CORPORATIONS ACT 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4B - CIVIL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS  

Division 1 - The Court may make declarations of contravention, pecuniary penalty orders, relinquishment orders, refund orders and compensation orders  

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 588G(2) insolvent trading 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 670A(4) misstatements in, or omissions from, takeover and compulsory acquisition and buy-out documents uncategorised
subsections 674(2) , 674(2A) , 675(2) and 675(2A) continuous disclosure 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 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 912D(3) financial services licensee to notify ASIC of certain matters uncategorised
subsection 920C(4) need to comply with a banning order 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 946A(4) obligation to give client a Statement of Advice 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
section 962P charging ongoing fee after termination of ongoing fee arrangement uncategorised
subsection 962S(1) fee recipient must give fee disclosure statement 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
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
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
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
subsections 1211B(1) and (2) contravening the Passport Rules uncategorised
subsection 1309(12) false information 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).

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.


View surrounding sectionsView surrounding sectionsBack to top


This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.