Part 2Consent and conditions regime
Enforcement: Powers of court
48Court may order person in breach or involved in breach to pay civil pecuniary penalty
On the application of the regulator, the court may order a person (A) to pay a civil pecuniary penalty to the Crown or any other person specified by the court if A has—
- contravened this Act; or
- committed an offence under this Act; or
- failed to comply with a notice under section 38 or section 39 or section 40 or section 41; or
- failed to comply with a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order; or
- been involved in a contravention of this Act, the commission of an offence under this Act, or a failure to comply referred to in paragraph (c) or (d).
The court may order A to pay a civil pecuniary penalty not exceeding the highest of the following:
- $500,000 in the case of an individual or $10 million in any other case:
- 3 times the amount of any quantifiable gain (for example, the increase in the value since acquisition) by A in relation to the property to which the consent, exemption, exemption certificate, direction order, interim direction order, prohibition order, or disposal order relates or for which a consent should have been obtained:
- the cost of remedying the breach of condition:
- the cost of remedying the breach of a term of a prohibition order or a direction order:
- the loss suffered by a person in relation to a breach of a term of a condition.
However, in the case of a contravention of section 51C, the amount of the civil pecuniary penalty must not exceed $20,000.
A person cannot be ordered to pay a penalty under this section and be required to pay a fine under any of sections 42 to 46 for the same conduct.
For the purposes of this section, the court must determine whether a person's conduct falls within subsection (1) on a balance of probabilities.
Notes
- Section 48 heading: amended, on , by section 38(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).
- Section 48 heading: amended, on , by section 38(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).
- Section 48(1): amended, on , by section 38(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).
- Section 48(1)(d): replaced, on , by section 38(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).
- Section 48(1)(e): inserted, on , by section 38(3) of the Overseas Investment Amendment Act 2018 (2018 No 25).
- Section 48(2): replaced, on , by section 38(4) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).
- Section 48(2A): inserted, on , by section 38(6) of the Overseas Investment Amendment Act 2018 (2018 No 25).
- Section 48(2A): amended, on , by section 38(5) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).