Pecuniary penalties
76 Pecuniary penalties
If the Court is satisfied that a person:
has contravened any of the following provisions:
a provision of Part IV (other than section 45AF or 45AG);
a provision of Part IVBA specified in subsection (4A);
subsection 53ZQ(1), (2) or (3), section 53ZV, subsection 53ZW(1) or a civil penalty provision of a gas market instrument; or
section 55B;
subsection 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1), section 56BZJ or a civil penalty provision of the consumer data rules;
a provision of Part IVE;
section 60C;
section 60K;
section 92;
a provision of Division 2 of Part XICA;
subsection 153ZEL(2);
paragraph 155(5)(b);
a civil penalty provision of an industry code; or
has attempted to contravene such a provision; or
has aided, abetted, counselled or procured a person to contravene such a provision; or
has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or
has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
has conspired with others to contravene such a provision;
the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part or Part XIB to have engaged in any similar conduct.
Section 87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. (Boycott conduct is defined in subsection 87AA(2).)
The pecuniary penalty payable by a person under subsection (1) is not to exceed the amount worked out using the following table.
Amount of pecuniary penalty | |||
|---|---|---|---|
Item | For each act or omission to which this section applies that relates to … | if the person is a body corporate—the pecuniary penalty is not to exceed … | if the person is not a body corporate—the pecuniary penalty is not to exceed … |
1 | section 45AJ or 45AK | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
2 | section 45D, 45DB, 45E or 45EA | $750,000 | (see subsection (2)) |
3 | any provision of Part IV not covered by items 1 and 2 of this table (see note 1) | the greater of the amounts mentioned in subsection (1B) | $2,500,000 (for acts or omissions relating to section 45DA, see subsection (2)) |
4 | a civil penalty provision of an industry code | the amount set out in the civil penalty provision of the industry code | the amount set out in the civil penalty provision of the industry code |
5 | a provision of Division 4 of Part IVBA | 6,000 penalty units | $500,000 |
6 | section 52ZC, 52ZH, 52ZS or 52ZZE | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
7 | any provision of Part IVBA not covered by items 5 and 6 of this table | 600 penalty units | $500,000 |
7A | subsection 53ZQ(1), (2) or (3) | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
7B | section 53ZV or subsection 53ZW(1) | 3,000 penalty units | 600 penalty units |
7C | a civil penalty provision of a gas market instrument not covered by item 7D of this table | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
7D | a civil penalty provision of a gas market instrument that sets out at its foot a pecuniary penalty indicated by the words “Civil penalty” | the lesser of: (a) the amount of the pecuniary penalty for a body corporate set out at the foot of the provision; and (b) the greater of the amounts mentioned in subsection (1B) | the lesser of: (a) the amount of the pecuniary penalty for a person other than a body corporate set out at the foot of the provision; and (b) $2,500,000 |
8 | section 55B, 60C or 60K | 6,471 penalty units | 1,295 penalty units |
9 | subsection 56BO(1) or 56BU(1), section 56BZA, 56BZB or 56BZC, subsection 56BZD(1), section 56BZJ or a civil penalty provision of the consumer data rules not covered by item 10 of this table | the greater of the amounts mentioned in subsection (1C) | $500,000 |
10 | a civil penalty provision of the consumer data rules that sets out at its foot a pecuniary penalty indicated by the words “Civil penalty” | the amount of the pecuniary penalty for a body corporate set out at the foot of the provision | the amount of the pecuniary penalty for a person other than a body corporate set out at the foot of the provision |
11 | a civil penalty provision of Part IVE described by section 57GA | the number of penalty units for a body corporate set out at the foot of the provision | the number of penalty units for a person other than a body corporate set out at the foot of the provision |
12 | section 92 | $33,000 | $6,600 |
13 | a provision of Division 2 of Part XICA | the greater of the amounts mentioned in subsection (1B) | $2,500,000 (see note 2) |
13A | subsection 153ZEL(2) | 600 penalty units | $500,000 |
13B | paragraph 155(5)(b) | 1,000 penalty units | 200 penalty units |
14 | any other provision to which this section applies | $10,000,000 | $500,000 |
Item 3 also applies to pecuniary penalties ordered under subsection (1) in respect of an act or omission that relates to subsection 10.49A(1), 10.60(1) or 10.65(1): see subsection 10.49A(2), 10.60(2) or 10.65(2).
Pecuniary penalties may not be ordered under subsection (1) against certain individuals in relation to contraventions of section 153E, 153F, 153G or 153H in certain circumstances: see section 153ZD.
For the purposes of items 1, 3, 6, 7A, 7C, 7D and 13 of the table in subsection (1A), the amounts are as follows:
$100,000,000;
if item 1 or 13 of the table applies, and the Court can determine the total value of the benefits that have been obtained (within the meaning of Division 1 of Part IV) by one or more persons and that are reasonably attributable to the act or omission—3 times that total value;
if item 3, 6, 7A, 7C or 7D of the table applies, and the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;
if the Court cannot determine the value of those benefits or that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the act or omission.
For the purposes of item 9 of the table in subsection (1A), the amounts are as follows:
$10,000,000;
if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;
if the Court cannot determine the value of that benefit—10% of the body corporate’s adjusted turnover during the 12‑month period ending at the end of the month in which the act or omission occurred or started to occur.
Nothing in subsection (1) authorises the making of an order against an individual because the individual has contravened or attempted to contravene, or been involved in a contravention of, section 45D, 45DA, 45DB, 45E or 45EA.
If conduct constitutes a contravention of two or more provisions of Part IV (other than section 45AF or 45AG), or two or more provisions of section 53ZQ, a proceeding may be instituted under this Act against a person in relation to the contravention of any one or more of the provisions but a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
The single pecuniary penalty that may be imposed in accordance with subsection (3) in respect of conduct that contravenes provisions to which 2 or more of the limits in items 1, 2 and 3 of the table in subsection (1A) apply is an amount up to the highest of those limits.
Subsection (3) does not apply to conduct to the extent it constitutes a contravention of both:
section 45AW; and
section 45AY.
Specified provisions of Part IVBA
For the purposes of subparagraph 76(1)(a)(iaa), the following provisions of Part IVBA are specified:
section 52J;
section 52ZI;
a provision of Division 4 of Part IVBA;
section 52ZC;
section 52ZH;
section 52ZS;
subsection 52ZT(5);
subsection 52ZV(3);
section 52ZZE;
subsection 52ZZF(1).
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