(2) If a declaration has been made under section 166 that the person has contravened the provision, the court may order the person to pay to the Commonwealth a pecuniary penalty that the court considers is appropriate (but not more than the amount specified in section 167A).
Determining pecuniary penalty
(3) In determining the pecuniary penalty, the court must take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered because of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by a court (including a court in a foreign country) to have engaged in similar conduct.
Civil enforcement of penalty
(4) A pecuniary penalty is a debt payable to the Commonwealth.
(5) The Commonwealth may enforce a pecuniary penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.
167A Maximum pecuniary penalty
The pecuniary penalty must not be more than the pecuniary penalty applicable to the contravention of the civil penalty provision.
167B Pecuniary penalty applicable
Pecuniary penalty applicable to the contravention of a civil penalty provision—by an individual
(1) The pecuniary penalty applicable to the contravention of a civil penalty provision by an individual is the greater of:
(a) the penalty specified for the civil penalty provision; and
(b) if the court can determine the benefit derived and detriment avoided because of the contravention—that amount multiplied by 3.
Note: See section 14 in relation to contraventions by partners in a partnership and section 15 in relation to contraventions by multiple trustees.
Pecuniary penalty applicable to the contravention of a civil penalty provision—by a body corporate
(2) The pecuniary penalty applicable to the contravention of a civil penalty provision by a body corporate is the greatest of:
(a) the penalty specified for the civil penalty provision, multiplied by 10; and
(b) if the court can determine the benefit derived and detriment avoided because of the contravention—that amount multiplied by 3; and
(c) either:
(i) 10% of the annual turnover of the body corporate for the 12‑month period ending at the end of the month in which the body corporate contravened, or began to contravene, the civil penalty provision; or
(ii) if the amount worked out under subparagraph (i) is greater than an amount equal to 2.5 million penalty units—2.5 million penalty units.
Contrary intention
(3) This section applies in relation to a contravention of a civil penalty provision by an individual or a body corporate unless there is a contrary intention under this Act in relation to the pecuniary penalty applicable to the contravention. In that case, the pecuniary penalty applicable is the penalty specified for the civil penalty provision.
167C Relinquishing the benefit derived from contravening a civil penalty provision
Relinquishment order
(1) A court may order a person to pay the Commonwealth an amount equal to the benefit derived and detriment avoided because of a contravention of a civil penalty provision if a declaration of contravention by the person has been made under section 166. The order is a relinquishment order.
(2) The court may make a relinquishment order:
(a) on its own initiative during proceedings before the court; or
(b) on application by ASIC, made within 6 years after the alleged contravention.
Relationship between relinquishment orders and pecuniary penalty orders
(3) To avoid doubt, the court may make a relinquishment order in relation to the contravention of a civil penalty provision even if a pecuniary penalty order could be, or has been, made in relation to the contravention of the civil penalty provision.
Note: The relationship between relinquishment orders and proceedings for an offence are dealt with in sections 171, 172, 173 and 174.
Civil enforcement of relinquishment order
(4) The amount payable under a relinquishment order is a debt payable to ASIC on behalf of the Commonwealth.
(5) ASIC or the Commonwealth may enforce a relinquishment order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
167D Meaning of benefit derived and detriment avoided because of a contravention of a civil penalty provision
The benefit derived and detriment avoided because of a contravention of a civil penalty provision is the sum of:
(a) the total value of all benefits that one or more persons obtained that are reasonably attributable to the contravention; and
(b) the total value of all detriments that one or more persons avoided that are reasonably attributable to the contravention.
Division 3—General provisions relating to civil penalty provisions
168 Contravening a civil penalty provision is not an offence
A contravention of a civil penalty provision is not an offence.
169 Attempt and involvement in contravention treated in same way as actual contravention
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.
170 Civil evidence and procedure rules for proceedings relating to civil penalty provisions
The court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil penalty provision.
171 Criminal proceedings before civil proceedings
The court must not make a declaration of contravention, a pecuniary penalty order or a relinquishment order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
172 Criminal proceedings during civil proceedings
(1) Proceedings for a declaration of contravention, a pecuniary penalty order or a relinquishment order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are brought or have already been brought against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct in relation to which the declaration or order would be made.
(2) The proceedings for the declaration or order (the civil proceedings) may be resumed if the person is not convicted of the offence. Otherwise:
(a) the civil proceedings are dismissed; and
(b) costs must not be awarded in relation to the civil proceedings.
173 Criminal proceedings after civil proceedings
Criminal proceedings may be brought against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a declaration of contravention, a pecuniary penalty order or a relinquishment order has been made against the person under this Division.
174 Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings
(1) Evidence of information given, or evidence of production of documents, by a natural person is not admissible in criminal proceedings against the natural person if:
(a) the natural person previously gave the information or produced the documents in proceedings for a declaration of contravention, a pecuniary penalty order or a relinquishment order against the natural person for a contravention of a civil penalty provision (whether or not the declaration or order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the declaration or order was sought.
(2) However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the natural person in the proceedings for the declaration or order.
175 Civil double jeopardy
(1) If a person is ordered to pay a pecuniary penalty under a civil penalty provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
Note: A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct (see section 184).
(2) If a relinquishment order is made against a person under section 167C in relation to particular conduct, the person is not liable to a relinquishment order under the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001 in relation to that conduct.
175A Continuing contraventions of civil penalty provisions
(1) If an act or thing is required under a civil penalty provision to be done:
(a) within a particular period; or
(b) before a particular time;
then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).
(2) A person who contravenes a civil penalty provision that requires an act or thing to be done:
(a) within a particular period; or
(b) before a particular time;
commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant pecuniary penalty order is made or any later day).
175B State of mind
(1) In proceedings for a declaration of contravention, a pecuniary penalty order, a relinquishment order or any other order against a person for a contravention of a civil penalty provision, it is not necessary to prove:
(a) the person’s intention; or
(b) the person’s knowledge; or
(c) the person’s recklessness; or
(d) the person’s negligence; or
(e) any other state of mind of the person.
(2) Subsection (1) does not apply to the extent that the proceedings relate to attempting to contravene a civil penalty provision, or being involved in a contravention of a civil penalty provision.
(3) Subsection (1) does not affect the operation of section 175C (which is about mistake of fact).
(4) Subsection (1) does not apply to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise.
175C Mistake of fact
(1) A person is not liable to have a declaration of contravention, a pecuniary penalty order, a relinquishment order or any other order made against the person for a contravention of a civil penalty provision if:
(a) at or before the time of the conduct constituting the contravention, the person:
(i) considered whether or not facts existed; and
(ii) was under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
(2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
(3) A person who wishes to rely on subsection (1) or (2) in proceedings bears an evidential burden in relation to that matter.
(4) In subsection (3), evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
175D Exceptions etc. to civil penalty provisions—burden of proof
(1) If, in proceedings for a declaration of contravention, a pecuniary penalty order, a relinquishment order or any other order against a person for a contravention of a civil penalty provision, the person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision, then the person bears an evidential burden in relation to that matter.
(2) In subsection (1), evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
175E Civil penalty provisions contravened by employees, agents or officers
If an element of a civil penalty provision is done by an employee, agent or officer of a body corporate acting:
(a) within the actual or apparent scope of the employee’s, agent’s, or officer’s employment; or
(b) within the employee’s, agent’s, or officer’s actual or apparent authority;
the element must also be attributed to the body corporate.
Part 4‑2—Power of the court to grant remedies
Division 1—Introduction
176 Guide to this Part
This Part is about the remedies the court may grant.
Division 2 authorises the court to grant a range of remedies, including injunctions, compensation orders and other orders against those who engage in credit activities unlawfully.
Division 2—Power of the court to grant remedies
177 Injunctions
(1) If, on the application of ASIC or any other person, the court is satisfied that a person has engaged or is proposing to engage in conduct that constitutes or would constitute:
(a) a contravention of this Act; or
(b) attempting to contravene this Act; or
(c) aiding, abetting, counselling or procuring a person to contravene this Act; or
(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or
(f) conspiring with others to contravene this Act;
the court may grant an injunction on such terms as the court considers appropriate.
(2) If an application for an injunction under subsection (1) has been made, the court may, if the court considers it appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the court is satisfied that the person has engaged, or is proposing to engage, in conduct of a kind referred to in subsection (1).
(3) The court may, if the court considers it appropriate, grant an interim injunction pending determination of an application under subsection (1).
(4) The court may revoke or vary an injunction granted under subsection (1) or (3).
(5) The power of the court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to another person if the person engages in conduct of that kind.
(6) The power of the court to grant an injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to another person if the person refuses or fails to do that act or thing.
(7) If ASIC applies to the court for the grant of an injunction under this section, the court must not require ASIC or another person, as a condition of granting an interim injunction, to give an undertaking as to damages.
(8) If the court has power under this section to grant an injunction against a person, the court may, either in addition to or in substitution for the grant of the injunction, order the person to pay damages to another person.
178 Compensation orders
Court may order person to pay compensation
(1) The court may order a person (the defendant) to compensate another person (the plaintiff) for loss or damage suffered by the plaintiff if:
(a) the defendant has contravened a civil penalty provision or has committed an offence against this Act (other than the National Credit Code); and
(b) the loss or damage resulted from the contravention or commission of the offence.
The order must specify the amount of compensation.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 166.
When order may be made
(2) The court may make the order only if:
(a) the plaintiff or ASIC (on behalf of the plaintiff) applies for an order under this section; and
(b) the application is made within 6 years of the day the cause of action that relates to the contravention or commission of the offence accrued.
Applications for order
(3) For the purposes of paragraph (2)(a), ASIC may make an application on behalf of the plaintiff, but only if the plaintiff has given consent in writing before the application is made.
Recovery of compensation as a debt
(4) If the court makes the order, the amount of compensation specified in the order that is to be paid to the plaintiff may be recovered as a debt due to the plaintiff.
179 Other orders to compensate loss or damage
Court may make other orders to compensate loss or damage
(1) If:
(a) a person (the defendant) has contravened a civil penalty provision or has committed an offence against this Act (other than the National Credit Code); and
(b) another person (the plaintiff) has suffered, or is likely to suffer, loss or damage as a result of the contravention or commission of the offence;
the court may make such order as the court considers appropriate against the defendant to: