Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (44 of 2010)

Schedule 3   Amendment of corporations legislation

Part 6   Infringement notices

Australian Securities and Investments Commission Act 2001

31   After Subdivision GA of Division 2 of Part 2

Insert:

Subdivision GB - Infringement notices

12GX Purpose and effect of this Subdivision

(1) The purpose of this Subdivision is to provide for the issue of an infringement notice to a person for an alleged contravention of an infringement notice provision as an alternative to proceedings for an order under section 12GBA.

(2) This Subdivision does not:

(a) require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision; or

(b) affect the liability of a person to proceedings under Subdivision G (sections 12GA to 12GO) in relation to an alleged contravention of an infringement notice provision if:

(i) an infringement notice is not issued to the person for the alleged contravention; or

(ii) an infringement notice issued to a person for the alleged contravention is withdrawn under section 12GXG; or

(c) prevent a Court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.

12GXA Issue of an infringement notice

(1) If ASIC has reasonable grounds to believe that a person has contravened an infringement notice provision, ASIC may issue an infringement notice to the person.

(2) ASIC must not issue more than one infringement notice to the person for the same alleged contravention of the infringement notice provision.

(3) The infringement notice does not have any effect if the notice:

(a) is issued more than 12 months after the day on which the contravention of the infringement notice provision is alleged to have occurred; or

(b) relates to more than one alleged contravention of an infringement notice provision by the person.

12GXB Matters to be included in an infringement notice

An infringement notice must:

(a) be identified by a unique number; and

(b) state the day on which it is issued; and

(c) state the name and address of the person to whom it is issued; and

(d) state that it is being issued by ASIC; and

(e) state how ASIC may be contacted; and

(f) give details of the alleged contravention by the person, including:

(i) the date of the alleged contravention; and

(ii) the particular infringement notice provision that was allegedly contravened; and

(g) state the maximum pecuniary penalty that the Court could order the person to pay under section 12GBA for the alleged contravention; and

(h) specify the penalty that is payable in relation to the alleged contravention; and

(i) state that the penalty is payable within the infringement notice compliance period for the notice; and

(j) state that the penalty is payable to ASIC on behalf of the Commonwealth; and

(k) explain how payment of the penalty is to be made; and

(l) explain the effect of sections 12GXD, 12GXE, 12GXF and 12GXG.

12GXC Amount of penalty

The penalty to be specified in an infringement notice that is to be issued to a person must be a pecuniary penalty equal to the number of penalty units worked out using the following table:

12GXD Effect of compliance with an infringement notice

(1) This section applies if:

(a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and

(b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and

(c) the infringement notice is not withdrawn under section 12GXG.

(2) The person is not, merely because of the payment, regarded as:

(a) having contravened the infringement notice provision; or

(b) having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the infringement notice provision.

(3) No proceedings (whether criminal or civil) may be started or continued against the person by, or on behalf of, the Commonwealth or ASIC in relation to:

(a) the alleged contravention of the infringement notice provision; or

(b) an offence constituted by the same conduct that constituted the alleged contravention.

12GXE Effect of failure to comply with an infringement notice

If:

(a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and

(b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and

(c) the infringement notice is not withdrawn under section 12GXG;

the person is liable to proceedings under Subdivision G (sections 12GA to 12GO) in relation to the alleged contravention of the infringement notice provision.

12GXF Infringement notice compliance period for infringement notice

(1) Subject to this section, the infringement notice compliance period for an infringement notice is a period of 28 days beginning on the day after the day on which the infringement notice is issued.

(2) ASIC may extend, by notice in writing, the infringement notice compliance period for the infringement notice if ASIC is satisfied that it is appropriate to do so.

(3) Only one extension may be given and the extension must not be for longer than 28 days.

(4) Notice of the extension must be given to the person who was issued the infringement notice.

(5) A failure to comply with subsection (4) does not affect the validity of the extension.

(6) If ASIC extends the infringement notice compliance period for an infringement notice, a reference in this Act to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.

12GXG Withdrawal of an infringement notice

Representations to ASIC

(1) The person to whom an infringement notice has been issued for an alleged contravention of an infringement notice provision may make written representations to ASIC seeking the withdrawal of the infringement notice.

(2) Evidence or information that the person, or a representative of the person, gives to ASIC in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).

Withdrawal by ASIC

(3) ASIC may, by written notice (the withdrawal notice ) given to a person who has been issued an infringement notice for an alleged contravention of an infringement notice provision, withdraw the infringement notice if ASIC is satisfied that it is appropriate to do so.

(4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal.

Content of withdrawal notices

(5) The withdrawal notice must state:

(a) the name and address of the person; and

(b) the day on which the infringement notice was issued to the person; and

(c) that the infringement notice is withdrawn; and

(d) that proceedings under Subdivision G (sections 12GA to 12GO) may be started or continued against the person in relation to:

(i) the alleged contravention of the infringement notice provision; or

(ii) an offence constituted by the same conduct that constituted the alleged contravention.

Time limit for giving withdrawal notices

(6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.

Refunds

(7) If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, ASIC must refund to the person an amount equal to the amount paid.