This content is current only at the time of printing. This document was printed on 28 March 2017. A current copy is located at http://apvma.gov.au/node/246
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- 1. What is an infringement notice?
- 2. Overview of the legislative provisions
- 3. Objective
- 4. Principles
- 5. Who can give an infringement notice?
- 6. What matters must be included in an infringement notice given by an inspector
- 7. How an infringement notice is given
- 8. Who can receive an infringement notice?
- 9. When can an infringement notice be given?
- 10. Penalties
- 11. What if there are multiple offences?
- 12. Time for payment
- 13. How to pay
- 14. Requesting a review of an infringement notice
- 15. Withdrawing an infringement notice
- 16. Requesting an extension of the payment period
- 17. What happens if the penalty is not paid?
- 18. What happens when the penalty is paid?
The APVMA can issue infringement notices for breaches of the agricultural and veterinary (Agvet) legislation as an alternative to taking matters to court.
This page explains how infringement notices work and how they are enforced.
1. What is an infringement notice?
Infringement notices are notices issued by the APVMA that require a person or other entity to pay a penalty for an identified breach of Agvet legislation.
2. Overview of the legislative provisions
Section 69EK of the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Admin Act) applies if an APVMA inspector considers that a person has contravened a prescribed civil penalty provision of the Admin Act or the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994(Collection Act). In that event, the inspector may give that person an infringement notice under section 69EK.
Section 145DA of the Agricultural and Veterinary Chemicals Code scheduled to the Agricultural and Veterinary Chemicals Code Act 1994 (the Agvet Code) applies if an APVMA inspector considers that a person has contravened a prescribed civil penalty provision of the Agvet Code. In that event, the inspector may give that person an infringement notice under section 145DA of the Agvet Code.
The objective of the infringement notice powers is to provide a timely and measured enforcement response to those strict liability offences for which a predetermined penalty is deemed to be appropriate and commensurate to the level of the offence.
The issue of an infringement notice is an efficient way of dealing with lower range offences and has the potential to reduce expense and delay that could occur with court proceedings. An infringement notice does not mean that a conviction is recorded.
The infringement notice provisions in the legislation are accompanied by mechanisms that allow us to withdraw from the infringement notice system and process the matter through the courts if a notice is challenged or if we determine that a more severe sanction is appropriate.
The process leading to the issue of an infringement notice flows from the APVMA’s compliance and enforcement investigative actions.
An authorised APVMA inspector who has reasonable grounds to believe that a person has contravened a prescribed civil penalty provision under Agvet legislation can issue an infringement notice for the contravention. While the discretion to issue an infringement notice rests with an individual inspector, we ensure that there is appropriate agency oversight by the APVMA of the use of this power.
There must be evidence of the alleged or actual contravention of the Admin Act, Collection Act or Agvet Code, and we must have collected admissible evidence capable of establishing reasonable grounds to believe that the contravention occurred. If an inspector cannot establish reasonable grounds to believe that the contravention has occurred, they must not issue an infringement notice.
5. Who can give an infringement notice?
Under the Agvet legislation and regulations, infringement notices may be issued only by APVMA inspectors. When an inspector issues a notice, they are exercising their personal discretion in relation to the contravention to which the notice relates. They must personally believe on reasonable grounds that the contravention has occurred. They must not give a notice if the required belief threshold is not met, and they cannot be directed to do so.
Our inspectors treat all contraventions for which infringement notices are given as potentially defended matters. If an inspector intends to give a notice, they must first establish which statute which has been contravened and then ensure that sufficient evidence is available to support a civil prosecution should the matter be defended.
6. What matters must be included in an infringement notice given by an inspector
An infringement notice issued under section 69EK of the Admin Act or section 145DA of the Agvet Code must:
a) Be identified by a unique number, and
b) State the day it is given, and
c) State the name of the person to whom the notice is given, and
d) State the name of the inspector who gave the notice, and
e) Give brief details of the alleged contravention, including:
- the provision that was allegedly contravened, and
- the maximum penalty that a court could impose for the contravention, and
- the time (if known) and day of, and the place of, the alleged contravention, and
f) State the amount that is payable under the notice, and
g) Give an explanation of how payment of the amount is to be made, and
h) State that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn) proceedings seeking a civil penalty order will not be brought in relation to the alleged contraventions, and
i) State that payment of the amount is not an admission of liability, and
j) State that the person may apply to the APVMA to have an extension of time to pay the amount, and
k) State that the person may choose not to pay the amount and if the person does so, proceedings seeking a civil penalty order may be brought in relation to the alleged contravention, and
l) Set out how the notice can be withdrawn, and
m) State that if the notice is withdrawn proceedings seeking a civil penalty order may be brought in relation to the alleged contravention, and
n) State that the person may make written representations to the APVMA seeking the withdrawal of the notice.
7. How an infringement notice is given
An inspector will give infringement notices to individuals personally for alleged contraventions.
Infringement notices given by an inspector to a business entity or corporation for alleged contraventions will be served by registered post, which requires a delivery receipt.
8. Who can receive an infringement notice?
Infringement notices can be given to the person or entity who the inspector considers committed the noncompliance. This might be an individual, a corporation, or both, but a notice can be given only to a legal entity against which court proceedings can be taken.
The inspector can also give a notice to a person who is secondarily involved in a contravention (as opposed to being the primary contravener) but who has nonetheless contravened the legislation.
Infringement notices are not given for alleged contraventions of a civil penalty provision by someone under 18 years of age. In such cases the inspector will prepare a summary report of the contravention for our legal officers.
9. When can an infringement notice be given?
Under Agvet legislation, infringement notices can be given at any time within the 12 months after the date of an alleged contravention of a civil penalty provision. Any subsequent civil proceedings must be commenced within six years of the alleged contravention. If the contravention is also an offence under the Agvet legislation, any prosecution for the offence must be commenced within three years of the date the offence is alleged to have been committed, or within two years of the date that evidence of the offence first came to the attention of the APVMA, a member of staff or an inspector.
The amount stated in an infringement notice issued under either section 69EK of the Admin Act or section 145DA of the Agvet Code must not exceed one-fifth of the maximum penalty that a court could impose on the person for that contravention. The regulations made under the Agvet Code and Admin Act respectively prescribes the infringement notice penalties that may apply for alleged contravention against the relevant legislation.
11. What if there are multiple offences?
If the inspector finds multiple offences, they may give an infringement notice for each contravention.
12. Time for payment
Penalties must normally be paid within 28 days.
The recipient of an infringement notice may request a review and/or withdrawal of the notice or an extension of time to pay the penalty, or may elect to contest the infringement notice in court.
13. How to pay
Infringements are to be paid in Australian currency by electronic funds transfer or credit card.
The full and accurate amount must be paid. It cannot be paid in instalments. Inaccurate or part payments will not be processed, and we will consider the penalty unpaid until we receive the full and correct amount.
14. Requesting a review of an infringement notice
If you are given an infringement notice, you may write to the APVMA and request a review of the penalty notice. Such requests should provide reasons and/or evidence of the basis for review.
15. Withdrawing an infringement notice
We have discretion to withdraw an infringement notice. We may do so if we consider that you have provided evidence of a reasonable excuse for the contravention.
If we determine that an infringement was given incorrectly or in error, we are required to withdraw the notice.
We cannot vary an infringement notice.
16. Requesting an extension of the payment period
You may apply in writing to us to ask for a further period for payment of the penalty within 28 days after the date of service of the notice.
You can apply for a further extension, but we will consider it only in exceptional circumstances, such as financial hardship. At the expiry of that period, non-payment will result in referral of the matter for court adjudication.
17. What happens if the penalty is not paid?
If you do not pay the penalty we may apply to a court for an order under section 69EJ of the Admin Act or section 145EJ 145A of the Agvet Code requiring you to pay the Commonwealth a pecuniary penalty.
18. What happens when the penalty is paid?
We take the giving of a notice by an inspector and the payment of the penalty by you as the full and final resolution of any action that might otherwise have been taken as a result of the contravening conduct. No conviction is recorded.