(5) If a direction given under subsection (1) is in writing, it is not a legislative instrument.
283 Involvement of person entitled to appear at hearing
(1) This section applies if the Commonwealth credit legislation requires ASIC to give a person an opportunity to appear at a hearing and to make submissions and give evidence to it.
(2) ASIC must appoint a place and time for the hearing and cause written notice of that place and time to be given to the person.
(3) If the person does not wish to appear at the hearing, the person may, before the day of the hearing, lodge with ASIC any written submissions that the person wishes ASIC to take into account in relation to the matter concerned.
284 Power to summon witnesses and take evidence
(1) An ASIC member may, by written summons given to a person in the form prescribed by the regulations:
(a) require the person to appear before ASIC at a hearing to give evidence, to produce specified documents, or to do both; and
(b) require the person to attend from day to day unless excused, or released from further attendance, by an ASIC member.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(2) At a hearing, ASIC may take evidence on oath or affirmation, and for that purpose an ASIC member may:
(a) require a witness at the hearing to either take an oath or make an affirmation; and
(b) administer an oath or affirmation to a witness at the hearing.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(3) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.
(4) The ASIC member presiding at a hearing:
(a) may require a witness at the hearing to answer a question put to the witness; and
(b) may require a person appearing at the hearing pursuant to a summons issued under this section to produce a document specified in the summons.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(5) An offence under subsection 290(2) relating to subsection (1), (2) or (4) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) ASIC may permit a witness at a hearing to give evidence by tendering, and if ASIC so requires, verifying by oath, a written statement.
285 Proceedings at hearings
(1) A hearing must be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Commonwealth credit legislation and a proper consideration of the matters before ASIC permit.
(2) At a hearing, ASIC:
(a) is not bound by the rules of evidence; and
(b) may, on such conditions as it considers appropriate, permit a person to intervene; and
(c) must observe the rules of natural justice.
(3) Subject to subsection (4), Division 4 of Part 4 of the ASIC Act (other than section 104 of that Act) applies, so far as practicable, in relation to a hearing as if the hearing were a meeting of ASIC.
(4) At a hearing before a Division of ASIC (established under section 97 of the ASIC Act), 2 members of the Division form a quorum.
(5) At a hearing, a natural person may appear in person or be represented by an employee of the person approved by ASIC.
(6) A body corporate may be represented at a hearing by an officer (within the meaning of section 5 of the ASIC Act) or employee of the body corporate approved by ASIC.
(7) An unincorporated association, or a person in the person’s capacity as a member of an unincorporated association, may be represented at a hearing by a member, officer (within the meaning of section 5 of the ASIC Act) or employee of the association approved by ASIC.
(8) Any person may be represented at a hearing by a lawyer.
285A Proceedings at hearings
(1) ASIC may decide to hold the hearing:
(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) Subsections (3) and (4) apply if the hearing is held:
(a) at one or more physical venues and using virtual enquiry technology; or
(b) using virtual enquiry technology only.
(3) ASIC must ensure that the use of the virtual enquiry technology is reasonable.
(4) If the hearing is held in public, ASIC must ensure that:
(a) the virtual enquiry technology provides the public with a reasonable opportunity to observe the hearing; and
(b) information sufficient to allow the public to observe the hearing using the virtual enquiry technology is made publicly available in a reasonable way.
(5) If the hearing 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;
ASIC may appoint a single place and time at which the hearing is taken to have been held.
(6) This section applies to part of a hearing in the same way that it applies to all of a hearing.
286 ASIC to take account of evidence and submissions
ASIC must take into account:
(a) evidence given, or a submission made, to it at a hearing; or
(b) a submission lodged with it under section 283;
in making a decision on a matter to which the evidence or submission relates.
287 Reference to court of question of law arising at hearing
(1) ASIC may, of its own motion or at a person’s request, refer to the court for decision a question of law arising at a hearing.
(2) If a question has been referred under subsection (1), ASIC must not, in relation to a matter to which the hearing relates:
(a) give while the reference is pending a decision to which the question is relevant; or
(b) proceed in a manner, or make a decision, that is inconsistent with the court’s opinion on the question.
(3) If a question is referred under subsection (1):
(a) ASIC must send to the court all documents that were before ASIC in connection with the hearing; and
(b) at the end of the proceedings in the court in relation to the reference, the court must cause the documents to be returned to ASIC.
288 Protection of ASIC members etc.
(1) An ASIC member has, in the performance or exercise of any of his or her functions and powers as an ASIC member in relation to a hearing, the same protection and immunity as a Justice of the High Court.
(2) A delegate of an ASIC member has, in the performance or exercise of any delegated function or power in relation to a hearing, the same protection and immunity as a Justice of the High Court.
(3) A lawyer or other person appearing on a person’s behalf at a hearing has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
(4) Subject to this Act, a person who is required by a summons under section 284 to appear at a hearing, or a witness at a hearing, has the same protection as a witness in proceedings in the High Court.
Part 6‑5A—Penalties for offences
Division 1—Introduction
288A Guide to this Part
This Part is about the penalties applicable to offences against this Act.
Division 2 includes rules about the penalties applicable to offences committed by individuals or bodies corporate. These penalties are worked out in relation to the penalty specified for the offence.
Division 2—Penalty for committing an offence
288B Penalty for committing an offence
A person who commits an offence against this Act is punishable on conviction by a penalty not exceeding the penalty applicable to the offence.
288C Penalty applicable to an offence committed by an individual
(1) The penalty applicable to an offence committed by an individual is:
(a) for an offence for which a fine is the only penalty specified—the fine specified; and
(b) for an offence for which a term of imprisonment is the only penalty specified—either the term of imprisonment, the fine worked out under this section, or both.
(2) If:
(a) a term of imprisonment is the only penalty specified for an offence; and
(b) the term of imprisonment is less than 10 years;
the fine mentioned in paragraph (1)(b) is the number of penalty units worked out using the individual fine formula.
(3) The individual fine formula is:
Start formula Term of imprisonment, expressed in months times 10 end formula
(4) If:
(a) a term of imprisonment is the only penalty specified for the offence; and
(b) the term of imprisonment is 10 years or more;
the fine mentioned in paragraph (1)(b) is the greater of:
(c) 4,500 penalty units; and
(d) if the court can determine the benefit derived and detriment avoided because of the offence—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.
(5) This section applies in relation to an offence committed by an individual unless there is a contrary intention under this Act in relation to the penalty applicable to the offence. In that case, the penalty applicable is the penalty specified for the offence.
288D Penalty applicable to an offence committed by a body corporate
(1) The penalty applicable to an offence committed by a body corporate is:
(a) for an offence for which a fine is the only penalty specified—the fine specified multiplied by 10; and
(b) for an offence for which a term of imprisonment is the only penalty specified—the fine worked out under this section.
(2) If:
(a) a term of imprisonment is the only penalty specified for an offence; and
(b) the term of imprisonment is less than 10 years;
the fine mentioned in paragraph (1)(b) is the number of penalty units worked out using the individual fine formula, multiplied by 10.
(3) If:
(a) a term of imprisonment is the only penalty specified for an offence; and
(b) the term of imprisonment is 10 years or more;
the fine mentioned in paragraph (1)(b) is the greatest of:
(c) 45,000 penalty units; and
(d) if the court can determine the benefit derived and detriment avoided because of the offence—that amount multiplied by 3; and
(e) 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 committed, or began committing, the offence.
(4) This section applies in relation to an offence committed by a body corporate unless there is a contrary intention under this Act in relation to the penalty applicable to the offence. In that case, the penalty applicable is the penalty specified for the offence.
288E Meaning of benefit derived and detriment avoided because of an offence
The benefit derived and detriment avoided because of an offence is the sum of:
(a) the total value of all benefits obtained by one or more persons that are reasonably attributable to the commission of the offence; and
(b) the total value of all detriments avoided by one or more persons that are reasonably attributable to the commission of the offence.
288F Where is the penalty for an offence specified?
(1) The penalty specified for an offence is the penalty, pecuniary or otherwise, specified in any provision of this Act for the offence.
(2) To avoid doubt, a penalty is not specified for an offence if it is a consequence for committing the offence that is not a punishment on conviction for the offence.
(3) Without limiting subsection (2), each of the following is a consequence for committing an offence that is not a punishment on conviction for the offence:
(a) the availability of a pecuniary penalty order for the contravention of a civil penalty provision that relates to the same conduct as that which gave rise to the offence;
(b) the availability of an infringement notice in relation to an alleged commission of the offence;
(c) the availability of administrative consequences as a result of the commission of the offence, such as:
(i) disqualification from any office; or
(ii) consequences in relation to a licence; or
(iii) other actions that may be taken by ASIC under this Act or any other Act;
(d) the availability under any law of the Commonwealth or of a State or Territory (including the general law) of an order to refund money, pay compensation, relinquish a benefit or make any other payment if the offence is committed;
(e) the availability under any law of the Commonwealth or of a State or Territory (including the general law) of an injunction or any other order directing a person to take, or refrain from taking, action if the offence is committed.
288G If no penalty is specified
If no penalty is specified for an offence:
(a) the offence is an offence of strict liability; and
(b) 20 penalty units is taken to be the penalty specified for the offence.
Part 6‑5B—Infringement notices
Division 1—Introduction
288H Guide to this Part
This Part is about the use of infringement notices where ASIC reasonably believes that a provision has been contravened.
Division 2 authorises ASIC to give an infringement notice in relation to a contravention of certain provisions. A person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against the person for the contravention. If the person does not choose to pay the amount, proceedings can be brought against the person for the contravention.
Division 2—Infringement notices
288J When an infringement notice may be given
(1) If ASIC believes on reasonable grounds that a person has contravened a provision subject to an infringement notice under this Part, ASIC may give the person an infringement notice for the alleged contravention.
(2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.
(3) A single infringement notice must relate only to a single contravention of a single provision unless subsection (4) applies.
(4) ASIC may give a person a single infringement notice relating to multiple contraventions of a single provision if:
(a) the provision requires the person to do a thing within a particular period or before a particular time; and
(b) the person fails or refuses to do that thing within that period or before that time; and
(c) the failure or refusal occurs on more than 1 day; and
(d) each contravention is constituted by the failure or refusal on one of those days.
(5) If an alleged contravention would, if proved, constitute both a contravention of a civil penalty provision and of an offence provision, the infringement notice must relate to the alleged contravention of the offence provision.
288K Provisions subject to an infringement notice
(1) The following provisions are subject to an infringement notice under this Part:
(a) strict liability offences against this Act;
(b) other prescribed offences against this Act;
(c) prescribed civil penalty provisions;
(ca) civil penalty provisions of an approved code of conduct;
(cb) civil penalty provisions of a mandatory code of conduct;
(d) prescribed provisions of the National Credit Code containing key requirements (as defined for the purposes of the National Credit Code).
(2) This Part applies in relation to a provision prescribed under paragraph (1)(d) in the same way as it applies in relation to a civil penalty provision.
288L Matters to be included in an infringement notice
(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is given; and
(c) state the name of the person to whom the notice is given; and
(d) state the name and contact details of the person who gave the notice; and
(e) give brief details of the alleged contravention, or each alleged contravention, to which the notice relates, including:
(i) the provision that was allegedly contravened; and
(ii) the maximum penalty that a court could impose for each contravention, if the provision were contravened; and
(iii) the time (if known) and day of, and the place of, each alleged contravention; and
(f) state the amount that is payable under the notice; and
(g) give an explanation of how payment of the amount is to be made; and
(h) state that the payment period for the notice will be 28 days, beginning on the day after the notice is given, unless the period is extended, an arrangement is made for payment by instalments or the notice is withdrawn; and
(i) state that, if the person to whom the notice is given pays the amount within the payment period, then (unless the notice is withdrawn):
(i) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision—the person will not be liable to be prosecuted in a court for the alleged contravention; or
(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision—the person is not liable to be prosecuted in a court, and proceedings seeking a pecuniary penalty order will not be brought, in relation to the alleged contravention; or
(iii) if the alleged contravention is of a civil penalty provision—proceedings seeking a pecuniary penalty order will not be brought in relation to the alleged contravention; and
(j) state that payment of the amount is not an admission of guilt or liability; and
(k) state that the person may apply to ASIC to have the period in which to pay the amount extended or for an arrangement to pay the amount by instalments; and
(l) state that the person may choose not to pay the amount and, if the person does so:
(i) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision—the person may be prosecuted in a court for the alleged contravention; or