Document ID: chunk:federal_register_of_legislation:C2008A00159:clause:1_486r:p1
Version: federal_register_of_legislation:C2008A00159
Segment Type: clause
Provision Reference: sch 1 cl 486R (pt 1/2)
Character Range: 46179–48901

486R  Person may be ordered to pay pecuniary penalty for contravening civil penalty provision

Application for order

 (1) Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the Minister may apply to the Federal Court or the Federal Magistrates Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.

Court may order wrongdoer to pay pecuniary penalty

 (2) If the court is satisfied that the wrongdoer has contravened a civil penalty provision, the court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the court determines is appropriate (but not more than the relevant amount specified for the provision).

Determining amount of pecuniary penalty

 (3) In determining the pecuniary penalty, the court must have regard to all relevant matters, including:
 (a) the nature and extent of the contravention; and
 (b) the nature and extent of any loss or damage suffered as a result of the contravention; and
 (c) the circumstances in which the contravention took place; and
 (d) whether the person has previously been found by a court in proceedings under this Act to have engaged in the same or similar conduct.

 (4) For the purpose of paragraph (3)(d), in relation to proceedings for a contravention of a civil penalty provision in Division 3A of Part 2, a person is taken to have engaged in similar conduct if the person has failed to satisfy a sponsorship obligation that is different from the sponsorship obligation to which the proceedings relate. However, this subsection does not limit the circumstances in which a person may be found to have engaged in similar conduct.

Civil evidence and procedure rules apply

 (5) The court must apply the rules of evidence and procedure for civil matters when hearing and determining an application for an order under this section.

Note: The standard of proof in civil proceedings is the balance of probabilities: see section 140 of the Evidence Act 1995.

Court may order wrongdoer to pay amount prescribed by regulations

 (6) If, when determining an application for an order under this section, it appears to the court that:
 (a) an amount of a kind prescribed in the regulations is required to be paid to:
 (i) the Commonwealth, or a State or Territory; or
 (ii) another person; and
 (b) the amount remains unpaid after the time for payment; and
 (c) proceedings to recover the amount have not been brought under section 140S;
the court may order that the amount be paid to the Commonwealth, State, Territory or other person (as the case may be).

Note: Section 140S allows a person to bring proceedings to recover an amount owed if the court does not make