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6.8.2 Offences involving a failure to comply with notices

Context

A person who fails to comply with a notice may be guilty of an offence.

Act references

CSA Act section 159B, section 160, section 161, section 162

CSRC Act section 72A, section 120, section 121

On this page

Garnishee notice (section 72A)

The Registrar can give a notice to a person who owes money to a relevant debtor to pay that money to the Registrar (CSRC Act section 72A(1)). See 5.2.9.

A person who refuses, or fails, to comply with a valid notice is guilty of an offence unless they have a reasonable excuse. The maximum penalty is 10 penalty units (see 6.8.7 for penalty unit amount) (CSRC Act section 72A(2)).

Examples: Solicitors or land brokers who fail to comply with notices issued against the proceeds of a property sale.

An employer who fails to comply with a notice to deduct from a termination payment.

Contractors who fail to deduct amounts from contract payments made.

In addition to the penalty, a court can order the person to pay the Registrar an amount that is not more than the amount, or sum of the amounts (as the case may be), that the person refused, or failed, to pay (CSRC Act section 72A(8)).

The Registrar views a failure or refusal to comply with a notice under section 72A very seriously.

Failure to attend, provide information & produce documents

The Registrar can require a person to:

  • provide information
  • produce documents, and
  • attend and answer questions.

The Registrar's information gathering powers under the CSRC Act and the CSA Act are discussed in 6.2.

Failure to provide required information in relation to an estimate of income (section 159B)

If a person who has been required to give information to the Registrar in relation to an estimate of income recklessly fails to give the necessary notification, they are guilty of an offence (CSA Act section 159B(1)). The requirement to notify the Registrar arises from a notice under section 160 of the CSA Act (6.2).

A person will be taken to have acted reckless where they act without reasonable care or intentionally disregard the requirement, having regard to:

  • their abilities, experience, qualifications and other attributes, and
  • all the circumstances surrounding the alleged offence.

The maximum penalty is 5 penalty units (see 6.8.7 for penalty unit amount) (CSA Act section 159B(1)).

Notice to notify about an event or change in circumstances (section 160)

If a person fails to comply with a notice under section 160 of the CSA Act (6.2) and they do not have a reasonable excuse (CSA Act section 160(3B)), they may be guilty of an offence (CSA Act section 160(3)). A person has a reasonable excuse if compliance would tend to incriminate them (CSA Act section 160(4)).

A person only needs to comply with a notice to the extent that they are capable (CSA Act section 160(3A)).

This offence is punishable on conviction by imprisonment for a maximum of 6 months (CSA Act section 160(3)).

Notice for information or evidence for assessment purposes (section 161)

If a person fails to comply with a notice under section 161 of the CSA Act (6.2) and they do not have a reasonable excuse (CSA Act section 161(3B)), they may be guilty of an offence (CSA Act section 161(3)). A person has a reasonable excuse if compliance would tend to incriminate them (CSA Act section 161(4)).

Example: A payer, Chantal, is required to attend a department office for an interview to answer questions. Chantal attends the interview but refuses to answer questions concerning assets and income. Chantal specifically refuses to answer questions about income that may have been omitted from an estimate of income form Chantal gave previously.

If prosecuted under section 161(3) of the CSA Act, Chantal may be able to argue successfully that answers to the questions would have been self incriminatory and could provide evidence of offences under section 159 of the CSA Act of false and misleading statements.

A person only needs to comply with a notice to the extent that they are capable (CSA Act section 161(3A)).

This offence is punishable on conviction by imprisonment for a maximum of 6 months (CSA Act section 161(3)).

Notice for information or evidence for collection purposes (section 120)

If a person fails to comply with a notice under section 120 of the CSRC Act (6.2) they may be guilty of an offence (CSRC Act section 120(3)). There is no reasonable excuse defence in section 120 of the CSRC Act.

A person only needs to comply with a notice to the extent that they are capable (CSRC Act section 120(4)).

This offence is punishable on conviction by a maximum fine of 20 penalty units (see 6.8.7 for penalty unit amount) (CSRC Act section 120(3)).

Order to comply with requirement (section 121)

A court can also order a person to comply with a requirement under section 120 of the CSRC Act or section 161 of the CSA Act within a specified time. Failure to comply with the order of a court is also an offence.

These offences are punishable on conviction by a maximum fine of 50 penalty units (see 6.8.7 for penalty unit amount) and/or imprisonment for a maximum of 12 months if the order is made under the CSRC Act (CSRC Act section 121(3)), or imprisonment for a maximum of 12 months if the order is made under the CSA Act (CSA Act section 162(3)).

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