(1) If ASIC considers that a document submitted to ASIC for lodgment under this Act:
(a) contains matter contrary to law; or
(b) contains matter that, in a material particular, is false or misleading in the form or context in which it is included; or
(c) is incomplete; or
(d) contravenes this Act; or
(e) contains an error, alteration or erasure;
ASIC may refuse to receive the document and may make a request under subsection (2).
Note: The effect of ASIC refusing to receive the document is that the document is not lodged with ASIC (see subsection 216(2)).
(2) For the purposes of subsection (1), ASIC may request:
(a) that the document be appropriately amended or completed and resubmitted; or
(b) that a fresh document be submitted in its place; or
(c) if the document is incomplete—that a supplementary document in the approved form be lodged.
Notice to provide further document or information
(3) ASIC may give a written notice to a person who submits a document (the first document) for lodgment under this Act, requiring the person to:
(a) give to ASIC any other document; or
(b) give to ASIC any information;
that ASIC considers necessary in order to form an opinion as to whether it may refuse to receive the first document.
Notice must specify day by which person must comply
(4) The notice must specify the day by which the person must comply with the notice (which must be a reasonable period after the notice is given). ASIC may extend the day by giving a written notice to the person.
Requirement to comply with notice
(5) The person must comply with the notice within the time specified in the notice.
Civil penalty: 5,000 penalty units.
Strict liability offence
(6) A person commits an offence if:
(a) the person is subject to a requirement under subsection (5); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 120 penalty units.
(7) Subsection (6) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 3—ASIC’s register of documents
219 Register of documents lodged with ASIC
ASIC may maintain document registers
(1) ASIC may establish and maintain one or more registers (the document registers) of documents that have been lodged with ASIC under this Act.
How document registers to be maintained
(2) ASIC may establish and maintain the document registers in any form it considers appropriate.
(3) Without limiting subsection (2), the document registers may be maintained in an electronic form.
No entitlement to inspect document registers
(4) ASIC is not required to:
(a) permit persons to inspect the document registers, or make copies of, or take extracts from, the document registers; or
(b) make any part of the document registers available to the public.
Document register is not a legislative instrument
(5) A document register established under this section is not a legislative instrument.
220 ASIC may require person to give information for document registers
Notice to person to give information
(1) If information about a person is included on the document registers, ASIC may, at any time, give the person a written notice requiring the person to give to ASIC specified information about the person, being information of the kind included on the document registers.
Notice must specify day by which person must comply
(2) The notice must specify the day by which the person must comply with the notice (which must be a reasonable period after the notice is given). ASIC may extend the day by giving a written notice to the person.
Requirement to comply with notice
(3) The person must comply with the notice within the time specified in the notice.
Civil penalty: 5,000 penalty units.
Strict liability offence
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection (3); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 120 penalty units.
(5) Subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
221 Written document setting out information from document registers is prima facie evidence of matters
(1) ASIC may, by using a mechanical, electronic or other device for processing data, prepare a written document that sets out information obtained by ASIC from the document registers.
(2) In proceedings in a court, a written document that purports to be a document prepared by ASIC under subsection (1) is admissible as prima facie evidence of the matters in the document.
(3) A written document need not be certified by ASIC, or signed, in order to be taken to purport to have been prepared by ASIC.
Division 4—Other provisions relating to documents lodged with ASIC or required under this Act
222 Certified copy or extract of document lodged with ASIC is admissible in evidence
(1) In proceedings in a court, a copy of, or extract from, any document lodged with ASIC under this Act, and certified by ASIC, is admissible in evidence as of equal validity with the original document.
(2) The reference in subsection (1) to a document includes, if a copy of that document has been included in the document register by ASIC, a reference to that copy.
223 ASIC may destroy or dispose of certain documents
ASIC may destroy or otherwise dispose of any document that is lodged with ASIC under this Act if:
(a) ASIC considers that it is no longer necessary or desirable to retain it; and
(b) either of the following apply:
(i) it has been in ASIC’s possession for the period prescribed by the regulations;
(ii) a copy of the document has been included in the document register.
224 Court may order lodgment of document etc.
(1) If a person has failed to comply with:
(a) any provision of this Act that requires the lodgment of any document with ASIC; or
(b) any request of ASIC under subsection 218(2) (which deals with requests to resubmit documents etc.);
ASIC may give the person a written notice requiring the person to comply with the requirement or request within 14 days.
(2) If the person does not comply with the notice within 14 days, the court may, on an application by ASIC, make an order directing the person to comply with the requirement or request.
(3) The order may provide that all costs of and incidental to the application are to be borne by one or more of the following:
(a) the person;
(b) if the person is a body corporate—a director, secretary or senior manager of the body corporate who is responsible for the failure to comply;
(c) if the person is a partnership or the trustees of a trust—a partner or trustee who is responsible for the failure to comply.
225 False or misleading documents
Fault‑based offence
(1) A person commits an offence if:
(a) a document:
(i) is required under or for the purposes of this Act; or
(ii) is lodged with or submitted to ASIC under or for the purposes of this Act; and
(b) the person:
(i) makes, or authorises the making of, a statement in the document; or
(ii) omits, or authorises the omission of, a matter or thing from the document; and
(c) the person knows that the document is materially false or misleading because of the statement or omission.
Criminal penalty: 5 years imprisonment.
Note: For when a document is materially false or misleading, see subsection (5).
Strict liability offence—failure to take reasonable steps
(2) A person commits an offence of strict liability if:
(a) a document:
(i) is required under or for the purposes of this Act; or
(ii) is lodged with or submitted to ASIC under or for the purposes of this Act; and
(b) the person:
(i) makes, or authorises the making of, a statement in the document; or
(ii) omits, or authorises the omission of, a matter or thing from the document; and
(c) the document is materially false or misleading because of the statement or omission; and
(d) the person did not take all reasonable steps to ensure that the document was not materially false or misleading because of the statement or omission.
Criminal penalty: 20 penalty units.
Note 1: For when a document is materially false or misleading, see subsection (5).
Note 2: For strict liability, see section 6.1 of the Criminal Code.
Civil penalty—knowledge or recklessness
(3) A person contravenes this subsection if:
(a) a document:
(i) is required under or for the purposes of this Act; or
(ii) is lodged with or submitted to ASIC under or for the purposes of this Act; and
(b) the person:
(i) makes, or authorises the making of, a statement in the document; or
(ii) omits, or authorises the omission of, a matter or thing from the document; and
(c) the person knows that, or is reckless as to whether, the document is materially false or misleading because of the statement or omission.
Civil penalty: 5,000 penalty units.
Note: For when a document is materially false or misleading, see subsection (5).
Civil penalty—failure to take reasonable steps
(4) A person contravenes this subsection if:
(a) a document:
(i) is required under or for the purposes of this Act; or
(ii) is lodged with or submitted to ASIC under or for the purposes of this Act; and
(b) the person:
(i) makes, or authorises the making of, a statement in a document; or
(ii) omits, or authorises the omission of, a matter or thing from a document; and
(c) the document is materially false or misleading because of the statement or omission; and
(d) the person did not take all reasonable steps to ensure that the document was not materially false or misleading because of the statement or omission.
Civil penalty: 5,000 penalty units.
Note: For when a document is materially false or misleading, see subsection (5).
When a document is materially false or misleading
(5) For the purposes of this section, a document is materially false or misleading if:
(a) the document includes a statement that:
(i) is false in a material particular or materially misleading; or
(ii) is based on information that is false in a material particular or materially misleading, or has omitted from it a matter or thing the omission of which renders the document materially misleading; or
(b) a matter or thing is omitted from the document and, without the matter or thing, the document is false in a material particular or materially misleading.
Authorisations
(6) For the purposes of this section, a person who votes in favour of a resolution approving, or who otherwise approves, a document is taken to have authorised:
(a) the making of any statement in the document; and
(b) the omission of any matter or thing from the document.
Part 5‑3—Concealment or falsification of credit books
Division 1—Introduction
226 Guide to this Part
This Part deals with the concealment or falsification of credit books.
Division 2 includes requirements not to conceal or falsify credit books, and a requirement to take precautions against the falsification of credit books.
Division 2—Prohibitions relating to the concealment or falsification of credit books
227 Concealing etc. of credit books
Prohibition on concealing credit books etc.
(1) A person must not:
(a) conceal, destroy, mutilate or alter a credit book; or
(b) send a credit book out of this jurisdiction.
Civil penalty: 5,000 penalty units.
Offence
(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: 6 months imprisonment.
Defence
(3) For the purposes of subsections (1) and (2), it is a defence if the person did not act with intent to:
(a) defraud; or
(b) prevent, delay or obstruct the carrying out of an examination, investigation or audit, or the exercise of a power, under this Act.
Note: For the purposes of subsection (2), a defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Meaning of credit book
(4) Credit book means:
(a) a book (by whatever name it is known) that this Act requires to be kept; or
(b) a document that is:
(i) prepared; or
(ii) lodged with or submitted to ASIC; or
(iii) given to a person;
under, or for the purposes of, this Act; or
(c) a book relating to the credit activities engaged in by a licensee or a credit representative; or
(d) a financial record.
228 Falsification of credit books
Requirements in relation to falsification of credit books
(1) A person must not engage in conduct that results in the falsification of a credit book.
Civil penalty: 5,000 penalty units.
Offence
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in the falsification of a credit book.
Criminal penalty: 6 months imprisonment.
Defence
(3) For the purposes of subsections (1) and (2), it is a defence if:
(a) the person acted honestly; and
(b) in all the circumstances, the act or omission constituting the offence should be excused.
Note: For the purposes of subsection (2), a defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
229 Precautions against falsification of credit books
Requirement to take precautions against falsification
(1) A person who is required by this Act to keep a credit book must take reasonable steps to:
(a) guard against the falsification of the credit book; and
(b) facilitate the discovery of any falsification of the credit book.
Civil penalty: 5,000 penalty units.
Offence
(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: 6 months imprisonment.
Part 5‑4—Fees imposed by the National Consumer Credit Protection (Fees) Act 2009
Division 1—Introduction
230 Guide to this Part
This Part deals with fees imposed by the National Consumer Credit Protection (Fees) Act 2009.
Division 2 includes provisions relating to fees, including the payment of fees, the lodgment of documents or doing of acts without the payment of fees, and the waiver or refund of fees.
Division 2—Fees imposed by the National Consumer Credit Protection (Fees) Act 2009
231 Fees are payable to the Commonwealth
The fees imposed under the National Consumer Credit Protection (Fees) Act 2009 in relation to this Act are payable to the Commonwealth.
232 Lodgment of document without payment of fee
(1) This section applies where:
(a) a fee is payable under section 231 for the lodgment of a document under this Act; and
(b) the document was submitted for lodgment without payment of the fee.
(2) The document is not taken not to have been lodged merely because of non‑payment of the fee.
(3) Despite subsection (2), a compliance certificate that is required to be lodged under section 53 is taken not to have been lodged until the fee is paid.
233 Doing act without payment of fee
If a fee is payable under section 231 for a matter involving the doing of an act by the Minister or ASIC under this Act, the Minister or ASIC may refuse to do that act until the fee is paid.
234 Effect of sections 232 and 233
Sections 232 and 233 have effect despite anything in another Part of this Act.
235 Waiver and refund of fees
Nothing in this Division or the National Consumer Credit Protection (Fees) Act 2009 prevents the Commonwealth from:
(a) waiving or reducing, in a particular case or in particular classes of cases, fees that would otherwise be payable under this Act; or
(b) refunding, in whole or in part, in a particular case or in particular classes of cases, fees paid under this Act.
236 Debts due to the Commonwealth
ASIC may, on behalf of the Commonwealth, recover a debt due under this Division.
237 Payment of fee does not give right to inspect or search
To avoid doubt, nothing in this Division, and nothing done under this Division:
(a) imposes on ASIC a duty to allow the inspection or search of a register or document, or to make available information; or
(b) confers a right to inspect or search a register or document or to have information made available;
under this Act except so far as such a duty or right would, but for the effect of section 233, exist under a provision of another Part of this Act or under some other law.
Part 5‑5—Other administrative matters
Division 1—Introduction
238 Guide to this Part
This Part includes miscellaneous provisions relating to administrative matters.
Division 1A—Codes of conduct
Subdivision A—Approved codes of conduct
238A Approved codes of conduct
Applications
(1) If an application is made to approve a code of conduct, ASIC may, by legislative instrument, approve the code of conduct.
Identifying enforceable code provisions
(2) In the approval, ASIC may identify a provision of the code of conduct as an enforceable code provision if ASIC considers that:
(a) the provision represents a commitment to a person by a subscriber to the code relating to transactions or dealings performed for, on behalf of or in relation to the person; and
(b) a breach of the provision is likely to result in significant and direct detriment to the person; and
(c) additional criteria prescribed by the regulations for the purposes of this paragraph (if any) are satisfied; and
(d) it is appropriate to identify the provision of the code as an enforceable code provision, having regard to the matters prescribed by the regulations for the purposes of this paragraph (if any).
Note: See also section 238E.
ASIC to be satisfied of certain matters before making approval
(3) ASIC must not approve a code of conduct unless it is satisfied that: