Western Australian Numbered Acts Western Australian Numbered Acts At the end of
Part III insert:
Division 3 — Civil infringement notices
In this
Division —
civil infringement notice has the meaning given in
section 84C(2);
civil infringement notice penalty has the meaning
given in section 84C(2);
nominated person means the person to whom a
recipient can apply —
(a) to
have a civil infringement notice withdrawn; or
(b) to
be allowed more time to pay a civil infringement notice penalty;
recipient means a person to whom a civil
infringement notice is given under section 84C(2).
84C. Giving civil infringement notice
(1) This section
applies if an industrial inspector reasonably believes that a person has
committed 1 or more contraventions of a record-related civil penalty provision
other than section 49D(8) or 49DA(3).
(2) The industrial
inspector may give to the person a notice (a civil infringement notice )
relating to the alleged contravention or contraventions inviting the person,
as an alternative to proceedings under section 83E, to pay to the
Treasurer a penalty specified in the notice (a civil infringement notice
penalty ).
(3) The civil
infringement notice must be given within 12 months after the day on which
the contravention or contraventions are alleged to have taken place.
(4) This section does
not authorise the giving of 2 or more civil infringement notices to a person
in relation to contraventions of a record-related civil penalty provision
that allegedly —
(a) took
place on the same day; and
(b)
relate to the same action or conduct by the person.
84D. Content of civil infringement notice
(1) A civil
infringement notice must —
(a)
specify the recipient’s full name; and
(b)
specify the recipient’s address; and
(c)
specify the name of the industrial inspector who issued it; and
(d)
specify its date of issue; and
(e) set
out brief details of the alleged contravention or contraventions, including
the record-related civil penalty provision that has been allegedly
contravened; and
(f)
specify the civil infringement notice penalty; and
(g)
state how the civil infringement notice penalty can be paid; and
(h)
specify the maximum penalty that the industrial magistrate’s court could
impose on the recipient for the alleged contravention or contraventions; and
(i)
identify the nominated person; and
(j)
explain how the recipient can apply to the nominated person —
(i)
to have the civil infringement notice withdrawn; or
(ii)
to be allowed more time to pay the civil infringement
notice penalty;
and
(k)
state the effect of the recipient paying the civil infringement notice penalty
within the required time, as explained in section 84I; and
(l) be
signed by the industrial inspector who issued it.
(2) The civil
infringement notice may contain any other information that the industrial
inspector who issues it thinks necessary.
84E. Amount of civil infringement notice penalty
A civil infringement
notice penalty must not exceed one-tenth of the statutory penalty that the
industrial magistrate’s court could have ordered the recipient to pay
under section 83E(1) for contravening the record-related civil penalty
provision specified in the civil infringement notice.
84F. Time for payment of civil infringement notice
penalty
(1) A civil
infringement notice penalty must be paid within 28 days after the day on
which the notice is served on the recipient unless subsection (2), (3) or
(4) applies.
(2) If the recipient
applies for a further period of time in which to pay the civil infringement
notice penalty and the application is granted, the penalty must be paid within
the further period allowed.
(3) If the recipient
applies for a further period of time in which to pay the civil infringement
notice penalty and the application is refused, the penalty must be paid within
7 days after the notice of the refusal is served on the recipient.
(4) If the recipient
applies for the notice to be withdrawn and the application is refused, the
civil infringement notice penalty must be paid within 28 days after the
notice of the refusal is served on the recipient.
84G. Extension of time to pay civil infringement
notice penalty
(1) Before the end of
28 days after receiving a civil infringement notice, the recipient may
apply, in writing, to the nominated person for a further period of up to
28 days in which to pay the civil infringement notice penalty.
(2) Within
14 days after receiving the application, the nominated person
must —
(a)
grant or refuse a further period not longer than the period sought (but less
than 28 days); and
(b)
notify the recipient in writing of the decision and, if the decision is a
refusal, the reasons for the decision.
84H. Withdrawal of civil infringement notice
(1) Before the end of
28 days after receiving the civil infringement notice, the recipient may
apply, in writing, to the nominated person for the civil infringement notice
to be withdrawn.
(2) Within
14 days after receiving the application, the nominated person
must —
(a)
withdraw or refuse to withdraw the civil infringement notice; and
(b)
notify the recipient in writing of the decision and, if the decision is a
refusal, the reasons for the decision.
(3) If the nominated
person has not approved the withdrawal of the civil infringement notice within
the period allowed by subsection (2), the application is taken to have
been refused.
(4) The inspector who
issued it may also withdraw the civil infringement notice at any time by
serving a notice of withdrawal on the recipient.
(5) A notice of the
withdrawal of a civil infringement notice under subsection (4)
must —
(a)
specify the recipient’s full name; and
(b)
specify the recipient’s address; and
(c)
specify its date of issue; and
(d)
state that the civil infringement notice is withdrawn.
84I. Effect of payment of civil infringement
notice penalty
If a civil
infringement notice is not withdrawn and the recipient pays the civil
infringement notice penalty —
(a) any
liability of the recipient for the alleged contravention is discharged; and
(b) no
proceedings may be brought against the recipient, by any person, for the
alleged contravention; and
(c) the
recipient is not taken to have admitted to having contravened the
record-related civil penalty provision; and
(d) the
recipient is not taken to have committed a contravention of the provision in
relation to which the civil infringement notice was issued.
84J. Refund of civil infringement notice penalty
If a civil
infringement notice is withdrawn after the civil infringement notice penalty
has been paid, the Treasurer must refund the amount of the penalty to the
person who paid it.
Division 4 — Enforceable undertakings
In this
Division —
contravention means a contravention of or failure
to comply with —
(a) a
civil penalty provision; or
(b) an
entitlement provision.
enforceable undertaking means a written
undertaking accepted under section 84M(1).
This Division applies
if an industrial inspector reasonably believes that a person has committed a
contravention.
(1) Except as provided
by subsection (4), an industrial inspector may accept a written
undertaking given by a person in relation to a contravention.
(2) The person may
withdraw or vary the enforceable undertaking at any time, but only with the
industrial inspector’s consent.
(3) An industrial
inspector must not apply for an order under section 83 or 83E in relation
to the contravention unless the enforceable undertaking has been —
(a)
withdrawn; or
(b)
cancelled under section 84N(2)(c).
(4) The industrial
inspector must not accept an enforceable undertaking in relation to a
contravention if the person has been given a compliance notice as defined in
section 84Q in relation to the contravention.
84N. Enforcement of enforceable undertakings
(1) If an industrial
inspector considers that a person who gave an enforceable undertaking has
contravened any of its terms, the industrial inspector may apply to the
industrial magistrate’s court for an order under subsection (2).
(2) If the industrial
magistrate’s court is satisfied that the person has contravened a term
of the enforceable undertaking, the court may make 1 or more of the following
orders —
(a) an
order directing the person to comply with the term of the undertaking;
(b) an
order awarding compensation for loss that a person has suffered because of the
contravention;
(c) an
order varying or cancelling the enforceable undertaking;
(d) any
other order that the court considers appropriate.
Division 5 — Compliance notices
In this
Division —
compliance notice has the meaning given in
section 84Q;
contravention means a contravention of or failure
to comply with an entitlement provision.
This Division applies
if an industrial inspector (the industrial inspector ) reasonably believes
that a person has contravened an entitlement provision.
(1) Except as provided
in section 84R, the industrial inspector may give the person a notice (a
compliance notice ) requiring the person to do either or both of the following
within a reasonable time specified in the notice —
(a) take
specified action to remedy the direct effects of the contravention;
(b)
produce reasonable evidence of the person’s compliance with the notice.
(2) The compliance
notice must also set out all of the following —
(a) the
name of the person to whom the notice is given;
(b) the
name of the industrial inspector who gave the notice;
(c)
brief details of the contravention;
(d) an
explanation that a failure to comply with the notice may contravene a civil
penalty provision;
(e) an
explanation that the person may apply to the industrial magistrate’s
court for a review of the notice on either or both of the following
grounds —
(i)
the person has not committed a contravention set out in
the notice;
(ii)
the notice does not comply with subsection (1) or
this subsection;
(f) any
other matters prescribed by the regulations.
84R. Relationship with enforceable undertakings
The industrial
inspector must not give a person a compliance notice in relation to a
contravention if —
(a) the
person has given an enforceable undertaking as defined in section 84M(1)
in relation to the contravention; and
(b) the
undertaking has not been withdrawn under section 84M(2) or cancelled
under section 84N(2)(c).
84S. Relationship with proceedings under
s. 83
(1) The industrial
inspector must not apply for an order under section 83 in relation to a
contravention by a person if —
(a) the
inspector has given the person a compliance notice in relation to the
contravention; and
(b) the
compliance notice has not been withdrawn; and
(c)
either of the following applies —
(i)
the person has complied with the notice;
(ii)
the person has made an application under
section 84U(1) in relation to the compliance notice and that application
has not been completely dealt with.
(2) A person who
complies with a compliance notice is not taken to have —
(a)
admitted to contravening an entitlement provision to which the compliance
notice relates; or
(b) been
found to have contravened an entitlement provision to which the compliance
notice relates.
84T. Person must comply with compliance notice
(1) A person must
comply with a compliance notice.
(2) A contravention of
subsection (1) is not an offence but the subsection is a civil penalty
provision for the purposes of section 83E, except that the pecuniary
penalty cannot exceed —
(a) in
the case of a body corporate — $30 000;
(b) in
the case of an individual — $6 000.
(3)
Subsection (1) does not apply if the person has a reasonable excuse.
84U. Review of compliance notices
(1) A person who has
been given a compliance notice may apply to the industrial magistrate’s
court for a review of the notice on either or both of the following
grounds —
(a) the
person has not committed a contravention set out in the notice;
(b) the
notice does not comply with section 84Q.
(2) At any time after
the application has been made, the industrial magistrate’s court may
stay the operation of the notice on the terms and conditions that the court
considers appropriate.
(3) In an application
made on the ground referred to in subsection (1)(a), the person making
the application has the burden of proving that the person has not committed
the contravention.
(4) The industrial
magistrate’s court may confirm, cancel or vary the notice after
reviewing it.
84V. Withdrawal of compliance notice
(1) The industrial
inspector may withdraw the compliance notice at any time by serving a notice
of withdrawal on the person (the recipient ) who has been given the compliance
notice.
(2) The notice of
withdrawal must —
(a)
specify the full name of the recipient; and
(b)
specify the recipient’s address; and
(c)
specify its date of issue; and
(d)
state that the compliance notice is withdrawn.