Infringement notices

1. Introduction

The Australian Pesticides and Veterinary Medicines Authority (APVMA) is Australia’s national regulator of agricultural and veterinary chemicals and the lead agency for the investigation of allegations of non-compliance with the laws it administers.

The APVMA is responsible for achieving these outcomes under the Agricultural and Veterinary Chemicals Code Act 1994 (the Agvet Code), the Agricultural and Veterinary Chemicals (Administration) Act 1992 (the Admin Act), and the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 (the Collection Act) and subordinate laws.

This information is intended to provide the public with a synopsis of the legislative provisions relevant to infringement notices and information about the APVMA’s functions and powers in relation to infringement notices.

For consistency, the APVMA treats infringement notices issued by virtue of either the Agvet Code or Admin Act in the same way.

This information is not intended to constitute legal or regulatory affairs advice.

2. What is an infringement notice?

An infringement notice is a notice issued by the APVMA, served personally or via the post, setting out the particulars of an alleged contravention of an offence or civil penalty provision.

Infringement notices describe the options available to the recipient of the notice which includes the payment of an amount set in the notice. Infringement notices may be issued by the APVMA in response to contraventions of legislation that warrant sanction but which may not warrant prosecution at that time.

Infringement notices have the advantage of allowing an offence to be dealt with quickly and without the time and cost involved in a prosecution. While an infringement notice is issued because a person has contravened a civil penalty provision, payment of the fine is not an admission of guilt (although the APVMA will record the infringement notice against the person's compliance history).

3. In what circumstances is the APVMA likely to issue an infringement notice?

Section 145DA of the Agvet Code and section 69EK of the Admin Act provide that an APVMA Inspector must have reasonable grounds to believe that a person has contravened a prescribed civil penalty provision before issuing an infringement notice.

In making decisions about issuing an infringement notice, the APVMA considers the following principles:

• Infringement notices may be issued where the contravention is minor and the scale of the impact is known and small.
• An infringement notice will generally not be appropriate where the contravention is ongoing.
• Infringement notices should not be issued for multiple offences arising out of the same course of conduct unless the offences go to separate and distinct aspects of that conduct
• Infringement notices should be issued only where the facts of the offence are clear.
• Infringement notices are issued to act as a deterrent. If an infringement notice is not likely to deter the offender from committing a similar offence in the future, consideration should be given to whether prosecution is a more appropriate response.
• Infringement notices should be issued as soon as reasonably possible after the offence comes to the attention of the APVMA, and no later than 12 months after the day the contravention is alleged to have taken place (see section 145DA (2) of the Agvet Code).

4. What details will be included in the infringement notice?

Section 145DB of the Agvet Code and section 69EKA of the Admin Act detail the particulars that must be present in an infringement notice. This includes a unique identified number, the date it is given, the name of the person to whom the notice is given, brief details of the alleged contravention, the amount payable, as well as advising of the consequences of paying and not paying the notice. The notice must also include information regarding the process for paying the notice, seeking a withdrawal of the notice and seeking an extension to the payment date.

5. What can a person do if they receive an infringement notice?

A recipient of an infringement notice is not obliged to pay the penalty but may choose to do so to avoid prosecution or the commencement of civil penalty proceedings. Payment of an infringement notice is not an admission of guilt and does not result in a criminal record. In most cases, the recipient will have had some contact with the APVMA prior to receiving an infringement notice. This may include a discussion about the alleged contravention and the person may be able to provide documents or information relevant to the circumstances surrounding the alleged contravention.

A person who is issued an infringement notice may communicate with the APVMA about the procedural matters relevant to the infringement notice, however, it is not appropriate for the APVMA to offer legal advice or enter into negotiation as to disputed facts. There is an important distinction between the right to be heard and arguing disputed facts. Where facts are disputed, seeking independent legal advice may be appropriate.

If a person elects to contest or seek review of an infringement notice, the APVMA will review the matter, including any submissions made by the person, to determine an appropriate outcome. This may include withdrawal of the infringement notice, reissuing of the infringement notice to another person or considering commencing civil or criminal proceedings. If a person who contests an infringement notice is found guilty, the court may impose a penalty higher than the amount of the infringement notice and may order the payment of costs and the recording of a conviction.

6. What are the consequences of paying and not paying the infringement notice penalty?

If a recipient pays the infringement notice penalty within the specified period:

• any liability of the person for the offence specified in the notice is discharged
• the person is not regarded as having been convicted of the offence
• the payment is not taken to be an admission by that person of any liability for the alleged offence
• if the alleged offence is one of importing prohibited imports, the goods are forfeited and the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods. Under section 69B of the Admin Act, the APVMA may notify the Comptroller-General of Customs who may then deal with the goods as provided for in the Customs Act 1901 (Cth).

If a recipient does not pay the infringement notice amount within the specified time, the APVMA may commence civil penalty proceedings or refer the matter to the Commonwealth Director of Public Prosecutions (CDPP) for consideration of criminal prosecution. In such cases, the court may impose a penalty higher than the amount of the infringement notice and may order the payment of costs and the recording of a conviction.

7. What are the relevant offences and amounts payable?

Regulations to the Agvet Code and Admin Act set out that an infringement notice is only capable of being issued for contraventions of certain sections of the legislation. The Regulations also provide the penalty payable under an infringement notice and that scales for some offence provisions may apply (e.g. based on the number of containers or volume of product involved in an alleged contravention). The APVMA treats the penalty amounts as being fixed by Regulation and does not give Inspectors discretion to vary the amount of penalty imposed.

The relevant offences and the amounts payable are set out on the APVMA website.

8. Payment

Section 145DE of the Agvet Code and section 69EKD of the Admin Act provide that payment of an infringement notice within the specified period discharges any liability of the person for the alleged contravention. Proceedings seeking a civil penalty order may not be brought against the person in relation to the alleged contravention once the infringement notice amount has been paid. Furthermore, the person is not regarded as having admitted liability for the alleged contravention.

Requesting an extension of the payment period

In accordance with section 145DC of the Agvet Code and section 69EKB of the Admin Act, the recipient of an infringement notice may request additional time to pay the infringement notice. Any request for additional time must be made within 28 days after the date of service of the notice. Applications should be made in writing to: 

Director Assessment, Investigations and Monitoring
Australian Pesticides and Veterinary Medicines Authority
GPO Box 3262
Sydney NSW 2001

Alternatively, recipients may email compliance@apvma.gov.au. If a request for additional time is not made before the end of the 28-day period, the original due date will remain and a failure to pay the infringement notice amount by that date may lead to further action by the APVMA.

9. Can an infringement notice be withdrawn?

Section 145DD of the Agvet Code and 69EKC of the Admin Act allows a person to whom an infringement notice has been given to make written representations to the APVMA seeking the withdrawal of the notice. The relevant legislation describes the matters that the APVMA must and may take into account in deciding whether to withdraw an infringement notice.

The APVMA may withdraw infringement notices whether the recipient makes written representations or not. This could occur in circumstances where the material facts change and the APVMA considers the infringement notice is no longer appropriate, e.g. the APVMA Inspector no longer has reason to believe a contravention occurred. Alternately, the discovery of additional evidence may require a different enforcement outcome to occur, e.g. civil proceedings or criminal prosecution.

It is important to remember that payment of an infringement notice by the due date is not an admission of liability, discharges liability for the contravention and civil penalty proceedings or prosecution may not be brought in relation to that contravention. If the infringement notice is withdrawn, it does not prevent the APVMA from commencing proceedings in relation to the alleged contravention/offence.

If the APVMA decides to withdraw the infringement notice after payment is received the APVMA must refund an amount equal to that which has been paid.

10. Infringement notices issued

Company fined for publishing false and misleading information

Status: Paid 16 August 2022
Alleged contraventions: Section 89(1)(a) of the Agvet Code

The Australian Pesticides and Veterinary Medicines Authority (APVMA) has issued an infringement notice to a company for publishing online false or misleading information about a chemical product, this being a contravention of section 89(1)(a) of the Agvet Code.

On 29 April 2021, the APVMA became aware of claims published on an online website by the company that were found to be false or misleading in relation to a specific chemical product registered with the APVMA. On 13 July 2021, the APVMA notified the company in writing in relation to this matter.

On 15 September 2021, a monitoring check conducted by the APVMA established that the company was still publishing false or misleading information about the chemical product. On 16 February 2022, the APVMA issued an infringement notice in the fixed amount of $27,750 to the company. The company paid the infringement notice on 16 August 2022 and now continues to cooperate with the APVMA.

The APVMA takes false or misleading claims published in relation to registered chemical products seriously. The issue of an infringement notice therefore serves as a reminder for holders of registered chemical products not to publish or communicate any information that may be deemed false or misleading.

Company fined for failing to provide hormonal growth promotant records

Status: Paid 6 August 2021
Alleged contraventions: Section 53(2) of the Agvet Code Regulations

The Australian Pesticides and Veterinary Medicines Authority (APVMA) has issued an infringement notice to an Australian company for failing to give a copy of a record made under regulation 51 of the Agvet Code Regulations, within 14 days after the end of the month in which the record was made. The failure to provide the record is a contravention of regulation 53 of the Agvet Code Regulations.

On 15 August 2020 the company did not give the APVMA the required record and on 15 July 2021 an infringement notice in the fixed amount of $55,500 was issued to the company. The company paid the infringement notice on 6 August 2021 and continues to cooperate with the APVMA.

The APVMA takes non-compliance with the reporting and supply of hormonal growth promotants seriously. This infringement notice serves as a reminder that entities must comply with requirements when receiving or supplying hormonal growth promotants.

Company fined for failing to comply with requirements of recall notice

Status: Paid 16 October 2020
Alleged contraventions: Section 105 of the Agvet Code

The Australian Pesticides and Veterinary Medicines Authority (APVMA) has issued an infringement notice to a company for failing to comply with an APVMA issued recall notice, which is a contravention of section 105 of the Agvet Code.

On 8 April 2020 the APVMA issued a recall notice to the company in relation to unregistered chemical products. The APVMA had reasonable grounds to believe that the company had not complied with all of the requirements of the recall notice and on 31 July 2020 issued an infringement notice in the fixed amount of $63,000 to the company.

The company paid the infringement notice on 16 October 2020 and continues to cooperate with the APVMA.

The APVMA takes non-compliance with the registration of chemical products and recall notices conditions seriously. This infringement notices serves as a reminder that entities issued recall notices are expected to comply with the instructions given.

Company fined for failing to comply with requirements of recall notice

Status: Paid 7 August 2020
Alleged contraventions: Section 105 of the Agvet Code

The Australian Pesticides and Veterinary Medicines Authority (APVMA) has issued an infringement notice to a company for failing to comply with an APVMA issued recall notice, which is a contravention of section 105 of the Agvet Code.

On 8 April 2020 the APVMA issued a recall notice to the company in relation to non-compliance with labelling requirements. The APVMA had reasonable grounds to believe that the company had not complied with all of the requirements of the recall notice and on 31 July 2020 issued an infringement notice in the fixed amount of $63,000 to the company.

The company paid the infringement notices on 7 August 2020 and continues to cooperate with the APVMA.

The APVMA takes non-compliance with labelling requirements and recall notices conditions seriously. This infringement notices serves as a reminder that entities issued recall notices are expected to comply with the instructions given.

Company fined for failing to comply with registration requirement for importation

Status: Paid 19 March 2020
Alleged contraventions: Section 69B of the Admin Act

The Australian Pesticides and Veterinary Medicines Authority (APVMA) has issued an infringement notice to a company for the alleged import of an unregistered chemical product into Australia, which is a contravention of section 69B of the Admin Act.

On or about 3 December 2019 the company imported 10,000 litres of a chemical product into Australia. The APVMA had reasonable grounds to believe the chemical product was not a registered chemical product and on 17 March 2020 issued an infringement notice in the fixed amount of $15,750 to the company.

The company paid the infringement notice on 19 March 2020 and continues to cooperate with the APVMA.

The APVMA takes non-compliance with the registration of chemical products seriously. This infringement notice serves as a reminder that entities are expected to comply with the registration requirements of chemical products.

Company fined for the publishing of notices that offer to sell unregistered chemical products

Status: Paid 30 March 2020
Alleged contraventions: Section 88 of the Agvet Code

The Australian Pesticides and Veterinary Medicines Authority (APVMA) has issued an infringement notice to a company for the alleged publishing of notices that offer to sell a chemical product that is not a registered product, which is a contravention of section 88 of the Agvet Code.

On or about 19 December 2019 the company published a notice that offered to supply a chemical product that was not a registered chemical product. The APVMA had reasonable grounds to believe that certain prohibited notices had been published and on 20 February 2020 issued an infringement notice in the fixed amount of $26,250 to the company.

The company paid the infringement notice on 30 March 2020 and continues to cooperate with the APVMA.

The APVMA takes the publishing of prohibited notices seriously. This infringement notice serves as a reminder that entities must comply with the legislation.