Regulatory penalties: options apart from a penalty
Regulatory penalties are designed to change behaviour but it is only one compliance tool available to use.
There are other compliance measures you could consider:
- a warning letter for a first breach
- additional conditions or restrictions applied to an approval
- seizure and, if appropriate, restoration.
As with other excise civil penalties, when considering the appropriate course of action, you should consider the compliance effect of the action. Therefore there is no set procedure regarding issuing warning letters but it may not be appropriate to issue a civil penalty for a first breach without issuing a warning letter first.
You may also consider that a second penalty for the same or a different contravention may be appropriate. However, you have to consider whether subsequent penalties are having any effect on behaviour if a business continues to breach the AWRS requirements. Serious or persistent failures should lead to an assessment of the business’s fit and proper status.
If you can show beyond reasonable doubt that the business was aware they were in breach of the law, you should issue a penalty regardless of whether a warning letter has been issued, where you can show that the business was aware they were in breach of the law.