(a) to the extent that the code is inconsistent with this Act or any other law of the Commonwealth under which ASIC has regulatory responsibilities—the code imposes an obligation on a subscriber that is more onerous than that imposed by this Act or any other law of the Commonwealth under which ASIC has regulatory responsibilities; and
(b) each enforceable code provision:
(i) has been agreed with the applicant; and
(ii) is legally effective; and
(c) it is appropriate to approve the code, having regard to the following matters:
(i) whether the obligations of subscribers to the code are capable of being enforced;
(ii) whether the applicant has effective administrative systems for monitoring compliance with the code and making information obtained as a result of monitoring publicly available;
(iii) whether the applicant has effective administrative systems for maintaining, and making publicly available, an accurate list of subscribers to the code.
Revocation
(4) ASIC may, by legislative instrument, revoke an approval of an approved code of conduct:
(a) on application by the applicant for the approval; or
(b) if ASIC ceases to be satisfied of the matters mentioned in subsection (3); or
(c) if a review of the operation of the code is not completed by the applicant within the timeframe required by section 238C.
(5) Subsection (4) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901.
238B Variations to approved codes of conduct
(1) If an application is made to vary an approved code of conduct, ASIC may, by legislative instrument, approve the variation.
(2) Subsections 238A(2) and (3) apply in relation to an application under subsection (1) as if it were an application to approve a code of conduct.
238C Review of approved codes of conduct
(1) The applicant, in relation to an approved code of conduct, must ensure that, every 5 years, an independent review is undertaken of the operation of the approved code of conduct.
(2) A review under subsection (1) must make provision for public consultation.
(3) A review of an approved code of conduct must be completed:
(a) for the first review—before the end of the 5 year period beginning on the day the code of conduct was approved; and
(b) for a subsequent review—within 5 years after the completion of the previous review.
(4) For the purposes of this section, a review is completed when a report of the review is given to ASIC.
(5) Within 10 business days of completing a review, the applicant must publish the report of the review on its website.
238D Obligation to comply with enforceable code provisions
If a person holds out that they comply with an approved code of conduct, the person must not breach an enforceable code provision of the approved code of conduct.
Civil penalty: 300 penalty units.
238E Regulations
The regulations may:
(a) prescribe criteria of which ASIC must be satisfied before it identifies a provision of a code of conduct as an enforceable code provision; or
(b) prescribe matters to which ASIC must have regard before it identifies a provision of a code of conduct as an enforceable code provision.
Subdivision B—Mandatory codes of conduct
238F Mandatory codes of conduct
(1) The regulations may prescribe a code of conduct for the purposes of this Division and declare it to be a mandatory code of conduct.
(2) Regulations declaring a code of conduct a mandatory code of conduct may also:
(a) confer functions and powers on a person or body for the purposes of:
(i) monitoring compliance with the code of conduct; and
(ii) dealing with disputes or complaints arising under, or in relation to, the code of conduct; and
(iii) dealing with other associated administrative matters; or
(b) provide for and in relation to:
(i) the keeping of records by persons bound by the code of conduct; and
(ii) reporting obligations of such persons.
(3) If regulations prescribe a code of conduct, the code of conduct may prescribe pecuniary penalties not exceeding 1,000 penalty units for civil penalty provisions of the code of conduct.
(4) To avoid doubt, subsections 167B(1) and (2) do not apply in relation to the contravention of a civil penalty provision of a mandatory code of conduct.
238G Obligation to comply with mandatory code of conduct
A person must not contravene a mandatory code of conduct.
Division 2—Other administrative matters
239 ASIC has general administration of this Act
Subject to the ASIC Act, ASIC has the general administration of this Act.
240 Obstructing or hindering ASIC etc.
(1) A person must not engage in conduct that results in the obstruction or hindering of ASIC, or any other person, in the performance of a function or the exercise of a power under this Act.
Civil penalty: 5,000 penalty units.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in the obstruction or hindering of ASIC, or any other person, in the performance of a function or the exercise of a power under this Act.
Criminal penalty: 2 years imprisonment.
(3) For the purposes of subsections (1) and (2), it is a defence if the person has a reasonable excuse.
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).
242 ASIC may arrange for use of computer programs to make decisions
(1) ASIC may arrange for the use, under ASIC’s control, of computer programs for any purposes for which ASIC may make decisions under this Act.
(2) A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by ASIC.
243 Qualified privilege for information given to ASIC
(1) A person has qualified privilege in relation to the giving of any information to ASIC:
(a) that the person is required or expressly permitted to give under this Act; or
(b) that relates to a contravention, or possible contravention, of the credit legislation; or
(c) that relates to a matter that is relevant to a decision of ASIC under:
(i) section 37 (which deals with when ASIC must grant a licence); or
(ia) section 46A (which deals with when ASIC may grant an application for a variation of the conditions on a licence); or
(ii) section 54 or 55 (which deal with ASIC’s powers to suspend or cancel licences); or
(iii) subsection 80(1) (which deals with ASIC’s power to make banning orders).
(2) A person who has qualified privilege under subsection (1) in relation to conduct is also not liable for any action based on breach of confidence in relation to that conduct.
(3) The protections given by this section to a person in relation to conduct extend to representatives of the person.
244 ASIC certificate is prima facie evidence of matters
(1) ASIC may issue a certificate stating that a requirement of this Act specified in the certificate:
(a) had or had not been complied with at a date or within a period specified in the certificate; or
(b) had been complied with at a date specified in the certificate but not before that date.
(2) In proceedings in a court, a certificate issued by ASIC under subsection (1) is admissible as prima facie evidence of the matters stated in the certificate.
245 Operator of AFCA scheme may give information to ASIC
The operator of the AFCA scheme may give information to ASIC about:
(a) a person becoming a member of the scheme; or
(b) a person ceasing to be a member of the scheme.
Chapter 6—Compliance and enforcement
Part 6‑1—Investigations
Division 1—Introduction
246 Guide to this Part
This Part is about investigations made by ASIC.
Division 2 includes powers of ASIC to make investigations. ASIC may make investigations in certain circumstances for the due administration of the Commonwealth credit legislation. The Minister may also direct ASIC to investigate matters in certain circumstances.
Division 2 also deals with reports about investigations.
Division 2—Investigations
247 General powers of investigation
(1) ASIC may make such investigation as it considers expedient for the due administration of the Commonwealth credit legislation if it has reason to suspect that there may have been committed:
(a) a contravention of the credit legislation; or
(b) a contravention of a law of the Commonwealth, or of a law of a referring State or a Territory, being a contravention that:
(i) concerns the management, conduct or affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity; or
(ii) involves fraud or dishonesty and relates to a credit activity engaged in by a person, or a credit contract, mortgage, guarantee or consumer lease.
248 Minister may direct investigations
(1) If, in the Minister’s opinion, it is in the public interest in relation to this jurisdiction for a particular matter to which subsection (2) applies to be investigated, he or she may by writing direct ASIC to investigate that matter.
(2) This subsection applies to a matter relating to any of the following:
(a) an alleged or suspected contravention of the Commonwealth credit legislation;
(b) an alleged or suspected contravention of a law of the Commonwealth, or a law of a referring State or a Territory, being a contravention that:
(i) concerns the management, conduct or affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity; or
(ii) involves fraud or dishonesty and relates to a credit activity engaged in by a person, or a credit contract, mortgage, guarantee or consumer lease;
(c) a credit activity engaged in by a person.
(3) ASIC must comply with a direction under subsection (1).
(4) A direction under subsection (1) does not prevent ASIC from delegating a function or power.
(5) A direction under subsection (1) is not a legislative instrument.
249 Interim report on investigation
(1) If, in the course of an investigation under this Part, ASIC forms the opinion that:
(a) a serious contravention of a law of the Commonwealth, or a law of a referring State or a Territory, has been committed; or
(b) to prepare an interim report about the investigation would enable or assist the protection, preservation or prompt recovery of property; or
(c) there is an urgent need for the Commonwealth credit legislation to be amended;
it must prepare an interim report that relates to the investigation and sets out:
(d) if paragraph (a) applies—its findings about the contravention, and the evidence and other material on which those findings are based; or
(e) if paragraph (b) applies—such matters as, in its opinion, will so enable or assist; or
(f) if paragraph (c) applies—its opinion about amendment of that legislation, and its reasons for that opinion;
and such other matters relating to, or arising out of, the investigation as it considers appropriate.
(2) ASIC may prepare an interim report about an investigation under this Part and must do so if the Minister so directs.
(3) A report under subsection (2) must set out such matters relating to, or arising out of, the investigation as ASIC considers appropriate or the Minister directs.
(4) An interim report prepared under this section is not a legislative instrument.
250 Final report on investigation
(1) At the end of an investigation under section 247, ASIC may prepare a report about the investigation and must do so if the Minister so directs.
(2) At the end of an investigation under section 248, ASIC must prepare a report about the investigation.
(3) A report under this section must set out:
(a) ASIC’s findings about the matters investigated; and
(b) the evidence and other material on which those findings are based; and
(c) such other matters relating to, or arising out of, the investigation as ASIC considers appropriate or the Minister directs.
(4) A direction under subsection (1) is not a legislative instrument.
(5) A report prepared under this section is not a legislative instrument.
251 Distribution of report
(1) As soon as practicable after preparing a report under this Part, ASIC must give a copy of the report to the Minister.
(2) If a report, or part of a report, under this Part relates to a serious contravention of a law of the Commonwealth, or a law of a referring State or a Territory, ASIC may give a copy of the whole or a part of the report to:
(a) the Australian Federal Police; or
(b) the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002); or
(c) the Director of Public Prosecutions; or
(d) an agency, authority, body or person prescribed by the regulations.
(3) If a report, or part of a report, under this Part relates to a person’s affairs to a material extent, ASIC may, at the person’s request or of its own motion, give to the person a copy of the report or of part of the report.
(4) The Minister may cause the whole or a part of a report under this Part to be printed and published.
Part 6‑2—Examination of persons
Division 1—Introduction
252 Guide to this Part
This Part is about the examination of persons by ASIC.
Division 2 allows ASIC to examine a person if ASIC suspects or believes, on reasonable grounds, that the person can give information relevant to an investigation under Part 6‑1.
Division 2 also includes rules relating to the procedure for examination of persons by ASIC.
Division 2—Examination of persons
253 Notice requiring appearance for examination
(1) This section applies if ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Part 6‑1.
(2) ASIC may, by written notice given to the person in the form prescribed by the regulations, require the person:
(a) to give to ASIC all reasonable assistance in connection with the investigation; and
(b) to appear before a specified ASIC member or ASIC staff member for examination on oath and to answer questions.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(3) A notice given under subsection (2) must:
(a) state the general nature of the matter referred to in subsection (1); and
(b) set out the effect of subsection 257(1) and section 295.
254 Proceedings at examination
The remaining provisions of this Part apply if, pursuant to a requirement made under section 253 for the purposes of an investigation under Part 6‑1, a person (the examinee) appears before another person (the inspector) for examination.
255 Requirements made of examinee
(1) The inspector may examine the examinee on oath or affirmation and may, for that purpose:
(a) require the examinee to either take an oath or make an affirmation; and
(b) administer an oath or affirmation to the examinee.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(2) An offence under subsection 290(2) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true.
(4) The inspector may require the examinee to answer a question that is put to the examinee at the examination and is relevant to a matter that ASIC is investigating, or is to investigate, under Part 6‑1.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
256 Examination to take place in private
(1) The examination must take place in private and the inspector may give directions about who may be present during it, or during a part of it.
(2) A person must not be present at the examination unless he or she:
(a) is the inspector, the examinee or an ASIC member; or
(b) is an ASIC staff member approved by ASIC; or
(c) is entitled to be present by virtue of:
(i) a direction under subsection (1); or
(ii) subsection 257(1).
Criminal penalty: 30 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
256A Proceedings at examination
(1) The inspector may decide to hold the examination:
(a) at one or more physical venues; or
(b) at one or more physical venues and using virtual enquiry technology; or
(c) using virtual enquiry technology only.
(2) Subsection (3) applies if the examination is held:
(a) at one or more physical venues and using virtual enquiry technology; or
(b) using virtual enquiry technology only.
(3) The inspector must ensure that the use of the virtual enquiry technology is reasonable.
(4) If the examination is held:
(a) at more than one physical venue; or
(b) at one or more physical venues and using virtual enquiry technology; or
(c) using virtual enquiry technology only;
the inspector may appoint a single place and time at which the examination is taken to have been held.
(5) This section applies to part of an examination in the same way that it applies to all of an examination.
257 Examinee’s lawyer may attend
(1) The examinee’s lawyer may be present at the examination and may, at such times during it as the inspector determines:
(a) address the inspector; and
(b) examine the examinee;
about matters about which the inspector has examined the examinee.
(2) If, in the inspector’s opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the inspector may require the person to stop addressing the inspector, or examining the examinee, as the case requires.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).