National Consumer Credit Protection Act 2009

CHAPTER 6 - COMPLIANCE AND ENFORCEMENT  

PART 6-4 - PROCEEDINGS AFTER AN INVESTIGATION  

Division 2 - Proceedings after an investigation  

SECTION 274   ASIC MAY PROSECUTE  

274(1)   [ Application]  

This section applies if:

(a) as a result of an investigation; or

(b) from a record of an examination;

conducted under this Chapter, it appears to ASIC that a person:

(c) may have committed an offence against the Commonwealth credit legislation; and

(d) ought to be prosecuted for the offence.

274(2)   [ ASIC may prosecute]  

ASIC may cause a prosecution of the person for the offence to be brought and carried on.

274(3)   [ ASIC may make requirements under subsection (4)]  

ASIC may make a requirement under subsection (4) if:

(a) ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or

(b) the offence relates to matters being, or connected with, affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity, or to matters including such matters.

274(4)   [ Reasonable assistance]  

ASIC may, whether before or after a prosecution for the offence is begun, by writing given to any of the following persons:

(a) the person referred to in paragraph (3)(a);

(b) a representative, banker, lawyer or auditor of a person referred to in paragraph (3)(b);

require the person to give all reasonable assistance in connection with such a prosecution.

Note:

Failure to comply with a requirement made under this subsection is an offence (see section 290 ).

274(5)   [ Strict liability]  

An offence under subsection 290(2) relating to subsection (4) of this section is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code .

274(6)   [ When subsection (4) does not apply]  

Subsection (4) does not apply in relation to:

(a) the person referred to in subsection (1); or

(b) a person who is or has been that person's lawyer.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (6), see subsection 13.3(3) of the Criminal Code .

274(7)   [ Not a legislative instrument]  

A requirement made by ASIC under subsection (4) is not a legislative instrument.

274(8)   [ Affect on other legislation]  

Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983 .