Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (17 of 2019)

Schedule 3   Amendment of the National Consumer Credit Protection Act 2009

Part 1   Amendments of the infrastructure provisions for civil penalties, offences and infringement notices

National Consumer Credit Protection Act 2009

7   At the end of Division 2 of Part 4-1

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167A Maximum pecuniary penalty

The pecuniary penalty must not be more than the pecuniary penalty applicable to the contravention of the civil penalty provision.

167B Pecuniary penalty applicable

Pecuniary penalty applicable to the contravention of a civil penalty provision - by an individual

(1) The pecuniary penalty applicable to the contravention of a civil penalty provision by an individual is the greater of:

(a) the penalty specified for the civil penalty provision; and

(b) if the court can determine the benefit derived and detriment avoided because of the contravention - that amount multiplied by 3.

Note: See section 14 in relation to contraventions by partners in a partnership and section 15 in relation to contraventions by multiple trustees.

Pecuniary penalty applicable to the contravention of a civil penalty provision - by a body corporate

(2) The pecuniary penalty applicable to the contravention of a civil penalty provision by a body corporate is the greatest of:

(a) the penalty specified for the civil penalty provision, multiplied by 10; 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

(3) This section applies 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.

167C Relinquishing the benefit derived from contravening a civil penalty provision

Relinquishment order

(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 166. The order is a relinquishment order .

(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

(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 171, 172, 173 and 174.

Civil enforcement of relinquishment order

(4) The amount payable under a relinquishment order is a debt payable to ASIC on behalf of the Commonwealth.

(5) 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.

167D Meaning of benefit derived and detriment avoided because of a contravention of a 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 that one or more persons obtained that are reasonably attributable to the contravention; and

(b) the total value of all detriments that one or more persons avoided that are reasonably attributable to the contravention.