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

110   After section 1311

Insert:

1311A 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.

1311B 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 the number of penalty units 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 greater of:

(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.

Note: The following are examples of cases in which a penalty is specified that would indicate a contrary intention:

(a) the table item in Schedule 3 relating to subsection 794D(3), which specifies a penalty for each day, or part of a day, in respect of which an offence is committed;

(b) a regulation made under paragraph 1364(2)(w) prescribing a penalty for an individual for a contravention of the regulations.

1311C 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 for an offence; 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.

Note: The following are examples of cases in which a penalty is specified that would indicate a contrary intention:

(a) subsection 1211B(3), which specifies a penalty for a body corporate;

(b) the table item in Schedule 3 relating to subsection 794D(3), which specifies a penalty for each day, or part of a day, in respect of which an offence is committed;

(c) a regulation made under paragraph 1364(2)(w) prescribing a penalty for a body corporate for a contravention of the regulations.

1311D 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.

1311E Where is the penalty for an offence specified?

(1) The penalty specified for an offence is:

(a) if a penalty, pecuniary or otherwise, is specified in Schedule 3 for the provision under which the offence is created, or a provision or provisions in which that provision is included - that penalty; and

(b) if a penalty, pecuniary or otherwise, is specified in any other provision of this Act for the provision under which the offence is created, or a provision or provisions in which that provision is included - that penalty.

(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 this Act or any other Act;

(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.

1311F 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.