Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (17 of 2019)
Schedule 1 Amendment of the Corporations Act 2001
Part 1 Amendments
Corporations Act 2001
113 After Part 9.4AA
Insert:
Part 9.4AB - Infringement notices for other alleged contraventions
1317DAM When an infringement notice may be given
(1) If ASIC believes on reasonable grounds that a person has contravened a provision subject to an infringement notice under this Part, ASIC may give the person an infringement notice for the alleged contravention.
(2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.
(3) A single infringement notice must relate only to a single contravention of a single provision unless subsection (4) applies.
(4) ASIC may give a person a single infringement notice relating to multiple contraventions of a single provision if:
(a) the provision requires the person to do a thing within a particular period or before a particular time; and
(b) the person fails or refuses to do that thing within that period or before that time; and
(c) the failure or refusal occurs on more than 1 day; and
(d) each contravention is constituted by the failure or refusal on one of those days.
(5) If an alleged contravention would, if proved, constitute both a contravention of a civil penalty provision and of an offence provision, the infringement notice must relate to the alleged contravention of the offence provision.
1317DAN Provisions subject to an infringement notice
The following provisions are subject to an infringement notice under this Part:
(a) strict liability offences against this Act;
(b) absolute liability offences against this Act;
(c) other prescribed offences;
(d) prescribed civil penalty provisions.
1317DAP Matters to be included in an infringement notice
(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is given; and
(c) state the name of the person to whom the notice is given; and
(d) state the name and contact details of the person who gave the notice; and
(e) give brief details of the alleged contravention, or each alleged contravention, to which the notice relates, including:
(i) the provision that was allegedly contravened; and
(ii) the maximum penalty that a court could impose for each contravention, if the provision were contravened; and
(iii) the time (if known) and day of, and the place of, each alleged contravention; and
(f) state the amount that is payable under the notice; and
(g) give an explanation of how payment of the amount is to be made; and
(h) state that the payment period for the notice will be 28 days, beginning on the day on which the notice is given, unless the period is extended, an arrangement is made for payment by instalments or the notice is withdrawn; and
(i) state that, if the person to whom the notice is givenpays the amount within the payment period, then (unless the notice is withdrawn):
(i) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision - the person will not be liable to be prosecuted in a court for the alleged contravention; or
(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision - the person is not liable to be prosecuted in a court, and proceedings seeking a pecuniary penalty order will not be brought, in relation to the alleged contravention; or
(iii) if the alleged contravention is of a civil penalty provision - proceedings seeking a pecuniary penalty order will not be brought in relation to the alleged contravention; and
(j) state that payment of the amount is not an admission of guilt or liability; and
(k) state that the person may apply to ASIC to have the period in which to pay the amount extended or for an arrangement to pay the amount by instalments; and
(l) state that the person may choose not to pay the amount and, if the person does so:
(i) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision - the person may be prosecuted in a court for the alleged contravention; or
(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision - the person may be prosecuted in a court, or proceedings seeking a pecuniary penalty order may be brought, in relation to the alleged contravention; or
(iii) if the alleged contravention is of a civil penalty provision - proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention; and
(m) set out how the notice can be withdrawn; and
(n) state that if the notice is withdrawn:
(i) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision - the person may be prosecuted in a court for the alleged contravention; or
(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision - the person may be prosecuted in a court, or proceedings seeking a pecuniary penalty order may be brought, in relation to the alleged contravention; or
(iii) if the alleged contravention is of a civil penalty provision - proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention; and
(o) state that the person may make written representations to ASIC seeking the withdrawal of the notice.
(2) The amount to be stated in the notice for the purposes of paragraph (1)(f) is:
(a) for a single contravention of an offence provision - half the maximum penalty that a court could impose on the person for the contravention; and
(b) for multiple contraventions of an offence provision - the amount worked out under paragraph (a) for a single contravention multiplied by the number of contraventions; and
(c) for a single contravention of a civil penalty provision - 12 penalty units for an individual and 60 penalty units for a body corporate; and
(d) for multiple contraventions of a civil penalty provision - the amount worked out under paragraph (c) for a single contravention multiplied by the number of contraventions.
1317DAQ Payment period
Usual payment period
(1) The payment period for an infringement notice begins on the day after the notice is given and, unless otherwise specified in this section, continues for 28 days.
Payment period extended under section 1317DAR
(2) If, under section 1317DAR, ASIC extends the payment period for the notice, the payment period is as extended.
(3) If ASIC refuses an application under subsection 1317DAR(1) for an extension of the payment period for the notice, the payment period ends on the later of the following days:
(a) the last day of the period that, without the extension that has been refused, would be the payment period for the notice;
(b) the day that is 7 days after the day the applicant was given notice of ASIC's decision not to extend;
(c) the day that is 7 days after the day the application is taken to have been refused under subsection 1317DAR(4).
Instalments
(4) If, under section 1317DAS, ASIC makes an arrangement for the amount payable under the notice to be paid by instalments, the payment period ends on the earlier of the following days:
(a) the last day on which an instalment is to be paid under the arrangement;
(b) if the person fails to pay an instalment in accordance with the arrangement, the last day on which the missed instalment was to be paid.
(5) If ASIC refuses an application made under subsection 1317DAS(1) to make an arrangement for the amount payable under the notice to be paid by instalments, the payment period ends on the earlier of the following days:
(a) the last day of the period that, without the instalment arrangement, would be the payment period for the notice;
(b) the day that is 7 days after the day the applicant was given notice of ASIC's decision not to make the arrangement;
(c) the day that is 7 days after the day the application is taken to have been refused under subsection 1317DAS(4).
Payment period if ASIC refuses to withdraw infringement notice
(6) If ASIC refuses a representation made under subsection 1317DAT(1) for the notice to be withdrawn, the payment period ends on the later of the following days:
(a) the last day of the period that, without the withdrawal, would be the payment period for the notice;
(b) the day that is 7 days after the day the person was given notice of ASIC's decision not to withdraw the notice;
(c) the day that is 7 days after the day on which, under subsection 1317DAT(5), ASIC is taken to have refused to withdraw the infringement notice.
1317DAR Extension of time to pay amount
(1) A person to whom an infringement notice has been given may, during the payment period for the notice, apply to ASIC for an extension of the payment period for the notice.
(2) ASIC may, in writing, extend the payment period for an infringement notice:
(a) if a person makes an application in accordance with subsection (1); or
(b) on ASIC's own initiative.
ASIC may do so before or after the end of the payment period.
(3) ASIC must do each of the following within 14 days after an application in accordance with subsection (1) is made:
(a) grant or refuse to grant an extension of the payment period for the infringement notice;
(b) give the applicant notice in writing of ASIC's decision.
(4) If ASIC does not comply with subsection (3):
(a) ASIC is taken to have refused to grant an extension of the payment period for the infringement notice; and
(b) the refusal is taken to have occurred on the last day of the 14 day period.
(5) ASIC may extend the payment period more than once under subsection (2).
1317DAS Payment by instalments
(1) A person to whom an infringement notice has been given may, within 28 days after the infringement notice is given, apply to ASIC to make an arrangement to pay the amount payable under the infringement notice by instalments.
(2) ASIC may, in writing, make an arrangement for a person to pay the amount payable under an infringement notice by instalments:
(a) if a person makes an application in accordance with subsection (1); or
(b) on ASIC's own initiative.
ASIC may do so before or after the end of the payment period.
(3) ASIC must do each of the following within 14 days after an application in accordance with subsection (1) is made:
(a) decide to make, or refuse to make, an arrangement for the applicant to pay the amount payable under the infringement notice by instalments;
(b) give the applicant notice in writing of ASIC's decision;
(c) if ASIC decides to make the arrangement, specify in the notice:
(i) the day by which each instalment is to be paid; and
(ii) the amount of each instalment.
(4) If ASIC does not comply with subsection (3):
(a) ASIC is taken to have refused to make an arrangement for the applicant to pay the amount payable under the infringement notice by instalments; and
(b) the refusal is taken to have occurred on the last day of the 14 day period.
(5) ASIC may vary an arrangement for a person to pay the amount payable under an infringement notice by instalments.
(6) If:
(a) a person does not pay all of the instalments in accordance with an arrangement made under this section; and
(b) the person is prosecuted, or proceedings seeking a pecuniary penalty order are brought, for the alleged contravention;
ASIC must refund to the person the amount of any instalments paid.
1317DAT Withdrawal of an infringement notice
Representations seeking withdrawal of notice
(1) A person to whom an infringement notice has been given may, within 28 days after the infringement notice is given, make written representations to ASIC seeking the withdrawal of the notice.
Withdrawal of notice
(2) ASIC may withdraw an infringement notice given to a person:
(a) if the person makes representations to ASIC in accordance with subsection (1); or
(b) on ASIC's own initiative.
ASIC may do so before or after the end of the payment period.
(3) ASIC must, within 14 days after a representation is made in accordance with subsection (1):
(a) decide to withdraw, or refuse to withdraw, the infringement notice; and
(b) if ASIC decides to withdraw the notice - give the applicant a withdrawal notice in accordance with subsection (6); and
(c) if ASIC decides to refuse to withdraw the notice - give the applicant notice of that fact.
(4) When deciding whether to withdraw, or refuse to withdraw, an infringement notice, ASIC:
(a) must take into account any written representations seeking the withdrawal that were given by the person to ASIC; and
(b) may take into account the following:
(i) whether a court has previously imposed a penalty on the person for a contravention of a provision of this Act;
(ii) the circumstances of the alleged contravention;
(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a provision of this Act;
(iv) any other matter ASIC considers relevant.
(5) If ASIC does not comply with subsection (3):
(a) ASIC is taken to have refused to make an arrangement for the applicant to pay the amount payable under the infringement notice by instalments; and
(b) the refusal is taken to have occurred on the last day of the 14 day period.
Notice of withdrawal
(6) The withdrawal notice must state:
(a) the person's name and address; and
(b) the day the infringement notice was given; and
(c) the identifying number of the infringement notice; and
(d) that the infringement notice is withdrawn; and
(e) that:
(i) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision - the person may be prosecuted in a court for the alleged contravention; or
(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision - the person may be prosecuted in a court, or proceedings seeking a pecuniary penalty order may be brought, in relation to the alleged contravention; or
(iii) if the alleged contravention is of a civil penalty provision - proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention.
Refund of amount if infringement notice withdrawn
(7) If:
(a) ASIC withdraws the infringement notice; and
(b) the person has already paid all or part of the amount stated in the notice;
ASIC must refund to the person an amount equal to the amount paid.
1317DAU Effect of payment of amount
(1) If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the payment period for the notice:
(a) any liability of the person for the alleged contravention is discharged; and
(b) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision - the person may not be prosecuted in a court for the alleged contravention; and
(c) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision - the person may not be prosecuted in a court, and proceedings seeking a pecuniary penalty order may not be brought, in relation to the alleged contravention; and
(d) if the alleged contravention is of a civil penalty provision - proceedings seeking a pecuniary penalty order may not be brought in relation to the alleged contravention; and
(e) the person is not regarded as having admitted guilt or liability for the alleged contravention; and
(f) if the provision is an offence provision - the person is not regarded as having been convicted of the alleged offence.
(2) Subsection (1) does not apply if the notice has been withdrawn.
1317DAV Effect of this Part
This Part does not:
(a) require an infringement notice to be given to a person for an alleged contravention of a provision subject to an infringement notice under this Part; or
(b) affect the liability of a person for an alleged contravention of a provision subject to an infringement notice under this Part if:
(i) the person does not comply with an infringement notice given to the person for the contravention; or
(ii) an infringement notice is not given to the person for the contravention; or
(iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or
(c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of a provision subject to an infringement notice under this Part; or
(d) limit a court's discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened a provision subject to an infringement notice under this Part.