Mistake of fact
49CB Mistake of fact
A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:
at or before the time of the conduct constituting the contravention, the person:
considered whether or not facts existed; and
was under a mistaken but reasonable belief about those facts; and
had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
In this section:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
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