National Consumer Credit Protection Act 2009

CHAPTER 4 - REMEDIES  

PART 4-1 - CIVIL PENALTY PROVISIONS  

Division 3 - General provisions relating to civil penalty provisions  

SECTION 175C   MISTAKE OF FACT  

175C(1)    
A person is not liable to have a declaration of contravention, a pecuniary penalty order, a relinquishment order or any other order made against the person for a contravention of a civil penalty provision if:

(a) at or before the time of the conduct constituting the contravention, the person:

(i) considered whether or not facts existed; and

(ii) was under a mistaken but reasonable belief about those facts; and

(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.

175C(2)    
For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:

(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

175C(3)    
A person who wishes to rely on subsection (1) or (2) in proceedings bears an evidential burden in relation to that matter.

175C(4)    
In subsection (3), evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.