Penalties and sanctions: trading without approval - onus of proof
It is for you to show, based on the evidence you gather, that a contravention is deliberate or deliberate and concealed or non-deliberate. It is for the person to show that they have a reasonable excuse.
You should tell the person that they may be liable to a penalty as soon as you become aware of the contravention, even if you have not yet established whether the person has a reasonable excuse or the seriousness of the behaviour that gave rise to the penalty.
It is particularly important that you do not discuss whether you consider that there is a reasonable excuse for the contravention or the seriousness of the behaviour that has led to the penalty until you have established all the facts. At that point, if you consider that:
- the contravention was deliberate, or deliberate and concealed, or
- the person has not offered a reasonable excuse for a non-deliberate contravention, or
- a reasonable excuse was not remedied without unreasonable delay after it ceased to apply,
you must explain to the person why their actions and the supporting evidence has led you to this conclusion. You must issue the Compliance Checks AWRS Penalties factsheet CCFS31, allow the person time to read it and seek confirmation they understand it.
You should then invite the person’s comments. If this is dealt with at a meeting, the notes of the meeting should record fully what you said and the person’s response. You should offer to send the person a copy of your final notes of the meeting. If during a telephone conversation you become aware that penalties might be due, you should explain and then follow this up by putting your reasons in writing to the person.
You should have already considered whether a criminal sanction is appropriate and ruled out this option before you take the decision to charge a civil penalty.
Where a penalty is due it is important that you explain to the person what has gone wrong and how they can correct it in the future.
You should apply this guidance in conjunction with the Human Rights Act procedures in the Compliance Handbook at CH300000.