Broadcasting Services Act 1992

If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Federal Court may order the person to pay the Commonwealth a pecuniary penalty.

An order under subsection (1) is to be known as a civil penalty order.

In determining the pecuniary penalty, the Federal Court must have regard to all relevant matters, including:

the nature and extent of the contravention; and

the nature and extent of any loss or damage suffered as a result of the contravention; and

the circumstances in which the contravention took place; and

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

The pecuniary penalty payable by a person in respect of a contravention of a civil penalty provision (other than subsection 74F(1), 74G(1), 74H(1), 74J(1), 74K(1), 121FZJ(1), 121FZP(1), 121FZS(1), 121FZT(3), 205AG(1) or 205E(1) or subclause 25(1) or 26(4) of Schedule 8) must not exceed the maximum pecuniary penalty that could have been imposed on the person if the person had been convicted of an offence against the provision of this Act that corresponds to the civil penalty provision.

The pecuniary penalty payable by a person in respect of a contravention of subsection 205E(1) that relates to another civil penalty provision (other than subsection 74F(1), 74G(1), 74H(1), 74J(1), 74K(1), 121FZJ(1), 121FZP(1), 121FZS(1), 121FZT(3) or 205AG(1) or subclause 25(1) or 26(4) of Schedule 8) must not exceed the maximum pecuniary penalty that could have been imposed on the person if the person had been convicted of an offence against the provision of this Act that corresponds to the other civil penalty provision.

The pecuniary penalty payable by a person in respect of:

a contravention of subsection 74F(1), 74G(1), 74H(1), 74J(1) or 74K(1); or

a contravention of section 205E that relates to a contravention of subsection 74F(1), 74G(1), 74H(1), 74J(1) or 74K(1);

if the person is a body corporate—300 penalty units; or

if the person is not a body corporate—60 penalty units.

The pecuniary penalty payable by a person in respect of:

a contravention of subsection 121FZP(1), 121FZS(1) or 121FZT(3); or

a contravention of section 205E that relates to a contravention of subsection 121FZP(1), 121FZS(1) or 121FZT(3);

if the person is a body corporate—60 penalty units; or

if the person is not a body corporate—12 penalty units.

The pecuniary penalty payable by a person in respect of:

a contravention of subsection 121FZJ(1); or

a contravention of section 205E that relates to a contravention of subsection 121FZJ(1);

if the person is a body corporate—whichever of the following is greatest:

10,000 penalty units;

if the Federal Court can determine the original expenditure requirement under subsection (5AAC) of this section in relation to the contravention—10 times that original expenditure requirement; or

if the person is not a body corporate—2,000 penalty units.

For the purposes of subparagraph (5AAB)(c)(ii), the original expenditure requirement in relation to a contravention of subsection 121FZJ(1) by a provider of an online content service is the total of the service’s Australian content expenditure requirements (before any acquittal of those expenditure requirements) for each SVOD reporting year for which the service has a carried‑over expenditure requirement mentioned in paragraph 121FZJ(1)(a) or (b).

The pecuniary penalty payable by a person in respect of:

a contravention of subsection 130ZZN(1), (2), (3) or (4); or

a contravention of section 205E that relates to a contravention of subsection 130ZZN(1), (2), (3) or (4);

if the person is a body corporate—whichever of the following is greatest:

10,000 penalty units;

if the Federal Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, has obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;

if the Federal Court cannot determine the value of that benefit—2% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the contravention occurred; or

if the person is not a body corporate—2,000 penalty units.

The pecuniary penalty payable by a person in respect of:

a contravention of subsection 130ZZP(3); or

a contravention of section 205E that relates to a contravention of subsection 130ZZP(3);

if the person is a body corporate—5,000 penalty units; and

if the person is not a body corporate—1,000 penalty units.

The pecuniary penalty payable by a person in respect of:

a contravention of subsection 130ZZQ(3); or

a contravention of section 205E that relates to a contravention of subsection 130ZZQ(3);

if the person is a body corporate—40 penalty units; and

if the person is not a body corporate—30 penalty units.

The pecuniary penalty payable by a person in respect of a contravention of subsection 146W(2) must not exceed:

if the person is a body corporate—whichever of the following is greater:

10,000 penalty units;

if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, has obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;

if the Court cannot determine the value of that benefit—2% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the contravention occurred; or

if the person is not a body corporate—2,000 penalty units.

The pecuniary penalty payable by a person in respect of a contravention of subsection 146Y(4) must not exceed:

if the person is a body corporate—5,000 penalty units; or

if the person is not a body corporate—1,000 penalty units.

The pecuniary penalty payable by a person in respect of:

a contravention of subsection 146Z(3); or

a contravention of section 205E that relates to a contravention of subsection 146Z(3);

if the person is a body corporate—40 penalty units; and

if the person is not a body corporate—30 penalty units.

The pecuniary penalty payable by a person in respect of a contravention of subsection 205AG(1) must not exceed the sum of:

whichever of the following is applicable:

if the person is a body corporate—2,000 penalty units;

if the person is not a body corporate—400 penalty units; and

if the Federal Court is satisfied that, as a result of the scheme to which the contravention relates, the person or another person has avoided becoming liable to pay an amount of interim tax—200% of the amount of interim tax avoided.

The pecuniary penalty payable by a person in respect of a contravention of subsection 205E(1) that relates to subsection 205AG(1) must not exceed the sum of:

whichever of the following is applicable:

if the person is a body corporate—2,000 penalty units;

if the person is not a body corporate—400 penalty units; and

if the Federal Court is satisfied that, as a result of the scheme to which the contravention of subsection 205AG(1) relates, the person or another person has avoided becoming liable to pay an amount of interim tax—200% of the amount of interim tax avoided.

The pecuniary penalty payable by a person in respect of:

a contravention of subclause 25(1) of Schedule 8; or

a contravention of section 205E that relates to a contravention of subclause 25(1) of Schedule 8;

if the person is a body corporate—300 penalty units; or

if the person is not a body corporate—60 penalty units.

The pecuniary penalty payable by a person in respect of:

a contravention of subclause 26(4) of Schedule 8; or

a contravention of section 205E that relates to a contravention of subclause 26(4) of Schedule 8;

if the person is a body corporate—2,000 penalty units; or

if the person is not a body corporate—400 penalty units.

If:

subsection 121FG(5), 121FHB(3), 121FJA(3), 121FJD(3), 121FZP(3), 121FZS(3) or 121FZT(5), section 136F or subsection 138A(3), 140A(8) or 142A(3) applies to a contravention of a civil penalty provision; and

civil penalty orders are made against a person in respect of 2 or more contraventions of such a provision;

If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this section against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

A pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the 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 taken to be a judgment debt.

For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:

supplies made from any of those bodies corporate to any other of those bodies corporate;

supplies that are input taxed;

supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999);

supplies that are not made in connection with an enterprise that the body corporate carries on.

For the purposes of subsection (9), it is immaterial whether the supplies were made, or are likely to be made, within or outside Australia.

Expressions used in subsections (9) and (10) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in those subsections as they have in that Act.

The question whether 2 bodies corporate are related to each other is to be determined for the purposes of subsection (9) in the same way as for the purposes of the Corporations Act 2001.