Radiation Protection and Control Act 2021

Subject to this section, if the Minister is satisfied that a person has committed an offence by contravening a provision of this Act, the Minister may, as an alternative to criminal proceedings, recover, by negotiation or by application to the ERD Court, an amount as a civil penalty in respect of the contravention.

The Minister may not recover an amount under this section in respect of a contravention if the relevant offence requires proof of intention or some other state of mind, and must, in respect of any other contravention, determine whether to initiate proceedings for an offence or take action under this section, having regard to the seriousness of the contravention, the previous record of the offender and any other relevant factors.

The Minister may not make an application to the ERD Court under this section to recover an amount from a person as a civil penalty in respect of a contravention—

unless the Minister has served on the person a notice in the prescribed form advising the person that the person may, by notice given to the Minister in the prescribed manner, elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the Minister's notice to make such an election; or

if the person serves notice on the Minister, before the making of such an application, that the person elects to be prosecuted for the contravention.

The maximum amount that the Minister may recover by negotiation as a civil penalty in respect of a contravention is the sum of the amount specified by this Act as the criminal penalty in relation to that contravention and the amount of any economic benefit acquired by the person, or accrued or accruing to the person, as a result of the contravention.

If, on an application by the Minister, the ERD Court is satisfied on the balance of probabilities that a person has contravened a provision of this Act, the Court may order the person to pay to the Minister an amount as a civil penalty (but not exceeding the amount specified by this Act as the criminal penalty in relation to that contravention).

In determining the amount to be paid by a person as a civil penalty, the ERD Court must have regard to—

the nature and extent of the contravention; and

any detriment to the public interest resulting from the contravention; and

any financial saving or other benefit that the person stood to gain by committing the contravention; and

whether the person has previously been found, in proceedings under this Act or the repealed Act, to have engaged in any similar conduct; and

any other matter it considers relevant.

The jurisdiction conferred by this section is to be part of the civil jurisdiction of the ERD Court.

If conduct of a person constitutes a contravention of 2 or more provisions of this Act, an amount may be recovered from the person under this section in relation to the contravention of any 1 or more of those provisions (provided that the person is not liable to pay more than 1 amount as a civil penalty in respect of the same conduct).

Proceedings for an order under this section that a person pay an amount as a civil penalty in relation to a contravention of this Act, or for enforcement of such an order, are stayed if criminal proceedings are started, or have already been started, against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

Furthermore—

proceedings referred to in subsection (9) may only be resumed if the criminal proceedings do not result in a formal finding of guilt being made against the person; and

if proceedings for an order under this section that a person pay an amount as a civil penalty in relation to a contravention of this Act are commenced by the Minister, criminal proceedings against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention cannot be commenced without the authorisation of the Attorney‑General.

Evidence of information given or evidence of the production of documents by a person is not admissible in criminal proceedings against the person if—

the person gave the evidence or produced the documents in the course of negotiations or proceedings under this section for the recovery of an amount as a civil penalty in relation to a contravention of this Act; and

the conduct alleged to constitute the offence is substantially the same as the conduct that was alleged to constitute the contravention.

However, subsection (11) does not apply to criminal proceedings in respect of the making of a false or misleading statement.

The ERD Court may, in any proceedings under this section, make such orders in relation to the costs of the proceedings as it thinks just and reasonable.