Page 3799 - Week 10 - Thursday, 27 August 2009
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A court may make what is termed a commercial benefits penalty order which may require the offender to pay an amount up to three times the amount calculated to be the commercial benefit that was, or would have been, derived from the offence. However, if the offence in relation to which the commercial benefits penalty order is made is a strict liability offence, the amount of the order must not be more than an amount that is equivalent to 50 penalty units. In calculating the commercial benefit that was or would have been derived from the offence, the court may take into account benefits of any kind, whether monetary or otherwise, and any other matters that the court considers relevant, including, for example, the value of the goods involved in the offence and the distance over which the goods were carried or were to be carried.
A court may also make a roads compensation order requiring an offender to pay to the territory the amount of compensation that the court considers appropriate for damage to road infrastructure that the territory has suffered or is likely to suffer because of the offence. In making a roads compensation order the court may assess the amount of compensation in the way the court considers appropriate. The court may take into account the matters it considers relevant, including evidence not presented in relation to the prosecution of the offence or a certificate by the territory about matters such as the estimated cost of remedying the damage or the offender’s contribution to the damage.
A supervisory intervention order may be made by a court against a systematic or persistent offender who might require supervision and further education to achieve compliance with the act. It gives the offender an opportunity to remain in the industry and improve his or her operating performance. Such an order may require the person to do specified things to improve compliance, to conduct monitoring and other practices and to appoint other people to assist the person in compliance.
A more extreme order is an exclusion order that prohibits a person, for a specified period, from having a stated role or responsibilities associated with the transport of dangerous goods. The order can only be made if the court is satisfied that the person should not be entitled to do the things which are the subject of the order and that a supervisory intervention order is not considered appropriate. Supervisory intervention orders and exclusion orders have a strong element of public protection.
It was recognised during the development of the model legislation that jurisdictions, when implementing the national scheme, may need to modify provisions to satisfy their wider legal and policy requirements. The provisions in the bill have been finetuned to reflect ACT legal and human rights policy and to bring them more closely in line with current ACT drafting practice. For example, penalty levels in the model offence provisions have been brought more closely into line with ACT practice. Fault elements for offences or the exclusion of fault elements by making offences strict liability offences also reflect ACT practice.
The enforcement provisions reflect the standard provisions for ACT legislation, particularly provisions about the issue of a search warrant and the powers that may be exercised under the warrant. The immunity against self-incrimination and the time within which a prosecution may be commenced for an alleged offence also reflect the
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