Competition and Consumer Amendment (Industry Code Penalties) Act 2014

No. 107, 2014

An Act to amend the Competition and Consumer Act 2010, and for related purposes

[Assented to 24 September 2014]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Competition and Consumer Amendment (Industry Code Penalties) Act 2014.

2 Commencement

This Act commences on 1 January 2015.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Competition and Consumer Act 2010

1 Subsection 51ACA(1)

Insert:

infringement notice means an infringement notice issued under subsection 51ACD(1).

infringement notice compliance period: see subsection 51ACI(1).

2 Section 51AD

Renumber as section 51ACB.

3 After Division 2 of Part IVB

Insert:

Division 2A—Infringement notices

51ACC Purpose and effect of this Division

(1) The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of a civil penalty provision of an industry code as an alternative to proceedings for an order under section 76 for the payment of a pecuniary penalty.

(2) This Division does not:

(a) require an infringement notice to be issued to a person for an alleged contravention of a civil penalty provision of an industry code; or

(b) affect the liability of a person to proceedings under section 76 in relation to an alleged contravention of a civil penalty provision of an industry code if:

(i) an infringement notice is not issued to the person for the contravention; or

(ii) an infringement notice issued to the person for the contravention is withdrawn under section 51ACJ; or

(c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.

51ACD Issuing an infringement notice

(1) If the Commission has reasonable grounds to believe that a person has contravened a civil penalty provision of an industry code, the Commission may issue an infringement notice to the person.

(2) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of the civil penalty provision of the industry code.

(3) The infringement notice does not have any effect if the notice:

(a) is issued more than 12 months after the day that the contravention of the civil penalty provision of the industry code is alleged to have occurred; or

(b) relates to more than one alleged contravention of a civil penalty provision of the industry code by the person.

51ACE Matters to be included in an infringement notice

(1) An infringement notice must:

(a) be identified by a unique number; and

(b) state the day on which it is issued; and

(d) identify the Commission and state how it may be contacted; and

(e) give details of the alleged contravention, including:

(i) the day of the alleged contravention; and

(ii) the civil penalty provision of the industry code that was allegedly contravened; and

(f) state the maximum pecuniary penalty that the court could order the person to pay under section 76 for the alleged contravention; and

(g) specify the penalty that is payable in relation to the alleged contravention; and

(h) state that the penalty is payable within the infringement notice compliance period for the notice; and

(i) state that the penalty is payable to the Commission on behalf of the Commonwealth; and

(j) explain how payment of the penalty is to be made; and

(k) explain the effect of sections 51ACG, 51ACH, 51ACI and 51ACJ.

51ACF Amount of penalty

The penalty to be specified in an infringement notice that is to be issued to a person, in relation to an alleged contravention of a civil penalty provision of an industry code, must be a penalty equal to the following amount:

(a) if the person is a body corporate—50 penalty units;

(b) otherwise—10 penalty units.

51ACG Effect of compliance with an infringement notice

(1) This section applies if:

(a) an infringement notice for an alleged contravention of a civil penalty provision of an industry code is issued to a person; and

(b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and

(2) The person is not, merely because of the payment, regarded as having contravened the civil penalty provision of the industry code.

(3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to the alleged contravention of the civil penalty provision of the industry code.

51ACH Effect of failure to comply with an infringement notice

If:

(a) an infringement notice for an alleged contravention of a civil penalty provision of an industry code is issued to a person; and

(b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and

the person is liable to proceedings under section 76 in relation to the alleged contravention of the civil penalty provision of the industry code.

51ACI Infringement notice compliance period for infringement notice

(1) Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day that the infringement notice is issued by the Commission.

(2) The Commission may extend, by notice in writing, the infringement notice compliance period for the infringement notice if the Commission is satisfied that it is appropriate to do so.

(3) Only one extension may be given and the extension must not be for longer than 28 days.

(4) Notice of the extension must be given to the person who was issued the infringement notice.

(5) A failure to comply with subsection (4) does not affect the validity of the extension.

(6) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.

51ACJ Withdrawal of an infringement notice

Representations to the Commission

(1) A person to whom an infringement notice has been issued for an alleged contravention of a civil penalty provision of an industry code may make written representations to the Commission seeking the withdrawal of the infringement notice.

(2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).

Withdrawal by the Commission

(3) The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so.

(4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal.

Content of withdrawal notices

(5) The withdrawal notice must state:

(a) the name and address of the person; and

(b) the day on which the infringement notice was issued to the person; and

(d) that proceedings under section 76 may be started or continued against the person in relation to the alleged contravention of the civil penalty provision of the industry code.

Time limit for giving withdrawal notices

(6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.

Refunds

(7) If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must refund to the person an amount equal to the amount paid.

4 Section 51AE

Before “The”, insert “(1)”.

5 At the end of section 51AE

Add:

(2) If regulations prescribe an industry code, the industry code may prescribe pecuniary penalties not exceeding 300 penalty units for civil penalty provisions of the industry code.

6 Subparagraph 76(1)(a)(iii)

Repeal the subparagraph, substitute:

(iii) section 95AZN;

(iv) a civil penalty provision of an industry code; or

7 After paragraph 76(1A)(c)

Insert:

(ca) for each act or omission to which this section applies that relates to a civil penalty provision of an industry code—the amount set out in the civil penalty provision of the industry code; and

8 After paragraph 76(1B)(a)

Insert:

(aaa) for each act or omission to which this section applies that relates to a civil penalty provision of an industry code—the amount set out in the civil penalty provision of the industry code; and

[Minister’s second reading speech made in—

House of Representatives on 17 July 2014

Senate on 1 September 2014]

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