Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (17 of 2019)
Schedule 2 Amendment of the Australian Securities and Investments Commission Act 2001
Part 1 Amendments
Australian Securities and Investments Commission Act 2001
39 After Part 3A
Insert:
Part 3B - Criminal penalties
93C Penalty for committing an offence
A person who commits an offence against this Act is punishable on conviction by a penalty not exceeding the penalty applicable to the offence.
93D Penalty applicable to an offence committed by an individual
(1) The penalty applicable to an offence committed by an individual is:
(a) for an offence for which a fine is the only penalty specified - the fine specified; and
(b) for an offence for which a term of imprisonment is the only penalty specified - either the term of imprisonment, the fine worked out under this section, or both.
(2) If:
(a) a term of imprisonment is the only penalty specified for an offence; and
(b) the term of imprisonment is less than 10 years;
the fine mentioned in paragraph (1)(b) is worked out using the individual fine formula.
(3) The individual fine formula is:
(4) If:
(a) a term of imprisonment is the only penalty specified for an offence; and
(b) the term of imprisonment is 10 years or more;
the fine mentioned in paragraph (1)(b) is the greaterof:
(c) 4,500 penalty units; and
(d) if the court can determine the benefit derived and detriment avoided because of the offence - that amount multiplied by 3.
(5) This section applies in relation to an offence committed by an individual unless there is a contrary intention under this Act in relation to the penalty applicable to the offence. In that case, the penalty applicable is the penalty specified for the offence.
93E Penalty applicable to an offence committed by a body corporate
(1) The penalty applicable to an offence committed by a body corporate is:
(a) for an offence for which a fine is the only penalty specified - the fine specified multiplied by 10; and
(b) for an offence for which a term of imprisonment is the only penalty specified - the fine worked out under this section.
(2) If:
(a) a term of imprisonment is the only penalty specified as the penalty; and
(b) the term of imprisonment is less than 10 years;
the fine mentioned in paragraph (1)(b) is the number of penalty units worked out using the individual fine formula, multiplied by 10.
(3) If:
(a) a term of imprisonment is the only penalty specified for an offence; and
(b) the term of imprisonment is 10 years or more;
the fine mentioned in paragraph (1)(b) is the greatest of:
(c) 45,000 penalty units; and
(d) if the court can determine the benefit derived and detriment avoided because of the offence - that amount multiplied by 3; and
(e) 10% of the annual turnover of the body corporate for the 12-month period ending at the end of the month in which the body corporate committed, or began committing, the offence.
(4) This section applies in relation to an offence committed by a body corporate unless there is a contrary intention under this Act in relation to the penalty applicable to the offence. In that case, the penalty applicable is the penalty specified for the offence.
93F Meaning of benefit derived and detriment avoided because of an offence
The benefit derived and detriment avoided because of an offence is the sum of:
(a) the total value of all benefits obtained by one or more persons that are reasonably attributable to the commission of the offence; and
(b) the total value of all detriments avoided by one or more persons that are reasonably attributable to the commission of the offence.
93G Where is the penalty for an offence specified?
(1) The penalty specified for an offence is the penalty specified for the provision under which the offence is created, or a provision or provisions in which that provision is included.
(2) To avoid doubt, a penalty is not specified for an offence if it is a consequence for committing the offence that is not a punishment on conviction for the offence.
(3) Without limiting subsection (2), each of the following is a consequence for committing an offence that is not a punishment on conviction for the offence:
(a) the availability of a pecuniary penalty order for the contravention of a civil penalty provision that relates to the same conduct as that which gave rise to the offence;
(b) the availability of an infringement notice in relation to an alleged commission of the offence;
(c) the availability of administrative consequences as a result of the commission of the offence, such as:
(i) disqualification from any office; or
(ii) consequences in relation to a licence; or
(iii) other actions that may be taken by ASIC under the Corporations legislation;
(d) the availability under any law of the Commonwealth or of a State or Territory (including the general law) of an order to refund money, pay compensation, relinquish a benefit or make any other payment if the offence is committed;
(e) the availability under any law of the Commonwealth or of a State or Territory (including the general law) of an injunction or any other order directing a person to take, or refrain from taking, action if the offence is committed.
93H If no penalty is specified
If no penalty is specified for an offence:
(a) the offence is an offence of strict liability; and
(b) 20 penalty units is taken to be the penalty specified for the offence.