Privacy Amendment (Enhancing Privacy Protection) Act 2012 (197 of 2012)

Schedule 4   Other amendments of the Privacy Act 1988

189   After Part VIA

Insert:

Part VIB - Civil penalty orders

Division 1 - Civil penalty provisions

80U Civil penalty provisions

A subsection of this Act (or a section of this Act that is not divided into subsections) is a civil penalty provision if the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section).

80V Ancillary contravention of civil penalty provisions

(1) An entity must not:

(a) attempt to contravene a civil penalty provision; or

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

(c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

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

(e) conspire with others to effect a contravention of a civil penalty provision.

(2) An entity that contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision.

Division 2 - Obtaining a civil penalty order

80W Civil penalty orders

Application for order

(1) The Commissioner may apply to the Federal Court or Federal Magistrates Court for an order that an entity, that is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

(2) The Commissioner must make the application within 6 years of the alleged contravention.

Court may order entity to pay pecuniary penalty

(3) If the court is satisfied that the entity has contravened the civil penalty provision, the court may order the entity to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.

Note: Subsection (5) sets out the maximum penalty that the court may order the entity to pay.

(4) An order under subsection (3) is a civil penalty order .

Determining pecuniary penalty

(5) The pecuniary penalty must not be more than:

(a) if the entity is a body corporate - 5 times the amount of the pecuniary penalty specified for the civil penalty provision; or

(b) otherwise - the amount of the pecuniary penalty specified for the civil penalty provision.

(6) In determining the pecuniary penalty, the court must take into account all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered because of the contravention; and

(c) the circumstances in which the contravention took place; and

(d) whether the entity has previously been found by a court in proceedings under this Act to have engaged in any similar conduct.

80X Civil enforcement of penalty

(1) A pecuniary penalty is a debt payable to the Commonwealth.

(2) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the entity to recover a debt due by the entity. The debt arising from the order is taken to be a judgement debt.

80Y Conduct contravening more than one civil penalty provision

(1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Division against an entity in relation to the contravention of any one or more of those provisions.

(2) However, the entity is not liable to more than one pecuniary penalty under this Division in relation to the same conduct.

80Z Multiple contraventions

(1) The Federal Court or Federal Magistrates Court may make a single civil penalty order against an entity for multiple contraventions of a civil penalty provision if:

(a) proceedings for the contraventions are founded on the same facts; or

(b) the contraventions form, or are part of, a series of contraventions of the same or a similar character.

(2) However, the pecuniary penalty must not exceed the sum of the maximum pecuniary penalties that could be ordered if a separate civil penalty order were made for each of the contraventions.

Note: In determining the pecuniary penalty, the court must take into account all relevant matters including the matters mentioned in subsection 80W(6).

80ZA Proceedings may be heard together

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

80ZB Civil evidence and procedure rules for civil penalty orders

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

80ZC Contravening a civil penalty provision is not an offence

A contravention of a civil penalty provision is not an offence.

Division 3 - Civil proceedings and criminal proceedings

80ZD Civil proceedings after criminal proceedings

The Federal Court or Federal Magistrates Court must not make a civil penalty order against an entity for a contravention of a civil penalty provision if the entity has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

80ZE Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against an entity for a contravention of a civil penalty provision are stayed if:

(a) criminal proceedings are commenced or have already been commenced against the entity for an offence; and

(b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.

(2) The proceedings for the civil penalty order may be resumed if the entity is not convicted of the offence. Otherwise:

(a) the proceedings are dismissed; and

(b) costs must not be awarded in relation to the proceedings.

80ZF Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against an entity for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the entity in relation to the contravention.

80ZG Evidence given in proceedings for civil penalty order not admissible in criminal proceedings

(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

(a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

(2) However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.