Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 (118 of 2007)

Schedule 2   Civil penalties

A New Tax System (Family Assistance) (Administration) Act 1999

7   After Part 8B

Insert:

Part 8C - Civil penalties

Division 1 - Civil penalty orders

219TSA Definitions

In this Division:

civil penalty order means an order under subsection 219TSC(1).

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

219TSB Ancillary contravention of civil penalty provision

(1) A person must not:

(a) attempt to contravene a civil penalty provision (other than this subsection); or

(b) aid, abet, counsel or procure a contravention of a civil penalty provision (other than this subsection); or

(c) induce, whether by threats or promises or otherwise, a contravention of a civil penalty provision (other than this subsection); or

(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision (other than this subsection); or

(e) conspire with others to effect a contravention of a civil penalty provision (other than this subsection).

(2) Subsection (1) is a civil penalty provision .

219TSC Civil penalty orders

(1) If the Federal Court of Australia or the Federal Magistrates Court is satisfied that a person has contravened a civil penalty provision, the court may, on the application of the Minister, order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the court determines to be appropriate.

(2) An order under subsection (1) is to be known as a civil penalty order .

Determining 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 any similar conduct.

Civil enforcement of penalty

(4) The pecuniary penalty is a civil debt payable to the Commonwealth.

(5) The Commonwealth may enforce the order under subsection (1) as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

Note: If a civil penalty order is made in relation to a person who operates an approved child care service, the Secretary may be able to take further action against the service under section 200.

219TSD Maximum penalties for contravention of civil penalty provisions

The pecuniary penalty payable under subsection 219TSC(1) by a person in respect of a contravention of a civil penalty provision is not to exceed:

(a) for a contravention by a body corporate - 60 penalty units; and

(b) for a contravention by a person other than a body corporate - 30 penalty units.

219TSE Proceedings may be heard together

The Federal Court of Australia or the Federal Magistrates Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

219TSF Time limit for application for an order

Proceedings for a civil penalty order may be started no later than 4 years after the contravention.

219TSG Civil evidence and procedure rules for civil penalty orders

The Federal Court of Australia or the Federal Magistrates Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

Division 2 - Infringement notices

219TSH Definitions

In this Division:

authorised person means:

(a) the Secretary; or

(b) an officer appointed under section 219TSO.

civil contravention means a contravention of a civil penalty provision.

infringement notice means an infringement notice under section 219TSI.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

219TSI When an infringement notice can be given

(1) If an authorised person has reasonable grounds to believe that a person has, on a particular day, committed one or more contraventions of a particular civil penalty provision, the authorised person may give to the person an infringement notice relating to those contraventions.

(2) An infringement notice must be given within 12 months after the day on which the civil contraventions are alleged to have taken place.

219TSJ Matters to be included in an infringement notice

(1) An infringement notice must:

(a) set out the name of the person to whom the notice is given; and

(b) set out the name of the approved child care service concerned; and

(c) set out the name of the authorised person who gave the notice; and

(d) set out brief details of each of the alleged civil contraventions; and

(e) contain a statement to the effect that the matter or matters will not be dealt with by the Federal Court of Australia or the Federal Magistrates Court if the penalty specified in the notice is paid to the Commonwealth, within:

(i) 28 days after the notice is given; or

(ii) if the Secretary allows a longer period - that longer period; and

(f) give an explanation of how payment of the penalty is to be made; and

(g) set out such other matters (if any) as are specified by the regulations.

(2) For the purposes of paragraph (1)(d), the brief details must include the following information in relation to each alleged civil contravention:

(a) the date of the alleged contravention;

(b) the civil penalty provision that was allegedly contravened.

219TSK Amount of penalty

Infringement notice given to a body corporate

(1) The penalty to be specified in an infringement notice given to a body corporate must be a pecuniary penalty equal to the number of penalty units worked out using the table:

Infringement notice given to a person other than a body corporate

(2) The penalty to be specified in an infringement notice given to a person other than a body corporate must be a pecuniary penalty equal to the number of penalty units worked out using the table:

219TSL Withdrawal of an infringement notice

(1) This section applies if an infringement notice is given to a person.

(2) An authorised person may, by written notice (the withdrawal notice ) given to the person, withdraw the infringement notice.

(3) To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.

Refund of penalty if infringement notice withdrawn

(4) If:

(a) the penalty specified in the infringement notice is paid; and

(b) the infringement notice is withdrawn after the penalty is paid;

the Commonwealth is liable to refund the penalty.

219TSM What happens if the penalty is paid

(1) This section applies if:

(a) an infringement notice relating to one or more alleged civil contraventions is given to a person; and

(b) the penalty is paid in accordance with the infringement notice; and

(c) the infringement notice is not withdrawn.

(2) Any liability of the person for the alleged civil contraventions is discharged.

(3) Proceedings under Division 1 must not be brought against the person for the alleged civil contraventions.

219TSN Effect of this Division on civil proceedings

This Division does not:

(a) require an infringement notice to be given in relation to an alleged civil contravention; or

(b) affect the liability of a person to have proceedings under Division 1 brought against the person for an alleged civil contravention if:

(i) the person does not comply with an infringement notice relating to the contravention; or

(ii) an infringement notice relating to the contravention is not given to the person; or

(iii) an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or

(c) limit the discretion of the Federal Court of Australia or the Federal Magistrates Court to determine the amount of a penalty to be imposed on a person who is found in proceedings under Division 1 to have contravened a civil penalty provision.

219TSO Appointment of authorised person

The Secretary may, by writing, appoint an officer of the Department as an authorised person for the purposes of this Division.

219TSP Regulations

The regulations may make further provision in relation to infringement notices.

Division 3 - Suspension of approved child care service's approval

219TSQ Suspension of approved child care service's approval

(1) The Secretary must, by notice given to a person who operates an approved child care service, suspend the service's approval if:

(a) 10 infringement notices under section 219TSI are given to the person in relation to the service within a period (the infringement period ) of 12 months; and

(b) in relation to each notice, the time for paying the penalty specified in the notice has ended before the end of the infringement period.

(2) The notice must:

(a) specify a day, not earlier than the day on which the notice is given, on which the suspension takes effect; and

(b) specify the grounds upon which the Secretary has suspended the service's approval.

(3) The Secretary may, by notice given to a person who operates the service, revoke the suspension with effect from the day specified in the notice.