This content is current only at the time of printing. This document was printed on 23 June 2021. A current copy is located at http://www.plural-consulting.com/node/132
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The APVMA takes a firm but fair stance on court proceedings, and will only pursue a matter to court where other responses are not appropriate under the circumstances.
Initiating court proceedings (civil or criminal) is a serious matter. The APVMA or the Commonwealth Director of Public Prosecutions (CDPP) can take action against responsible legal entities—individuals, companies and company managers and directors.
A person found to have contravened a civil provision may be ordered to pay an amount the court defines, but no criminal conviction is recorded against them.
A person found guilty of committing a criminal offence may be ordered to pay a fine set by a court and may acquire a criminal record.
The standard of proof for civil litigation is the ‘balance of probabilities’ as opposed to ‘beyond reasonable doubt’ for criminal prosecutions. Many offences under Agvet legislation are ‘strict liability’ offences, and as such, do not require that state of mind or knowledge of the breach be established. The APVMA needs only to establish that the breach occurred and to confirm the identity of the person or company responsible.
The APVMA may decide to proceed with civil litigation if:
- An APVMA infringement notice has not been paid
- the matter is serious in nature, on the basis of quantity of material, or the risk posed by the alleged activity
- the activity was believed to be driven by anticipated, or actual, commercial benefit for the party.
Agvet legislation administered by the APVMA covers a range of criminal offences, which the CDPP may prosecute. After investigating a matter, and deciding that it is appropriate and reasonable to seek prosecution, the APVMA may refer the matter to the CDPP. to prefer charges.
If criminal prosecution is considered to be the most appropriate response, the APVMA prepares a brief of evidence to refer to the CDPP, who decides whether to proceed.
The CDPP makes their decision based on the Prosecution Policy of the Commonwealth, which lists a number of criteria, including whether prosecution is in the public interest.
The APVMA may seek criminal proceedings if:
- we believe the matter is particularly serious because of actual, or potential, harm to people, animals or the environment
- false or misleading information is provided to us
- the offence involves levy evasion or other significant dishonest behaviour.
Individual and corporate responsibility
Sections 145CE, 145CF and 151 of the Code Act define the liability of employees, agents or officers of a body corporate.
An ‘executive officer liability’ generally relates to an instance where an executive:
- knew the non-compliance would occur
- was in a position to stop the non-compliance
- failed to act to stop the non-compliance.
In these instances, the APVMA’s response may target both the person and their company.
Access to other Commonwealth statutes
As the APVMA is an Australian Government agency, and breaches of the Code Act (non-compliance) are treated as Commonwealth offences, we can seek to access the enforcement provisions of other legislation. This includes the Crimes Act 1914 and the Commonwealth Criminal Code 1995.
The maximum penalties under the Criminal Code for levy evasion or dishonest conduct include:
- one year of imprisonment for each instance of false or misleading information given ?to a Commonwealth entity
- 10 years of imprisonment for possessing or submitting forged documents with intent to dishonestly induce a Commonwealth entity to accept is as genuine and, if accepted, to dishonestly cause a loss.
The APVMA can also refer a matter to the Australian Federal Police (AFP) if it considers that a sufficiently serious breach has occurred. The AFP and the CDPP may consider applying the provisions for forfeiture and confiscation of the proceeds of crime.