Generally any penalties will be recovered by negotiation or by application to the Environment, Resources and Development Court made by the Minister or relevant council.
However, where a breach of the Act requires proof of intention or other mental element a civil penalty cannot be recovered and criminal proceedings must be initiated [s 34(2)].
Before taking any action in the Environment, Resources and Development the Minister or a relevant council must consider the seriousness of the contravention, the previous record of the offender and any other relevant factors.
Before making an application to the Court the Minister or a relevant council must serve a notice advising the person that they may elect to be prosecuted for the breach and provide 21 days after service of the notice for the person to make an election if they choose.
The maximum amount that can be recovered as a civil penalty is the total of the amount specified by the Act as the criminal penalty (these are specified in the relevant sections) and the amount of any economic benefit acquired by the person as a result of the breach [s 34(4)].
Evidence of information (including documents) provided by a person is not admissible in criminal proceedings against them if the information was given in the course of negotiations or proceedings for the recovery of an amount as a civil penalty and the conduct forming the basis of the criminal proceedings is substantially the same as was alleged for the civil contravention [s 34(11)]. This does not apply to criminal proceedings relating to the making of a false or misleading statement.
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