(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision—the person may be prosecuted in a court, or proceedings seeking a pecuniary penalty order may 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 may be brought in relation to the alleged contravention; and
(m) set out how the notice can be withdrawn; and
(n) state that if the notice is withdrawn: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 may 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 may be prosecuted in a court, or proceedings seeking a pecuniary penalty order may 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 may be brought in relation to the alleged contravention; and
(o) state that the person may make written representations to ASIC seeking the withdrawal of the notice.
(2) The amount to be stated in the notice for the purposes of paragraph (1)(f) is:
(a) for a single contravention of an offence provision—one‑fifth of the maximum penalty that a court could impose on the person for the contravention; and
(b) for multiple contraventions of an offence provision—the amount worked out under paragraph (a) for a single contravention multiplied by the number of contraventions; and
(c) for a single contravention of a civil penalty provision—50 penalty units for an individual and 250 penalty units for a body corporate; and
(d) for multiple contraventions of a civil penalty provision—the amount worked out under paragraph (c) for a single contravention multiplied by the number of contraventions.
288M Payment period
Usual payment period
(1) The payment period for an infringement notice begins on the day after the notice is given and, unless otherwise specified in this section, continues for 28 days.
Payment period extended under section 288N
(2) If, under section 288N, ASIC extends the payment period for the notice, the payment period is as extended.
(3) If ASIC refuses an application under subsection 288N(1) for an extension of the payment period for the notice, the payment period ends on the latest of the following days:
(a) the last day of the period that, without the extension that has been refused, would be the payment period for the notice;
(b) the day that is 7 days after the day the applicant was given notice of ASIC’s decision not to extend;
(c) the day that is 7 days after the day the application is taken to have been refused under subsection 288N(4).
Instalments
(4) If, under section 288P, ASIC makes an arrangement for the amount payable under the notice to be paid by instalments, the payment period ends on the earlier of the following days:
(a) the last day on which an instalment is to be paid under the arrangement;
(b) if the person fails to pay an instalment in accordance with the arrangement, the last day on which the missed instalment was to be paid.
(5) If ASIC refuses an application made under subsection 288P(1) to make an arrangement for the amount payable under the notice to be paid by instalments, the payment period ends on the latest of the following days:
(a) the last day of the period that, without the instalment arrangement, would be the payment period for the notice;
(b) the day that is 7 days after the day the applicant was given notice of ASIC’s decision not to make the arrangement;
(c) the day that is 7 days after the day the application is taken to have been refused under subsection 288P(4).
Payment period if ASIC refuses to withdraw infringement notice
(6) If ASIC refuses a representation made under subsection 288Q(1) for the notice to be withdrawn, the payment period ends on the latest of the following days:
(a) the last day of the period that, without the withdrawal, would be the payment period for the notice;
(b) the day that is 7 days after the day the person was given notice of ASIC’s decision not to withdraw the notice;
(c) the day that is 7 days after the day on which, under subsection 288Q(5), ASIC is taken to have refused to withdraw the infringement notice.
288N Extension of time to pay amount
(1) A person to whom an infringement notice has been given may, during the payment period for the notice, apply to ASIC for an extension of the payment period for the notice.
(2) ASIC may, in writing, extend the payment period for an infringement notice:
(a) if a person makes an application in accordance with subsection (1); or
(b) on ASIC’s own initiative.
ASIC may do so before or after the end of the payment period.
(3) ASIC must do each of the following within 14 days after an application in accordance with subsection (1) is made:
(a) grant or refuse to grant an extension of the payment period for the infringement notice;
(b) give the applicant notice in writing of ASIC’s decision.
(4) If ASIC does not comply with subsection (3):
(a) ASIC is taken to have refused to grant an extension of the payment period for the infringement notice; and
(b) the refusal is taken to have occurred on the last day of the 14 day period.
(5) ASIC may extend the payment period more than once under subsection (2).
288P Payment by instalments
(1) A person to whom an infringement notice has been given may, within 28 days after the infringement notice is given, apply to ASIC to make an arrangement to pay the amount payable under the infringement notice by instalments.
(2) ASIC may, in writing, make an arrangement for a person to pay the amount payable under an infringement notice by instalments:
(a) if a person makes an application in accordance with subsection (1); or
(b) on ASIC’s own initiative.
ASIC may do so before or after the end of the payment period.
(3) ASIC must do each of the following within 14 days after an application in accordance with subsection (1) is made:
(a) decide to make, or refuse to make, an arrangement for the applicant to pay the amount payable under the infringement notice by instalments;
(b) give the applicant notice in writing of ASIC’s decision;
(c) if ASIC decides to make the arrangement, specify in the notice:
(i) the day by which each instalment is to be paid; and
(ii) the amount of each instalment.
(4) If ASIC does not comply with subsection (3):
(a) ASIC is taken to have refused to make an arrangement for the applicant to pay the amount payable under the infringement notice by instalments; and
(b) the refusal is taken to have occurred on the last day of the 14 day period.
(5) ASIC may vary an arrangement for a person to pay the amount payable under an infringement notice by instalments.
(6) If:
(a) a person does not pay all of the instalments in accordance with an arrangement made under this section; and
(b) the person is prosecuted, or proceedings seeking a pecuniary penalty order are brought, for the alleged contravention;
ASIC must refund to the person the amount of any instalments paid.
288Q Withdrawal of an infringement notice
Representations seeking withdrawal of notice
(1) A person to whom an infringement notice has been given may, within 28 days after the infringement notice is given, make written representations to ASIC seeking the withdrawal of the notice.
Withdrawal of notice
(2) ASIC may withdraw an infringement notice given to a person:
(a) if the person makes representations to ASIC in accordance with subsection (1); or
(b) on ASIC’s own initiative.
ASIC may do so before or after the end of the payment period.
(3) ASIC must, within 14 days after a representation is made in accordance with subsection (1):
(a) decide to withdraw, or refuse to withdraw, the infringement notice; and
(b) if ASIC decides to withdraw the notice—give the person to whom the notice was issued a withdrawal notice in accordance with subsection (6); and
(c) if ASIC decides to refuse to withdraw the notice—give the applicant notice of that fact.
(4) When deciding whether to withdraw, or refuse to withdraw, an infringement notice, ASIC:
(a) must take into account any written representations seeking the withdrawal that were given by the person to ASIC; and
(b) may take into account the following:
(i) whether a court has previously imposed a penalty on the person for a contravention of a provision of this Act;
(ii) the circumstances of the alleged contravention;
(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a provision of this Act;
(iv) any other matter ASIC considers relevant.
(5) If ASIC does not comply with subsection (3):
(a) ASIC is taken to have refused to withdraw the infringement notice; and
(b) the refusal is taken to have occurred on the last day of the 14 day period.
Notice of withdrawal
(6) The withdrawal notice must state:
(a) the person’s name and address; and
(b) the day the infringement notice was given; and
(c) the identifying number of the infringement notice; and
(d) that the infringement notice is withdrawn; and
(e) that:
(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
(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision—the person may be prosecuted in a court, or proceedings seeking a pecuniary penalty order may 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 may be brought in relation to the alleged contravention.
Refund of amount if infringement notice withdrawn
(7) If:
(a) ASIC withdraws the infringement notice; and
(b) the person has already paid all or part of the amount stated in the notice;
ASIC must refund to the person an amount equal to the amount paid.
288R Effect of payment of amount
(1) If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the payment period for the notice:
(a) any liability of the person for the alleged contravention is discharged; and
(b) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision—the person may not be prosecuted in a court for the alleged contravention; and
(c) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision—the person may not be prosecuted in a court, and proceedings seeking a pecuniary penalty order may not be brought, in relation to the alleged contravention; and
(d) if the alleged contravention is of a civil penalty provision—proceedings seeking a pecuniary penalty order may not be brought in relation to the alleged contravention; and
(e) the person is not regarded as having admitted guilt or liability for the alleged contravention; and
(f) if the provision is an offence provision—the person is not regarded as having been convicted of the alleged offence.
(2) Subsection (1) does not apply if the notice has been withdrawn.
288S Effect of this Part
This Part does not:
(a) require an infringement notice to be given to a person for an alleged contravention of a provision subject to an infringement notice under this Part; or
(b) affect the liability of a person for an alleged contravention of a provision subject to an infringement notice under this Part if:
(i) the person does not comply with an infringement notice given to the person for the contravention; or
(ii) an infringement notice is not given to the person for the contravention; or
(iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or
(c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of a provision subject to an infringement notice under this Part; or
(d) limit a court’s discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened a provision subject to an infringement notice under this Part.
Part 6‑6—Offences under this Chapter
Division 1—Introduction
289 Guide to this Part
This Part is about offences for non‑compliance with requirements of this Chapter, and other offences in relation to requirements made under this Chapter.
Division 2 includes offences for non‑compliance with the requirements of this Chapter. It also includes other offences relating to compliance and enforcement, including offences relating to giving false information, obstructing the exercise of powers under this Chapter, and contempt of ASIC.
Division 2 also includes rules in relation to self‑incrimination and legal professional privilege.
Division 2—Offences
290 Contraventions of requirements made under this Chapter
(1) A person must not intentionally or recklessly refuse or fail to comply with a requirement made under:
(a) section 253; or
(b) subsection 255(4); or
(c) section 265, 266, 267 or 268; or
(d) subsection 271(9); or
(e) section 272.
Criminal penalty: 2 years imprisonment.
(2) A person must not refuse or fail to comply with a requirement made under subsection 255(1) or 264(2), paragraph 258(2)(a) or subsection 274(4), 284(1), (2) or (4).
Criminal penalty: 30 penalty units.
(3) A person must comply with a requirement made under subsection 257(2).
Criminal penalty: 20 penalty units.
(4) Subsections (1) and (2) do not apply to the extent that the person has a reasonable excuse.
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) Paragraph (1)(d) does not apply to the extent that the person has explained the matter to the best of his or her knowledge or belief.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) Paragraph (1)(e) does not apply to the extent that the person has stated the matter to the best of his or her knowledge or belief.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
291 False information
(1) A person must not:
(a) in purported compliance with a requirement made under this Chapter; or
(b) in the course of an examination of the person;
give information, or make a statement, that is false or misleading in a material particular.
Criminal penalty: 5 years imprisonment.
(2) A person must not, at a hearing, give evidence that is false or misleading in a material particular.
Criminal penalty: 2 years imprisonment.
(3) It is a defence to a prosecution for a contravention of subsection (1) or (2) if it is proved that the defendant, when giving the information or evidence or making the statement, believed on reasonable grounds that it was true and not misleading.
Note: A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4 of the Criminal Code).
293 Disrupting hearings
(1) A person must not engage in conduct that results in the disruption of a hearing.
Criminal penalty: 1 year imprisonment.
(2) A person must not contravene a direction given under subsection 281(1).
Criminal penalty: 120 penalty units.
(3) Subsection (2) does not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) An offence constituted by a contravention of subsection (1) or (2) is punishable on summary conviction.
294 Concealing books relevant to investigation
(1) If ASIC is investigating, or is about to investigate, a matter, a person must not:
(a) in any case—engage in conduct that results in the concealment, destruction, mutilation or alteration of a book relating to that matter; or
(b) if a book relating to that matter is in a particular State or Territory—engage in conduct that results in the taking or sending of the book out of that State or Territory or out of Australia.
Criminal penalty: 5 years imprisonment.
(2) It is a defence to a prosecution for a contravention of subsection (1) if it is proved that the defendant intended neither to defeat the purposes of the Commonwealth credit legislation, nor to delay or obstruct an investigation, or a proposed investigation, by ASIC.
Note: A defendant bears a legal burden in relation to a matter referred to in subsection (2) ( see section 13.4 of the Criminal Code).
295 Self‑incrimination
(1) For the purposes of this Chapter, it is not a reasonable excuse for a person to refuse or fail:
(a) to give information; or
(b) to sign a record; or
(c) to produce a book;
in accordance with a requirement made of the person, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the person or make the person liable to a penalty.
(2) Subsection (3) applies if:
(a) before:
(i) making an oral statement giving information; or