Corporations Act 2001
CHAPTER 9
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MISCELLANEOUS
PART 9.4B
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CIVIL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS
Division 1
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The Court may make declarations of contravention, pecuniary penalty orders, relinquishment orders, refund orders and compensation orders
SECTION 1317DA
1317DA
DEFINITIONS
(Repealed by No 17 of 2019, s 3, Sch 1 [ 115] (effective 13 March 2019).) SECTION 1317E DECLARATION OF CONTRAVENTION OF A CIVIL PENALTY PROVISION
Declaration of contravention
1317E(1)
If a Court is satisfied that a person has contravened a civil penalty provision, the Court must make a declaration of contravention.
1317E(2)
The declaration must specify the following: (a) the Court that made the declaration; (b) the civil penalty provision that was contravened; (c) the person who contravened the provision; (d) the conduct that constituted the contravention; (e) if the contravention is of a corporation/scheme civil penalty provision - the corporation, registered scheme or notified foreign passport fund to which the conduct related; (f) if the contravention is of subsection 1211B(1) or (2) (complying with the Passport Rules for this jurisdiction) - the passport fund in relation to which the obligation was imposed on the person; (g) if the contravention is of subsection 670A(4) , 727(6) , 728(4) or 1309(12) (misleading statements etc.) - the corporation, registered scheme or notified foreign passport fund to which the conduct related.
Meanings of civil penalty provision , corporation/scheme civil penalty provision and financial services civil penalty provision
1317E(3)
In this Act: (a) a provision specified in column 1 of the following table is a civil penalty provision ; and (b) a civil penalty provision categorised as a corporation/scheme provision in column 3 of the following table is a corporation/scheme civil penalty provision ; and (c) a civil penalty provision categorised as a financial services provision in column 3 of the following table is a financial services civil penalty provision ; and (d) a provision that is specified as having no categorisation in column 3 of the following table is neither a corporation/scheme civil penalty provision nor a financial services civil penalty provision .
Attempt and involvement in contravention treated in same way as actual contravention
1317E(4)
A person who: (a) attempts to contravene a civil penalty provision; or (b) is involved in a contravention of a civil penalty provision;
SECTION 1317F
1317F
DECLARATION OF CONTRAVENTION IS CONCLUSIVE EVIDENCE
A declaration of contravention is conclusive evidence of the matters referred to in subsection 1317E(2). SECTION 1317G PECUNIARY PENALTY ORDERS
Court may order person to pay pecuniary penalty
1317G(1)
A Court may order a person to pay to the Commonwealth a pecuniary penalty in relation to the contravention of a civil penalty provision if: (a) a declaration of contravention of the civil penalty provision by the person has been made under section 1317E ; and (b) if the contravention is of a corporation/scheme civil penalty provision, the contravention:
1317G(1A)
The civil penalty provisions in the following table are excluded by this subsection.
Maximum pecuniary penalty
1317G(2)
The pecuniary penalty must not exceed the pecuniary penalty applicable to the contravention of the civil penalty provision.
Pecuniary penalty applicable to the contravention of a civil penalty provision - by an individual
1317G(3)
The pecuniary penalty applicable to the contravention of a civil penalty provision by an individual is the greater of: (a) 5,000 penalty units; and (b) if the Court can determine the benefit derived and detriment avoided because of the contravention - that amount multiplied by 3.
Pecuniary penalty applicable to the contravention of a civil penalty provision - by a body corporate
1317G(4)
The pecuniary penalty applicable to the contravention of a civil penalty provision by a body corporate is the greatest of: (a) 50,000 penalty units; and (b) if the Court can determine the benefit derived and detriment avoided because of the contravention - that amount multiplied by 3; and (c) either:
Contrary intention in relation to pecuniary penalty applicable
1317G(5)
Subsections (3) and (4) apply in relation to a contravention of a civil penalty provision by an individual or a body corporate unless there is a contrary intention under this Act in relation to the pecuniary penalty applicable to the contravention. In that case, the pecuniary penalty applicable is the penalty specified for the civil penalty provision.
Determining pecuniary penalty
1317G(6)
In determining the pecuniary penalty, the Court must take into account all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered because of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court (including a court in foreign country) to have engaged in similar conduct; and (e) in the case of a contravention by the trustee of a registrable superannuation entity - the impact that the penalty under consideration would have on the beneficiaries of the entity.
SECTION 1317GAA
CIVIL ENFORCEMENT OF PECUNIARY PENALTY ORDER
1317GAA(1)
A pecuniary penalty is a debt payable to ASIC on behalf of the Commonwealth.
1317GAA(2)
ASIC or the Commonwealth may enforce a pecuniary penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
SECTION 1317GAB
RELINQUISHING THE BENEFIT DERIVED AND DETRIMENT AVOIDED FROM CONTRAVENING A CIVIL PENALTY PROVISION
Relinquishment order
1317GAB(1)
A Court may order a person to pay the Commonwealth an amount equal to the benefit derived and detriment avoided because of a contravention of a civil penalty provision if a declaration of contravention by the person has been made under section 1317E . The order is a relinquishment order .
1317GAB(2)
The Court may make a relinquishment order:
(a) on its own initiative, during proceedings before the Court; or
(b) on application by ASIC, made within 6 years after the alleged contravention.
Relationship between relinquishment orders and pecuniary penalty orders
1317GAB(3)
To avoid doubt, the Court may make a relinquishment order in relation to the contravention of a civil penalty provision even if a pecuniary penalty order could be, or has been, made in relation to the contravention of the civil penalty provision.
SECTION 1317GAC
CIVIL ENFORCEMENT OF RELINQUISHMENT ORDER
1317GAC(1)
The amount payable under a relinquishment order is a debt payable to ASIC on behalf of the Commonwealth.
1317GAC(2)
ASIC or the Commonwealth may enforce a relinquishment order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
SECTION 1317GAD
1317GAD
MEANING OF BENEFIT DERIVED AND DETRIMENT AVOIDED
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CIVIL PENALTY PROVISION
The benefit derived and detriment avoided because of a contravention of a civil penalty provision is the sum of: (a) the total value of all benefits obtained by one or more persons that are reasonably attributable to the contravention; and (b) the total value of all detriments avoided by one or more persons that are reasonably attributable to the contravention.
SECTION 1317GA
REFUND ORDERS
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CHARGING ONGOING FEE AFTERTERMINATION OF ARRANGEMENT
1317GA(1)
A Court may order that a a person who is a fee recipient refund a fee paid to the fee recipient by another person (the client ) if the Court is satisfied that: (a) the fee recipient knowingly or recklessly contravened section 962Z in charging the client the fee (charging ongoing fee after termination of ongoing fee arrangement); and (b) it is reasonable in all the circumstances to make the order.
Applications for order
1317GA(2)
The Court may make the order under this section: (a) on its own initiative, during proceedings before the Court; or (b) on application by ASIC; or (c) on the application of the client.
When order may be made
1317GA(3)
The Court must not make an order under this section in relation to fees paid more than 6 years before the proceedings for the order are commenced.
Recovery of amount as a debt
1317GA(4)
If the Court makes an order that the fee recipient refund an amount specified in the order to the client, the client may recover the amount as a debt due to the client.
SECTION 1317GB
REFUND ORDERS
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CONTRAVENTIONS OF SECTION 962R OR 962S
1317GB(1)
This section applies if a a person who is a fee recipient: (a) deducts an amount of an ongoing fee payable under an ongoing fee arrangement from an account held by a person (the account holder ) with the fee recipient; or (b) accepts payment of the amount of the ongoing fee that has been deducted from an account held by a person (the account holder ) with another person (the account provider ) under an arrangement the fee recipient made with the account provider.
1317GB(2)
A Court may order that the fee recipient refund the amount if the Court is satisfied that: (a) either:
Applications for order
1317GB(3)
The Court may make the order under this section: (a) on its own initiative, during proceedings before the Court; or (b) on application by ASIC; or (c) on the application of the account holder.
When order may be made
1317GB(4)
The Court must not make an order under this section in relation to amounts paid more than 6 years before the proceedings for the order are commenced.
Recovery of amount as a debt
1317GB(5)
If the Court makes an order that the fee recipient refund an amount specified in the order to the account holder, the account holder may recover the amount as a debt due to the account holder.
SECTION 1317H
COMPENSATION ORDERS
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CORPORATION/SCHEME CIVIL PENALTY PROVISIONS
1317H(1)
Compensation for damage suffered.
(a) the person has contravened a corporation/scheme civil penalty provision in relation to the corporation, scheme or fund; and
(b) the damage resulted from the contravention.
1317H(2)
Damage includes profits.
Damage includes diminution of value of scheme or fund property
1317H(3)
In determining the damage suffered by the scheme or fund for the purposes of making a compensation order, include any diminution in the value of the property of the scheme or fund.
1317H(4)
If the responsible entity for a registered scheme is ordered to compensate the scheme, the responsible entity must transfer the amount of the compensation to scheme property. If anyone else is ordered to compensate the scheme, the responsible entity may recover the compensation on behalf of the scheme.
1317H(4A)
If the operator of a notified foreign passport fund is ordered to compensate the fund, the operator must transfer the amount of the compensation to the fund property. If anyone else is ordered to compensate the fund, the operator may recover the compensation on behalf of the fund.
1317H(5) Recovery of damage.
(a) the liable person has contravened a financial services civil penalty provision; and
(b) the damage resulted from the contravention.
1317HA(2)
Damage includes profits.
Damage includes diminution of value of scheme or fund property
1317HA(3)
In determining the damage suffered by a registered scheme or notified foreign passport fund for the purposes of making a compensation order, include any diminution in the value of the property of the scheme or fund.
1317HA(4)
If the responsible entity for a registered scheme is ordered to compensate the scheme, the responsible entity must transfer the amount of the compensation to the scheme property. If anyone else is ordered to compensate the scheme, the responsible entity may recover the compensation on behalf of the scheme.
1317HA(4A)
If the operator of a notified foreign passport fund is ordered to compensate the fund, the operator must transfer the amount of the compensation to the fund property. If anyone else is ordered to compensate the fund, the operator may recover the compensation on behalf of the fund.
1317HA(5) Recovery of damage.
SECTION 1317HB
COMPENSATION ORDERS
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MARKET INTEGRITY RULES AND CLIENT MONEY REPORTING RULES
Compensation for damage suffered
1317HB(1)
A Court may order a person (the liable person ) to compensate another person (including a corporation), a registered scheme or a notified foreign passport fund for damage suffered by the person, scheme or fund if:
(a) the liable person has contravened subsection 798H(1) (complying with market integrity rules) or 981M(1) (complying with client money reporting rules); and
(b) the damage resulted from the contravention.
1317HB(2)
Subsection (1) does not apply in relation to a contravention by the operator of a licensed market acting in that capacity.
Damage includes profits
1317HB(3)
In determining the damage suffered by a person, scheme or fund for the purposes of making a compensation order, include profits made by any person resulting from the contravention.
Damage includes diminution of value of scheme or fund property
1317HB(4)
In determining the damage suffered by a registered scheme or a notified foreign passport fund for the purposes of making a compensation order, include any diminution in the value of the property of the scheme or the fund.
1317HB(4A)
If the responsible entity for a registered scheme is ordered to compensate the scheme, the responsible entity must transfer the amount of the compensation to the scheme property. If anyone else is ordered to compensate the scheme, the responsible entity may recover the compensation on behalf of the scheme.
1317HB(4B)
If the operator of a notified foreign passport fund is ordered to compensate the fund, the operator must transfer the amount of the compensation to the fund property. If anyone else is ordered to compensate the fund, the operator may recover the compensation on behalf of the fund.
Recovery of damage
1317HB(5)
A compensation order may be enforced as if it were a judgment of the Court.
SECTION 1317HC
COMPENSATION ORDERS
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FINANCIAL BENCHMARK RULES OR COMPELLED FINANCIAL BENCHMARK RULES
Compensation for damage suffered
1317HC(1)
A Court may order a person (the liable person ) to compensate another person (including a corporation), or a registered scheme, for damage suffered by the person or scheme if:
(a) the liable person has contravened subsection 908CF(1) (complying with rules about financial benchmarks); and
(b) the damage resulted from the contravention.
Damage includes profits
1317HC(2)
In determining the damage suffered by a person or scheme for the purposes of making a compensation order, include profits made by any person resulting from the contravention.
Damage to scheme includes diminution of value of scheme property
1317HC(3)
In determining the damage suffered by a registered scheme for the purposes of making a compensation order, include any diminution in the value of the property of the scheme.
Recovery of damage
1317HC(4)
A compensation order may be enforced as if it were a judgment of the Court.
SECTION 1317HE
COMPENSATION ORDERS
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PASSPORT RULES
1317HE(1)
A Court may order a person (the liable person ) to compensate another person (other than a passport fund) for damage suffered by the other person if:
(a) the liable person has contravened subsection 1211B(1) or (2) (failure to comply with the Passport Rules for this jurisdiction); and
(b) the damage resulted from the contravention. The order must specify the amount of compensation.
1317HE(2)
A Court may order a person to compensate a passport fund for damage suffered by the fund if:
(a) the person has contravened subsection 1211B(1) or (2) (failure to comply with the Passport Rules for this jurisdiction); and
(b) the damage resulted from the contravention. The order must specify the amount of compensation.
1317HE(3)
In determining the damage suffered by a person or passport fund for the purposes of making a compensation order, include profits made by any person resulting from the contravention.
1317HE(4)
In determining the damage suffered by a passport fund for the purposes of making a compensation order, include any diminution in value of the property of the fund.
1317HE(5)
If the operator of a passport fund is ordered to compensate the fund, the operator must transfer the amount of the compensation to the fund property. If anyone else is ordered to compensate the fund, the operator may recover the compensation on behalf of the fund.
1317HE(6)
A compensation order may be enforced as if it were a judgment of the Court.
Division 2
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Procedural and other matters relating to orders by the Court
SECTION 1317J
WHO MAY APPLY FOR A DECLARATION OR ORDER
Application by ASIC
1317J(1)
ASIC may apply for a declaration of contravention, a pecuniary penalty order or a compensation order.
1317J(1A)
However, ASIC must not make an application under subsection (1) in relation to an alleged contravention of a restricted civil penalty provision unless: (a) a Financial Services and Credit Panel has given ASIC a notice under subsection 921Q(1) in relation to the alleged contravention; or (b) both of the following apply:
Application by corporation
1317J(2)
The corporation, the responsible entity for the registered scheme or the operator of the notified foreign passport fund may apply for a compensation order.
1317J(3)
The corporation, the responsible entity for the registered scheme or the operator of the notified foreign passport fund may intervene in an application for a declaration of contravention or a pecuniary penalty order in relation to the corporation, scheme or fund. The corporation, responsible entity or operator is entitled to be heard on all matters other than whether the declaration or order should be made.
Compensation order relating to financial services civil penalty provision - any other person who suffers damage may apply
1317J(3A)
Any other person who suffers damage in relation to a contravention, or alleged contravention, of a financial services civil penalty provision may apply for a compensation order under section 1317HA .
Compensation order relating to the Passport Rules for this jurisdiction - any other person who suffers damage may apply
1317J(3AA)
Any other person who suffers damage in relation to a contravention, or alleged contravention, of subsection 1211B(1) or (2) may apply for a compensation order under section 1317HE .
1317J(3B)
Subsections (2) and (3) do not apply in relation to a contravention of: (a) section 901E (complying with derivative transaction rules); or (b) section 903D (complying with derivative trade repository rules).
No one else may apply
1317J(4)
No person may apply for a declaration of contravention, a pecuniary penalty order or a compensation order unless permitted by this section.
1317J(5)
Subsection (4) does not exclude the operation of the Director of Public Prosecutions Act 1983 .
SECTION 1317K 1317K TIME LIMIT FOR APPLICATION FOR A DECLARATION OR ORDER
Proceedings for a declaration of contravention, a pecuniary penalty order, or a compensation order, may be started no later than 6 years after the contravention. SECTION 1317L 1317L CIVIL EVIDENCE AND PROCEDURE RULES FOR DECLARATIONS OF CONTRAVENTION AND CIVIL PENALTY ORDERS
The Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for:
(a) a declaration of contravention; or
(b) a pecuniary penalty order. SECTION 1317M 1317M CIVIL PROCEEDINGS AFTER CRIMINAL PROCEEDINGS
A court must not make a declaration of contravention, a pecuniary penalty order or a relinquishment order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
SECTION 1317N
CRIMINAL PROCEEDINGS DURING CIVIL PROCEEDINGS
1317N(1)
Proceedings for a declaration of contravention, a pecuniary penalty order or a relinquishment order against a person are stayed if:
(a) criminal proceedings are started or have already been started against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
1317N(2)
The proceedings for the declaration or order (the civil proceedings ) may be resumed if the person is not convicted of the offence. Otherwise:
(a) the civil proceedings are dismissed; and
(b) costs must not be awarded in relation to the civil proceedings.
SECTION 1317P
CRIMINAL PROCEEDINGS AFTER CIVIL PROCEEDINGS
1317P(1)
Subject to subsection (2), criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether:
(a) a declaration of contravention has been made against the person; or
(b) a pecuniary penalty order has been made against the person; or
(baa) a relinquishment order has been made against the person; or
(ba) a refund order has been made against the person; or
(c) a compensation order has been made against the person; or
(d) the person has been disqualified from managing a corporation under Part 2D.6 ; or
(e) a banning order, or an order by the Court under section 921A (about disqualification by the Court), has been made against the person.
1317P(2)
Subsection (1) does not apply if:
(a) an infringement notice is issued under section 1317DAC to the person for an alleged contravention of subsection 674(2) or 675(2) ; and
(b) the infringement notice is not withdrawn under section 1317DAI .
SECTION 1317Q 1317Q EVIDENCE GIVEN IN PROCEEDINGS FOR PENALTY NOT ADMISSIBLE IN CRIMINAL PROCEEDINGS
Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order or a relinquishment order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
SECTION 1317QA
CONTINUING CONTRAVENTIONS OF CIVIL PENALTY PROVISIONS
1317QA(1)
If an act or thing is required under a civil penalty provision to be done:
(a) within a particular period; or
(b) before a particular time;
1317QA(2)
A person who contravenes a civil penalty provision that requires an act or thing to be done:
(a) within a particular period; or
(b) before a particular time;
SECTION 1317QB
STATE OF MIND
1317QB(1)
In proceedings for a declaration of contravention or an order under Division 1 against a person for a contravention of a civil penalty provision, it is not necessary to prove:
(a) the person ' s intention; or
(b) the person ' s knowledge; or
(c) the person ' s recklessness; or
(d) the person ' s negligence; or
(e) any other state of mind of the person.
1317QB(2)
Subsection (1) does not apply to the extent that the proceedings relate to attempting to contravene a civil penalty provision, or being involved in a contravention of a civil penalty provision.
1317QB(3)
Subsection (1) does not affect the operation of section 1317QC (which is about mistake of fact).
1317QB(4)
Subsection (1) does not apply to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise.
SECTION 1317QC
MISTAKE OF FACT
1317QC(1)
A person is not liable to have a declaration of contravention or an order under Division 1 made against the person for a contravention of a civil penalty provision if:
(a) at or before the time of the conduct constituting the contravention, the person:
(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
1317QC(2)
For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
1317QC(3)
A person who wishes to rely on subsection (1) or (2) in proceedings for a declaration of contravention or an order under Division 1 bears an evidential burden in relation to that matter.
1317QC(4)
In subsection (3), evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
SECTION 1317QD
EXCEPTIONS ETC. TO CIVIL PENALTY PROVISIONS
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BURDEN OF PROOF
1317QD(1)
If, in proceedings for a declaration of contravention or an order under Division 1 against a person for a contravention of a civil penalty provision, the person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision, then the person bears an evidential burden in relation to that matter.
1317QD(2)
In subsection (1), evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
SECTION 1317QE
1317QE
CIVIL PENALTY PROVISIONS CONTRAVENED BY EMPLOYEES, AGENTS OR OFFICERS
If an element of a civil penalty provision is done by an employee, agent or officer of a body corporate acting:
(a) within the actual or apparent scope of the employee ' s, agent ' s, or officer ' s employment; or
(b) within the employee ' s, agent ' s, or officer ' s actual or apparent authority;
SECTION 1317QF
PREFERENCE MUST BE GIVEN TO COMPENSATE PERSONS WHO SUFFER DAMAGE AS A RESULT OF CONTRAVENTION
1317QF(1)
This section applies if a court considers that it is appropriate to: (a) make a pecuniary penalty order against a person in relation to a contravention of a civil penalty provision; or (b) make a relinquishment order against a person in relation to a contravention of a civil penalty provision; or (c) impose a fine against a person in relation to a commission of an offence constituted by the same conduct as the conduct constituting the contravention of the pecuniary penalty order.
1317QF(2)
In making the pecuniary penalty order or relinquishment order or imposing the fine, the court: (a) must consider the effect that making the order or imposing the fine would have on the amount available to pay:
1317QF(3)
If the court gives preference to making an appropriate amount available for refunds and compensation under paragraph (2)(b), the court may also make such orders as the court thinks fit for the purpose of ensuring that the amount remains available for the payment of: (a) compensation under section 961M , 1317H , 1317HA , 1317HB , 1317HC or 1317HE ; or (b) refunds under section 1317GA or 1317GB .
SECTION 1317R
ASIC REQUIRING PERSON TO ASSIST
1317R(1)
[
Provision of reasonable assistance]
(a) an application for a declaration of contravention or a pecuniary penalty order; or
(b) criminal proceedings for an offence against this Act. 1317R(2) [ Requirement to assist for declaration or order]
(a) it appears to ASIC that someone other than the person required to assist may have contravened a civil penalty provision; and
(b) ASIC suspects or believes that the person required to assist can give information relevant to the application. 1317R(3) [ Requirement to assist in criminal proceedings]
(a) it appears to ASIC that the person required to assist is unlikely to be a defendant in the proceedings; and
(b) the person required to assist is, in relation to a person who is or should be a defendant in the proceedings:
1317R(4)
[
Where requirement can be made]
(a) an application for the declaration or penalty order has actually been made; or
(b) criminal proceedings for the offence have actually begun. 1317R(5) [ Exception to requirement]
(a) in an application for a declaration or penalty order - the person suspected of the contravention; or
(b) in criminal proceedings - a defendant or likely defendant in the proceedings. 1317R(6) [ Requirement in writing]
In this section:
(a) means proceedings for a contravention of a civil penalty provision (including proceedings under section 588M , 588W , 961M , 1317GA , 1317GB , 1317H , 1317HA , 1317HB , 1317HC or 1317HE ); and
(b) does not include proceedings for an offence (except so far as the proceedings relate to the question whether the court should make an order under section 588K , 1317H , 1317HA , 1317HB , 1317HC or 1317HE ).
1317S(2)
If:
(a) eligible proceedings are brought against a person; and
(b) in the proceedings it appears to the court that the person has, or may have, contravened a civil penalty provision but that:
1317S(3)
In determining under subsection (2) whether a person ought fairly to be excused for a contravention of section 588G , the matters to which regard is to be had include, but are not limited to:
(a) any action the person took with a view to appointing an administrator of the company or Part 5.7 body or a restructuring practitioner for the company; and
(b) when that action was taken; and
(c) the results of that action.
1317S(4)
If a person thinks that eligible proceedings will or may be begun against them, they may apply to the Court for relief.
1317S(5)
On an application under subsection (4), the Court may grant relief under subsection (2) as if the eligible proceedings had been begun in the Court.
1317S(6)
For the purposes of subsection (2) as applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subsection to the court is a reference to the judge; and
(b) the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.
1317S(7)
Nothing in this section limits, or is limited by, section 1317QC or section 1318 .
View history note
Hide history note(Repealed by No 17 of 2019, s 3, Sch 1 [ 115] (effective 13 March 2019).) SECTION 1317E DECLARATION OF CONTRAVENTION OF A CIVIL PENALTY PROVISION
Declaration of contravention
1317E(1)
If a Court is satisfied that a person has contravened a civil penalty provision, the Court must make a declaration of contravention.
1317E(2)
The declaration must specify the following: (a) the Court that made the declaration; (b) the civil penalty provision that was contravened; (c) the person who contravened the provision; (d) the conduct that constituted the contravention; (e) if the contravention is of a corporation/scheme civil penalty provision - the corporation, registered scheme or notified foreign passport fund to which the conduct related; (f) if the contravention is of subsection 1211B(1) or (2) (complying with the Passport Rules for this jurisdiction) - the passport fund in relation to which the obligation was imposed on the person; (g) if the contravention is of subsection 670A(4) , 727(6) , 728(4) or 1309(12) (misleading statements etc.) - the corporation, registered scheme or notified foreign passport fund to which the conduct related.
Meanings of civil penalty provision , corporation/scheme civil penalty provision and financial services civil penalty provision
1317E(3)
In this Act: (a) a provision specified in column 1 of the following table is a civil penalty provision ; and (b) a civil penalty provision categorised as a corporation/scheme provision in column 3 of the following table is a corporation/scheme civil penalty provision ; and (c) a civil penalty provision categorised as a financial services provision in column 3 of the following table is a financial services civil penalty provision ; and (d) a provision that is specified as having no categorisation in column 3 of the following table is neither a corporation/scheme civil penalty provision nor a financial services civil penalty provision .
| Civil penalty provisions | ||
|
Column 1
Provision |
Column 2
Brief description of the provision |
Column 3
Categorisation of the provision |
| subsections 180(1) , 181(1) and (2) , 182(1) and (2) and 183(1) and (2) | officers ' duties | corporation/scheme |
| subsections 188(1) and (2) | responsibilities of secretaries etc. for corporate contraventions | corporation/scheme |
| subsection 209(2) | related parties rules | corporation/scheme |
| subsections 254L(2) , 256D(3) , 259F(2) and 260D(2) | share capital transactions | corporation/scheme |
| subsections 344(1) and (1A) | requirements for financial reports | corporation/scheme |
| subsection 458F(1) | obligation to declare and publish notice if company not eligible for temporary restructuring relief | corporation/scheme |
| subsection 588G(2) | insolvent trading | corporation/scheme |
| subsection 588GAB(2) | preventing creditor-defeating dispositions | corporation/scheme |
| subsection 588GAC(2) | procuring creditor-defeating dispositions | corporation/scheme |
| subsections 596AC(1) , (2) , (3) and (4) | avoiding employee entitlements | corporation/scheme |
| subsection 601ED(8) | obligation to be registered if operating certain managed investment schemes | corporation/scheme |
| subsection 601FC(5) | duties of responsible entity | corporation/scheme |
| subsection 601FD(3) | duties of officers of responsible entity | corporation/scheme |
| subsection 601FE(3) | duties of employees of responsible entity | corporation/scheme |
| subsection 601FG(2) | acquisition of interest in scheme by responsible entity | corporation/scheme |
| subsection 601JD(3) | duties of members | corporation/scheme |
| subsection 601UAA(2) | duties of officers of licensed trustee company | corporation/scheme |
| subsection 601UAB(2) | duties of employees of licensed trustee company | corporation/scheme |
| subsection 641A(1) | use or disclosure of information obtained from target | uncategorised |
| subsection 670A(4) | misstatements in, or omissions from, takeover and compulsory acquisition and buy-out documents | uncategorised |
| subsections 674A(2) , 674A(3) , 675A(2) and 675A(3) | continuous disclosure - knowledge, recklessness or negligence | financial services |
| subsection 727(6) | offering securities without a current disclosure document | uncategorised |
| subsection 728(4) | misstatement in, or omission from, disclosure document | uncategorised |
| subsection 791A(3) | need for an Australian market licence | uncategorised |
| subsection 792A(2) | general obligations of market licensees | uncategorised |
| subsection 792B(7) | market licensee to notify ASIC of certain matters | uncategorised |
| subsection 798H(1) | complying with market integrity rules | uncategorised |
| subsection 820A(3) | need for an Australian CS facility licence | uncategorised |
| subsection 821A(2) | general obligations of CS facility licensees | uncategorised |
| subsection 821B(6) | CS facility licensee to notify ASIC of certain matters | uncategorised |
| subsection 826J(1) | complying with CS facility rules | uncategorised |
| section 828C | complying with CS services rules | uncategorised |
| section 828D | obligation to notify ASIC of inability to meet obligations under section 828C | uncategorised |
| subsection 848C(4) | disclosure of information covered by secrecy provision | financial services |
| subsection 853F(3) | obligations on disqualified individuals | uncategorised |
| section 901E | complying with derivative transaction rules | uncategorised |
| section 903D | complying with derivative trade repository rules | uncategorised |
| subsection 904A(2) | general obligations of derivative trade repository licensees | uncategorised |
| subsection 904C(1A) | obligation to notify ASIC of inability to meet obligations under section 904A | uncategorised |
| subsection 905A(3) | need to hold a licence to operate a derivative trade repository | uncategorised |
| subsection 908CF(1) | complying with financial benchmark rules or compelled financial benchmark rules | uncategorised |
| subsections 908DA(1) and (2) and 908DB(1) and (2) | manipulating financial benchmarks | uncategorised |
| subsection 911A(5B) | need for an Australian financial services licence | uncategorised |
| subsection 911B(4) | providing financial services on behalf of a person who carries on a financial services business | uncategorised |
| subsection 912A(5A) | general obligations of a financial services licensee | uncategorised |
| subsection 912DAA(7) | failure by a financial services licensee to report to ASIC a reportable situation in relation to the licensee | uncategorised |
| subsection 912DAB(8) | failure by a financial services licensee to report to ASIC a reportable situation in relation to another financial services licensee, or to give a copy of the report to the other financial services licensee | uncategorised |
| subsection 912DAC(4) | failure by a financial services licensee to notify ASIC that the licensee has become, or ceased to be, a participant in a licensed market or a licensed CS facility | uncategorised |
| subsection 912EA(5) | failure by a financial services licensee to notify an affected client of a reportable situation | uncategorised |
| subsection 912EB(9) | failure by a financial services licensee to investigate a reportable situation, notify an affected client of the outcome of the investigation or compensate an affected client | uncategorised |
| subsection 920C(4) | need to comply with a banning order | uncategorised |
| subsection 921BA(5) | relevant providers to meet education and training standards | uncategorised |
| subsection 921BB(4) | relevant providers who provide tax (financial) advice services to meet requirement for continuing professional development | uncategorised |
| subsection 921E(3) | relevant providers to comply with the Code of Ethics | uncategorised |
| subsection 921F(8) | requirements relating to provisional relevant providers | uncategorised |
| subsection 921L(2) | relevant providers to comply with direction under paragraph 921L(1)(a) | uncategorised |
| section 921Y | unregistered relevant providers not to provide personal advice | uncategorised |
| subsection 921Z(4) | financial services licensees not to continue to authorise unregistered relevant providers to provide personal advice | uncategorised |
| subsection 922M(5) | need to comply with obligation to notify ASIC | uncategorised |
| subsection 941A(3) | obligation on financial services licensee to give a Financial Services Guide if financial service provided to person as a retail client | uncategorised |
| subsection 941B(4) | obligation on authorised representative to give a Financial Services Guide if financial service provided to person as a retail client | uncategorised |
| subsection 943G(3) | obligation on financial services licensee to make website disclosure information available if financial product advice is provided to a person as a retail client and no Financial Services Guide is given | uncategorised |
| subsection 943H(4) | obligation on authorised representative to make website disclosure information available if financial product advice is provided to a person as a retail client and no Financial Services Guide is given | uncategorised |
| subsection 943K(2) | obligation to keep website disclosure information readily accessible | uncategorised |
| subsection 943L(2) | obligation to keep website disclosure information up to date | uncategorised |
| subsection 946A(4) | obligation to give client a Statement of Advice | uncategorised |
| subsection 948C(2) | obligation to give client a Cash Settlement Fact Sheet | uncategorised |
| subsection 952E(9) | giving a defective disclosure document or statement (whether or not known to be defective) | uncategorised |
| subsection 952H(3) | financial services licensee failing to ensure authorised representative gives disclosure documents or statements as required | uncategorised |
| subsections 961K(1) and (2) | financial services licensee responsible for breach of certain best interests duties | uncategorised |
| section 961L | financial services licensee to ensure compliance with certain best interests duties | uncategorised |
| subsection 961Q(1) | authorised representative responsible for breach of certain best interests duties | uncategorised |
| subsection 962R(4) | fee recipient must obtain consent to deduct ongoing fees from an account | uncategorised |
| subsection 962S(5) | fee recipient must obtain consent to arrange for deductions of ongoing fees from an account | uncategorised |
| subsection 962S(8) | fee recipient must not accept payment of ongoing fees resulting from a deduction from an account without consent | uncategorised |
| subsection 962Z | charging an ongoing fee after arrangement has terminated | uncategorised |
| subsections 963E(1) and (2) | financial services licensee responsible for breach of ban on conflicted remuneration | financial services |
| section 963F | financial services licensee must ensure representatives do not accept conflicted remuneration | financial services |
| subsection 963G(1) | authorised representative must not accept conflicted remuneration | financial services |
| section 963J | employer must not pay employees conflicted remuneration | financial services |
| section 963K | financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative | financial services |
| section 963P | person covered by section 963M must pay amount etc. in accordance with regulations | financial services |
| subsection 964A(1) | platform operator must not accept volume-based shelf-space fees | financial services |
| subsections 964D(1) and (2) | financial services licensee responsible for breach of asset-based fees on borrowed amounts | financial services |
| subsection 964E(1) | authorised representative must not charge asset-based fees on borrowed amounts | financial services |
| section 965 | anti-avoidance of Part 7.7A provisions | financial services |
| subsection 981B(3) | obligation to pay money into an account | uncategorised |
| subsection 981C(2) | various matters relating to accounts maintained for the purposes of section 981B | uncategorised |
| subsection 981M(1) | complying with client money reporting rules | uncategorised |
| subsection 985E(1) | issuing or increasing limit of margin lending facility without having made assessment etc. | financial services |
| subsection 985H(1) | failure to assess a margin lending facility as unsuitable | financial services |
| subsection 985J(1) | failure to give assessment to retail client if requested before issue of facility or increase in limit | financial services |
| subsection 985J(2) | failure to give assessment to retail client if requested after issue of facility or increase in limit | financial services |
| subsection 985J(4) | demanding payment to give assessment to retail client | financial services |
| subsection 985K(1) | issuing or increasing limit of margin lending facility if unsuitable | financial services |
| section 985L | making issue of margin lending facility conditional on retail client agreeing to receive communications through agent | financial services |
| subsection 985M(1) | failure to notify of margin call where there is no agent | financial services |
| subsection 985M(2) | failure to notify of margin call where there is an agent | financial services |
| subsection 993D(4) | failure to pay loan money into an account as required | financial services |
| subsections 994B(2) and (9) | failure to make and make available target market determinations for financial products | financial services |
| subsection 994C(2) | failure to review target market determinations | financial services |
| subsection 994C(4) | engaging in retail product distribution conduct in relation to financial products before review of target market determinations | financial services |
| subsection 994C(5) | failure to inform regulated persons of obligations not to engage in retail product distribution conduct in relation to financial products before review of target market determinations | financial services |
| subsection 994C(7) | engaging in retail product distribution conduct in relation to financial products before review of target market determinations | financial services |
| section 994D | engaging in retail product distribution conduct where no target market determination | financial services |
| subsections 994E(1) and (3) | ensuring that retail product distribution conduct is consistent with target market determinations | financial services |
| subsections 994F(1) and (3) | failure to keep records | financial services |
| subsections 994F(4) , (5) and (6) | failure to report complaints and other information | financial services |
| subsection 994F(8) | failure to comply with requirements of regulations | financial services |
| section 994G | failure to notify ASIC | financial services |
| subsection 994H(3) | failure to provide information to ASIC on request | financial services |
| subsections 994J(7) and (8) | failure to comply with stop order obligations | financial services |
| subsection 1012A(5) | obligation to give Product Disclosure Statement - personal advice recommending particular financial product | financial services |
| subsection 1012B(6) | obligation to give Product Disclosure Statement - situations related to issue of financial products | financial services |
| subsection 1012C(11) | obligation to give Product Disclosure Statement - offers related to sale of financial products | financial services |
| subsection 1017BA(4B) | trustee of regulated superannuation funds - obligation to make product dashboard publicly available | financial services |
| subsection 1017BB(5AA) | trustee of registrable superannuation entities - obligation to make information relating to investment of assets publicly available | financial services |
| subsection 1020A(5) | offers etc. relating to certain managed investment schemes not to be made in certain circumstances | financial services |
| subsection 1021E(8) | preparer of defective disclosure document or statement giving the document or statement (whether or not known to be defective) | financial services |
| subsection 1021G(3) | financial services licensee failing to ensure authorised representative gives etc. disclosure documents or statements as required | financial services |
| subsection 1023P(1) | engaging in conduct contrary to a product intervention order | financial services |
| subsection 1023P(2) | failure to notify retail clients | financial services |
| subsection 1023P(4) | failure to take reasonable steps to make others aware of product intervention order | financial services |
| subsection 1023S(1) , (2) , (3) or (4) | schemes for avoiding certain product intervention orders | uncategorised |
| section 1041A | market manipulation | financial services |
| subsection 1041B(1) | false trading and market rigging - creating a false or misleading appearance of active trading etc. | financial services |
| subsection 1041C(1) | false trading and market rigging - artificially maintaining etc. market price | financial services |
| section 1041D | dissemination of information about illegal transactions | financial services |
| subsections 1043A(1) and (2) | insider trading | financial services |
| section 1101AC | failure to comply with an enforceable code provision | financial services |
| a provision of a regulation made under section 1101AD that includes the words " civil penalty " and one or more amounts in penalty units at the foot of the provision | failure to comply with a civil penalty provision of a mandatory code of conduct | financial services |
| subsections 1211B(1) and (2) | contravening the Passport Rules | uncategorised |
| subsection 1224D(1) | duties owed by director of a CCIV | corporation/scheme |
| subsection 1224D(2) | duties owed by director of a retail CCIV | corporation/scheme |
| subsection 1224D(4) | duties owed by director of a wholesale CCIV | corporation/scheme |
| subsection 1224P(2) | acquisition of share in CCIV by corporate director of retail CCIV | corporation/scheme |
| subsection 1225(1) | duties owed by officers of corporate director of retail CCIV | corporation/scheme |
| subsection 1225F(1) | duties owed by employees of corporate director of retail CCIV | corporation/scheme |
| subsection 1230F(5) | share redemption requirements for CCIVs | corporation/scheme |
| subsection 1230S(4) | cross-investment restrictions or requirements for CCIVs | corporation/scheme |
| subsection 1231B(4) | unauthorised reduction of share capital by a CCIV | corporation/scheme |
| subsection 1231J(5) | directly acquiring own shares | corporation/scheme |
| subsections 1234J(1) , (2) and (3) | holding of sub-fund assets of a CCIV | corporation/scheme |
| subsection 1272C(5) | requirement to have a director identification number | financial services |
| subsection 1272D(4) | requirement to apply for a director identification number | financial services |
| subsection 1272G(4) | applying for additional director identification numbers | financial services |
| subsection 1272H(2) | misrepresenting a director identification number | financial services |
| subsections 1308(4) and (5) | false or misleading documents | uncategorised |
| subsection 1309(12) | false information | uncategorised |
| subsection 1317AAE(1) | breach of confidentiality of identity of whistleblower | uncategorised |
| subsections 1317AC(1) , (2) and (3) | victimisation or threatened victimisation of whistleblower | uncategorised |
| subclause 29(6) of Schedule 4 | disclosure for proposed demutualisation | corporation/scheme |
Note 1: Once a declaration has been made, ASIC can seek a pecuniary penalty order (section 1317G ) or (in the case of a corporation/scheme civil penalty provision and certain other civil penalty provisions) a disqualification order (section 206C ).
Note 2: The descriptions of matters in column 2 are indicative only.
Note 3: Section 908DD contains some matters relevant for making declarations of contravention for subsections 908DA(1) and (2) and 908DB(1) and (2) (about manipulating financial benchmarks).
[ CCH Note 1: S 1317E(3) will be amended by No 115 of 2021, s 3, Sch 2[9], by repealing the table item dealing with subsection 921Z(4) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
[ CCH Note 2: S 1317E(3) will be amended by No 67 of 2024, s 3, Sch 1[100], by substituting " subsection 963K(1) " for " section 963K " in table item dealing with section 963K, (effective 9 July 2025).]
[ CCH Note 3: S 1317E(3) will be amended by No 87 of 2024, s 3, Sch 2[136], by inserting the item below, (effective 17 March 2025). The item will read:
subsection 853P(3) need to comply with an FMI banning order uncategorised]
Attempt and involvement in contravention treated in same way as actual contravention
1317E(4)
A person who: (a) attempts to contravene a civil penalty provision; or (b) is involved in a contravention of a civil penalty provision;
is taken to have contravened the provision.
A declaration of contravention is conclusive evidence of the matters referred to in subsection 1317E(2). SECTION 1317G PECUNIARY PENALTY ORDERS
Court may order person to pay pecuniary penalty
1317G(1)
A Court may order a person to pay to the Commonwealth a pecuniary penalty in relation to the contravention of a civil penalty provision if: (a) a declaration of contravention of the civil penalty provision by the person has been made under section 1317E ; and (b) if the contravention is of a corporation/scheme civil penalty provision, the contravention:
(i) materially prejudices the interests of the corporation, scheme or fund, or its members; or
(ii) materially prejudices the corporation ' s ability to pay its creditors; or
(c) if the contravention is of a financial services civil penalty provision (other than one excluded by subsection (1A) ), the contravention:
(iii) is serious; and
(i) materially prejudices the interests of acquirers or disposers of the relevant financial products; or
(ii) materially prejudices the issuer of the relevant financial products or, if the issuer is a corporation, scheme or fund, the members of that corporation, scheme or fund; or
(d) if the contravention is of subsection 1211B(1) or (2) (complying with the Passport Rules for this jurisdiction), the contravention:
(iii) is serious; and
(i) materially prejudices the interests of the passport fund or its members; or
(ii) is serious.
The order is a pecuniary penalty order .
1317G(1A)
The civil penalty provisions in the following table are excluded by this subsection.
| Excluded civil penalty provisions of Part 7.7A | ||
| Item | Provision | Matter |
| 1 | Subsections 961K(1) and (2) | Financial services licensee responsible for breach of certain best interests duties |
| 2 | Section 961L | Financial services licensee to ensure compliance with certain best interests duties |
| 3 | Subsection 961Q(1) | Authorised representative responsible for breach of certain best interests duties |
| 4 - 9 | (Repealed) | |
| 10 | Subsections 963E(1) and (2) | Financial services licensee must not accept conflicted remuneration |
| 11 | Section 963F | Financial services licensee must ensure representatives do not accept conflicted remuneration |
| 12 | Subsection 963G(1) | Authorised representative must not accept conflicted remuneration |
| 13 | Section 963J | Employer must not pay employees conflicted remuneration |
| 14 | Section 963K | Financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative |
| 15 | Section 963P | Person covered by section 963M must pay amount etc. in accordance with regulations |
| 16 | Subsection 964A(1) | Platform operator must not accept volume-based shelf-space fees |
| 17 | Subsections 964D(1) and (2) | Financial services licensee must not charge asset-based fees on borrowed amounts |
| 18 | Subsection 964E(1) | Authorised representative must not charge asset-based fees on borrowed amounts |
| 19 | Section 965 | Anti-avoidance of Part 7.7A provisions |
Maximum pecuniary penalty
1317G(2)
The pecuniary penalty must not exceed the pecuniary penalty applicable to the contravention of the civil penalty provision.
Pecuniary penalty applicable to the contravention of a civil penalty provision - by an individual
1317G(3)
The pecuniary penalty applicable to the contravention of a civil penalty provision by an individual is the greater of: (a) 5,000 penalty units; and (b) if the Court can determine the benefit derived and detriment avoided because of the contravention - that amount multiplied by 3.
Pecuniary penalty applicable to the contravention of a civil penalty provision - by a body corporate
1317G(4)
The pecuniary penalty applicable to the contravention of a civil penalty provision by a body corporate is the greatest of: (a) 50,000 penalty units; and (b) if the Court can determine the benefit derived and detriment avoided because of the contravention - that amount multiplied by 3; and (c) either:
(i) 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 contravened, or began to contravene, the civil penalty provision; or
(ii) if the amount worked out under subparagraph (i) is greater than an amount equal to 2.5 million penalty units - 2.5 million penalty units.
Contrary intention in relation to pecuniary penalty applicable
1317G(5)
Subsections (3) and (4) apply in relation to a contravention of a civil penalty provision by an individual or a body corporate unless there is a contrary intention under this Act in relation to the pecuniary penalty applicable to the contravention. In that case, the pecuniary penalty applicable is the penalty specified for the civil penalty provision.
Determining pecuniary penalty
1317G(6)
In determining the pecuniary penalty, the Court must take into account all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered because of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court (including a court in foreign country) to have engaged in similar conduct; and (e) in the case of a contravention by the trustee of a registrable superannuation entity - the impact that the penalty under consideration would have on the beneficiaries of the entity.
A pecuniary penalty is a debt payable to ASIC on behalf of the Commonwealth.
1317GAA(2)
ASIC or the Commonwealth may enforce a pecuniary penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
Relinquishment order
1317GAB(1)
A Court may order a person to pay the Commonwealth an amount equal to the benefit derived and detriment avoided because of a contravention of a civil penalty provision if a declaration of contravention by the person has been made under section 1317E . The order is a relinquishment order .
1317GAB(2)
The Court may make a relinquishment order:
(a) on its own initiative, during proceedings before the Court; or
(b) on application by ASIC, made within 6 years after the alleged contravention.
Relationship between relinquishment orders and pecuniary penalty orders
1317GAB(3)
To avoid doubt, the Court may make a relinquishment order in relation to the contravention of a civil penalty provision even if a pecuniary penalty order could be, or has been, made in relation to the contravention of the civil penalty provision.
Note: The relationship between relinquishment orders and proceedings for an offence are dealt with in sections 1317M , 1317N , 1317P and 1317Q .
The amount payable under a relinquishment order is a debt payable to ASIC on behalf of the Commonwealth.
1317GAC(2)
ASIC or the Commonwealth may enforce a relinquishment order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
The benefit derived and detriment avoided because of a contravention of a civil penalty provision is the sum of: (a) the total value of all benefits obtained by one or more persons that are reasonably attributable to the contravention; and (b) the total value of all detriments avoided by one or more persons that are reasonably attributable to the contravention.
A Court may order that a a person who is a fee recipient refund a fee paid to the fee recipient by another person (the client ) if the Court is satisfied that: (a) the fee recipient knowingly or recklessly contravened section 962Z in charging the client the fee (charging ongoing fee after termination of ongoing fee arrangement); and (b) it is reasonable in all the circumstances to make the order.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E .
Applications for order
1317GA(2)
The Court may make the order under this section: (a) on its own initiative, during proceedings before the Court; or (b) on application by ASIC; or (c) on the application of the client.
When order may be made
1317GA(3)
The Court must not make an order under this section in relation to fees paid more than 6 years before the proceedings for the order are commenced.
Recovery of amount as a debt
1317GA(4)
If the Court makes an order that the fee recipient refund an amount specified in the order to the client, the client may recover the amount as a debt due to the client.
This section applies if a a person who is a fee recipient: (a) deducts an amount of an ongoing fee payable under an ongoing fee arrangement from an account held by a person (the account holder ) with the fee recipient; or (b) accepts payment of the amount of the ongoing fee that has been deducted from an account held by a person (the account holder ) with another person (the account provider ) under an arrangement the fee recipient made with the account provider.
1317GB(2)
A Court may order that the fee recipient refund the amount if the Court is satisfied that: (a) either:
(i) if paragraph (1)(a) applies - the fee recipient knowingly or recklessly contravened section 962R (fee recipient must not deduct ongoing fees without consent) in deducting the amount; or
(b) it is reasonable in all the circumstances to make the order.
(ii) if paragraph (1)(b) applies - the fee recipient knowingly or recklessly contravened section 962S (fee recipient must not arrange for deduction of ongoing fees without consent or accept such deductions) in arranging for the deduction of the amount, or accepting payment of the amount; and
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E .
Applications for order
1317GB(3)
The Court may make the order under this section: (a) on its own initiative, during proceedings before the Court; or (b) on application by ASIC; or (c) on the application of the account holder.
When order may be made
1317GB(4)
The Court must not make an order under this section in relation to amounts paid more than 6 years before the proceedings for the order are commenced.
Recovery of amount as a debt
1317GB(5)
If the Court makes an order that the fee recipient refund an amount specified in the order to the account holder, the account holder may recover the amount as a debt due to the account holder.
A Court may order a person to compensate a corporation, registered scheme or notified foreign passport fund for damage suffered by the corporation, scheme or fund if:
(a) the person has contravened a corporation/scheme civil penalty provision in relation to the corporation, scheme or fund; and
(b) the damage resulted from the contravention.
The order must specify the amount of the compensation.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E .
In determining the damage suffered by the corporation, scheme or fund for the purposes of making a compensation order, include profits made by any person resulting from the contravention or the offence.
Damage includes diminution of value of scheme or fund property
1317H(3)
In determining the damage suffered by the scheme or fund for the purposes of making a compensation order, include any diminution in the value of the property of the scheme or fund.
1317H(4)
If the responsible entity for a registered scheme is ordered to compensate the scheme, the responsible entity must transfer the amount of the compensation to scheme property. If anyone else is ordered to compensate the scheme, the responsible entity may recover the compensation on behalf of the scheme.
1317H(4A)
If the operator of a notified foreign passport fund is ordered to compensate the fund, the operator must transfer the amount of the compensation to the fund property. If anyone else is ordered to compensate the fund, the operator may recover the compensation on behalf of the fund.
1317H(5) Recovery of damage.
A compensation order may be enforced as if it were a judgment of the Court.
SECTION 1317HA COMPENSATION ORDERS - FINANCIAL SERVICES CIVIL PENALTY PROVISIONS 1317HA(1) Compensation for damage suffered.A Court may order a person (the liable person ) to compensate another person (including a corporation), registered scheme or notified foreign passport fund for damage suffered by the person, scheme or fund if:
(a) the liable person has contravened a financial services civil penalty provision; and
(b) the damage resulted from the contravention.
The order must specify the amount of compensation.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E .
In determining the damage suffered by a person, scheme or fund for the purposes of making a compensation order, include profits made by any person resulting from the contravention.
Damage includes diminution of value of scheme or fund property
1317HA(3)
In determining the damage suffered by a registered scheme or notified foreign passport fund for the purposes of making a compensation order, include any diminution in the value of the property of the scheme or fund.
1317HA(4)
If the responsible entity for a registered scheme is ordered to compensate the scheme, the responsible entity must transfer the amount of the compensation to the scheme property. If anyone else is ordered to compensate the scheme, the responsible entity may recover the compensation on behalf of the scheme.
1317HA(4A)
If the operator of a notified foreign passport fund is ordered to compensate the fund, the operator must transfer the amount of the compensation to the fund property. If anyone else is ordered to compensate the fund, the operator may recover the compensation on behalf of the fund.
1317HA(5) Recovery of damage.
A compensation order may be enforced as if it were a judgment of the Court.
Compensation for damage suffered
1317HB(1)
A Court may order a person (the liable person ) to compensate another person (including a corporation), a registered scheme or a notified foreign passport fund for damage suffered by the person, scheme or fund if:
(a) the liable person has contravened subsection 798H(1) (complying with market integrity rules) or 981M(1) (complying with client money reporting rules); and
(b) the damage resulted from the contravention.
The order must specify the amount of compensation.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E .
1317HB(2)
Subsection (1) does not apply in relation to a contravention by the operator of a licensed market acting in that capacity.
Damage includes profits
1317HB(3)
In determining the damage suffered by a person, scheme or fund for the purposes of making a compensation order, include profits made by any person resulting from the contravention.
Damage includes diminution of value of scheme or fund property
1317HB(4)
In determining the damage suffered by a registered scheme or a notified foreign passport fund for the purposes of making a compensation order, include any diminution in the value of the property of the scheme or the fund.
1317HB(4A)
If the responsible entity for a registered scheme is ordered to compensate the scheme, the responsible entity must transfer the amount of the compensation to the scheme property. If anyone else is ordered to compensate the scheme, the responsible entity may recover the compensation on behalf of the scheme.
1317HB(4B)
If the operator of a notified foreign passport fund is ordered to compensate the fund, the operator must transfer the amount of the compensation to the fund property. If anyone else is ordered to compensate the fund, the operator may recover the compensation on behalf of the fund.
Recovery of damage
1317HB(5)
A compensation order may be enforced as if it were a judgment of the Court.
Compensation for damage suffered
1317HC(1)
A Court may order a person (the liable person ) to compensate another person (including a corporation), or a registered scheme, for damage suffered by the person or scheme if:
(a) the liable person has contravened subsection 908CF(1) (complying with rules about financial benchmarks); and
(b) the damage resulted from the contravention.
The order must specify the amount of compensation.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E .
Damage includes profits
1317HC(2)
In determining the damage suffered by a person or scheme for the purposes of making a compensation order, include profits made by any person resulting from the contravention.
Damage to scheme includes diminution of value of scheme property
1317HC(3)
In determining the damage suffered by a registered scheme for the purposes of making a compensation order, include any diminution in the value of the property of the scheme.
Recovery of damage
1317HC(4)
A compensation order may be enforced as if it were a judgment of the Court.
A Court may order a person (the liable person ) to compensate another person (other than a passport fund) for damage suffered by the other person if:
(a) the liable person has contravened subsection 1211B(1) or (2) (failure to comply with the Passport Rules for this jurisdiction); and
(b) the damage resulted from the contravention. The order must specify the amount of compensation.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E .
1317HE(2)
A Court may order a person to compensate a passport fund for damage suffered by the fund if:
(a) the person has contravened subsection 1211B(1) or (2) (failure to comply with the Passport Rules for this jurisdiction); and
(b) the damage resulted from the contravention. The order must specify the amount of compensation.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E .
1317HE(3)
In determining the damage suffered by a person or passport fund for the purposes of making a compensation order, include profits made by any person resulting from the contravention.
1317HE(4)
In determining the damage suffered by a passport fund for the purposes of making a compensation order, include any diminution in value of the property of the fund.
1317HE(5)
If the operator of a passport fund is ordered to compensate the fund, the operator must transfer the amount of the compensation to the fund property. If anyone else is ordered to compensate the fund, the operator may recover the compensation on behalf of the fund.
1317HE(6)
A compensation order may be enforced as if it were a judgment of the Court.
Application by ASIC
1317J(1)
ASIC may apply for a declaration of contravention, a pecuniary penalty order or a compensation order.
1317J(1A)
However, ASIC must not make an application under subsection (1) in relation to an alleged contravention of a restricted civil penalty provision unless: (a) a Financial Services and Credit Panel has given ASIC a notice under subsection 921Q(1) in relation to the alleged contravention; or (b) both of the following apply:
(i) a Financial Services and Credit Panel has given a person an infringement notice for the alleged contravention;
(ii) the person has not paid the amount that is payable under the infringement notice within the payment period for the infringement notice.
Application by corporation
1317J(2)
The corporation, the responsible entity for the registered scheme or the operator of the notified foreign passport fund may apply for a compensation order.
Note: An application for a compensation order may be made whether or not a declaration of contravention has been made under section 1317E .
1317J(3)
The corporation, the responsible entity for the registered scheme or the operator of the notified foreign passport fund may intervene in an application for a declaration of contravention or a pecuniary penalty order in relation to the corporation, scheme or fund. The corporation, responsible entity or operator is entitled to be heard on all matters other than whether the declaration or order should be made.
Compensation order relating to financial services civil penalty provision - any other person who suffers damage may apply
1317J(3A)
Any other person who suffers damage in relation to a contravention, or alleged contravention, of a financial services civil penalty provision may apply for a compensation order under section 1317HA .
Note: An application for a compensation order may be made whether or not a declaration of contravention has been made under section 1317E .
Compensation order relating to the Passport Rules for this jurisdiction - any other person who suffers damage may apply
1317J(3AA)
Any other person who suffers damage in relation to a contravention, or alleged contravention, of subsection 1211B(1) or (2) may apply for a compensation order under section 1317HE .
Note: An application for a compensation order may be made whether or not a declaration of contravention has been made under section 1317E .
1317J(3B)
Subsections (2) and (3) do not apply in relation to a contravention of: (a) section 901E (complying with derivative transaction rules); or (b) section 903D (complying with derivative trade repository rules).
No one else may apply
1317J(4)
No person may apply for a declaration of contravention, a pecuniary penalty order or a compensation order unless permitted by this section.
1317J(5)
Subsection (4) does not exclude the operation of the Director of Public Prosecutions Act 1983 .
SECTION 1317K 1317K TIME LIMIT FOR APPLICATION FOR A DECLARATION OR ORDER
Proceedings for a declaration of contravention, a pecuniary penalty order, or a compensation order, may be started no later than 6 years after the contravention. SECTION 1317L 1317L CIVIL EVIDENCE AND PROCEDURE RULES FOR DECLARATIONS OF CONTRAVENTION AND CIVIL PENALTY ORDERS
The Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for:
(a) a declaration of contravention; or
(b) a pecuniary penalty order. SECTION 1317M 1317M CIVIL PROCEEDINGS AFTER CRIMINAL PROCEEDINGS
A court must not make a declaration of contravention, a pecuniary penalty order or a relinquishment order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
Proceedings for a declaration of contravention, a pecuniary penalty order or a relinquishment order against a person are stayed if:
(a) criminal proceedings are started or have already been started against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
1317N(2)
The proceedings for the declaration or order (the civil proceedings ) may be resumed if the person is not convicted of the offence. Otherwise:
(a) the civil proceedings are dismissed; and
(b) costs must not be awarded in relation to the civil proceedings.
[ CCH Note: The next section is s 1317P .]
Subject to subsection (2), criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether:
(a) a declaration of contravention has been made against the person; or
(b) a pecuniary penalty order has been made against the person; or
(baa) a relinquishment order has been made against the person; or
(ba) a refund order has been made against the person; or
(c) a compensation order has been made against the person; or
(d) the person has been disqualified from managing a corporation under Part 2D.6 ; or
(e) a banning order, or an order by the Court under section 921A (about disqualification by the Court), has been made against the person.
1317P(2)
Subsection (1) does not apply if:
(a) an infringement notice is issued under section 1317DAC to the person for an alleged contravention of subsection 674(2) or 675(2) ; and
(b) the infringement notice is not withdrawn under section 1317DAI .
SECTION 1317Q 1317Q EVIDENCE GIVEN IN PROCEEDINGS FOR PENALTY NOT ADMISSIBLE IN CRIMINAL PROCEEDINGS
Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order or a relinquishment order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order or the relinquishment order.
If an act or thing is required under a civil penalty provision to be done:
(a) within a particular period; or
(b) before a particular time;
then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).
1317QA(2)
A person who contravenes a civil penalty provision that requires an act or thing to be done:
(a) within a particular period; or
(b) before a particular time;
commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant pecuniary penalty order or relinquishment order is made or any later day).
In proceedings for a declaration of contravention or an order under Division 1 against a person for a contravention of a civil penalty provision, it is not necessary to prove:
(a) the person ' s intention; or
(b) the person ' s knowledge; or
(c) the person ' s recklessness; or
(d) the person ' s negligence; or
(e) any other state of mind of the person.
1317QB(2)
Subsection (1) does not apply to the extent that the proceedings relate to attempting to contravene a civil penalty provision, or being involved in a contravention of a civil penalty provision.
1317QB(3)
Subsection (1) does not affect the operation of section 1317QC (which is about mistake of fact).
1317QB(4)
Subsection (1) does not apply to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise.
A person is not liable to have a declaration of contravention or an order under Division 1 made against the person for a contravention of a civil penalty provision if:
(a) at or before the time of the conduct constituting the contravention, the person:
(i) considered whether or not facts existed; and
(ii) was under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
1317QC(2)
For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
1317QC(3)
A person who wishes to rely on subsection (1) or (2) in proceedings for a declaration of contravention or an order under Division 1 bears an evidential burden in relation to that matter.
1317QC(4)
In subsection (3), evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
If, in proceedings for a declaration of contravention or an order under Division 1 against a person for a contravention of a civil penalty provision, the person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision, then the person bears an evidential burden in relation to that matter.
1317QD(2)
In subsection (1), evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
If an element of a civil penalty provision is done by an employee, agent or officer of a body corporate acting:
(a) within the actual or apparent scope of the employee ' s, agent ' s, or officer ' s employment; or
(b) within the employee ' s, agent ' s, or officer ' s actual or apparent authority;
the element must also be attributed to the body corporate.
This section applies if a court considers that it is appropriate to: (a) make a pecuniary penalty order against a person in relation to a contravention of a civil penalty provision; or (b) make a relinquishment order against a person in relation to a contravention of a civil penalty provision; or (c) impose a fine against a person in relation to a commission of an offence constituted by the same conduct as the conduct constituting the contravention of the pecuniary penalty order.
1317QF(2)
In making the pecuniary penalty order or relinquishment order or imposing the fine, the court: (a) must consider the effect that making the order or imposing the fine would have on the amount available to pay:
(i) compensation to which persons might reasonably be expected to be entitled under section 961M , 1317H , 1317HA , 1317HB , 1317HC or 1317HE ; or
(b) give preference to making an appropriate amount available for refunds and compensation under those sections.
(ii) refunds to which persons might reasonably be expected to be entitled under section 1317GA or 1317GB ; and
1317QF(3)
If the court gives preference to making an appropriate amount available for refunds and compensation under paragraph (2)(b), the court may also make such orders as the court thinks fit for the purpose of ensuring that the amount remains available for the payment of: (a) compensation under section 961M , 1317H , 1317HA , 1317HB , 1317HC or 1317HE ; or (b) refunds under section 1317GA or 1317GB .
ASIC may require a person to give all reasonable assistance in connection with:
(a) an application for a declaration of contravention or a pecuniary penalty order; or
(b) criminal proceedings for an offence against this Act. 1317R(2) [ Requirement to assist for declaration or order]
ASIC can require the person to assist in connection with an application for a declaration or order if, and only if:
(a) it appears to ASIC that someone other than the person required to assist may have contravened a civil penalty provision; and
(b) ASIC suspects or believes that the person required to assist can give information relevant to the application. 1317R(3) [ Requirement to assist in criminal proceedings]
ASIC can require the person to assist in connection with criminal proceedings if, and only if:
(a) it appears to ASIC that the person required to assist is unlikely to be a defendant in the proceedings; and
(b) the person required to assist is, in relation to a person who is or should be a defendant in the proceedings:
(i) an employee or agent (including a banker or auditor) of the other person; or
(ii) if the other person is a corporation - an officer or employee of the other person; or
(iii) if the other person is an individual - a partner of the other person.
ASIC can require the person to assist regardless of whether:
(a) an application for the declaration or penalty order has actually been made; or
(b) criminal proceedings for the offence have actually begun. 1317R(5) [ Exception to requirement]
The person cannot be required to assist if they are or have been a lawyer for:
(a) in an application for a declaration or penalty order - the person suspected of the contravention; or
(b) in criminal proceedings - a defendant or likely defendant in the proceedings. 1317R(6) [ Requirement in writing]
The requirement to assist must be given in writing.
1317R(7) [ Power of Court]The Court may order the person to comply with the requirement in a specified way. Only ASIC may apply to the Court for an order under this subsection.
Note: The person must comply with the requirement and may commit an offence if they do not, even if there is no order under this subsection (see section 104 and subsection 1311(1) ).
1317R(8) [ Not limited by ASIC Act]This section does not limit and is not limited by section 49 of the ASIC Act.
SECTION 1317S RELIEF FROM LIABILITY FOR CONTRAVENTION OF CIVIL PENALTY PROVISION 1317S(1)In this section:
(a) means proceedings for a contravention of a civil penalty provision (including proceedings under section 588M , 588W , 961M , 1317GA , 1317GB , 1317H , 1317HA , 1317HB , 1317HC or 1317HE ); and
(b) does not include proceedings for an offence (except so far as the proceedings relate to the question whether the court should make an order under section 588K , 1317H , 1317HA , 1317HB , 1317HC or 1317HE ).
1317S(2)
If:
(a) eligible proceedings are brought against a person; and
(b) in the proceedings it appears to the court that the person has, or may have, contravened a civil penalty provision but that:
(i) the person has acted honestly; and
(ii) having regard to all the circumstances of the case (including, where applicable, those connected with the person ' s appointment as an officer, or employment as an employee, of a corporation or of a Part 5.7 body), the person ought fairly to be excused for the contravention;
the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention.
1317S(3)
In determining under subsection (2) whether a person ought fairly to be excused for a contravention of section 588G , the matters to which regard is to be had include, but are not limited to:
(a) any action the person took with a view to appointing an administrator of the company or Part 5.7 body or a restructuring practitioner for the company; and
(b) when that action was taken; and
(c) the results of that action.
1317S(4)
If a person thinks that eligible proceedings will or may be begun against them, they may apply to the Court for relief.
1317S(5)
On an application under subsection (4), the Court may grant relief under subsection (2) as if the eligible proceedings had been begun in the Court.
1317S(6)
For the purposes of subsection (2) as applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subsection to the court is a reference to the judge; and
(b) the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.
1317S(7)
Nothing in this section limits, or is limited by, section 1317QC or section 1318 .