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Contents (1999 - 80)
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Pesticides Act 1999 No 80
Current version for 15 January 2016 to date (accessed 24 August 2017 at 16:53)
Part 10 Division 6
Division 6 Other procedural provisions
108   Remedy or restraint of breaches of this Act or regulations
(1)  The Environment Protection Authority may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.
(2)  Any such proceedings may be brought whether or not proceedings have been instituted for an offence under this Act or the regulations.
(3)  If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by an order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
(4)  In this section:
breach includes a threatened or apprehended breach.
109   Matters to be considered in imposing penalty
(1)  In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
(a)  the extent of the injury, damage or harm caused or likely to be caused by the commission of the offence,
(b)  the practical measures that may be taken to prevent, control, abate or mitigate any such injury, damage or harm,
(c)  the extent to which the person who committed the offence could reasonably have foreseen the injury, damage or harm caused or likely to be caused by the commission of the offence,
(d)  the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e)  whether, in committing the offence, the person was complying with orders from an employer or supervising employee,
(f)  in any case where the defendant is a corporation, the type of corporation concerned (eg whether it is a sole trader or a family-owned business),
(g)  whether the person who committed the offence complied with any relevant pesticide code of practice.
(2)  The court may take into consideration other matters that it considers relevant.
110   Enforcement of undertakings
(1)  The Environment Protection Authority may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the Authority has a function under this Act.
(2)  The person may withdraw or vary the undertaking at any time, but only with the consent in writing of the Authority. The consent of the Authority is required even if the undertaking purports to authorise withdrawal or variation of the undertaking without that consent.
(3)  The Authority may apply to the Land and Environment Court for an order under subsection (4) if the Authority considers that the person who gave the undertaking has breached any of its terms.
(4)  The Court may make all or any of the following orders if it is satisfied that the person has breached a term of the undertaking:
(a)  an order directing the person to comply with that term of the undertaking,
(b)  an order directing the person to pay to the State an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach,
(c)  any order that the Court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,
(d)  an order suspending or revoking any licence held by the person,
(e)  an order requiring the person to prevent, control, abate or mitigate any actual or likely harm to the environment caused by the breach,
(f)  an order requiring the person to make good any actual or likely harm to the environment caused by the breach,
(g)  any other order the Court considers appropriate.
111   Causing or permitting offence
(1)  A person who causes or permits, by act or omission, another person to commit an offence under a provision of this Act or the regulations is guilty of an offence under that provision and is liable, on conviction, to the same penalty applicable to an offence under that provision.
(2)  A person does not commit an offence because of this section for any act or omission that is an offence under section 112A.
112   Liability of directors etc for offences by corporation—offences attracting executive liability
(1)  For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation:
(a)  section 7 (1),
(b)  section 8 (1),
(c)  section 9 (1),
(d)  section 10 (1),
(e)  section 11 (1),
(f)  section 12,
(g)  section 13,
(h)  section 14 (2),
(i)  section 15 (1),
(j)  section 17,
(k)  section 19 (4),
(l)  section 25,
(m)  section 39 (4),
(n)  section 41 (2),
(o)  section 42 (4),
(p)  section 59,
(q)  section 65 (5).
(2)  A person commits an offence against this section if:
(a)  a corporation commits an executive liability offence, and
(b)  the person is:
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and
(c)  the person:
(i)  knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and
(ii)  fails to take all reasonable steps to prevent or stop the commission of that offence.
Maximum penalty: The maximum penalty for the executive liability offence if committed by an individual.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.
(5)  This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.
(7)  In this section:
director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.
reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:
(a)  action towards:
(i)  assessing the corporation’s compliance with the provision creating the executive liability offence, and
(ii)  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,
(b)  action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,
(c)  action towards ensuring that:
(i)  the plant, equipment and other resources, and
(ii)  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)  action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.
112A   Liability of directors etc for offences by corporation—accessory to the commission of the offences
(1)  For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence referred to in section 112.
(2)  A person commits an offence against this section if:
(a)  a corporation commits a corporate offence, and
(b)  the person is:
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and
(c)  the person:
(i)  aids, abets, counsels or procures the commission of the corporate offence, or
(ii)  induces, whether by threats or promises or otherwise, the commission of the corporate offence, or
(iii)  conspires with others to effect the commission of the corporate offence, or
(iv)  is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.
Maximum penalty: The maximum penalty for the corporate offence if committed by an individual.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.
(5)  This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.
112B   Evidence as to state of mind of corporation
(1)  Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.
(2)  In this section, the state of mind of a person includes:
(a)  the knowledge, intention, opinion, belief or purpose of the person, and
(b)  the person’s reasons for the intention, opinion, belief or purpose.
113   Extra-territoriality
A person is guilty of a particular offence under this Act or the regulations in respect of any act or omission done or omitted by the person outside the State:
(a)  if the act or omission causes any substance to come into the State, and
(b)  if the substance causes harm or is likely to cause harm to the environment of the State, and
(c)  if (apart from this section) the act or omission would have constituted that offence if it had been done or omitted within the State.