153SProhibited conduct recommendations

153S Prohibited conduct recommendations

(1) The Commission may give the Treasurer a notice in writing (a prohibited conduct recommendation) in respect of the prohibited conduct notice, stating one or more recommendations for the kind or kinds of order the Treasurer or the Court could make under Division 5 or 6, if the Commission reasonably believes that:

(a) any of the following conditions are satisfied:

(i) the corporation has engaged in the kind of prohibited conduct specified in the prohibited conduct notice;

(ii) the corporation is continuing to engage in the kind of prohibited conduct specified in the prohibited conduct notice; and

(b) the Treasurer or the Court making that kind or those kinds of order in relation to the corporation, or any other connected body corporate in relation to the prohibited conduct, is a proportionate means of preventing the corporation, or any related body corporate, from engaging in that kind of prohibited conduct in the future; and

(c) if that kind of order is, or those kinds of order include, a divestiture order—the following conditions are satisfied:

(i) such a divestiture order will result, or is likely to result, in a benefit to the public;

(ii) if such a divestiture order will result, or is likely to result, in a detriment to the public—the benefit mentioned in subparagraph (i) would, or is likely to, outweigh that detriment.

(2) The notice must:

(a) be expressed to be given under this section; and

(b) state the day on which the notice is given; and

(c) identify:

(i) the corporation; and

(ii) the prohibited conduct mentioned in paragraph (1)(a); and

(iii) each connected body corporate in relation to the prohibited conduct (other than the corporation); and

(d) state the recommendations mentioned in subsection (1); and

(e) explain the reasons why the Commission reasonably believes that:

(i) the requirements in paragraphs (1)(a) and (b) are met; and

(ii) if paragraph (1)(c) applies—the requirement in that paragraph is met.

(3) To avoid doubt, the recommendations stated in the notice (in accordance with paragraph (2)(d)) may be different from the recommendations stated in the prohibited conduct notice (in accordance with paragraph 153P(2)(d)).

(4) A failure to comply with subparagraph (2)(c)(iii) does not affect the validity of the notice.

(5) To avoid doubt, the bodies corporate identified in the notice (in accordance with subparagraph (2)(c)(iii)) need not be the same as the bodies corporate identified in the prohibited conduct notice (in accordance with subparagraph 153P(2)(c)(iii)).