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 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;
[ CCH Note: Pt 9.1A will be inserted by No 69 of 2020, s 3, Sch 2[11] (effective 22 June 2022 or a day or days to be fixed by Proclamation). Pt 9.1A will read:
PART 9.1A - DIRECTOR IDENTIFICATION NUMBERS
SECTION 1272 GIVING AND CANCELLING DIRECTOR IDENTIFICATION NUMBERS
1272(1)
The Registrar must, by notifying a person who has applied under section 1272A , give the person a director identification number if the Registrar is satisfied that the person ' s identity has been established.
1272(2)
The Registrar must make a record of the person ' s director identification number.
1272(3)
The Registrar may, by notifying a person, cancel the person ' s director identification number if:
(a) the Registrar is no longer satisfied that the person ' s identity has been established; or
(b) the Registrar has given the person another director identification number.
1272(4)
If:
(a) at the time the person is given a director identification number under this section, the person is not an eligible officer; and
(b) the person does not, within 12 months after that time, become an eligible officer;the person ' s director identification number is taken to have been cancelled at the end of the 12 month period.
SECTION 1272A APPLYING FOR A DIRECTOR IDENTIFICATION NUMBER
1272A(1)
An eligible officer may apply to the Registrar for a director identification number if the officer does not already have a director identification number.
1272A(2)
The Registrar may direct an eligible officer to apply to the Registrar for a director identification number (whether or not the officer already has a director identification number).
1272A(3)
A person who is not an eligible officer may apply to the Registrar for a director identification number if:
(a) the person intends to become an eligible officer within 12 months after applying; and
(b) the person does not already have a director identification number.
1272A(4)
An application for a director identification number must meet any requirements of the data standards.Note: A person may commit an offence if the person knowingly gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code ).
SECTION 1272B ELIGIBLE OFFICERS
1272B(1)
An eligible officer is:
(a) a director of a company, or of a body corporate that is a registered Australian body or registered foreign company, who:
(i) is appointed to the position of a director; or
(ii) is appointed to the position of an alternate director and is acting in that capacity;regardless of the name that is given to that position; or
(b) any other officer of a company, or of a body corporate that is a registered Australian body or registered foreign company, who is an officer of a kind prescribed by the regulations;but does not include a person covered by a determination under subsection (2) or (3).
1272B(2)
The Registrar may determine that a particular person is not an eligible officer . The Registrar must notify the person of the determination.
1272B(3)
The Registrar may, by legislative instrument, determine that a class of persons are not eligible officers . SECTION 1272C REQUIREMENT TO HAVE A DIRECTOR IDENTIFICATION NUMBER
1272C(1)
An eligible officer must have a director identification number.
1272C(2)
Subsection (1) does not apply if:
(a) the officer applied to the Registrar under section 1272A for a director identification number:
(i) before the day the officer first became an eligible officer (or an eligible officer within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ); or
(ii) if the regulations specify an application period - within that period, starting at the start of that day; or
(iii) within the longer period (if any) the Registrar allows under section 1272E , starting at the start of that day; and
(b) the application, and any reviews arising out of it, have not been finally determined or otherwise disposed of.Note: A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code .
1272C(3)
Subsection (1) does not apply if the officer became an eligible officer without the officer ' s knowledge.Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .
1272C(4)
An offence based on subsection (1) is an offence of strict liability.Note: For strict liability , see section 6.1 of the Criminal Code .
1272C(5)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (5) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .
SECTION 1272D REQUIREMENT TO APPLY FOR A DIRECTOR IDENTIFICATION NUMBER
1272D(1)
An eligible officer whom the Registrar has directed under subsection 1272A(2) to apply for a director identification number must apply to the Registrar under section 1272A for a director identification number:
(a) within the application period under subsection (2) of this section; or
(b) within such longer period as the Registrar allows under section 1272E .
1272D(2)
The application period is the period of:
(a) the number of days specified in the direction; or
(b) if the number of days is not specified in the direction - 28 days;after the day the Registrar gives the direction.
1272D(3)
An offence based on subsection (1) is an offence of strict liability.Note: For strict liability , see section 6.1 of the Criminal Code .
1272D(4)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (3) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .
SECTION 1272E REGISTRAR MAY EXTEND APPLICATION PERIODS
1272E(1)
The Registrar may, on the application of an eligible officer, allow, as a longer period for applying to the Registrar under section 1272A for a director identification number:
(a) the period specified in the application; or
(b) such other period as the Registrar considers reasonable.Note: An application for an extension of the period for applying can be made, and the period can be extended, after the period has ended: see section 70 .
1272E(2)
The Registrar may, by legislative instrument, allow, for persons included in a specified class of persons, a longer period for applying to the Registrar under section 1272A for a director identification number. SECTION 1272F INFRINGEMENT NOTICES
1272F(1)
Subsections 1272C(1) and 1272D(1) are subject to an infringement notice under Part 5 of the Regulatory Powers Act.Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
1272F(2)
For the purposes of Part 5 of the Regulatory Powers Act, each member of the staff of the Registrar who holds, or is acting in, an office or position that is equivalent to an SES employee is an infringement officer in relation to subsections 1272C(1) and 1272D(1) of this Act. Relevant chief executive
1272F(3)
For the purposes of Part 5 of the Regulatory Powers Act, the relevant chief executive in relation to subsections 1272C(1) and 1272D(1) of this Act is:
(a) the person specified as the relevant chief executive in the Registrar ' s instrument of appointment under section 1270 ; or
(b) if there is no person specified - the Registrar. Matters to be included in an infringement notice
1272F(4)
Subparagraph 104(1)(e)(iii) of the Regulatory Powers Act applies to an infringement notice relating to a contravention of subsection 1272C(1) or 1272D(1) of this Act as if that subparagraph did not require the notice to give details of the place of the contravention. SECTION 1272G APPLYING FOR ADDITIONAL DIRECTOR IDENTIFICATION NUMBERS
1272G(1)
A person must not apply for a director identification number if the person knows that the person already has a director identification number.Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .
1272G(2)
Subsection (1) does not apply if the Registrar directed the person under subsection 1272A(2) to make the application.Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
1272G(3)
Subsection (1) does not apply if the person purports to make the application only in relation to Part 6-7A of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .
1272G(4)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (4) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .
SECTION 1272H MISREPRESENTING DIRECTOR IDENTIFICATION NUMBERS
1272H(1)
A person must not intentionally represent to a Commonwealth body, company or registered body, as the director identification number of the person or another person, a number that is not that director identification number.Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .
1272H(2)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (2) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .]
View history note
Hide history noteIf 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 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 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 |
| 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 |
| 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 |
| 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 17 of 2019, s 3, Sch 5 [ 25], by inserting the table below, (effective 5 April 2021). S 1317E(3) table will read:
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]
[ CCH Note 2: S 1317E(3) will be amended by 87 of 2019, s 3, Sch 1[10], by inserting the table below, (effective 1 January 2021). S 1317E(3) table will read:
section 963P person covered by section 963M must pay amount etc. in accordance with regulations financial services]
[ CCH Note 3: S 1317E(3) will be amended by 69 of 2020, s 3, Sch 2[12], by inserting the table below, (effective 22 June 2022 or a day or days to be fixed by Proclamation). S 1317E(3) table will read:
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]
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.
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