Bankruptcy Amendment Regulations 2010 (No. 2) (287 of 2010)

Schedule 1   Amendments

[10]   After regulation 14.02

insert

Division 2 Infringement notices

14.03 Purpose and effect of Division

(1) For section 277B of the Act, this Division establishes an infringement notice scheme, as an alternative to prosecution, for infringement notice offences.

(2) This Division does not:

(a) require an infringement notice to be issued to a person for an infringement notice offence; or

(b) affect the liability of a person to be prosecuted for an infringement notice offence if an infringement notice is not issued to the person for the offence; or

(c) prevent the issue of 2 or more infringement notices to a person for an infringement notice offence; or

(d) affect the liability of a person to be prosecuted for an infringement notice offence if the person does not comply with an infringement notice for the offence; or

(e) limit or otherwise affect the penalty that may be imposed by a court on a person convicted of an infringement notice offence.

14.04 Definitions

In this Division:

infringement notice means an infringement notice served under regulation 14.05.

infringement notice offence means an offence mentioned in the table in subsection 277B (2) of the Act.

infringement penalty , for an infringement notice offence, means the penalty for the offence mentioned in the table in subsection 277B (2) of the Act.

14.05 When infringement notices can be issued

If the Inspector-General has reasonable grounds to believe that a person has committed an infringement notice offence, the Inspector-General may, within 12 months after the alleged commission of the offence, issue the person with an infringement notice for the offence.

14.06 Contents of infringement notice

(1) An infringement notice must:

(a) be identified by a unique number; and

(b) state that the notice is issued under these Regulations; and

(c) state the name of the person who issued the notice and how the person may be contacted; and

(d) be signed by the person who issued the notice; and

(e) state the name and address of the person to whom it is issued; and

(f) set out brief details of the offence the person is alleged to have committed, including:

(i) the infringement notice offence that was allegedly contravened; and

(ii) the maximum penalty that may be imposed by a court for the offence; and

(g) state the amount of the infringement penalty that is payable under the notice; and

(h) state how and where the infringement penalty can be paid, including:

(i) the period in which the penalty may be paid; and

(ii) if the penalty can be paid by posting the payment - the place to which it should be posted; and

(i) state that if the person pays the infringement penalty in time:

(i) any liability of the person for the offence is discharged; and

(ii) a prosecution of the offence may not be brought against the person; and

(iii) the person is not regarded as having admitted guilt or liability for the offence; and

(iv) the person is not regarded as having been convicted of the offence; and

(j) state that the person may apply to the Inspector-General for an extension of time in which to pay the infringement penalty; and

(k) set out how the notice may be withdrawn; and

(l) state that if the notice is withdrawn:

(i) any amount of penalty paid under the notice must be refunded to the person; and

(ii) the person may be prosecuted in a court for the offence; and

(m) state that the person may apply in writing to the Inspector-General requesting the withdrawal of the notice.

(2) An infringement notice may contain any other information that the Inspector-General considers necessary.

14.07 Method of serving infringement notices

(1) An infringement notice must be served on the person to whom it is issued.

(2) An infringement notice may be served on an individual:

(a) personally or by post; or

(b) by leaving the notice:

(i) at the last-known place of residence or business of the person; and

(ii) with a person, apparently over the age of 16 years, who appears to live or work at the place.

(3) An infringement notice may be served on a corporation:

(a) by leaving it at, or by sending it by post to, the address of the head office, a registered office or a principal office, of the corporation; or

(b) by giving it, at an office mentioned in paragraph (a), to someone who is, or who the person serving the notice reasonably believes is, an officer or employee of the corporation.

(4) Subject to subregulation (5), an infringement notice may be served on a registered trustee or a registered debt agreement administrator by sending it by electronic communication to the trustee's or administrator's business email address.

(5) An infringement notice must not be sent by electronic communication unless the Inspector-General believes, on reasonable grounds, that the registered trustee or a registered debt agreement administrator will access the email account to which the notice is sent.

14.08 Time for payment of infringement penalty

The penalty specified in an infringement notice must be paid:

(a) within 28 days after the day the notice is served on the person to whom it is issued; or

(b) if the person applies for an extension of time in which to pay the infringement penalty and that application is granted - within the extension period allowed; or

(c) if the person applies for an extension of time in which to pay the infringement penalty and the application is refused - before the end of the later of:

(i) 7 days after day the notice of the refusal is served on the person; and

(ii) 28 days after the day the infringement notice is served on the person; or

(d) if the person applies for the notice to be withdrawn and the application is refused - within 28 days after the day the notice of the refusal is served on the person.

14.09 Extension of time to pay infringement penalty

(1) A person served with an infringement notice may apply, in writing, to the Inspector-General for an extension of time of up to 28 days in which to pay the infringement penalty specified in the notice.

(2) If the application is made after the end of the 28 day period specified in the notice for payment of the infringement penalty, the application must include a statement explaining why the person could not deal with the notice within that period.

(3) Within 14 days after receiving the application, the Inspector-General must:

(a) grant, or refuse to grant, an extension of time to pay the infringement penalty; and

(b) notify the person in writing of the decision, and, if the decision is a refusal, the reasons for the decision.

(4) Notice of the decision may be served on the person in any way in which the infringement notice could have been served on the person.

14.10 Withdrawal of infringement notice

(1) Before the end of 28 days after receiving an infringement notice, a person may apply, in writing, to the Inspector-General for the infringement notice to be withdrawn.

(2) Within 14 days after receiving the application, the Inspector-General must:

(a) withdraw, or refuse to withdraw, the notice; and

(b) notify the person in writing of the decision, and, if the decision is a refusal, the reasons for the decision.

(3) Before withdrawing, or refusing to withdraw, a notice, the Inspector-General must consider:

(a) the circumstances of the offence stated in the notice; and

(b) whether there are exceptional circumstances to justify the withdrawal; and

(c) any other relevant matter.

(4) The Inspector-General may also withdraw an infringement notice without an application having been made if he or she believes it is appropriate to do so in all the circumstances of the particular case.

14.11 Notice of withdrawal of infringement notices

(1) Notice of the withdrawal of an infringement notice may be served on a person in any way in which the infringement notice could have been served on the person.

(2) A notice withdrawing an infringement notice served on a person for an offence:

(a) must include the following information:

(i) the name and address of the person;

(ii) the number of the infringement notice;

(iii) the date of issue of the infringement notice; and

(b) must state that the notice is withdrawn; and

(c) if it is proposed that a prosecution be brought against the person for the offence - must state that the person may be prosecuted in a court for the offence.

14.12 Refund of infringement penalty

If an infringement notice is withdrawn after the infringement penalty specified in it has been paid, the Inspector-General must refund the amount of the penalty to the person who paid it.

14.13 Effect of payment of infringement penalty

If a person served with an infringement notice pays the infringement penalty specified in the notice within the period specified in the notice (or any further period of time allowed under regulation 14.09):

(a) any liability of the person for the offence is discharged; and

(b) a prosecution of the offence may not be brought against the person for the offence; and

(c) the person is not regarded as having admitted guilt or liability for the offence; and

(d) the person is not regarded as having been convicted of the offence.

14.14 Payment of infringement penalty - cheques

If a person pays an infringement penalty by cheque, payment is not taken to have been made until the cheque has been honoured on presentation.

14.15 Evidentiary certificates

(1) The Inspector-General may sign a certificate that states any of the following in relation to an infringement notice served on a person:

(a) that the infringement penalty specified in the infringement notice was not paid by the person within the time specified in the notice;

(b) that the Inspector-General granted, or refused to grant, an extension of time to the person to pay the infringement penalty;

(c) that the infringement penalty was not paid by the person within the period specified in the extension;

(d) that the infringement notice was withdrawn under regulation 14.10 on a day specified in the certificate.

(2) At a hearing of a prosecution for an offence mentioned in an infringement notice, a certificate signed by the Inspector-General in accordance with subregulation (1) is evidence of the matters specified in the certificate.

(3) A certificate that purports to be signed by the Inspector-General is taken to have been signed by the Inspector-General unless the contrary is proved.