Corporations Act 2001
CHAPTER 9
-
MISCELLANEOUS
PART 9.4B
-
CIVIL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS
Division 1
-
The Court may make declarations of contravention, pecuniary penalty orders, relinquishment orders, refund orders and compensation orders
SECTION 1317E
DECLARATION OF CONTRAVENTION OF A CIVIL PENALTY PROVISION
Declaration of contravention
1317E(1)
If a Court is satisfied that a person has contravened a civil penalty provision, the Court must make a declaration of contravention.
1317E(2)
The declaration must specify the following: (a) the Court that made the declaration; (b) the civil penalty provision that was contravened; (c) the person who contravened the provision; (d) the conduct that constituted the contravention; (e) if the contravention is of a corporation/scheme civil penalty provision - the corporation, registered scheme or notified foreign passport fund to which the conduct related; (f) if the contravention is of subsection 1211B(1) or (2) (complying with the Passport Rules for this jurisdiction) - the passport fund in relation to which the obligation was imposed on the person; (g) if the contravention is of subsection 670A(4) , 727(6) , 728(4) or 1309(12) (misleading statements etc.) - the corporation, registered scheme or notified foreign passport fund to which the conduct related.
Meanings of civil penalty provision , corporation/scheme civil penalty provision and financial services civil penalty provision
1317E(3)
In this Act: (a) a provision specified in column 1 of the following table is a civil penalty provision ; and (b) a civil penalty provision categorised as a corporation/scheme provision in column 3 of the following table is a corporation/scheme civil penalty provision ; and (c) a civil penalty provision categorised as a financial services provision in column 3 of the following table is a financial services civil penalty provision ; and (d) a provision that is specified as having no categorisation in column 3 of the following table is neither a corporation/scheme civil penalty provision nor a financial services civil penalty provision .
Attempt and involvement in contravention treated in same way as actual contravention
1317E(4)
A person who: (a) attempts to contravene a civil penalty provision; or (b) is involved in a contravention of a civil penalty provision;
View history note
Hide history noteDeclaration of contravention
1317E(1)
If a Court is satisfied that a person has contravened a civil penalty provision, the Court must make a declaration of contravention.
1317E(2)
The declaration must specify the following: (a) the Court that made the declaration; (b) the civil penalty provision that was contravened; (c) the person who contravened the provision; (d) the conduct that constituted the contravention; (e) if the contravention is of a corporation/scheme civil penalty provision - the corporation, registered scheme or notified foreign passport fund to which the conduct related; (f) if the contravention is of subsection 1211B(1) or (2) (complying with the Passport Rules for this jurisdiction) - the passport fund in relation to which the obligation was imposed on the person; (g) if the contravention is of subsection 670A(4) , 727(6) , 728(4) or 1309(12) (misleading statements etc.) - the corporation, registered scheme or notified foreign passport fund to which the conduct related.
Meanings of civil penalty provision , corporation/scheme civil penalty provision and financial services civil penalty provision
1317E(3)
In this Act: (a) a provision specified in column 1 of the following table is a civil penalty provision ; and (b) a civil penalty provision categorised as a corporation/scheme provision in column 3 of the following table is a corporation/scheme civil penalty provision ; and (c) a civil penalty provision categorised as a financial services provision in column 3 of the following table is a financial services civil penalty provision ; and (d) a provision that is specified as having no categorisation in column 3 of the following table is neither a corporation/scheme civil penalty provision nor a financial services civil penalty provision .
| Civil penalty provisions | ||
|
Column 1
Provision |
Column 2
Brief description of the provision |
Column 3
Categorisation of the provision |
| subsections 180(1) , 181(1) and (2) , 182(1) and (2) and 183(1) and (2) | officers ' duties | corporation/scheme |
| subsections 188(1) and (2) | responsibilities of secretaries etc. for corporate contraventions | corporation/scheme |
| subsection 209(2) | related parties rules | corporation/scheme |
| subsections 254L(2) , 256D(3) , 259F(2) and 260D(2) | share capital transactions | corporation/scheme |
| subsections 344(1) and (1A) | requirements for financial reports | corporation/scheme |
| subsection 458F(1) | obligation to declare and publish notice if company not eligible for temporary restructuring relief | corporation/scheme |
| subsection 588G(2) | insolvent trading | corporation/scheme |
| subsection 588GAB(2) | preventing creditor-defeating dispositions | corporation/scheme |
| subsection 588GAC(2) | procuring creditor-defeating dispositions | corporation/scheme |
| subsections 596AC(1) , (2) , (3) and (4) | avoiding employee entitlements | corporation/scheme |
| subsection 601ED(8) | obligation to be registered if operating certain managed investment schemes | corporation/scheme |
| subsection 601FC(5) | duties of responsible entity | corporation/scheme |
| subsection 601FD(3) | duties of officers of responsible entity | corporation/scheme |
| subsection 601FE(3) | duties of employees of responsible entity | corporation/scheme |
| subsection 601FG(2) | acquisition of interest in scheme by responsible entity | corporation/scheme |
| subsection 601JD(3) | duties of members | corporation/scheme |
| subsection 601UAA(2) | duties of officers of licensed trustee company | corporation/scheme |
| subsection 601UAB(2) | duties of employees of licensed trustee company | corporation/scheme |
| subsection 641A(1) | use or disclosure of information obtained from target | uncategorised |
| subsection 670A(4) | misstatements in, or omissions from, takeover and compulsory acquisition and buy-out documents | uncategorised |
| subsections 674A(2) , 674A(3) , 675A(2) and 675A(3) | continuous disclosure - knowledge, recklessness or negligence | financial services |
| subsection 727(6) | offering securities without a current disclosure document | uncategorised |
| subsection 728(4) | misstatement in, or omission from, disclosure document | uncategorised |
| subsection 791A(3) | need for an Australian market licence | uncategorised |
| subsection 792A(2) | general obligations of market licensees | uncategorised |
| subsection 792B(7) | market licensee to notify ASIC of certain matters | uncategorised |
| subsection 798H(1) | complying with market integrity rules | uncategorised |
| subsection 820A(3) | need for an Australian CS facility licence | uncategorised |
| subsection 821A(2) | general obligations of CS facility licensees | uncategorised |
| subsection 821B(6) | CS facility licensee to notify ASIC of certain matters | uncategorised |
| subsection 826J(1) | complying with CS facility rules | uncategorised |
| section 828C | complying with CS services rules | uncategorised |
| section 828D | obligation to notify ASIC of inability to meet obligations under section 828C | uncategorised |
| subsection 848C(4) | disclosure of information covered by secrecy provision | financial services |
| subsection 853F(3) | obligations on disqualified individuals | uncategorised |
| section 901E | complying with derivative transaction rules | uncategorised |
| section 903D | complying with derivative trade repository rules | uncategorised |
| subsection 904A(2) | general obligations of derivative trade repository licensees | uncategorised |
| subsection 904C(1A) | obligation to notify ASIC of inability to meet obligations under section 904A | uncategorised |
| subsection 905A(3) | need to hold a licence to operate a derivative trade repository | uncategorised |
| subsection 908CF(1) | complying with financial benchmark rules or compelled financial benchmark rules | uncategorised |
| subsections 908DA(1) and (2) and 908DB(1) and (2) | manipulating financial benchmarks | uncategorised |
| subsection 911A(5B) | need for an Australian financial services licence | uncategorised |
| subsection 911B(4) | providing financial services on behalf of a person who carries on a financial services business | uncategorised |
| subsection 912A(5A) | general obligations of a financial services licensee | uncategorised |
| subsection 912DAA(7) | failure by a financial services licensee to report to ASIC a reportable situation in relation to the licensee | uncategorised |
| subsection 912DAB(8) | failure by a financial services licensee to report to ASIC a reportable situation in relation to another financial services licensee, or to give a copy of the report to the other financial services licensee | uncategorised |
| subsection 912DAC(4) | failure by a financial services licensee to notify ASIC that the licensee has become, or ceased to be, a participant in a licensed market or a licensed CS facility | uncategorised |
| subsection 912EA(5) | failure by a financial services licensee to notify an affected client of a reportable situation | uncategorised |
| subsection 912EB(9) | failure by a financial services licensee to investigate a reportable situation, notify an affected client of the outcome of the investigation or compensate an affected client | uncategorised |
| subsection 920C(4) | need to comply with a banning order | uncategorised |
| subsection 921BA(5) | relevant providers to meet education and training standards | uncategorised |
| subsection 921BB(4) | relevant providers who provide tax (financial) advice services to meet requirement for continuing professional development | uncategorised |
| subsection 921E(3) | relevant providers to comply with the Code of Ethics | uncategorised |
| subsection 921F(8) | requirements relating to provisional relevant providers | uncategorised |
| subsection 921L(2) | relevant providers to comply with direction under paragraph 921L(1)(a) | uncategorised |
| section 921Y | unregistered relevant providers not to provide personal advice | uncategorised |
| subsection 921Z(4) | financial services licensees not to continue to authorise unregistered relevant providers to provide personal advice | uncategorised |
| subsection 922M(5) | need to comply with obligation to notify ASIC | uncategorised |
| subsection 941A(3) | obligation on financial services licensee to give a Financial Services Guide if financial service provided to person as a retail client | uncategorised |
| subsection 941B(4) | obligation on authorised representative to give a Financial Services Guide if financial service provided to person as a retail client | uncategorised |
| subsection 943G(3) | obligation on financial services licensee to make website disclosure information available if financial product advice is provided to a person as a retail client and no Financial Services Guide is given | uncategorised |
| subsection 943H(4) | obligation on authorised representative to make website disclosure information available if financial product advice is provided to a person as a retail client and no Financial Services Guide is given | uncategorised |
| subsection 943K(2) | obligation to keep website disclosure information readily accessible | uncategorised |
| subsection 943L(2) | obligation to keep website disclosure information up to date | uncategorised |
| subsection 946A(4) | obligation to give client a Statement of Advice | uncategorised |
| subsection 948C(2) | obligation to give client a Cash Settlement Fact Sheet | uncategorised |
| subsection 952E(9) | giving a defective disclosure document or statement (whether or not known to be defective) | uncategorised |
| subsection 952H(3) | financial services licensee failing to ensure authorised representative gives disclosure documents or statements as required | uncategorised |
| subsections 961K(1) and (2) | financial services licensee responsible for breach of certain best interests duties | uncategorised |
| section 961L | financial services licensee to ensure compliance with certain best interests duties | uncategorised |
| subsection 961Q(1) | authorised representative responsible for breach of certain best interests duties | uncategorised |
| subsection 962R(4) | fee recipient must obtain consent to deduct ongoing fees from an account | uncategorised |
| subsection 962S(5) | fee recipient must obtain consent to arrange for deductions of ongoing fees from an account | uncategorised |
| subsection 962S(8) | fee recipient must not accept payment of ongoing fees resulting from a deduction from an account without consent | uncategorised |
| subsection 962Z | charging an ongoing fee after arrangement has terminated | uncategorised |
| subsections 963E(1) and (2) | financial services licensee responsible for breach of ban on conflicted remuneration | financial services |
| section 963F | financial services licensee must ensure representatives do not accept conflicted remuneration | financial services |
| subsection 963G(1) | authorised representative must not accept conflicted remuneration | financial services |
| section 963J | employer must not pay employees conflicted remuneration | financial services |
| section 963K | financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative | financial services |
| section 963P | person covered by section 963M must pay amount etc. in accordance with regulations | financial services |
| subsection 964A(1) | platform operator must not accept volume-based shelf-space fees | financial services |
| subsections 964D(1) and (2) | financial services licensee responsible for breach of asset-based fees on borrowed amounts | financial services |
| subsection 964E(1) | authorised representative must not charge asset-based fees on borrowed amounts | financial services |
| section 965 | anti-avoidance of Part 7.7A provisions | financial services |
| subsection 981B(3) | obligation to pay money into an account | uncategorised |
| subsection 981C(2) | various matters relating to accounts maintained for the purposes of section 981B | uncategorised |
| subsection 981M(1) | complying with client money reporting rules | uncategorised |
| subsection 985E(1) | issuing or increasing limit of margin lending facility without having made assessment etc. | financial services |
| subsection 985H(1) | failure to assess a margin lending facility as unsuitable | financial services |
| subsection 985J(1) | failure to give assessment to retail client if requested before issue of facility or increase in limit | financial services |
| subsection 985J(2) | failure to give assessment to retail client if requested after issue of facility or increase in limit | financial services |
| subsection 985J(4) | demanding payment to give assessment to retail client | financial services |
| subsection 985K(1) | issuing or increasing limit of margin lending facility if unsuitable | financial services |
| section 985L | making issue of margin lending facility conditional on retail client agreeing to receive communications through agent | financial services |
| subsection 985M(1) | failure to notify of margin call where there is no agent | financial services |
| subsection 985M(2) | failure to notify of margin call where there is an agent | financial services |
| subsection 993D(4) | failure to pay loan money into an account as required | financial services |
| subsections 994B(2) and (9) | failure to make and make available target market determinations for financial products | financial services |
| subsection 994C(2) | failure to review target market determinations | financial services |
| subsection 994C(4) | engaging in retail product distribution conduct in relation to financial products before review of target market determinations | financial services |
| subsection 994C(5) | failure to inform regulated persons of obligations not to engage in retail product distribution conduct in relation to financial products before review of target market determinations | financial services |
| subsection 994C(7) | engaging in retail product distribution conduct in relation to financial products before review of target market determinations | financial services |
| section 994D | engaging in retail product distribution conduct where no target market determination | financial services |
| subsections 994E(1) and (3) | ensuring that retail product distribution conduct is consistent with target market determinations | financial services |
| subsections 994F(1) and (3) | failure to keep records | financial services |
| subsections 994F(4) , (5) and (6) | failure to report complaints and other information | financial services |
| subsection 994F(8) | failure to comply with requirements of regulations | financial services |
| section 994G | failure to notify ASIC | financial services |
| subsection 994H(3) | failure to provide information to ASIC on request | financial services |
| subsections 994J(7) and (8) | failure to comply with stop order obligations | financial services |
| subsection 1012A(5) | obligation to give Product Disclosure Statement - personal advice recommending particular financial product | financial services |
| subsection 1012B(6) | obligation to give Product Disclosure Statement - situations related to issue of financial products | financial services |
| subsection 1012C(11) | obligation to give Product Disclosure Statement - offers related to sale of financial products | financial services |
| subsection 1017BA(4B) | trustee of regulated superannuation funds - obligation to make product dashboard publicly available | financial services |
| subsection 1017BB(5AA) | trustee of registrable superannuation entities - obligation to make information relating to investment of assets publicly available | financial services |
| subsection 1020A(5) | offers etc. relating to certain managed investment schemes not to be made in certain circumstances | financial services |
| subsection 1021E(8) | preparer of defective disclosure document or statement giving the document or statement (whether or not known to be defective) | financial services |
| subsection 1021G(3) | financial services licensee failing to ensure authorised representative gives etc. disclosure documents or statements as required | financial services |
| subsection 1023P(1) | engaging in conduct contrary to a product intervention order | financial services |
| subsection 1023P(2) | failure to notify retail clients | financial services |
| subsection 1023P(4) | failure to take reasonable steps to make others aware of product intervention order | financial services |
| subsection 1023S(1) , (2) , (3) or (4) | schemes for avoiding certain product intervention orders | uncategorised |
| section 1041A | market manipulation | financial services |
| subsection 1041B(1) | false trading and market rigging - creating a false or misleading appearance of active trading etc. | financial services |
| subsection 1041C(1) | false trading and market rigging - artificially maintaining etc. market price | financial services |
| section 1041D | dissemination of information about illegal transactions | financial services |
| subsections 1043A(1) and (2) | insider trading | financial services |
| section 1101AC | failure to comply with an enforceable code provision | financial services |
| a provision of a regulation made under section 1101AD that includes the words " civil penalty " and one or more amounts in penalty units at the foot of the provision | failure to comply with a civil penalty provision of a mandatory code of conduct | financial services |
| subsections 1211B(1) and (2) | contravening the Passport Rules | uncategorised |
| subsection 1224D(1) | duties owed by director of a CCIV | corporation/scheme |
| subsection 1224D(2) | duties owed by director of a retail CCIV | corporation/scheme |
| subsection 1224D(4) | duties owed by director of a wholesale CCIV | corporation/scheme |
| subsection 1224P(2) | acquisition of share in CCIV by corporate director of retail CCIV | corporation/scheme |
| subsection 1225(1) | duties owed by officers of corporate director of retail CCIV | corporation/scheme |
| subsection 1225F(1) | duties owed by employees of corporate director of retail CCIV | corporation/scheme |
| subsection 1230F(5) | share redemption requirements for CCIVs | corporation/scheme |
| subsection 1230S(4) | cross-investment restrictions or requirements for CCIVs | corporation/scheme |
| subsection 1231B(4) | unauthorised reduction of share capital by a CCIV | corporation/scheme |
| subsection 1231J(5) | directly acquiring own shares | corporation/scheme |
| subsections 1234J(1) , (2) and (3) | holding of sub-fund assets of a CCIV | corporation/scheme |
| subsection 1272C(5) | requirement to have a director identification number | financial services |
| subsection 1272D(4) | requirement to apply for a director identification number | financial services |
| subsection 1272G(4) | applying for additional director identification numbers | financial services |
| subsection 1272H(2) | misrepresenting a director identification number | financial services |
| subsections 1308(4) and (5) | false or misleading documents | uncategorised |
| subsection 1309(12) | false information | uncategorised |
| subsection 1317AAE(1) | breach of confidentiality of identity of whistleblower | uncategorised |
| subsections 1317AC(1) , (2) and (3) | victimisation or threatened victimisation of whistleblower | uncategorised |
| subclause 29(6) of Schedule 4 | disclosure for proposed demutualisation | corporation/scheme |
Note 1: Once a declaration has been made, ASIC can seek a pecuniary penalty order (section 1317G ) or (in the case of a corporation/scheme civil penalty provision and certain other civil penalty provisions) a disqualification order (section 206C ).
Note 2: The descriptions of matters in column 2 are indicative only.
Note 3: Section 908DD contains some matters relevant for making declarations of contravention for subsections 908DA(1) and (2) and 908DB(1) and (2) (about manipulating financial benchmarks).
[ CCH Note 1: S 1317E(3) will be amended by No 115 of 2021, s 3, Sch 2[9], by repealing the table item dealing with subsection 921Z(4) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
[ CCH Note 2: S 1317E(3) will be amended by No 67 of 2024, s 3, Sch 1[100], by substituting " subsection 963K(1) " for " section 963K " in table item dealing with section 963K, (effective 9 July 2025).]
[ CCH Note 3: S 1317E(3) will be amended by No 87 of 2024, s 3, Sch 2[136], by inserting the item below, (effective 17 March 2025). The item will read:
subsection 853P(3) need to comply with an FMI banning order uncategorised]
Attempt and involvement in contravention treated in same way as actual contravention
1317E(4)
A person who: (a) attempts to contravene a civil penalty provision; or (b) is involved in a contravention of a civil penalty provision;
is taken to have contravened the provision.
This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.