CORPORATIONS ACT 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4B - CIVIL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS  

SECTION 1317E   DECLARATIONS OF CONTRAVENTION  

1317E(1)  


If a Court is satisfied that a person has contravened a civil penalty provision, it must make a declaration of contravention. The provisions specified in column 1 of the following table are civil penalty provisions .


Civil penalty provisions
Item Column 1
provisions that are civil penalty provisions
Column 2
brief description of what the provisions are about
1 subsections 180(1) , 181(1) and (2) , 182(1) and (2) and 183(1) and (2) officers ' duties
2 subsections 188(1) and (2) responsibilities of secretaries etc. for corporate contraventions
3 subsection 209(2) related parties rules
4 subsections 254L(2) , 256D(3) , 259F(2) and 260D(2) share capital transactions
5 subsection 344(1) requirements for financial reports
6 subsection 588G(2) insolvent trading
7 subsection 601FC(5) duties of responsible entity
8 subsection 601FD(3) duties of officers of responsible entity
9 subsection 601FE(3) duties of employees of responsible entity
10 subsection 601FG(2) acquisition of interest in scheme by responsible entity
11 subsection 601JD(3) duties of members
12 subsection 601UAA(2) duties of officers of licensed trustee company
13 subsection 601UAB(2) duties of employees of licensed trustee company
14 subsections 674(2) , 674(2A) , 675(2) and 675(2A) continuous disclosure
15 subsection 798H(1) complying with market integrity rules
16 section 901E complying with derivative transaction rules
17 section 903D complying with derivative trade repository rules
17A subsection 908CF(1) complying with financial benchmark rules or compelled financial benchmark rules
17B subsections 908DA(1) and (2) and 908DB(1) and (2) manipulating financial benchmarks
18 subsections 961K(1) and (2) financial services licensee responsible for breach of certain best interests duties
19 section 961L financial services licensee to ensure compliance with certain best interests duties
20 subsection 961Q(1) authorised representative responsible for breach of certain best interests duties
21 section 962P charging ongoing fee after termination of ongoing fee arrangement
22 subsection 962S(1) fee recipient must give fee disclosure statement
23 subsections 963E(1) and (2) financial services licensee responsible for breach of ban on conflicted remuneration
24 section 963F financial services licensee must ensure representatives do not accept conflicted remuneration
25 subsection 963G(1) authorised representative must not accept conflicted remuneration
26 section 963J employer must not pay employees conflicted remuneration
27 section 963K financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative
28 subsection 964A(1) platform operator must not accept volume-based shelf-space fees
29 subsections 964D(1) and (2) financial services licensee responsible for breach of asset-based fees on borrowed amounts
30 subsection 964E(1) authorised representative must not charge asset-based fees on borrowed amounts
31 section 965 anti-avoidance of Part 7.7A provisions
31A subsection 981M(1) complying with client money reporting rules
32 subsection 985E(1) issuing or increasing limit of margin lending facility without having made assessment etc.
33 subsection 985H(1) failure to assess a margin lending facility as unsuitable
34 subsection 985J(1) failure to give assessment to retail client if requested before issue of facility or increase in limit
35 subsection 985J(2) failure to give assessment to retail client if requested after issue of facility or increase in limit
36 subsection 985J(4) demanding payment to give assessment to retail client
37 subsection 985K(1) issuing or increasing limit of margin lending facility if unsuitable
38 section 985L making issue of margin lending facility conditional on retail client agreeing to receive communications through agent
39 subsection 985M(1) failure to notify of margin call where there is no agent
40 subsection 985M(2) failure to notify of margin call where there is an agent
41 section 1041A market manipulation
42 subsection 1041B(1) false trading and market rigging - creating a false or misleading appearance of active trading etc.
43 subsection 1041C(1) false trading and market rigging - artificially maintaining etc. market price
44 section 1041D dissemination of information about illegal transactions
45 subsections 1043A(1) and (2) insider trading
46 subclause 29(6) of Schedule 4 disclosure for proposed demutualisation

Note 1: Once a declaration has been made ASIC can then seek a pecuniary penalty order (section 1317G ) or (in the case of a corporation/scheme civil penalty provision) 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 the civil penalty provisions mentioned in table item 17B (about manipulating financial benchmarks).

1317E(2)  
A declaration of contravention 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 or registered scheme to which the conduct related.


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