Penalties and Sanctions : Buying from an unapproved wholesaler - 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.
Where you have identified an instance where goods have been bought from an unapproved wholesaler, you should tell the person who bought the goods 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,
- the seriousness of the behaviour that gave rise to the penalty.
It is particularly important that you do not discuss whether you consider there to be a reasonable excuse or the seriousness of the behaviour until you have established all the facts.
Where the contravention is non-deliberate it is for the person to show that they have a reasonable excuse, if one exists.
Once you have established the facts you should consider whether
- 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
Once you have established the type of contravention and associated behaviour, you must explain to the person involved 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 have 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 the 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.