Corporations Act 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4AA - INFRINGEMENT NOTICES FOR ALLEGED CONTRAVENTIONS OF CONTINUOUS DISCLOSURE PROVISIONS  

SECTION 1317DAE   MATTERS TO BE INCLUDED IN INFRINGEMENT NOTICE  

1317DAE(1)    
The infringement notice:

(a)    must state the day on which it is issued; and

(b)    must state the name and address of the disclosing entity to whom it is issued; and

(c)    must state that it is being issued by ASIC; and

(d)    must state that ASIC may publish details of the disclosing entity ' s compliance with the infringement notice under section 1317DAJ if the disclosing entity complies with the notice; and

(e)    must give details of the alleged contravention by the disclosing entity, including:

(i) the date of the alleged contravention; and

(ii) the particular provision that was contravened; and

(f) (Repealed)

(g)    must specify the penalty that is payable in relation to the alleged contravention; and

(h)    must state that the penalty is payable to ASIC on behalf of the Commonwealth; and

(i)    if it is alleged that the disclosing entity contravened subsection 674(2) - may specify information that the disclosing entity must notify to the relevant market operator in accordance with the provisions of the listing rules referred to in subsection 674(1) ; and

(j)    if it is alleged that the disclosing entity contravened subsection 675(2) - may require the disclosing entity to lodge a document with ASIC that contains specified information; and

(k)    must explain the effect of sections 1317DAF , 1317DAG and 1317DAH ; and

(l)    must state that the disclosing entity may make written representations to ASIC seeking the withdrawal of the infringement notice; and

(m)    must contain any other matters that are prescribed in the regulations.

1317DAE(2)    
Subject to subsection (3) , the penalty specified in the infringement notice under paragraph (1)(g) for an alleged contravention of subsection 674(2) is:

(a)    $100,000 if the disclosing entity is a Tier 1 entity; or

(b)    $66,000 if the disclosing entity is a Tier 2 entity; or

(c)    $33,000 if the disclosing entity is a Tier 3 entity.

1317DAE(3)    
The penalty specified in the infringement notice under paragraph (1)(g) for an alleged contravention of subsection 674(2) is:

(a)    $100,000 if the disclosing entity is a Tier 2 entity; or

(b)    $66,000 if the disclosing entity is a Tier 3 entity;

if:

(c)    the disclosing entity has at any time been convicted of an offence based on subsection 674(2) or 675(2) ; or

(d)    

a civil penalty order under Part 9.4B has at any time been made against the disclosing entity in relation to a contravention of subsection 674(2) or 675(2) (as those subsections applied before the commencement of Part 1 of Schedule 2 to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 ); or

(e)    the disclosing entity has at any time breached an enforceable undertaking given to ASIC under section 93AA , 93A or 93B of the ASIC Act in relation to the requirements of subsection 674(2) or 675(2) .

1317DAE(4)    
Subject to subsection (5) , the penalty specified in the infringement notice under paragraph (1)(g) for an alleged contravention of subsection 675(2) is $33,000.

1317DAE(5)    
The penalty specified in the infringement notice under paragraph (1)(g) for an alleged contravention of subsection 675(2) is $66,000 if:

(a)    the disclosing entity has at any time been convicted of an offence based on subsection 674(2) or 675(2) ; or

(b)    

a civil penalty order under Part 9.4B has at any time been made against the disclosing entity in relation to a contravention of subsection 674(2) or 675(2) (as those subsections applied before the commencement of Part 1 of Schedule 2 to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 ); or

(c)    the disclosing entity has at any time breached an enforceable undertaking given to ASIC under section 93AA , 93A or 93B of the ASIC Act in relation to the requirements of subsection 674(2) or 675(2) .

1317DAE(6)    
For the purposes of this section:

(a)    a disclosing entity is:

(i) a Tier 1 entity if its market capitalisation on the relevant day exceeds $1,000 million; and

(ii) a Tier 2 entity if its market capitalisation on the relevant day exceeds $100 million but does not exceed $1,000 million; and

(iii) a Tier 3 entity if its market capitalisation on the relevant day does not exceed $100 million or it is not possible to work out its market capitalisation on the relevant day because it has not lodged a financial report with ASIC before the relevant day; and

(b)    the relevant day for an infringement notice is the last day of the financial year in relation to which the latest financial report by the disclosing entity has been lodged with ASIC before the infringement notice is issued.

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1317DAE(7)    
This is how to work out a disclosing entity ' s market capitalisation on the relevant day:

(a)    

for each class of security of the disclosing entity that is a quoted security:

(i) work out the closing price, on the relevant day, for securities in that class on the declared financial market on which the securities are quoted; and

(ii) multiply that price by the number of securities in that class on issue on the relevant day (as shown in the financial report lodged with ASIC for the period that ends on the relevant day); and

(b)    add up the amounts obtained under paragraph (a) : the result is the disclosing entity ' s market capitalisation on the relevant day.

Disregard quoted securities of the disclosing entity that are options.