(b) describes the consultation that ASIC undertook in relation to the amendment; and
(c) if the day the amendment is to take effect is later than the day after the day of publication of the amendment—specifies the day the amendment is to take effect.
Revocation of product intervention orders
(8) If a product intervention order is revoked, ASIC must publish notice of the revocation on its website.
301M Remaking product intervention orders
If a product intervention order ceases to be in force or is revoked, ASIC must not remake the order, or make an order in substantially the same terms, unless:
(a) ASIC is satisfied the circumstances have materially changed since the order was made; or
(b) the Minister approves, in writing, the remaking or making of the order.
301N Product intervention orders may require notification
A product intervention order in relation to a credit product may:
(a) require that a specified person who has engaged in a credit activity in relation to the product in respect of a consumer take reasonable steps to notify the consumer:
(i) of the terms of the order; and
(ii) of any other matter specified in regulations made for the purposes of this subparagraph; and
(b) specify requirements in relation to giving those notifications (including requirements as to the periods within which to give those notifications).
301P Enforcement of product intervention orders
(1) A person must not engage in conduct contrary to a product intervention order that is in force in relation to the person.
Civil penalty: 5,000 penalty units.
(2) A person must not engage in conduct contrary to a product intervention order.
Criminal penalty: 5 years imprisonment.
(3) A person who is required by a product intervention order to take reasonable steps to notify a consumer must comply with the requirement.
Civil penalty: 5,000 penalty units.
Note: For this requirement, see section 301N.
(4) A person who is required by a product intervention order to take reasonable steps to notify a consumer must comply with the requirement.
Criminal penalty: 5 years imprisonment.
Note: For this requirement, see section 301N.
(5) Subsections (1), (2), (3) and (4) do not apply if:
(a) the product intervention order is not a legislative instrument; and
(b) the person was not aware, and could not reasonably have been aware, of the order.
(6) If a product intervention order has been served on a person, the person must take all reasonable steps to ensure that other persons who engage in conduct to which the order applies are aware of the order.
(7) If a product intervention order has been served on a person, the person must take all reasonable steps as soon as practicable to ensure that other persons who engage in conduct to which the order applies are aware of the order.
Criminal penalty: 5 years imprisonment.
Part 6‑8—Evidentiary use of certain material
Division 1—Introduction
302 Guide to this Part
This Part is about the evidentiary use and value of certain material.
Division 2 includes rules in relation to the evidentiary value of statements made at examinations, copies or extracts made from certain books, and reports of investigations made under Part 6‑1.
Division 2—Evidentiary use of certain material
303 Statements made at an examination: proceedings against examinee
(1) A statement that a person makes at an examination of the person is admissible in evidence against the person in proceedings unless:
(a) because of subsection 295(3), the statement is not admissible in evidence against the person in the proceedings; or
(b) the statement is not relevant to the proceedings and the person objects to the admission of evidence of the statement; or
(c) the statement (the first statement) is qualified or explained by some other statement made at the examination, evidence of the other statement is not tendered in the proceedings and the person objects to the admission of evidence of the first statement; or
(d) the statement discloses matter in relation to which the person could claim legal professional privilege in the proceedings if this subsection did not apply in relation to the statement, and the person objects to the admission of evidence of the statement.
(2) Subsection (1) applies in relation to proceedings against a person even if it is heard together with proceedings against another person.
(3) If a written record of an examination of a person is signed by the person under subsection 258(2) or authenticated in any other manner prescribed by the regulations, the record is, in proceedings, prima facie evidence of the statements it records, but nothing in this Chapter limits or affects the admissibility in the proceedings of other evidence of statements made at the examination.
304 Statements made at an examination: other proceedings
If direct evidence by a person (the absent witness) of a matter would be admissible in proceedings, a statement that the absent witness made at an examination of the absent witness and that tends to establish that matter is admissible in the proceedings as evidence of that matter:
(a) if it appears to the court or tribunal that:
(i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or
(ii) the absent witness is outside the State or Territory in which the proceedings is being heard and it is not reasonably practicable to secure his or her attendance; or
(iii) all reasonable steps have been taken to find the absent witness but he or she cannot be found; or
(b) if it does not so appear to the court or tribunal—unless another party to the proceedings requires the party tendering evidence of the statement to call the absent witness as a witness in the proceedings and the tendering party does not so call the absent witness.
305 Weight of evidence admitted under section 304
(1) This section applies if evidence of a statement made by a person at an examination of the person is admitted under section 304 in proceedings.
(2) In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:
(a) how long after the matters to which it related the statement was made; and
(b) any reason the person may have had for concealing or misrepresenting a material matter; and
(c) any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.
(3) If the person is not called as a witness in the proceedings:
(a) evidence that would, if the person had been so called, have been admissible in the proceedings for the purpose of destroying or supporting his or her credibility is so admissible; and
(b) evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.
(4) However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceedings and denied the matter in cross‑examination, evidence of the matter would not have been admissible if adduced by the cross‑examining party.
306 Objection to admission of statements made at examination
(1) A party (the adducing party) to proceedings may, not less than 14 days before the first day of the hearing of the proceedings, give to another party to the proceedings written notice that the adducing party:
(a) will apply to have admitted in evidence in the proceedings specified statements made at an examination; and
(b) for that purpose, will apply to have evidence of those statements admitted in the proceedings.
(2) A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.
(3) Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:
(a) stating that the other party objects to specified statements being admitted in evidence in the proceedings; and
(b) specifies, in relation to each of those statements, the grounds of objection.
(4) The period prescribed by subsection (3) may be extended by the court or tribunal or by agreement between the parties concerned.
(5) On receiving a notice given under subsection (3), the adducing party must give to the court or tribunal a copy of:
(a) the notice under subsection (1) and any writing that subsection (2) required to accompany that notice; and
(b) the notice under subsection (3).
(6) If subsection (5) is complied with, the court or tribunal may either:
(a) determine the objections as a preliminary point before the hearing of the proceedings begins; or
(b) defer determination of the objections until the hearing.
(7) If a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceedings to a statement specified in the notice being admitted in evidence in the proceedings, unless:
(a) the other party has, in accordance with subsection (3), objected to the statement being so admitted; or
(b) the court or tribunal gives the other party leave to object to the statement being so admitted.
307 Copies of, or extracts from, certain books
(1) A copy of, or an extract from, a book relating to:
(a) affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity; or
(b) a matter referred to in paragraph 266(1)(d) or (e) or (2)(c) or (d);
is admissible in evidence in proceedings as if the copy were the original book, or the extract were the relevant part of the original book, as the case may be, whether or not the copy or extract was made under section 271.
(2) A copy of, or an extract from, a book is not admissible in evidence under subsection (1) unless it is proved that the copy or extract is a true copy of the book, or of the relevant part of the book, as the case may be.
(3) For the purposes of subsection (2), a person who has compared:
(a) a copy of a book with the book; or
(b) an extract from a book with the relevant part of the book;
may give evidence, either orally or by an affidavit or statutory declaration, that the copy or extract is a true copy of the book or relevant part, as the case may be.
308 Report under Part 6‑1
Subject to section 309, if a copy of a report under Part 6‑1 purports to be certified by ASIC as a true copy of such a report, the copy is admissible in proceedings (other than criminal proceedings) as prima facie evidence of any facts or matters that the report states ASIC to have found to exist.
309 Exceptions to admissibility of report
(1) This section applies if a party to proceedings tenders a copy of a report as evidence against another party.
(2) The copy is not admissible under section 308 in the proceedings as evidence against the other party unless the court or tribunal is satisfied that:
(a) a copy of the report has been given to the other party; and
(b) the other party, and the other party’s lawyer, have had a reasonable opportunity to examine that copy and to take its contents into account in preparing the other party’s case.
(3) Before or after the copy referred to in subsection (1) is admitted in evidence, the other party may apply to cross‑examine, in relation to the report, a specified person who, or 2 or more specified persons each of whom:
(a) was concerned in preparing the report or making a finding about a fact or matter that the report states ASIC to have found to exist; or
(b) whether or not pursuant to a requirement made under this Part, gave information, or produced a book, on the basis of which, or on the basis of matters including which, such a finding was made.
(4) The court or tribunal must grant an application made under subsection (3) unless it considers that, in all the circumstances, it is not appropriate to do so.
(5) If:
(a) the court or tribunal grants an application or applications made under subsection (3); and
(b) a person to whom the application or any of the applications relate, or 2 or more such persons, is or are unavailable, or does not or do not attend, to be cross‑examined in relation to the report; and
(c) the court or tribunal is of the opinion that to admit the copy under section 308 in the proceedings as evidence against the other party without the other party having the opportunity so to cross‑examine the person or persons would unfairly prejudice the other party;
the court or tribunal must refuse so to admit the copy, or must treat the copy as not having been so admitted, as the case requires.
310 Material otherwise admissible
Nothing in this Part renders evidence inadmissible in proceedings in circumstances if it would have been admissible in those proceedings if this Part had not been enacted.
Part 6‑9—Miscellaneous provisions relating to compliance and enforcement
Division 1—Introduction
311 Guide to this Part
This Part includes miscellaneous provisions relating to this Chapter.
Division 2—Miscellaneous provisions relating to compliance and enforcement
312 Requirement made of a body corporate
If a provision of this Chapter empowers a person to make a requirement of a body corporate, the provision also empowers the person to make that requirement of a person who is or has been an officer (within the meaning of section 5 of the ASIC Act) or employee of the body.
313 Evidence of authority
(1) A person (the inspector), other than ASIC, who is about to make, or has made, a requirement of another person under this Chapter (other than Part 6‑5) must, if the other person requests evidence of the inspector’s authority to make the requirement, produce to the other person:
(a) a current identity card that was issued to the inspector by ASIC and incorporates a photograph of the inspector; and
(b) if the requirement will be, or was, made under an authorisation by ASIC—a document that was issued by ASIC and sets out the effect of so much of the authorisation as is relevant to making the requirement; and
(c) otherwise—such evidence (if any) of the inspector’s authority to make the requirement as ASIC determines.
(2) An identity card under paragraph (1)(a) is not a legislative instrument.
314 Giving documents to natural persons
Section 109X of the Corporations Act 2001 applies for the purposes of this Chapter as if a reference in subsection (2) of that section to leaving a document at an address were a reference to leaving it at that address with a person whom the person leaving the document believes on reasonable grounds:
(a) to live or work at that address; and
(b) to have attained the age of 16 years.
315 Place and time for production of books
A provision of this Chapter that empowers a person to require the production of books at a place and time specified by the person is taken:
(a) to require the person to specify a place and time that are reasonable in all the circumstances; and
(b) if it is reasonable in all the circumstances for the person to require the books to be produced forthwith—to empower the person to require the books to be produced forthwith.
316 Application of Crimes Act and Evidence Act
(1) For the purposes of Part III of the Crimes Act 1914, an examination or a hearing is a judicial proceeding.
(2) Part 2.2, sections 69, 70, 71 and 147 and Division 2 of Part 4.6 of the Evidence Act 1995 apply to an examination in the same way that they apply to proceedings to which that Act applies under section 4 of that Act.
317 Allowances and expenses
(1) A person who, pursuant to a requirement made under section 253, appears for examination is entitled to the allowances and expenses prescribed by the regulations (if any).
(2) A person who, pursuant to a summons issued under section 284, appears at a hearing is entitled to be paid:
(a) if the summons was issued at another person’s request—by that other person; or
(b) otherwise—by ASIC;
allowances and expenses prescribed by the regulations (if any).
(3) ASIC may pay such amount as it considers reasonable on account of the costs and expenses (if any) that a person incurs in complying with a requirement made under this Chapter.
318 Expenses of investigation under Part 6‑1
Subject to section 319, ASIC must pay the expenses of an investigation.
319 Recovery of expenses of investigation
(1) If:
(a) a person is convicted of an offence against a law of the Commonwealth, or a law of a referring State or a Territory, in a prosecution; or
(b) a judgment is awarded, or a declaration or other order is made, against a person in proceedings in a court or tribunal of this jurisdiction;
brought as a result of an investigation under Part 6‑1, ASIC may make one of the following orders:
(c) an order that the person pay the whole, or a specified part, of the expenses of the investigation;
(d) an order that the person reimburse ASIC to the extent of a specified amount of such of the expenses of the investigation as ASIC has paid;
(e) an order that the person pay, or reimburse ASIC in relation to, the whole, or a specified part, of the cost to ASIC of making the investigation, including the remuneration of an ASIC member or ASIC staff member concerned in the investigation.
(2) An order under this section must be in writing and must specify when and how the payment or reimbursement is to be made.
(3) A person must comply with an order under this section that is applicable to the person.
Criminal penalty: 120 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) ASIC may recover in a court of competent jurisdiction as a debt due to ASIC so much of the amount payable under an order made under this section as is not paid in accordance with the order.
(6) A report under Part 6‑1 may include recommendations about the making of orders under this section.
(7) An order made under this section is not a legislative instrument.