This content is current only at the time of printing. This document was printed on 20 February 2017. A current copy is located at http://apvma.gov.au/node/132
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Civil and criminal actions
Initiating court proceedings (civil penalty or criminal prosecution) is a serious matter. The APVMA or the Commonwealth Director of Public Prosecutions (CDPP) may proceed against responsible legal entities (individuals, companies and company managers and directors). At all times, the APVMA will act as a ‘model litigant’ and will not needlessly pursue a matter to court where other responses are appropriate.
A person found guilty of committing a criminal offence may be ordered to pay a fine set by a court and may acquire a criminal record.
A person found to have contravened a civil penalty provision may be ordered to pay an amount the court defines, but no criminal conviction is recorded against them.
Civil penalty orders
The standard of proof for civil litigation is the ‘balance of probabilities’ which differs from the ‘beyond reasonable doubt’ of criminal prosecutions. Civil penalty provisions of agvet legislation do not require that knowledge of the breach (noncompliance) or state of mind at the time of the breach be established. The APVMA needs only to establish that the breach occurred and to confirm the identity of the person or company responsible for the breach.
When deciding whether to start civil proceedings, we take into account the Commonwealth Legal Services Directions. We are committed to the ‘model litigant’ principles.
We may decide to proceed with a civil case if:
- an infringement notice has not been paid
- we see the matter as particularly serious because of volume of material or the risk posed by the activity
- the activity in question was driven by anticipated, or actual, commercial benefit for the party.
The agvet legislation we administer creates a range of criminal offences, which the CDPP is empowered to prosecute. We may decide to refer a matter to the CDPP for prosecution after duly considering the facts of the matter and the prosecution policy of the Australian Government.
If we consider criminal prosecution to be the most appropriate response, we prepare a brief of evidence and refer it to the CDPP, who decides whether to proceed. The CDPP makes their decision in accordance with the government’s prosecution policy, which lists a number of criteria, including whether prosecution is in the public interest.
We may seek criminal proceedings if:
- false or misleading information is provided to us
- the offence involves levy evasion or other significant dishonest behaviour
- we see the matter as particularly serious because of actual or potential harm to people, animals or the environment.
We have developed additional information in factsheets (False and misleading information; Levy evasion) explaining how we approach the provision of false and misleading information and levy evasion.
Individual and corporate responsibility
Sections 145CE, 145CF and 151 of the Code Act define the liability of employees, agents or officers of a body corporate relative to the liability of that organisation.
An executive officer liability generally relates to whether:
- the executive knew the noncompliance would occur
- they were in a position to stop the noncompliance
- they failed to act to stop the noncompliance.
In these instances, our response will target both the person and their company.
Civil penalties in addition to criminal offence provisions allow us to consider both pathways. Sections 145B, 145BA and 145BB of the Code Act detail circumstances in which the APVMA may seek sanctions for noncompliant behaviour through civil and criminal proceedings.
However, we will not seek a civil penalty order if a person has previously been convicted in the criminal jurisdiction for substantially the same conduct.
Access to other Commonwealth statutes
Because the APVMA is an Australian Government agency and breaches of the Code Act (noncompliance) are treated as Commonwealth offences, we can also seek to access the enforcement provisions of other legislation. This includes the Crimes Act 1914 and the Commonwealth Criminal Code 1995.
When APVMA investigations confirm serious, systemic or otherwise flagrant breaches that constitute levy evasion or dishonest conduct, we can ask the CDPP to consider starting proceedings.
The maximum penalties under the Criminal Code for levy evasion or dishonest conduct include:
- one year of imprisonment for each time false or misleading information is submitted to a Commonwealth entity
- 10 years of imprisonment for possessing or submitting forged documents with intent to dishonestly induce a Commonwealth entity to accept is as genuine and, if accepted, to dishonestly cause a loss.
As an Australian Government agency, the APVMA can also refer a matter to the Australian Federal Police (AFP) if it considers that a sufficiently serious breach has occurred. The AFP and the CDPP may consider applying the provisions for forfeiture and confiscation of the proceeds of crime.