What are civil penalty orders under the Migration Act? These are penalty orders that an eligible court makes if a person has contravened civil penalty provision. In this blog, we will outline points in relation to civil penalty orders as the Migration Act (1958) states. Particularly, we will provide an overview of the following Sections:
- Section 486R
- Section 486S
- Section 486T
- Section 486U
- Section 486V
- Section 486W
- Section 486X
- Section 486Y
Section 486R: Civil Penalty Orders
The Minister may apply to an eligible court to make an order against a party who has contravened a civil penalty provision. The order may require the party to pay the Commonwealth a pecuniary penalty.
An eligible court includes:
- Federal court; or
- Federal Circuit and Family Court of Australia (Division 2); or
- a District, County or Local Court; or
- a magistrates court; or
- any other State or Territory court that the regulations prescribe
Moreover, s486R states that the Minister can make such an application to court within 6 years of the alleged contravention. If the court believes that the person has contravened a civil penalty provision, it can proceed to make such a an order.
What may pecuniary penalty include? The pecuniary penalty must not be more than:
- if the person is a body corporate – 5 times the amount of the pecuniary penalty specified for the civil penalty provision – if the person is a body corporate; and
- the amount of the pecuniary penalty specified for the civil penalty provision – for all other circumstances.
Lastly, the eligible court must consider all relevant matters, including:
- the nature and extent of the contravention; and
- the nature and extent of any loss or damage suffered because of the contravention; and
- the circumstances in which the contravention took place; and
- whether the Department has taken any administrative action against the person in relation to the conduct constituting the contravention or any similar conduct; and
- whether authorities have issued an infringement notice against the person under regulations made for the purposes of section 506A in relation to the conduct constituting the contravention or any similar conduct; and
- whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct.
Section 486S: Additional Rules Relating to the Sponsorship Civil Penalty Provisions
This section pertains to situations where someone makes a application for a civil penalty order against a party for allegedly violating a civil penalty provision in Division 3A of Part 2. If the person fails to meet a sponsorship obligation different from the one in question, it is similar conduct, with no limitations on when this can apply.
The eligible court can order the person to pay a specific amount to the Commonwealth, a State, Territory, or another entity they determine that such payment is needed by regulations but remains unpaid and hasn’t been pursued under section 140S.
Section 140S enables proceedings to recover owed amounts if the court doesn’t issue an order under this subsection.
If the court does order payment as described above:
- An application can be made under subsection 140SA(1), and an order can be issued under subsection 140SA(2), treating it like proceedings under section 140S.
- Section 140SB applies as if the amount ordered under subsection (4) is a judgment debt from an eligible court under section 140S.
Section 486T: Civil Enforcement of Penalty
A debt payable to the Commonwealth is a pecuniary penalty. Moreover, the Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is to be a judgement debt
Section 486U: Conduct Contravening More than One Civil Penalty Provision
If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.
Furthermore, note that the person is not liable to more than one pecuniary penalty under this Part for the same conduct.
Section 486V and 486W Multiple Contraventions
Firstly, this Section states that an eligible court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provisions if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.
Moreover, Section 486W states that an eligible court may direct that they conduct 2 or more proceedings for civil penalty orders together.
Section 486X and Section 486Y: Civil Evidence and Procedure Rules
S486X states that an eligible court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
Furthermore, subsection (1) of s486Y states that a person commits an offence if:
- the Secretary requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and
- the person has failed to comply with the request
The penalty is 10 penalty units.
Subsection (2) states that any request under subsection (1) is not a legislative instrument. Furthermore, subsection (3) states that the Secretary can request a person to assist under subsection (1) only if:
- it appears to the Secretary that the person is unlikely to have
- contravened the civil penalty provision to which the application relates; or
- committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
- the Secretary suspects or believes that the person can give information relevant to the application.
Moreover, an eligible court may order a person to comply with a request under subsection (1) in a specified way. Only the Secretary may apply to the eligible court for an order under this subsection.
Lastly, for the purposes of this section, it does not matter whether a party has actually made the application for the civil penalty order.
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