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THERAPEUTIC GOODS AMENDMENT REGULATIONS 2009 (NO. 5) (SLI NO 228 OF 2009)
Therapeutic Goods Act 1989
Therapeutic Goods Amendment Regulations 2009 (No. 5)
The purpose of the Therapeutic Goods Act 1989 (the Act) is to establish and maintain a national system of controls for the quality, safety, efficacy and timely availability of therapeutic goods that are used in Australia or exported from Australia. The Therapeutic Goods Administration (the TGA) is responsible for administering the Act.
Subsection 63(1) of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted to be prescribed by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Sections 42YJ and 42YK of the Act, which were added in 2006, provide that the regulations, may make provision enabling a person who is alleged to have committed an offence against, or contravened a civil penalty provision in, the Act, to pay the Commonwealth a specified penalty as an alternative to prosecution or civil penalty proceedings.
The Regulations amend the Therapeutic Goods Regulations 1990 (the Principal Regulations), to give effect to sections 42YJ and 42YK of the Act by including a new Part to administer and implement the infringement notices scheme established under those sections.
An overview of the Regulations is at Attachment A, and details of the Regulations are set out in Attachment B.
Consultation
The inclusion in the Principal Regulations of provisions setting out the details of the infringement notices scheme established under the 2006 Act, and the features and details of that scheme and how it would be administered, were the subject of an extensive period of consultation as part of the raft of measures introduced by the 2006 Act.
In March 2005, a draft of the Bill which later became the 2006 Act was released to industry for comment, along with an explanatory document outlining the rationale for the provisions contained in the Bill.
A number of organisations received verbal briefings to further explain the rationale and provisions of that intended legislation, including Medicines Australia, the Complementary Healthcare Council of Australia (CHC), the Australian Self Medication Industry Association of Australia (ASMI), Generic Manufacturers Industry Association of Australia, the Medial Industry Association and Advocate for the Consumer, Cosmetic, Hygiene and Specialty Products Industry (ACCORD), which enabled the Department to fully understand any issues raised by industry.
In response to concerns raised by industry, a series of draft guidelines were prepared setting out details in relation to how the TGA would administer the new measures that would be introduced by the 2006 Act or amending regulations brought in after that Act, including in relation to the issuing of infringement notices.
During 2005 – 2006 the TGA held a series of meetings with industry to discuss those guidelines and their contents, including in relation to infringement notices. The TGA further refined those guidelines following discussions with certain industry groups, and a finalised set of guidelines, titled Enforcement Guidelines Therapeutic Goods Amendment Act (No.1) 2006 Implementation – General Principles, has been available on the TGA’s website (www.tga.gov.au) since September 2008.
The Regulations are consistent with the information set out in those guidelines in relation to infringement notices and the features of the infringement notices scheme to be used by the TGA.
The Regulations will not (and nor did the 2006 Act) introduce any new regulatory requirements for industry. Rather, the Regulations set out the operational framework for the infringement notices scheme introduced with the 2006 Act, the central element of which is to provide a person who is alleged to have committed a strict liability offence under the Act or to have contravened a civil penalty provision of the Act, with the option of addressing that matter by paying a penalty specified in an infringement notice as an alternative to having the matter dealt with by a court.
In 2005, the TGA was informed by the then Office of Regulatory Review (the ORR), that a Regulation Impact Statement was not required in relation to the 2006 Act as that legislation would not impose any additional regulatory requirements, and that the main purpose of the then Bill was to enhance or refine enforcement mechanisms in the Act.
As the Regulations give effect to measures introduced by the 2006 Act establishing an infringement notices scheme and do not include any new regulatory requirements, the advice of the then 0RR would also apply to the Regulations.
In addition, a preliminary assessment and a regulatory compliance form have been prepared in respect of the Regulations, indicating that there would be no impact on business as a result of the Regulations.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
ATTACHMENT A
OVERVIEW OF THE THERAPEUTIC GOODS AMENDMENT REGULATIONS 2009 (No. 5)
Background
Subsection 42YJ(1) of the Act provides that the regulations (being the Principal Regulations) may make provision enabling a person who is alleged to have committed a strict liability offence against this Act to pay to the Commonwealth, as an alternative to prosecution, a specified penalty. Subsections 42YJ(2) and (3) of the Act set out how to calculate the maximum possible penalty to be specified in an infringement notice for, respectively, individuals and body corporates who are alleged to have committed a strict liability offence against the Act.
Subsection 42YK(1) of the Act provides that the regulations may make provision enabling a person who is alleged to have contravened a civil penalty provision to pay to the Commonwealth, as an alternative to civil penalty proceedings against the person, a specified penalty. Subsection 42YK(2) of the Act provides that the penalty for an infringement notice in respect of a civil penalty provision must not exceed an amount equal to one-tenth of the maximum penalty prescribed for contravening that provision (each civil penalty provision in the Act specifies maximum penalties applying in relation to an individual and a body corporate).
Sections 42YJ and 42YK of the Act, which are in Part 5A-2 (Infringement notices) of the Act, were included in the Act in 2006 by the Therapeutic Goods (Amendment) Act (No.1) 2006 (the 2006 Act).
The 2006 Act introduced a package of enforcement options enhancing the TGA’s ability to secure greater compliance with the Act in order to protect public health and safety, and provided alternative sanctions or enforcement options that may be more appropriate in particular circumstances than the sanctions that were available before the 2006 Act commenced.
This package included a tiered criminal offences regime that supplemented the then existing criminal offences by adding offences of strict liability as well as higher penalties for more culpable conduct resulting in harm or injury. The package also introduced a civil penalties regime that provided an alternative sanction to the criminal offences regime, and also established infringement notices and enforceable undertakings schemes. These measures came into effect on 3 May 2006.
While the 2006 Act established an infringement notices scheme directed at breaches of civil penalty provisions and strict liability offences (which, under the Act, do not involve imprisonment), the details of such a scheme and how it will be administered are to be set out in the Principal Regulations.
The Regulations insert a new Part 7A in the Principal Regulations to administer and implement the infringement notices scheme established under sections 42YJ and 42YK of the Act.
In doing so, the Regulations make provision for and set out requirements in relation to the issuing of infringement notices, the required contents of infringement notices, service of infringement notices, extension of time to pay infringement notice penalties, payment of penalties by instalments, withdrawal of infringement notices and the effect of payment of an infringement notice penalty.
The Regulations also emphasise the status of infringement notices, in that there is no compulsion whatsoever to pay any penalty set out in these notices, as they can be equated to an offer to avoid litigation to be brought against a person for breaching the Act or the Principal Regulations. It is entirely up to a person issued with an infringement notice to decide whether or not to pay the penalty set out in the notice, as there is no compulsion to pay.
The Regulations will not introduce any new regulatory requirements. Rather, the Regulations set out the operational framework for the infringement notices scheme introduced with the 2006 Act.
Infringement notices
Infringement notices are notices authorised by statute signifying to persons who breach or contravene relevant statutory provisions that they have breached the legislation, and affording those persons the opportunity to pay the infringement notice amount rather than go through court proceedings, in the form either of criminal prosecutions in the case of a strict liability criminal offence, or civil proceedings in the case of a civil penalty provision.
Infringement notices are generally only issued where the readily assessable elements of the relevant breaching behaviour can be identified, and are therefore intended to apply only to conduct regulated under offences of strict liability or no fault civil penalty provisions. This is the case with regard to the Regulations.
Strict liability offences are offences which do not involve or require the proving of a mental element or intention on the part of the alleged offender in order to establish that the offence has been committed. The result of a strict liability offence is, that a person who contravenes the strict liability offence provision will be found guilty on the basis of contravention alone being proved, unless an applicable defence can be made out in relation to the person.
A civil penalty is a punitive sanction of a financial nature, with no aggravating element and no fault element, imposed through civil court proceedings rather than through the criminal prosecution process. It takes the form of a monetary penalty only, and not result in a criminal conviction.
There is no compulsion for a person in receipt of an infringement notice to pay the fine set out in the notice. The person to whom an infringement notice is issued may either elect to pay the notice, or to not pay the notice and have the matter dealt with by a court instead.
Generally, if a person pays the infringement notice penalty amount in accordance with applicable requirements, no further action may be taken against the person in respect of the relevant offence or civil penalty.
Infringement notices generally set out information such as the time and method for payment and the consequences if the person to whom the notice is issued fails to respond to the notice either by making payment or not paying the relevant penalty and electing instead to contest the alleged offence or civil contravention.
Purpose of Regulations
The purpose of the Regulations is to provide a person, who is alleged to have committed a strict liability offence or contravened a civil penalty provision of the Act, and in relation to whom legal proceedings will otherwise be brought by the Commonwealth, with the option of disposing of the matter by payment of a penalty specified in the infringement notice issued to the person as an alternative to having the matter dealt with by a court.
Infringement notices are intended to deter behaviour that breaches important regulatory requirements, in a way that operates as an alternative to prosecution for strict liability criminal offences or undergoing civil penalty proceedings. The availability of infringement notices recognises that a lengthy prosecution process or civil proceedings may not be the optimal way of dealing with some breaches of regulatory requirements for either the person alleged to be in breach or the regulator (the TGA).
In its Report No.95, titled “Principled Regulations: Civil and Administrative Penalties in Australian Federal Regulations” (2002), the Australian Law Reform Commission (the ALRC) described an infringement notice as an offer of settlement made by the regulator in respect of prospective proceedings, to an alleged offender to settle the matter by payment of an alternative penalty without resort to conventional enforcement mechanisms and that, considered in that way, an infringement notice is not a sentencing order made by a court subsequent to a binding determination of liability, but is simply an optional process for the expedient handling of certain offences.
As such, an infringement notice scheme will provide important benefits to both persons who do not comply with applicable regulatory requirements, and the TGA, as it allows relevant matters to be addressed in a way which is generally quicker and easier than lengthy and potentially expensive court proceedings, and without the risk of either a conviction for a criminal offence and the possible concerns that may be associated with a court action, such as negative publicity for a sponsor of therapeutic goods, or an order directed by a court to pay a particular civil penalty.
However, for the infringement notices to still be an effective deterrent against future breaches of the legislation, and given the benefits to an alleged offender in the event of payment of the penalty set out in an infringement notice, the level of penalty must necessarily be high. The recipient of an infringmenet notice is under no obligation to pay that penalty if the recipient disagrees with, amongst other things, the level of the fine. The person may elect to have a court deal with the matter instead, and this can be achieved by the person electing not to pay the penalty set out in the notice.
Infringement notices can provide an expeditious and often less expensive means of dealing with and deterring breaches of the Act than taking court action. Infringement notices provide relief from proceedings that would otherwise be required to enforce the law, and serve to encourage compliance with regulatory requirements by demonstrating or indicating that the risk of judicial sanction in the event of non compliance with applicable regulatory requirements is real.
Issuing of an infringement notice
The decision to issue an infringement notice must not be taken lightly, and will be subject to important checks and balances.
The Secretary will only issue an infringement notice after a separate decision has been made to take judicial action against a person for non-compliance with a regulatory requirement in relation to a strict liability offence or a breach of a civil penalty provision if the penalty imposed under an infringement notice is not paid, and where independent legal advice indicates that there are reasonable grounds for pursuing that non-compliance.
Further, the TGA is required to act as a model litigant which will for example, prevent the TGA from issuing an infringement notice in relation to a trivial matter or where there is insufficient evidence to support a legal action.
The requirements to obtain independent legal advice and to act as a model litigant are not set out in the Regulations as they are requirements already in effect either under the Legal Services Directions (for civil litigation), which are issued under section 55ZF of the Judiciary Act 1903, or under the decision making processes of the Commonwealth Director of Public Prosecutions, in relation to criminal prosecutions.
As such, the capacity to issue an infringement notice as an alternative to judicial action would only arise once independent legal advice has indicated that there are or be reasonable grounds for taking judicial action in respect of the relevant non compliance.
In general, where a breach or contravention has occurred in relation to a person for the first time and there is no threat to public health and safety and the person takes immediate steps to rectify the breach or contravention, a warning letter may be given to the person who has contravened the relevant regulatory requirement. This is particularly the case where a person may have acted inadvertently or has misunderstood what is required under the Act or the Principal Regulations, and the non compliance has occurred for the first time and has not resulted in any harm or the risk of harm to the public, and the breach is one that can be readily addressed quickly by the person concerned.
Where this is not the case, it may be that, following a decision to bring an action against a person, an infringement notice may be issued. The Regulations do not require an infringement notice to be issued to a person for an alleged offence or contravention. An infringement notice might not be issued, for example, where infringement notices have previously been issued to a person for the same behaviour, but have not had the effect of deterring the person from further breaches of the Act or where the alleged breach or contravention is so significant that it should be brought before a court and be more appropriately addressed through judicial proceedings.
Matters that may be taken into consideration when determining whether to issue an infringement notice, based on the level of risk attached to a breach of a regulatory requirement, include:
Under the Regulations, an infringement notice for an alleged offence or contravention may only be served on a person within 12 months after the day the offence or contravention is alleged to have occurred.
No compulsion to pay an infringement notice
A person issued with an infringement notice is under no obligation to pay the penalty stated in the notice.
A person to whom an infringement notice has been issued may elect instead to have the matter dealt with by a court.
If the decision by the alleged offender is to not pay the penalty set out in the infringement notice, the matter will be taken to the appropriate court, and it then be up to a court to determine whether the person is in breach or not, as well as the appropriate level of sanction to be applied if a breach is found.
This is consistent with the ALRC’s description of infringement notices and infringement notice schemes. The ALRC noted in their Report No.95 that an alleged offender, to whom an infringement notice is issued, is under no compulsion to accept the offer set out in the notice.
The Regulations also note that if a person served with an infringement notice elects not to pay the penalty stated in the infringement notice and is later found by a court to have committed the alleged relevant offence or to have contravened the alleged relevant civil penalty provision, the court must not take into account the fact that the person chose not to pay the penalty stated in the infringement notice.
Consequence of paying an infringement notice
If a person in relation to whom an infringement notice has been issued pays the penalty specified in the notice in accordance with the Regulations, the person’s liability for the relevant offence or civil penalty contravention will be discharged, and no further proceedings be able to be taken against the person for the relevant offence or contravention, and the person will not be convicted of the offence or found liable in relation to the contravention. That is, the Secretary would be precluded from taking any legal proceedings against the person in relation to the relevant offence or contravention.
Other components of infringement notices scheme
The Regulations set out a number of other important aspects of the anticipated infringement notices scheme in addition to those noted above, being requirements relating to: the contents of infringement notices; service of notices; requesting an extension of time to pay a penalty; requesting the payment of a notice by instalments; requesting the withdrawal of a notice; and the refund of penalty amounts paid if an infringement notice is withdrawn before the full amount of the penalty is paid in accordance with new Schedule 15.
Further details in relation to these matters are set out in Attachment B.
No merits review
Under the Regulations, the decision to issue an infringement notice, the quantum of the penalty set out in an infringement notice and decisions as to whether to approve the withdrawal of an infringement notice or extend the time for payment of an infringement notice or the payment of an infringement notice by instalments will not be subject to external merits review because there is no compulsion for a person issued with an infringement notice to pay, and if a notice is not paid review will be afforded as part of any ensuing judicial proceedings.
This is consistent with paragraph 6.4 of the Commonwealth Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers published by the Attorney-General’s Department (the Guide). According to the Guide, the decision to issue an infringement notice is not a decision to impose a penalty as it is not a final decision or determinative of substantive rights. It is also consistent with the ALRC’s Report No.95 (referred to above), as the ALRC noted that it accepted that the decision to issue an infringement notice is not a decision to impose a penalty, as it is not a final or operative determination of substantive rights. The ALRC concluded that, on that basis, the exclusion of external merits review of the decision to issue an infringement notice is acceptable (refer to paragraph 12.31 of the ALRC’s Report No.95).
The ALRC also noted in its Report No.95 that an infringement notice could be described as an offer of settlement made by a regulator to an alleged offender to settle a matter involving prospective proceedings without resort to conventional enforcement mechanisms and that, considered in that way, an infringement notice is not a true penalty at all as it is not a sentencing order by a court subsequent to a binding determination of liability, but was simply a process for the expedient handling of certain offences (refer to paragraphs 12.7 and 12.24 of the ALRC’s Report No.95), noting that as an alleged offender to whom an infringement notice has been issued is under no compulsion to accept the offer constituted by the notice it is difficult to contemplate how a court or tribunal could effectively review the decision to issue the infringement notice.
ATTACHMENT B
Details of the Therapeutic Goods Amendment Regulations 2009 (No. 5)
Regulation 1 provides that the name of the Regulations is the Therapeutic Goods Amendment Regulations 2009 (No. 5).
Regulation 2 provides that the Regulations commence on the day after they are registered.
Regulation 3 provides that the Therapeutic Goods Regulations 1990 (the Principal Regulations) are amended as set out in Schedule 1.
Item [1]
Item 1 inserts, after Part 7 of the Principal Regulations, new Part 7A titled “Infringement notices”, and new regulation 45B. Subregulation 45B(1) provides that, for sections 42YJ and 42YK of the Act, new Schedule 15 sets up a system of infringement notices as an alternative to prosecution for an alleged offence of strict liability against the Act or the institution of civil proceedings for an alleged contravention of a civil penalty provision. New subregulation 45B(2) notes that new Schedule 15 does not:
(a) require an infringement to be issued to a person for an alleged offence or contravention; or
(b) affect a person’s liability to prosecution or to the institution of civil proceedings if an infringement notice is not issued to the person for the alleged offence or contravention or where an infringement notice is issued but is later withdrawn; or
(c) prevent the issue of 2 or more infringement notices to a person for an alleged offence of strict liability or contravention of a civil penalty provision; or
(d) affect a person’s liability to prosecution or to the institution of civil proceedings if the person does not pay the penalty for the alleged offence or contravention specified in an infringement notice in accordance with new Schedule 15; or
(e) limit or otherwise affect the penalty that may be imposed by a court on a person for an offence of strict liability or for the contravention of a civil penalty provision.
Item [2]
This item inserts, after subregulation 47(1) of the Principal Regulations, new subregulation 47(1A), which notes that a delegation for a power or function in new Schedule 15 may only be given to the Assistant Secretary of a Branch or an Office of the TGA, or to the National Manager of the TGA.
Item [3]
This item inserts, after Schedule 14 to the Principal Regulations, a new Schedule 15 setting out the substantive provisions dealing with the administration of the infringement notices scheme.
Clause 1 of new Schedule 15
Clause 1 of new Schedule 15 is titled “Definitions” and sets out a definition for issuing officer, being that that term means the Secretary, or an officer to whom the Secretary has given a delegation under subregulation 47(1A).
Clause 2 of new Schedule 15
Clause 2 of new Schedule 15 is titled “Issue of infringement notice” and deals with a number of key substantive features relating to infringement notices.
Subclause 2(1) provides that if there are reasonable grounds for believing that a person has committed an offence of strict liability against the Act or contravened a civil penalty provision, an issuing officer may serve an infringement notice, or cause an infringement notice to be served, on the person in accordance with new subclause 2(4).
Subclause 2(2) provides that an infringement notice for an alleged offence or contravention must be served on a person within 12 months after the day the offence or contravention is alleged to have been committed.
Subclause 2(3) provides that if an infringement notice given to a person for an alleged offence or contravention is withdrawn, an issuing officer may give the person a new infringement notice for the alleged offence or contravention.
Subclause 2(4) provides that an infringement notice may be withdrawn by the issuing officer at any time before the person to whom the notice has been issued pays in full the amount of the penalty stated in the notice.
Subclause 2(5) provide that an issuing officer who withdraws an infringement notice under subclause 2(4) must give written notice to the person against whom the notice was issued within 7 days after the withdrawal of the notice.
Clause 3 of new Schedule 15
Clause 3 of new Schedule 15 is titled “Contents of infringement notice” and sets out the information that must be included in an infringement notice.
Subclause 3(1) requires that an infringement notice must set out the following information:
(a) a unique identification code;
(b) the name of the issuing officer;
(c) the date the infringement notice is issued;
(d) the full name, or the surname and initials, and the address of the person to whom it is issued;
(e) brief details of the alleged offence or contravention, including:
(i) the date and (if known) the time, when it is alleged to have been committed; and (ii) the place where it is alleged to have been committed; and
(iii) the provision of the Act alleged to have been contravened;
(f) the penalty for the alleged offence or contravention payable under the notice;
(g) the maximum penalty that a court could impose for the alleged offence or contravention;
(h) a statement that if the person prefers not to have the matter dealt with by a court the person may signify that preference by paying the penalty specified in the infringement notice:
(i) within 28 days after the service of the notice; or
(ii) if a further period is allowed, before the end of that further period; or
(iii) if payment by instalments is permitted, in accordance with that permission;
(i) how and where the penalty can be paid;
(j) a statement that if an infringement notice is not withdrawn and the person to whom it is issued pays in full, in accordance with Schedule 15, the penalty stated in the notice then:
(i) any liability of the person for the alleged offence or contravention is discharged; and
(ii) the person will not be prosecuted in a court for the alleged offence or proceedings will not be brought against the person for the alleged contravention; and
(iii) the person will not be taken to have admitted liability for the alleged offence or contravention; and
(iv) the person will not be taken to have been convicted of the offence or to be liable for the contravention;
(k) how the person can apply:
(i) for an extension of time to pay the penalty stated in the notice; or
(ii) to pay the penalty by instalments; or
(iii) to have the notice withdrawn;
(l) the telephone number or the address of an officer in the office of the Therapeutic Goods Administration to whom inquiries can be made about the notice; and
(m) the signature of the issuing officer.
Under subclause 3(2), an infringement notice also contains any other information that the issuing officer considered necessary.
Clause 4 of new Schedule 15
Clause 4 of new Schedule 15 is titled “Service of infringement notices” and deals with the manner in which, and requirements applying in relation to how, infringement notices will be served.
Subclause 4(1) provides that an infringement notice must be served on the person to whom the notice is issued.
Under subclause 4(2), an infringement notice may be served on an individual by giving it to the individual, or by leaving it at, or sending it by post or electronically to the address (including the electronic address) of the place of residence or business of the individual last known to the issuing officer, or the address given to the Secretary by the individual’s authorised agent or by giving it to someone at that place who lives or is employed, or apparently lives or is employed there, and is apparently over 16 years of age.
Under subclause 4(3), an infringement notice may be served on a body corporate by leaving it at, or by sending it by post or electronically to the address, including the electronic address, of the head office, a registered office, a principal office or the address given to the Secretary by an officer of the body corporate or its authorised agent, or by giving it to someone who is, or who the issuing officer has reason to believe is, a director of the body corporate residing in Australia.
Subclause 4(4) defines ‘authorised agent as a person, including a body corporate, nominated in writing to the TGA by an individual or body corporate to act on behalf of the individual or body corporate in relation to therapeutic goods.
Clause 5 of new Schedule 15
Clause 5 of new Schedule 15 is titled “Extension of time to pay penalty”, and sets out requirements relating to how and when a person served with an infringement notice may apply for an extension of time of up to 28 days to pay the penalty specified in the notice, what information must be included in such an application, and when a person who applies for an extension of time must pay the relevant penalty if the application is approved, refused or neither approved nor refused.
Under subclause 5(1), a person issued with an infringement notice can within 28 days after being served with a notice, apply in writing to the issuing officer for a further period of up to 28 days (after the initial 28 days) in which to pay the penalty stated in the notice. The application must include the infringement notice’s unique specification code, and also set out the reasons for applying for an extension of time for paying the penalty. A person cannot apply for an extension of time to pay the penalty set out in an infringement notice if the person has applied under new clause 7 for withdrawal of the same notice.
Within 14 days after receiving the application, the issuing officer must grant or refuse to grant the application and notify the person in writing of the decision and, if the decision is a refusal, the reasons for the decision. Subclause 5(5) provides that if the issuing officer does not grant or has not refused to grant the application within 14 days, the application is to be taken to have been granted.
Subclause 5(6) provides then that if the application for an extension is approved, the person must pay the penalty in accordance with the approval decision. If the application is refused, the person must pay the penalty within the later of: the end of the initial 28 days after being served with the notice, or 7 days after receiving the notice of the refusal. If the issuing officer has neither granted nor refused to grant the application and the application is taken to have been granted under subclause 5(5), the person must pay the penalty within a further
28 days after the end of the initial 28 day period for paying the penalty.
Clause 6 of new Schedule 15
Clause 6 of new Schedule 15 is titled “Payment of penalty by instalments”, and sets out requirements relating to how and when a person served with an infringement notice may apply to pay the penalty specified in the notice by instalments over a period of up to
6 months, and when a person who applies to pay by instalments must pay the relevant penalty if the application is approved, refused or neither approved nor refused.
Subclause 6(1) provides that within 28 days after being served with an infringement notice, a person may apply in writing to the issuing officer to pay the penalty stated in the notice by instalments over a period of up to 6 months. Under subclause 6(2), a person cannot apply to pay a penalty specified in an infringement notice by instalments if the person has applied under clause 7 of new Schedule 15 for withdrawal of the same notice. Under subclause 6(3), a person applying to pay by instalments must include in his/her/its application the infringement notice’s unique identification code and the reasons for the application, as well as state the amount and frequency of the instalments that the person purposes to pay.
Subclause 6(4) requires that, within 14 days after receiving an application to pay by instalments, the issuing officer must grant or refuse to grant the application and give the person written notice of the decision including – if the application is granted – the amount and frequency of the instalments, or – if the application is refused – the reasons for the refusal decision. Under subclause 6(5), if the issuing officer has neither granted, nor refused an application to pay by instalments within the 14 day period referred to in subclause 6(4), the application is to be taken to have been granted.
Subclause 6(6) provides that if an application to pay by instalments is granted, the person must pay the relevant penalty in the manner outlined in the decision to grant the application, and if the application is refused, the person must the relevant penalty within the later of: the 28 days referred to in subclause 6(1), or 7 days after receiving the notice of the decision. If the issuing officer has neither granted nor refused the application and the application is deemed to have been granted under subclause 6(5), the person must pay the penalty within 6 months and, unless otherwise agreed in writing by the issuing officer, in equal monthly instalments.
Clause 7 of new Schedule 15
Clause 7 of new Schedule 15 is titled “Withdrawal of infringement notice” and sets out requirements relating to how and when a person served with an infringement notice may apply for the withdrawal of the infringement notice, notice of refusal of an application for withdrawal and when the penalty set out in an infringement notice should be paid if a notice is not withdrawn.
Within 28 days after being served with an infringement notice, a person who considers the notice to be defective may apply in writing to the issuing officer for the withdrawal of the infringement notice. The application must include the infringement notice’s unique identification code and any facts or matters the person believes should be taken into account about the alleged offence or contravention.
Clause 7(3) requires that, within 14 days after receiving the application, the issuing officer must, having regard to the information provided by the person, withdraw or refuse to withdraw the notice, and notify the person in writing of that decision and, in the event of a refusal, the reasons for that decision.
Clause 7(4) provides that if the issuing officer does not withdraw or has refused to withdraw the notice within the 14 day period referred to in subclause 7(3), the application for withdrawal is taken to have been granted.
Under clause 7(5), if the issuing officer decides to refuse an application for withdrawal, notice of that decision must state that if the penalty is paid by the person within 28 days after receiving notice of the decision, the person will not be prosecuted for the alleged offence nor will proceedings be instituted against the person for the alleged contravention, and that if the penalty is not paid in accordance with that timeframe, the person may be prosecuted for the alleged office or proceedings instituted for the alleged contravention.
Subclause 7(6) provides that if the issuing officer refuses to withdraw an infringement notice, and if the person elects to pay the penalty stated in the notice, the person must pay the penalty within 28 days after receiving the notice of the refusal.
Clause 8 of new Schedule 15
Clause 8 of new Schedule 15 is titled “Notice of withdrawal of infringement notice” and provides that a notice withdrawing an infringement notice served on a person must include the person’s full name or the person’s surname and initials, the person’s address, the date of issue of the infringement notice and a statement that the notice is withdrawn.
Clause 9 of new Schedule 15
Clause 9 of new Schedule 15 is titled “Effect of payment of infringement notice penalty”, and deals with the legal effect of payment of an infringement notice in accordance with new Schedule 15. The consequence of clause 9 is that if a person served with an infringement notice that is not withdrawn pays the infringement notice penalty in full in accordance with the requirements of Schedule 15, the person’s liability for the alleged offence or contravention is discharged, further proceedings cannot be taken against the person for the alleged offence or contravention and the person is not convicted of the alleged offence or found liable for the alleged contravention. Subclause 9(2) makes it clear that where a person pays the penalty in an infringement notice by instalments, the legal consequences of paying the penalty set out in subclause 9(1) only applies where the person pays the instalments in accordance with the arrangements in place for payment by instalment by that person.
Clause 10 of new Schedule 15
Clause 10 of new Schedule 15 is titled “Refund of penalty” and provides that if an infringement notice is withdrawn after any amount of the penalty stated in the notice has already been paid, including when the penalty has not been fully paid or has been fully paid but not within the approved period, the Commonwealth must refund the amount of the penalty to the person who paid it.
Clause 11 of new Schedule 15
Clause 11 of new Schedule 15 is titled “Matter not to be taken into account in determining sentence”, and applies if a person served with an infringement notice elects not to pay the penalty stated in the notice and is later found by a court to have committed the offence or to have contravened the civil penalty provision referred to in the notice. Subclause 11(2) makes it clear that in determining the penalty to be imposed, the court must not take into account the fact that the person chose not to pay the penalty stated in the infringement notice.
Clause 12 of new Schedule 15
Clause 12 of new Schedule 15 is titled “Infringement notice not compulsory”, and sets out that nothing in new Schedule 15 is to be taken to require an issuing officer to serve an infringement notice or cause an infringement notice to be served on a person suspected of having committed an offence of strict liability or to have contravened a civil penalty provision under the Act, or to affect the liability of a person to be prosecuted for an alleged offence or an alleged contravention of a civil penalty provision if an infringement notice is not served on the person for the offence or contravention or if an infringement notice is served and withdrawn. Clause 12 also makes it clear that nothing in new Schedule 15 is to be taken to limit the penalty that may be imposed by a court on a person convicted of an offence or found liable for the contravention of a civil penalty provision.