a party to the proceedings may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2).
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party brought the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs.
201 Civil proceedings not to be stayed
No civil proceedings under this Act are to be stayed merely because the proceedings disclose, or arise out of, the commission of an offence.
202 Standard of proof in civil proceedings
If, in proceedings (other than proceedings for an offence), it is necessary to establish, or for the court to be satisfied, for any purpose relating to a matter arising under this Act, that:
(a) a person has contravened a provision of this Act; or
(b) default has been made in complying with a provision of this Act; or
(c) an act or omission was unlawful because of a provision of this Act; or
(d) a person has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to a contravention, or a default in complying with, a provision of this Act;
it is sufficient if the matter referred to in paragraph (a), (b), (c) or (d) is established, or the court is so satisfied on the balance of probabilities.
Division 3—Criminal proceedings
Subdivision A—Application of this Division
203 Application of this Division
(1) This Division applies to the exclusion of sections 68, 70 and 70A of the Judiciary Act 1903.
(2) However, this Division does not limit the application of the provisions of the Judiciary Act 1903 (other than sections 68, 70 and 70A). In particular, it does not limit the application of subsection 39(2) of that Act in relation to criminal matters arising under this Act or sections 68A to 68D of that Act in relation to proceedings in relation to an offence against this Act that are brought before the Federal Court.
(3) Despite anything else in this Division, jurisdiction is conferred on the courts of a Territory only to the extent that the Constitution permits.
Subdivision B—Conferral of criminal jurisdiction
203A Criminal jurisdiction of the Federal Court
The Federal Court has jurisdiction to hear and determine prosecutions for indictable offences against this Act.
204 Criminal jurisdiction of State and Territory courts
(1) Subject to this section, if a court of a State or Territory exercises jurisdiction in relation to a matter covered by subsection (2) in relation to offenders or persons (State offenders) charged with offences against the laws of the State or Territory, the court has the equivalent jurisdiction in relation to offenders or persons charged with offences against this Act.
(2) The matters covered by this subsection are as follows:
(a) the summary conviction of State offenders;
(b) their examination and commitment for trial on indictment;
(c) their trial and conviction on indictment;
(d) their sentencing, punishment and release;
(e) the liability to make reparation in connection with their offences;
(f) the forfeiture of property in connection with their offences;
(g) the proceeds of their crimes;
(h) the hearing and determination of:
(i) proceedings connected with; or
(ii) appeals arising out of; or
(iii) appeals arising out of proceedings connected with;
any trial or conviction referred to in paragraph (a), (b) or (c), or any matter of a kind referred to in paragraph (d), (e), (f) or (g).
(2A) However, this section does not apply in relation to the jurisdiction of a lower court of Norfolk Island.
Certain aspects of jurisdiction to be exercised only by magistrate
(3) Only a magistrate may exercise the jurisdiction conferred by subsection (1) in relation to the summary conviction, or examination and commitment for trial, of any person.
Person who pleads guilty to an indictable offence may be sentenced or otherwise dealt with without trial
(4) The jurisdiction conferred by subsection (1) includes jurisdiction in accordance with provisions of a relevant criminal law of a State or Territory, and:
(a) the reference in paragraph (2)(h) to “any trial or conviction” includes a reference to any conviction or sentencing in accordance with the provisions of a relevant criminal law; and
(b) unless the contrary intention appears, a reference to jurisdiction conferred by subsection (1) includes a reference to such included jurisdiction.
(5) Relevant criminal law means a law providing that if, in proceedings before a court, a person pleads guilty to a charge for which the person could be prosecuted on indictment, the person may be committed, to a court having jurisdiction to try offences on indictment, to be sentenced or otherwise dealt with without being tried in that last‑mentioned court.
(6) A person may be dealt with in accordance with a relevant criminal law even if, apart from this section, the offence concerned:
(a) would be required to be prosecuted on indictment; or
(b) would be required to be prosecuted either summarily or on indictment.
(7) For the purposes of the application of a relevant criminal law as provided by subsection (4):
(a) a reference in that law to an indictable offence is taken to include a reference to an offence that may be prosecuted on indictment; and
(b) in order to determine the sentence that may be imposed on a person by a court pursuant to the relevant criminal law, the person is taken to have been prosecuted and convicted on indictment in that court.
Jurisdiction in relation to summary offences is unlimited
(8) Subject to subsection (10), the jurisdiction conferred on a court of a State or Territory by subsection (1) is conferred despite any limits as to locality of the jurisdiction of that court under the law of that State or Territory.
Court may decline to exercise jurisdiction in relation to summary offences
(9) If:
(a) jurisdiction is conferred on a court of a State or Territory in relation to the summary conviction of persons charged with offences against this Act by subsection (1); and
(b) the court is satisfied that it is appropriate to do so, having regard to all the circumstances (including the public interest);
the court may decline to exercise that jurisdiction in relation to an offence committed in another State or Territory.
Limits on jurisdiction in relation to indictable offences
(10) The jurisdiction conferred on a court of a State or Territory by subsection (1) in relation to:
(a) the examination and commitment for trial on indictment; and
(b) the trial and conviction on indictment;
of offenders or persons charged with offences against this Act is conferred only in relation to:
(c) offences committed outside Australia (not including the coastal sea); and
(d) offences committed, begun or completed in the State or the Territory concerned.
205 Criminal proceedings—laws to be applied
Laws to be applied
(1) Subject to this Division, the laws of a State or Territory in relation to:
(a) the arrest and custody in the State or Territory of offenders or persons charged with offences; and
(b) criminal procedure in the State or Territory in relation to such persons; and
(c) the rules of evidence applied in criminal procedure in the State or Territory in relation to such persons;
apply in the State or Territory, so far as they are applicable, to persons who are charged with offences against this Act.
Meaning of criminal procedure
(2) Criminal procedure means the procedure for:
(a) the summary conviction; and
(b) the examination and commitment for trial on indictment; and
(c) the trial and conviction on indictment; and
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings;
of offenders or persons charged with offences, and includes the procedure for holding accused persons to bail.
206 Criminal proceedings—how taken
(1) In any proceedings for an offence against this Act, any information, charge, complaint or application may be laid or made by:
(a) ASIC; or
(b) a delegate of ASIC; or
(c) another person authorised in writing by the Minister to bring the proceedings.
(2) A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to all offences, or to specified offences, against this Act.
(3) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.
207 Certain persons to assist in prosecutions
(1) If a prosecution in relation to an offence against this Act has been brought, or ASIC is of the opinion that a prosecution in relation to an offence against this Act ought to be brought, against a person (the defendant), ASIC may:
(a) if the defendant is a natural person—require any person who is or was a partner, employee or agent of the defendant; or
(b) if the defendant is a body corporate—require any person who is or was an officer (within the meaning of the Corporations Act 2001), employee or agent of the defendant;
to assist in the prosecution, and the person who is so required must give all assistance in connection with the prosecution that that person is reasonably able to give.
(2) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 20 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) For the purposes of subsection (2), it is a defence if the person:
(a) is the defendant; or
(b) is or has been the defendant’s lawyer.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) If a person (other than the defendant or a person who is, or has been, the defendant’s lawyer) does not comply with a requirement under subsection (1), the court may, on the application of ASIC, order the person to comply with the requirement within such time, and in such manner, as the court orders.
(6) If ASIC makes a requirement under subsection (1) in writing, the requirement is not a legislative instrument.
208 Privilege against self‑incrimination not available to bodies corporate in criminal proceedings
(1) In proceedings in a court when exercising jurisdiction in relation to a criminal matter arising under this Act, a body corporate is not entitled to refuse or fail to comply with a requirement:
(a) to answer a question or give information; or
(b) to produce a book or any other thing; or
(c) to do any other act whatever;
on the ground that the answer or information, production of the book or other thing, or doing that other act might tend:
(d) to incriminate the body (whether in relation to an offence to which the proceedings relate or otherwise); or
(e) to make the body liable to a penalty (whether in relation to anything to which the proceedings relate or otherwise).
(2) Subsection (1) applies whether or not the body concerned is a defendant in the proceedings or in any other proceedings.
Division 4—Proceedings generally
209 ASIC’s power to intervene in proceedings
(1) ASIC may intervene in any proceedings relating to a matter arising under this Act.
(2) If ASIC intervenes in proceedings referred to in subsection (1), ASIC is taken to be a party to the proceedings and, subject to this Act, has all the rights, duties and liabilities of such a party.
(3) Without limiting subsection (2), ASIC may appear and be represented in any proceedings in which it wishes to intervene pursuant to subsection (1):
(a) by an ASIC staff member; or
(b) by a natural person to whom, or by an officer or employee of a person or body to whom or to which, ASIC has delegated its functions and powers under this Act or such of those functions and powers as relate to a matter to which the proceedings relate; or
(c) by a lawyer.
210 Evidence of contravention
For the purposes of this Act, a certificate that:
(a) purports to be signed by the Registrar or other proper officer of an Australian court; and
(b) states:
(i) that a person was convicted by that court on a specified day of a specified offence; or
(ii) that a person charged before that court with a specified offence was, on a specified day, found in that court to have committed the offence but that the court did not proceed to convict the person of the offence;
is, unless it is proved that the conviction was quashed or set aside, or that the finding was set aside or reversed, as the case may be, conclusive evidence:
(c) if subparagraph (b)(i) applies—that the person was convicted of the offence on that day; and
(d) if the offence was constituted by a contravention of a provision of a law—that the person contravened that provision.
211 Power of court to punish for contempt of court
Nothing in a provision of this Act that provides:
(a) that a person must not contravene an order of the court; or
(b) that a person who contravenes an order of the court contravenes a provision of this Act or commits an offence;
affects the powers of the court in relation to the punishment of contempts of the court.
Chapter 5—Administration
Part 5‑1—Matters relating to handling records and information
Division 1—Introduction
212 Guide to this Part
This Part provides for the Registrar’s role under this Act.
The Minister appoints an existing Commonwealth body to be the Registrar. The Minister can give directions to the Registrar.
The Registrar performs functions and exercises powers in accordance with the data standards (and other Commonwealth laws). The data standards are disallowable instruments made by the Registrar. They may deal with such matters as how information is given to the Registrar (including electronically).
Information that the Registrar has can be disclosed to government agencies for the performance of their functions. Other disclosures (such as by public access to information) are dealt with by the disclosure framework, which is a disallowable instrument made by the Registrar.
Certain decisions made by the Registrar are reviewable by the Administrative Review Tribunal.
This Part also set out the Registrar’s obligation to record information relating to credit activities.
Division 1A—The Registrar
Subdivision A—The Registrar
212A Appointment of the Registrar
(1) The Minister may, by notifiable instrument, appoint a Commonwealth body to be the Registrar.
(2) The Minister may, by notifiable instrument, appoint a Commonwealth body to be the Registrar in relation to one or more functions or powers of the Registrar.
212B Functions
The Registrar’s functions are:
(a) such functions as are conferred on the Registrar by or under this Act; and
(b) such functions as are prescribed by rules made for the purposes of this paragraph under section 212U; and
(c) such functions as are incidental to the functions mentioned in paragraph (a) or (b).
212C Powers
The Registrar’s powers include:
(a) such powers as are conferred:
(i) on the Registrar in relation to the functions mentioned in section 212B; and
(ii) by or under this Act; and
(b) the power to do all things necessary or convenient to be done for or in connection with the performance of those functions.
212D Directions by Minister
(1) The Minister may, by legislative instrument, give written directions to the Registrar about the performance of its functions and the exercise of its powers.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) Without limiting subsection (1), a direction under that subsection may relate to any of the following:
(a) matters to be dealt with in the data standards or disclosure framework;
(b) consultation processes to be followed prior to making data standards or the disclosure framework.
(3) A direction under subsection (1) must be of a general nature only.
(4) Subsection (3) does not prevent a direction under subsection (1) from relating to a particular matter to be dealt with in the data standards or disclosure framework. However, the direction must not direct the Registrar how to apply the data standards or disclosure framework in a particular case.
(5) The Registrar must comply with a direction under subsection (1).
212E Delegation
(1) The Registrar may, in writing, delegate all or any of the Registrar’s functions or powers under this Act (other than the power to make data standards or the disclosure framework) to:
(a) any person to whom it may delegate any of its other functions, as a Commonwealth body, under a law of the Commonwealth; or
(b) any person of a kind specified in rules made under section 212U.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Registrar.
212F Assisted decision making
(1) The Registrar may arrange for the use, under the Registrar’s control, of processes to assist decision making (such as computer applications and systems) for any purposes for which the Registrar may make decisions in the performance or exercise of the Registrar’s functions or powers under this Act, other than decisions reviewing other decisions.
(2) A decision the making of which is assisted by the operation of such a process under an arrangement made under subsection (1) is taken to be a decision made by the Registrar.