National Consumer Credit Protection Act 2009

CHAPTER 6 - COMPLIANCE AND ENFORCEMENT  

PART 6-5B - INFRINGEMENT NOTICES  

Division 2 - Infringement notices  

SECTION 288Q   WITHDRAWAL OF AN INFRINGEMENT NOTICE  

Representations seeking withdrawal of notice

288Q(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

288Q(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.

288Q(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 person to whom the notice was issued 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.

288Q(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.

288Q(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

288Q(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(d) that the infringement notice is withdrawn; and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

288Q(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.