Corporations Act 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4 - OFFENCES  

Division 1A - Application of the Criminal Code  

SECTION 1308A  

1308A   APPLICATION OF CRIMINAL CODE  

Subject to this Act, Chapter 2 of the Criminal Code applies to all offences against this Act.

Division 1 - Specific offences  

SECTION 1308B   FALSE OR MISLEADING STATEMENTS ABOUT SHARE CAPITAL  

1308B(1)    
A corporation must not advertise or publish:

(a) a statement of the amount of its capital that is misleading; or

(b) a statement in which the total of all amounts paid and unpaid on shares in the company is stated but the amount of paid up capital or the amount of any charge on uncalled capital is not stated.

1308B(2)    
An offence based on subsection (1) is an offence of strict liability.

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

SECTION 1308   FALSEOR MISLEADING DOCUMENTS  

Fault-based offence

1308(1)    
A person commits an offence if:

(a) a document:

(i) is required under or for the purposes of this Act; or

(ii) is lodged with or submitted to ASIC or the Registrar; and

(b) the person:

(i) makes, or authorises the making of, a statement in the document; or

(ii) omits, or authorises the omission of, a matter or thing from the document; and

(c) the person knows that the document is materially false or misleading because of the statement or omission.

Note: For when a document is materially false or misleading , see subsection (6).

1308(2)    
A person is not liable to be proceeded against for an offence in consequence of a regulation made under section 1364 as well as for an offence against subsection (1) of this section.

Strict liability offence - failure to take reasonable steps

1308(3)    
A person commits an offence of strict liability if:

(a) a document:

(i) is required under or for the purposes of this Act; or

(ii) is lodged with or submitted to ASIC or the Registrar; and

(b) the person:

(i) makes, or authorises the making of, a statement in the document; or

(ii) omits, or authorises the omission of, a matter or thing from the document; and

(c) the document is materially false or misleading because of the statement or omission; and

(d) the person did not take all reasonable steps to ensure that the document was not materially false or misleading because of the statement or omission.

Note 1: For when a document is materially false or misleading , see subsection (6).

Note 2: For strict liability, see section 6.1 of the Criminal Code .

Civil penalty - knowledge or recklessness

1308(4)    

A person contravenes this subsection if:

(a) a document:

(i) is required under or for the purposes of this Act; or

(ii) is lodged with or submitted to ASIC or the Registrar; and

(b) the person:

(i) makes, or authorises the making of, a statement in the document; or

(ii) omits, or authorises the omission of, a matter or thing from the document; and

(c) the person knows that, or is reckless as to whether, the document is materially false or misleading because of the statement or omission.

Note 1: For when a document is materially false or misleading , see subsection (6).

Note 2: This subsection is a civil penalty provision (see section 1317E ).

Civil penalty - failure to take reasonable steps

1308(5)    
A person contravenes this subsection if:

(a) a document:

(i) is required under or for the purposes of this Act; or

(ii) is lodged with or submitted to ASIC or the Registrar; and

(b) the person:

(i) makes, or authorises the making of, a statement in a document; or

(ii) omits, or authorises the omission of, a matter or thing from a document; and

(c) the document is materially false or misleading because of the statement or omission; and

(d) the person did not take all reasonable steps to ensure that the document was not materially false or misleading because of the statement or omission.

Note 1: For when a document is materially false or misleading , see subsection (6).

Note 2: This subsection is a civil penalty provision (see section 1317E ).

When a document is materially false or misleading

1308(6)    
For the purposes of this section, a document is materially false or misleading if:

(a) the document includes a statement that:

(i) is false in a material particular or materially misleading; or

(ii) is based on information that is false in a material particular or materially misleading, or has omitted from it a matter or thing the omission of which renders the document materially misleading; or

(b) a matter or thing is omitted from the document and, without the matter or thing, the document is false in a material particular or materially misleading.

Other interpretive provisions

1308(7)    
For the purposes of this section, a person who votes in favour of a resolution approving, or who otherwise approves, a document is taken to have authorised:

(a) the making of any statement in the document; and

(b) the omission of any matter or thing from the document.

1308(8)    

For the purposes of this section, a statement, report or other document that:

(a) relates to affairs of a company or of a subsidiary of a company; and

(b) is attached to or included with a report of the directors provided under section 314 to members of the company or laid before the company at an annual general meeting of the company;

is taken to be part of the report referred to in paragraph (b) of this subsection, even if it is not otherwise required by this Act to be laid before the company in general meeting.

1308(9)    

For the purposes of this section:

(a) a notice under subsection 708AA(2) , 708A(5) , 1012DAA(2) or 1012DA(5) is taken to be a notice required for the purposes of this Act; and

(b) a notice under subsection 708AA(2) , 708A(5) , 1012DAA(2) or 1012DA(5) is taken to be misleading in a material respect if it fails to comply with paragraph 708AA(7)(d) , 708A(6)(e) , 1012DAA(7)(e) or 1012DA(6)(f) .

SECTION 1309   FALSE INFORMATION ETC.  

1309(1)    

An officer or employee of a corporation who makes available or gives information, or authorises or permits the making available or giving of information, to:

(a)    a director, auditor, member, debenture holder or trustee for debenture holders of the corporation; or

(b)    if the corporation is taken for the purposes of Chapter 2M to be controlled by another corporation - an auditor of the other corporation; or

(c)    

an operator of a financial market (whether the market is operated in Australia or elsewhere) or an officer of such a market; or

(ca)    

a CSF intermediary;

being information, whether in documentary or any other form, that relates to the affairs of the corporation and that, to the knowledge of the officer or employee:

(d)    is false or misleading in a material particular; or

(e)    has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;

contravenes this subsection.

Note: This subsection applies in relation to CCIVs with modifications: see section 1242D .

1309(2)    

An officer or employee of a corporation who makes available or gives information, or authorises or permits the making available or giving of information, to:

(a)    a director, auditor, member, debenture holder or trustee for debenture holders of the corporation; or

(b)    if the corporation is taken for the purposes of Chapter 2M to be controlled by another corporation - an auditor of the other corporation; or

(c)    

an operator of a financial market (whether the market is operated in Australia or elsewhere) or an officer of such a market;

being information, whether in documentary or any other form, relating to the affairs of the corporation that:

(d)    is false or misleading in a material particular; or

(e)    has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;

without having taken reasonable steps to ensure that the information:

(f)    was not false or misleading in a material particular; and

(g)    did not have omitted from it a matter or thing the omission of which rendered the information misleading in a material respect;

contravenes this subsection.

Note: This subsection applies in relation to CCIVs with modifications: see section 1242D .

1309(3)    
The references in subsections (1) and (2) to a person making available or giving, or authorising or permitting the making available or giving of, information relating to the affairs of a corporation include references to a person making available or giving, or authorising or permitting the making available or giving of, information as to the state of knowledge of that person with respect to the affairs of the corporation.

1309(4)    
Where information is made available or given to a person referred to in paragraph (1)(a) , (b) or (c) or (2)(a) , (b) or (c) in response to a question asked by that person, the question and the information are to be considered together in determining whether the information was false or misleading.

1309(5)    

For the purposes of this section:

(a)    

a notice under subsection 708AA(2) , 708A(5) , 1012DAA(2) or 1012DA(5) is taken to be a notice required for the purposes of this Act; and

(b)    

a notice under subsection 708AA(2) , 708A(5) , 1012DAA(2) or 1012DA(5) is taken to be misleading in a material respect if it omits information that is excluded information for the purposes of section 708AA , 708A , 1012DAA or 1012DA .

1309(6)    

Paragraphs (1)(a) and (b) do not apply in relation to a corporation that is an Aboriginal and Torres Strait Islander corporation.

Note: Similar offences are created in relation to Aboriginal and Torres Strait Islander corporations under section 561-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .

1309(7)    

For the purposes of subsection (2) , a person is taken to have taken reasonable steps to ensure that information was not false or misleading in a material particular if the person proves that:

(a)    the person made all inquiries (if any) that were reasonable in the circumstances; and

(b)    after doing so, the person believed on reasonable grounds that the information was not misleading or deceptive in a material particular.

1309(8)    

For the purposes of subsection (2) , a person is taken to have taken reasonable steps to ensure that information did not have omitted from it any matter or thing the omission of which rendered the information misleading in a material respect if the person proves that:

(a)    the person made all inquiries (if any) that were reasonable in the circumstances; and

(b)    after doing so, the person believed on reasonable grounds that there was no such omission.

1309(9)    

For the purposes of subsection (2) ,a person is taken to have taken reasonable steps to ensure that information was not false or misleading in a material particular if the person proves that:

(a)    

the person relied on information given to the person by:

(i) if the person is a body - someone other than a director, employee or agent of the body; or

(ii) if the person is an individual - someone other than an employee or agent of the individual; and

(b)    the reliance placed on that information by the person was reasonable in all the circumstances.

Note: This subsection applies in relation to information given to CCIVs with modifications: see section 1242D .

1309(10)    
For the purposes of subsection (2) , a person is taken to have taken reasonable steps to ensure that information did not have omitted from it any matter or thing the omission of which rendered the information misleading in a material respect if the person proves that:

(a)    the person relied on information given to the person by:

(i) if the person is a body - someone other than a director, employee or agent of the body; or

(ii) if the person is an individual - someone other than an employee or agent of the individual; and

(b)    the reliance placed on that information by the person was reasonable in all the circumstances.

Note: This subsection applies in relation to information given to CCIVs with modifications: see section 1242D .

Fault-based offence

1309(11)    

A person commits an offence if the person contravenes subsection (1) or (2) .

Civil liability

1309(12)    

A person contravenes this subsection if the person contravenes subsection (2) .

Note: This subsection is a civil penalty provision (see section 1317E ).

SECTION 1310  

1310   OBSTRUCTING OR HINDERING ASIC ETC.  

A person must not, without lawful excuse, obstruct or hinder ASIC, or any other person, in the performance or exercise of a function or power under this Act.

Division 2 - Offences generally  

SECTION 1311   GENERAL PENALTY PROVISIONS  

1311(1)    
A person who:

(a)    does an act or thing that the person is forbidden to do by or under a provision of this Act; or

(b)    does not do an act or thing that the person is required or directed to do by or under a provision of this Act; or

(c)    otherwise contravenes a provision of this Act;

is guilty of an offence by virtue of this subsection, unless that or another provision of this Act provides that the person:

(d)    is guilty of an offence; or

(e)    is not guilty of an offence.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

1311(1A)    
Paragraphs (1)(a) , (b) and (c) only apply to a provision in the following list if a penalty, pecuniary or otherwise, is set out in Schedule 3 for that provision, or for a provision or provisions in which that provision is included:

(aa)    

Part 1.2AA ;

(a)    Chapters 2A , 2B and 2C ;

(b)    Parts 2F.2 and 2F.3 ;

(c)    Chapters 2G , 2H , 2J , 2M (other than Part 2M.4 ), 2N , 2P and 5A ;

(d)    Parts 5B.1 and 5B.3 ;

(daa)    

Chapter 5D ;

(da)    

Chapter 6CA ;

(dba)    

Part 6D.3A ;

(db)    

Chapter 7 ;

(dc)    

Chapter 8 ;

(dd)    

Chapter 8A ;

(de)    

Chapter 8B ;

(e)    Chapter 10 .

1311(2) - (6)    
(Repealed by No 17 of 2019, s 3, Sch 1 [ 109] (effective 13 March 2019).)

SECTION 1311A   PENALTY FOR COMMITTING AN OFFENCE  

1311A(1)    

A person who commits an offence against this Act is punishable on conviction by a penalty not exceeding the penalty applicable to the offence.

1311A(2)    

If:

(a)    a person commits an offence in the person ' s capacity as trustee of a registrable superannuation entity; and

(b)    the penalty applicable to the offence is, or includes, a fine;

then, in determining the fine for the offence, the court must take into account the impact that the fine under consideration would have on the beneficiaries of the entity.

SECTION 1311B   PENALTY APPLICABLE TO AN OFFENCE COMMITTED BY AN INDIVIDUAL  

1311B(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.

1311B(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.

1311B(3)    
The individual fine formula is:

Term of imprisonment, expressed in months

×

10

1311B(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.

1311B(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.

SECTION 1311C   PENALTY APPLICABLE TO AN OFFENCE COMMITTED BY A BODY CORPORATE  

1311C(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.

1311C(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.

1311C(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.

1311C(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.

SECTION 1311D  

1311D   MEANING OF BENEFIT DERIVED AND DETRIMENT AVOIDED - 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.

SECTION 1311E   WHERE IS THE PENALTY FOR AN OFFENCE SPECIFIED?  

1311E(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.

1311E(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.

1311E(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, under any law of the Commonwealth or of a State or Territory, 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, under any law of the Commonwealth or of a State or Territory, 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.

SECTION 1311F  

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.

SECTION 1312  

1312   PENALTIES FOR BODIES CORPORATE  
(Repealed by No 17 of 2019, s 3, Sch 1 [ 111] (effective 13 March 2019).)

SECTION 1313  

1313   PENALTY NOTICES  
(Repealed by No 17 of 2019, s 3, Sch 1 [ 111] (effective 13 March 2019).)

SECTION 1313A  

1313A   OFFENCES COMMITTED PARTLY IN AND PARTLY OUT OF THE JURISDICTION  
Where:

(a) a person does or omits to do an act outside this jurisdiction; and

(b) if that person had done or omitted to do that act in this jurisdiction, the person would, by reason of also having done or omitted to do an act in this jurisdiction, have been guilty of an offence against this Act;

the person is guilty of that offence.

SECTION 1314   CONTINUING OFFENCES  

1314(1)   [ Obligations where time limit specified]  

Where:

(a) by or under a provision, an act is or was required to be done within a particular period or before a particular time; and

(b) failure to do the act within that period or before that time constitutes an offence; and

(c) the act is not done within that period or before that time;

then:

(d) the obligation to do the act continues, after that period has ended or that time has passed, and whether or not a person is or has been convicted of a primary substantive offence in relation to failure to do the act, until the act is done; and

(e) subsections (3) and (4) apply.

1314(2)   [ Obligations where no time limit specified]  

Where:

(a) by or under a provision, an act is or was required to be done but neither a period nor a time for the doing of the Act is or was specified; and

(b) failure to do the act constitutes an offence; and

(c) a person is or has been convicted of a primary substantive offence in relation to failure to do the act;

then:

(d) the obligation to do the act continues, despite the conviction, until the act is done; and

(e) subsections (3) and (4) apply.

1314(3)   [ Further offence]  

Where:

(a) at a particular time, a person is or was first convicted of a substantive offence, or is or was convicted of a second or subsequent substantive offence, in relation to failure to do the act; and

(b) the failure to do the act continued after that time;

then:

(c) the person is, in relation to failure to do the act, guilty of a further offence in respect of so much of the period throughout which the failure to do the act continued or elapsed after that time and before the relevant day in relation to the further offence; and

(d) for the purposes of this Act and of the Crimes Act 1914 , the further offence is taken to be constituted by failure to do the act during so much of that period as so elapsed.

1314(4)   [ Derivative offender]  

Where:

(a) the provision referred to in paragraph (1)(a) or (2)(a), as the case may be, provides or provided that:

(i) an officer or employee of a body corporate; or

(ii) a person;

who is or was in default, or is or was involved in a contravention constituted by the failure to do the act, is or was guilty of an offence or contravenes or contravened a provision of this Act; and

(b) throughout a particular period (in this subsection called the relevant period ):

(i) the failure to do the act continued; and

(ii) a person (in this subsection called the derivative offender ) is or was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the failure to do the act; and

(iii) in a case where subparagraph (a)(i) applies - the derivative offender is or was an officer or employee of the body;

then:

(c) in a case where either or both of the following events occurs or occur:

(i) a person is or was convicted, before or during the relevant period, of a primary substantive offence in relation to failure to do the act;

(ii) the derivative offender is or was convicted, before or during the relevant period, of a primary derivative offence in relation to failure to do the act;

the derivative offender is, in relation to failure to do the act, guilty of an offence (in this paragraph called the relevant offence ) in respect of so much (if any) of the relevant period as elapsed:

(iii) after the conviction referred to in subparagraph (i) or (ii), or after the earlier of the convictions referred to in subparagraphs (i) and (ii), as the case may be; and

(iv) before the relevant day in relation to the relevant offence; and

(d) in a case where, at a particular time during the relevant period, the derivative offender is or was first convicted of a secondary derivative offence, or is or was convicted of a second or subsequent secondary derivative offence, in relation to failure to do the act - the derivative offender is, in relation to failure to do the act, guilty of a further offence in respect of so much of the relevant period as elapsed after that time and before the relevant day in relation to the further offence.

1314(5)   [ Penalty for continuing offence]  

Where a person is guilty, by virtue of subsection (3) or (4), of an offence in respect of the whole or a part of a particular period, the penalty applicable to the offence is a fine of the amount obtained by multiplying half a penalty unit by the number of days in that period, or in that part of that period, as the case may be.

1314(6)   [ Definitions]  

In this section:

act
includes thing.

primary derivative offence
, in relation to failure to do an act, means an offence (other than an offence of which a person is guilty by virtue of this section) of which a person is or was guilty by virtue of being an officer of a corporation, or a person, who is or was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to failure to do the act.

primary substantive offence
, in relation to a failure to do an act, means an offence (other than an offence of which a person is or was guilty by virtue of this section) constituted by failure to do the act, or by failure to do the act within a particular period or before a particular time.

provision
means a section, or a subsection of a section, of this Act.

relevant day
, in relation to an offence of which a person is guilty by virtue of this section, means:

(a) in a case where the information relating to the offence specifies a day in relation to the offence for the purposes of this section, being a day not later than the day on which the information is laid - the day the information so specifies; or

(b) in any other case - the day on which the information relating to the offence is laid.

required
includes directed.

secondary derivative offence
, in relation to failure to do an act, means an offence or further offence of which a person is, in relation to failure to do the act, guilty by virtue of paragraph (4)(c) or (d).

substantive offence
, in relation to failure to do an act, means:

(a) a primary substantive offence in relation to failure to do the act; or

(b) a further offence of which a person is, in relation to failure to do the act, guilty by virtue of subsection (3).

1314(7)   [ Contravention of provision]  

For the purposes of subsection (4), a provision of this Act is, whether or not it expressly provides as mentioned in paragraph (4)(a), taken to provide that a person who is or was involved in a contravention constituted by a failure to do an act required by the provision contravenes or contravened that provision.

SECTION 1315   PROCEEDINGS: HOW TAKEN  

1315(1)    
Subject to this Act, in any proceedings for an offence against this Act, any information, charge, complaint or application may be laid or made by:

(a) ASIC; or

(b) an ASIC delegate; or

(c) another person authorised in writing by the Minister to institute the proceedings.

1315(2)    
A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to all offences, or to specified offences, against this Act.

1315(3)    
Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983 .

SECTION 1316  

1316   TIME FOR INSTITUTING CRIMINAL PROCEEDINGS  
Despite anything in any other law, proceedings for an offence against this Act may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister's consent, at any later time.

SECTION 1316A   PRIVILEGE AGAINST SELF-INCRIMINATION NOT AVAILABLE TO BODIES CORPORATE IN CORPORATIONS ACT CRIMINAL PROCEEDINGS  

1316A(1)   [ Body corporate cannot claim privilege against self-incrimination]  

In a Corporations Act criminal proceeding, a body corporate is not entitled to refuse or fail to comply with a requirement:

(a) to answer a question or give information; or

(b) to produce a book or any other thing; or

(c) to do any other act whatever;

on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend:

(d) to incriminate the body (whether in respect of an offence to which the proceeding relates or otherwise); or

(e) to make the body liable to a penalty (whether in respect of anything to which the proceeding relates or otherwise).

1316A(2)   [ Fact that body a defendant irrelevant]  

Subsection (1) applies whether or not the body concerned is a defendant in the proceeding or in any other proceeding.

1316A(3)   [ ``Corporations Act criminal proceeding'']  

In this section:

Corporations Act criminal proceeding
means a proceeding in a court when exercising jurisdiction in respect of a criminal matter arising under this Act.

SECTION 1317   CERTAIN PERSONS TO ASSIST IN PROSECUTIONS  

1317(1)    
Where a prosecution in respect of an offence against this Act has been instituted, or ASIC is of the opinion that a prosecution in respect of an offence against this Act ought to be instituted, against a person (in this section referred to as the defendant ), ASIC may:

(a)    if the defendant is a natural person - require any person who is or was a partner, employee or agent of the defendant; or

(b)    if the defendant is a body corporate - require any person who is or was an officer, employee or agent of the defendant;

to assist in the prosecution, and the person who is so required must give all assistance in connection with the prosecution that that person is reasonably able to give.

Note: This section applies in relation to a defendant who is a CCIV with modifications: see section 1242D .

1317(2)    
ASIC must not make such a requirement as is mentioned in subsection (1) of a person who, in the opinion of ASIC, is or is likely to be a defendant in the proceedings or is or has been such a person ' s lawyer.

1317(3)    
If a person to whom paragraph (1)(a) or (b) relates fails to give assistance as required by subsection (1) , the person contravenes this section and, without affecting any penalty to which the person may be liable for the contravention, the Court may, on the application of ASIC, order the person to comply with the requirement within such time, and in such manner, as the Court orders.

1317(4)    
In this section, agent , in relation to the defendant, includes a banker of the defendant and a person engaged as an auditor by the defendant, whether that person is an employee or an officer of the defendant or not.