal and the period within which the infringement notice penalty must be paid.

(3) The time for payment of the infringement notice penalty is:

(a) if a further period is granted — before the end of that period; or

(b) if the decision is a refusal — before the later of:

(i) the end of 7 days after receiving notice of the refusal; or

(ii) the end of the 28-day period; or

6.6 Infringement notice may be withdrawn

(1) If an infringement notice has been served on a person, an authorised person may at any time before the end of 28 days after the service of the notice, or any further period granted under regulation 6.5 or subregulation (3), by notice in writing served on the person, withdraw the infringement notice.

(2) Before the end of 28 days after service of an infringement notice on a person, the person may give the authorised person, in the manner set out in the infringement notice, material that the person believes ought to be taken into account in relation to the alleged offence.

(3) If a person gives the authorised person material under subregulation (2), the authorised person must:

(a) extend the time for payment of the penalty to any extent necessary for a decision to be made under paragraph (b); and

(b) decide whether to withdraw, or refuse to withdraw, the infringement notice; and

(d) if the decision is a refusal — mention in the notice the reasons for refusal.

(4) If the authorised person decides to refuse to withdraw the infringement notice, notice of that decision must state that:

(a) the person will not be prosecuted for the alleged offence if the amount of the infringement notice penalty is paid before the later of:

(i) 28 days after service of the infringement notice; or

(ii) 7 days after notice of the decision is given to the person; and

(b) if that amount is not so paid, the person may be prosecuted for the alleged offence.

(5) In making a decision, the authorised person must consider:

(a) the material given under subregulation (2), unless the authorised person thinks that the material does not include any grounds for deciding whether or not to withdraw the infringement notice; and

(b) the circumstances in which the offence mentioned in the notice is alleged to have been committed; and

(d) whether an infringement notice has previously been given to the person for an offence of the same kind as the offence mentioned in the notice; and

(e) any other matter the authorised person considers relevant to the decision.

Note Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

(6) If an infringement notice is withdrawn after a person pays the infringement notice penalty, the authorised person must refund to the person the amount paid.

6.7 Payment of penalty if infringement notice not withdrawn

If an authorised person refuses to withdraw an infringement notice, the time for payment of the infringement notice penalty is before the later of:

(a) 28 days after service of the infringement notice; or

(b) 7 days after notice of the decision not to withdraw the infringement notice is given to the person.

6.8 Effect of payment of infringement notice penalty

If a person who is served with an infringement notice pays the infringement notice penalty in accordance with this Part and the notice is not withdrawn:

(a) the person’s liability for the offence is discharged; and

(b) no further proceedings may be taken against the person for the offence; and

6.9 Payment of penalty by cheque

If all or part of the amount of a penalty is paid by cheque, payment is taken not to have been made unless the cheque is honoured upon presentation.

6.10 Effect of this Part on institution and prosecution of proceedings

(1) Nothing in this Part:

(a) requires an infringement notice to be served for an alleged offence; or

(b) affects the liability of a person to be prosecuted for an alleged offence if:

(i) an infringement notice is not served on the person for the offence; or

(ii) an infringement notice is served, and withdrawn; or

(d) prevents the issue of more than 1 infringement notice for a person for the same offence.

(2) If more than 1 infringement notice is issued for a person for the same offence, regulation 6.8 applies to the person if the person pays the infringement notice penalty for the alleged offence in accordance with any of those notices.

6.11 Matter not to be taken into account in determining sentence

(1) This regulation applies if a person who is served with an infringement notice:

(a) chooses not to pay the infringement notice penalty; and

(b) is prosecuted for, and convicted of, the alleged offence mentioned in the infringement notice.

(2) In determining the penalty to be imposed, the court must not take into account the fact that the person chose not to pay the infringement notice penalty.

6.12 Evidence for hearing

(1) At the hearing of a prosecution for an offence mentioned in an infringement notice, each of the following certificates is evidence of the facts stated in the certificate:

(a) a certificate signed by an authorised person that states that:

(i) the infringement notice was served on the alleged offender; and

(ii) the infringement notice penalty was not paid in accordance with this Part;

(b) a certificate signed by an authorised person that states that the notice was withdrawn on a day specified in the certificate;

(i) under regulation 6.5, a further period for payment of the infringement notice penalty was or was not refused; and

(ii) the infringement notice penalty was not paid in accordance with this Part;

(d) a certificate signed by an authorised person that states that:

(i) for regulation 6.5, the further time mentioned in the certificate for payment of the infringement notice penalty was or was not granted; and

(ii) the infringement notice penalty was not paid in accordance with the infringement penalty notice or within the further time.

(2) A certificate that purports to have been signed by an authorised person is taken to have been signed by the authorised person unless the contrary is proved.

Notes

1. These Regulations amend Statutory Rules 2001 No. 65, as amended by 2001 No. 338; 2002 Nos. 99, 203 and 297.

2. Notified in the Commonwealth of Australia Gazette on 23 December 2003.