Corporations Act 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4AB - INFRINGEMENT NOTICES FOR OTHER ALLEGED CONTRAVENTIONS  

Division 1 - General  

SECTION 1317DAM   WHEN AN INFRINGEMENT NOTICE MAY BE GIVEN  

1317DAM(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.

1317DAM(1A)    

Subject to section 1317DAPA , if a Financial Services and Credit Panel believes on reasonable grounds that a person has contravened a restricted civil penalty provision, the panel may give the person an infringement notice for the alleged contravention.

1317DAM(2)    

An infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

1317DAM(3)    
A single infringement notice must relate only to a single contravention of a single provision unless subsection (4) applies.

1317DAM(4)    

ASIC or a Financial Services and Credit Panel 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.

1317DAM(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.

SECTION 1317DAN  

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;

(e) civil penalty provisions of an approved code of conduct;

(f) civil penalty provisions of a mandatory code of conduct.

SECTION 1317DAP   MATTERS TO BE INCLUDED IN AN INFRINGEMENT NOTICE  

1317DAP(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 after 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 given pays 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:

(i) if the notice was given to the person by a Financial Services and Credit Panel - the panel; or

(ii) otherwise - 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.

1317DAP(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 that is not a restricted 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 that is not a restricted civil penalty provision - the amount worked out under paragraph (c) for a single contravention multiplied by the number of contraventions; and

(e)    

for a single contravention of a restricted civil penalty provision - 12 penalty units; and

(f)    for multiple contraventions of a restricted civil penalty provision - 12 penalty units multiplied by the number of contraventions.

SECTION 1317DAPA   GIVING INFRINGEMENT NOTICES IN RELATION TO RESTRICTED CIVIL PENALTY PROVISIONS  

Giving an infringement notice following proposed action notice

1317DAPA(1)    
A Financial Services and Credit Panel must not give a person an infringement notice for the alleged contravention by the person of a restricted civil penalty provision unless:

(a)    the panel gave the person a proposed action notice in relation to a proposal to give the infringement notice to the person and either:

(i) no submission or request for a hearing was made within the response period for the notice; or

(ii) a submission or request for a hearing was made within the response period for the notice and the panel has considered the submission or held the hearing (as the case may be); or

(b)    all of the following apply:

(i) the panel gave the relevant provider a proposed action notice in relation to a proposed instrument under subsection 921K(1) in relation to the person and circumstances mentioned in that subsection;

(ii) those circumstances consist of, or include, the contravention;

(iii) a submission or request for a hearing was made within the response period for the proposed action notice;

(iv) the panel has considered the submission or held the hearing (as the case may be).

Instruments under subsection 921K(1) and warnings and reprimands

1317DAPA(2)    
A Financial Services and Credit Panel must not give a person an infringement notice for the alleged contravention by the person of a restricted civil penalty provision if:

(a)    the panel, or another Financial Services and Credit Panel, has:

(i) made an instrument under subsection 921K(1) in relation to the person; or

(ii) given the person a warning or reprimand;

because of circumstances mentioned in subsection 921K(1) or 921T(1) ; and

(b)    those circumstances consist of, or include, the contravention.

Division 2 - Infringement notices given by ASIC  

SECTION 1317DAPB  

1317DAPB   APPLICATION OF DIVISION  

This Division applies in relation to an infringement notice given to a person by ASIC.

SECTION 1317DAQ   PAYMENT PERIOD  

Usual payment period

1317DAQ(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

1317DAQ(2)    
If, under section 1317DAR , ASIC extends the payment period for the notice, the payment period is as extended.

1317DAQ(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 latest 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

1317DAQ(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.

1317DAQ(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 latest 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

1317DAQ(6)    

If ASIC refuses a representation made under subsection 1317DAT(1) for the notice to be withdrawn, the payment period ends on the latest 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.

SECTION 1317DAR   EXTENSION OF TIME TO PAY AMOUNT  

1317DAR(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.

1317DAR(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.

1317DAR(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.

1317DAR(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.

1317DAR(5)    
ASIC may extend the payment period more than once under subsection (2).

SECTION 1317DAS   PAYMENT BY INSTALMENTS  

1317DAS(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.

1317DAS(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.

1317DAS(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.

1317DAS(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.

1317DAS(5)    
ASIC may vary an arrangement for a person to pay the amount payable under an infringement notice by instalments.

1317DAS(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.

SECTION 1317DAT   WITHDRAWAL OF AN INFRINGEMENT NOTICE  

Representations seeking withdrawal of notice

1317DAT(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

1317DAT(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.

1317DAT(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.

1317DAT(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.

1317DAT(5)    
If ASIC does not comply with subsection (3) :

(a)    

ASIC is taken to have refused to withdraw the infringement notice; and

(b)    the refusal is taken to have occurred on the last day of the 14 day period.

Notice of withdrawal

1317DAT(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

1317DAT(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.

Division 3 - Infringement notices given by Financial Services and Credit Panels  

SECTION 1317DATA  

1317DATA   APPLICATION OF DIVISION  

This Division applies in relation to an infringement notice given to a person by a Financial Services and Credit Panel.

SECTION 1317DATB   PAYMENT PERIOD, EXTENSION OF TIME AND PAYMENT BY INSTALMENTS  

1317DATB(1)    
Sections 1317DAQ , 1317DAR and 1317DAS apply, in relation to an infringement notice given to a person by a Financial Services and Credit Panel, with the modifications provided for in subsections (2) to (6) of this section.

1317DATB(2)    
The following provisions apply, in accordance with subsection (1) , as if any reference in them to ASIC were a reference to the Chair of the panel:

(a)   subsections 1317DAQ(2) to (5) ;

(b)    subsections 1317DAR(2) to (5) ;

(c)    subsections 1317DAS(2) to (5) .

1317DATB(3)    
The following provisions apply, in accordance with subsection (1) , as if any reference in them to ASIC were a reference to the panel:

(a)    subsection 1317DAR(1) ;

(b)    subsection 1317DAS(1) .

1317DATB(4)    
Section 1317DAQ applies, in accordance with subsection (1) of this section, as if subsection 1317DAQ(6) were omitted and the following subsection substituted:

" (6)
If the panel under subsection 1317DATC(3) refuses, or under subsection 1317DATC(5) is taken to refuse, a representation made 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 the panel ' s decision not to withdraw the notice;

(c) the day that is 7 days after the day on which the panel is taken to have refused to withdraw the infringement notice. " .

1317DATB(5)    
Section 1317DAR applies, in accordance with subsection (1) of this section, as if paragraph 1317DAR(2)(b) were omitted and the following paragraph substituted:

" (b) if ASIC requests, in writing, that the Chair of the panel that gave the infringement notice extend the period. " .

1317DATB(6)    
Section 1317DAS applies, in accordance with subsection (1) of this section, as if paragraph 1317DAS(2)(b) were omitted and the following paragraph substituted:

" (b) if ASIC requests, in writing, that the Chair of the panel that gave the infringement notice make such an arrangement. " .

SECTION 1317DATC   WITHDRAWAL OF AN INFRINGEMENT NOTICE GIVEN BY A FINANCIAL SERVICES AND CREDIT PANEL  

Representations seeking withdrawal of notice

1317DATC(1)    
A person to whom an infringement notice has been given by a Financial Services and Credit Panel may, within 28 days after the infringement notice is given, make written representations to ASIC seeking the withdrawal of the notice.

Withdrawal of notice

1317DATC(2)    
ASIC may request a Financial Services and Credit Panel (whether or not the panel gave the infringement notice to the person) to make a decision under subsection (3) in relation to the infringement notice if:

(a)    a person makes representations in relation to the notice under subsection (1) ; or

(b)    ASIC is satisfied that there has been a change in any of the circumstances on the basis of which the notice was given to the person.

1317DATC(3)    
If ASIC makes a request under subsection (2) , the panel must, within 14 days after it is made:

(a)    decide to withdraw, or refuse to withdraw, the infringement notice; and

(b)    give the person a written notice of its decision.

1317DATC(4)    
When deciding whether to withdraw, or refuse to withdraw, the infringement notice, the panel:

(a)    must take into account any written representations seeking the withdrawal that were given by the person to ASIC in accordance with subsection (1) ; 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 of the restricted civil penalty provision to which the notice relates;

(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 the panel considers relevant.

1317DATC(5)    
If the panel does not comply with subsection (3) :

(a)    the panel is taken to have refused to withdraw the infringement notice; and

(b)    the refusal is taken to have occurred on the last day of the 14 day period.

Refund of amount if infringement notice withdrawn

1317DATC(6)    
If:

(a)    the panel 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.

Division 4 - Other matters  

SECTION 1317DAU   EFFECT OF PAYMENT OF AMOUNT  

1317DAU(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.

1317DAU(2)    
Subsection (1) does not apply if the notice has been withdrawn.

SECTION 1317DAV  

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:

(i) a provision subject to an infringement notice under this Part; or

(ii) a restricted civil penalty provision; or

(b)    affect the liability of a person for an alleged contravention of a provision subject to an infringement notice under this Part, or a restricted civil penalty provision, 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:

(i) a provision subject to an infringement notice under this Part; or

(ii) a restricted civil penalty provision; 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:

(i) a provision subject to an infringement notice under this Part; or

(ii) a restricted civil penalty provision.