Foreign Acquisitions and Takeovers Act 1975

PART 5 - OFFENCES AND CIVIL PENALTIES  

Division 4 - Miscellaneous  

Subdivision AA - Application of the Regulatory Powers Act - Infringement notices  

SECTION 101   MEANINGS OF TIER 1 INFRINGEMENT NOTICE, TIER 2 INFRINGEMENT NOTICE AND TIER 3 INFRINGEMENT NOTICE  

101(1)    
An infringement notice is a tier 1 infringement notice if:

(a)    the notice relates to an alleged contravention by a person of a civil penalty provision of this Act; and

(b)    

the person:

(i) unless subparagraph (ii) applies - notified (for the purposes of this Act) the Treasurer (or the Commissioner of Taxation on behalf of the Treasurer) of conduct that was the same, or substantially the same, as the conduct constituting the alleged contravention; or

(ii) if the civil penalty provision is section 130ZV - notified (for the purposes of this Act) the Treasurer, the Commissioner of Taxation on behalf of the Treasurer or the Registrar of conduct that was the same, or substantially the same, as the conduct constituting the alleged contravention; and

(c)    

at the time when the person made that notification, the Commonwealth had not yet indicated to the person, in writing, that the Commonwealth was considering investigating the conduct constituting the alleged contravention.

101(1A)    

For the purposes of paragraph (1)(c), treat the Commonwealth as having indicated to the person, in writing, that the Commonwealth was considering investigating the conduct constituting the alleged contravention if the Commonwealth gave the person any of the following:

(a)    a notice in writing requiring or inviting the person to show cause why the Commonwealth should not investigate that conduct;

(b)    a notice in writing indicating that the Commonwealth might issue an infringement notice in relation to that conduct;

(c)    any other similar notice in writing.

101(2)    

An infringement notice is a tier 2 infringement notice if:

(a)    the notice relates to an alleged contravention by a person of a civil penalty provision of this Act; and

(b)    subsection (1) does not apply in relation to the person and the conduct constituting the alleged contravention; and

(c)    any of the following apply:

(i) the civil penalty provision is a provision covered by subsection (3);

(ii) if the civil penalty provision is not subsection 95(1) or (4) - the requirement in subsection 101AA(1) is met in relation to the alleged contravention;

(iii) if the civil penalty provision is subsection 95(1) or (4) - the requirement in subsection 101AA(6) is met in relation to the alleged contravention.

101(3)    

For the purposes of subparagraph (2)(c)(i), this subsection covers the following provisions:

(a)    subsections 97(1) , (1A) and (2) ;

(b)    sections 98A , 98C , 98D and 98E ;

(c)    subsections 115D(1) , 115DA(1) and 115G(1) ;

(d)    section 130ZV .

101(4)    

An infringement notice is a tier 3 infringement notice if:

(a)    the notice relates to an alleged contravention by a person of a civil penalty provision of this Act; and

(b)    subsections (1) and (2) do not apply in relation to the person and the conduct constituting the alleged contravention.

101(5)    

Despite subsections (2) and (4), an infringement notice is a tier 2 infringement notice (and is not a tier 3 infringement notice ) if:

(a)    apart from this subsection, the infringement notice would be a tier 3 infringement notice; and

(b)    the Treasurer has decided that the infringement notice is covered by subsection (6).

101(6)    

The Treasurer may decide that an infringement notice is covered by this subsection if:

(a)    the infringement notice has not yet been given to the person; and

(b)    the Treasurer considers that it is appropriate for the infringement notice to be covered by this subsection, having regard to the matters set out in subsection (7).

101(7)    

For the purposes of paragraph (6)(b), the matters are as follows:

(a)    the conduct of the person after the alleged contravention, including:

(i) the nature of the steps (if any) that the person has taken to address the alleged contravention; and

(ii) the extent (if any) to which the person has cooperated with the Treasurer and the Commissioner of Taxation to address the alleged contravention;

(b)    whether the infringement notice being covered by subsection (6) would not be contrary to the national interest.