Commonwealth Consolidated Acts Commonwealth Consolidated ActsDeclaration of contravention
(1) If a Court is satisfied that a person has contravened a civil penalty provision, the Court must make a declaration of contravention.
(2) The declaration must specify the following:
(a) the Court that made the declaration;
(b) the civil penalty provision that was contravened;
(c) the person who contravened the provision;
(d) the conduct that constituted the contravention;
(e) if the contravention is of a corporation/scheme civil penalty provision--the corporation, registered scheme or notified foreign passport fund to which the conduct related;
(f) if the contravention is of subsection 1211B(1) or (2) (complying with the Passport Rules for this jurisdiction)--the passport fund in relation to which the obligation was imposed on the person;
(g) if the contravention is of subsection 670A(4), 727(6), 728(4) or 1309(12) (misleading statements etc.)--the corporation, registered scheme or notified foreign passport fund to which the conduct related.
Meanings of civil penalty provision , corporation/scheme civil penalty provision and financial services civil penalty provision
(3) In this Act:
(a) a provision specified in column 1 of the following table is a civil penalty provision ; and
(b) a civil penalty provision categorised as a corporation/scheme provision in column 3 of the following table is a corporation/scheme civil penalty provision ; and
(c) a civil penalty provision categorised as a financial services provision in column 3 of the following table is a financial services civil penalty provision ; and
(d) a provision that is specified as having no categorisation in column 3 of the following table is neither a corporation/scheme civil penalty provision nor a financial services civil penalty provision .
|
Column 1 |
Column 2 Brief description of the provision |
Column 3 Categorisation of the provision |
|
subsections 180(1), 181(1) and (2), 182(1) and (2) and 183(1) and (2) |
officers' duties |
corporation/scheme |
|
subsections 188(1) and (2) |
responsibilities of secretaries etc. for corporate contraventions |
corporation/scheme |
|
subsection 209(2) |
related parties rules |
corporation/scheme |
|
subsections 254L(2), 256D(3), 259F(2) and 260D(2) |
share capital transactions |
corporation/scheme |
|
subsections 344(1) and (1A) |
requirements for financial reports |
corporation/scheme |
|
subsection 458F(1) |
obligation to declare and publish notice if company not eligible for temporary restructuring relief |
corporation/scheme |
|
subsection 588G(2) |
insolvent trading |
corporation/scheme |
|
subsection 588GAB(2) |
preventing creditor-defeating dispositions |
corporation/scheme |
|
subsection 588GAC(2) |
procuring creditor-defeating dispositions |
corporation/scheme |
|
subsections 596AC(1), (2), (3) and (4) |
avoiding employee entitlements |
corporation/scheme |
|
subsection 601ED(8) |
obligation to be registered if operating certain managed investment schemes |
corporation/scheme |
|
subsection 601FC(5) |
duties of responsible entity |
corporation/scheme |
|
subsection 601FD(3) |
duties of officers of responsible entity |
corporation/scheme |
|
subsection 601FE(3) |
duties of employees of responsible entity |
corporation/scheme |
|
subsection 601FG(2) |
acquisition of interest in scheme by responsible entity |
corporation/scheme |
|
subsection 601JD(3) |
duties of members |
corporation/scheme |
|
subsection 601UAA(2) |
duties of officers of licensed trustee company |
corporation/scheme |
|
subsection 601UAB(2) |
duties of employees of licensed trustee company |
corporation/scheme |
|
subsection 641A(1) |
use or disclosure of information obtained from target |
uncategorised |
|
subsection 670A(4) |
misstatements in, or omissions from, takeover and compulsory acquisition and buy-out documents |
uncategorised |
|
subsections 674A(2), 674A(3), 675A(2) and 675A(3) |
continuous disclosure--knowledge, recklessness or negligence |
financial services |
|
subsection 727(6) |
offering securities without a current disclosure document |
uncategorised |
|
subsection 728(4) |
misstatement in, or omission from, disclosure document |
uncategorised |
|
subsection 791A(3) |
need for an Australian market licence |
uncategorised |
|
subsection 792A(2) |
general obligations of market licensees |
uncategorised |
|
subsection 792B(7) |
market licensee to notify ASIC of certain matters |
uncategorised |
|
subsection 798H(1) |
complying with market integrity rules |
uncategorised |
|
subsection 820A(3) |
need for an Australian CS facility licence |
uncategorised |
|
subsection 821A(2) |
general obligations of CS facility licensees |
uncategorised |
|
subsection 821B(6) |
uncategorised | |
|
complying with CS services rules |
uncategorised | |
|
obligation to notify ASIC of inability to meet obligations under section 828C |
uncategorised | |
|
subsection 853F(3) |
obligations on disqualified individuals |
uncategorised |
|
complying with derivative transaction rules |
uncategorised | |
|
complying with derivative trade repository rules |
uncategorised | |
|
subsection 904A(2) |
general obligations of derivative trade repository licensees |
uncategorised |
|
subsection 904C(1A) |
obligation to notify ASIC of inability to meet obligations under section 904A |
uncategorised |
|
subsection 905A(3) |
need to hold a licence to operate a derivative trade repository |
uncategorised |
|
subsection 908CF(1) |
complying with financial benchmark rules or compelled financial benchmark rules |
uncategorised |
|
subsections 908DA(1) and (2) and 908DB(1) and (2) |
manipulating financial benchmarks |
uncategorised |
|
subsection 911A(5B) |
need for an Australian financial services licence |
uncategorised |
|
subsection 911B(4) |
providing financial services on behalf of a person who carries on a financial services business |
uncategorised |
|
subsection 912A(5A) |
general obligations of a financial services licensee |
uncategorised |
|
subsection 912DAA(7) |
failure by a financial services licensee to report to ASIC a reportable situation in relation to the licensee |
uncategorised |
|
subsection 912DAB(8) |
failure by a financial services licensee to report to ASIC a reportable situation in relation to another financial services licensee, or to give a copy of the report to the other financial services licensee |
uncategorised |
|
subsection 912DAC(4) |
failure by a financial services licensee to notify ASIC that the licensee has become, or ceased to be, a participant in a licensed market or a licensed CS facility |
uncategorised |
|
subsection 912EA(5) |
failure by a financial services licensee to notify an affected client of a reportable situation |
uncategorised |
|
subsection 912EB(9) |
failure by a financial services licensee to investigate a reportable situation, notify an affected client of the outcome of the investigation or compensate an affected client |
uncategorised |
|
subsection 920C(4) |
need to comply with a banning order |
uncategorised |
|
subsection 9 21BA(5) |
uncategorised | |
|
subsection 9 21BB(4) |
relevant providers who provide tax (financial) advice services to meet requirement for continuing professional development |
uncategorised |
|
subsection 921E(3) |
relevant providers to comply with the Code of Ethics |
uncategorised |
|
subsection 9 21F(8) |
requirements relating to provisional relevant providers |
uncategorised |
|
subsection 921L(2) |
relevant providers to comply with direction under paragraph 921L (1)(a) |
uncategorised |
|
unregistered relevant providers not to provide personal advice |
uncategorised | |
|
subsection 921Z(4) |
financial services licensees not to continue to authorise unregistered relevant providers to provide personal advice |
uncategorised |
|
subsection 922M(5) |
need to comply with obligation to notify ASIC |
uncategorised |
|
subsection 941A(3) |
obligation on financial services licensee to give a Financial Services Guide if financial service provided to person as a retail client |
uncategorised |
|
subsection 941B(4) |
obligation on authorised representative to give a Financial Services Guide if financial service provided to person as a retail client |
uncategorised |
|
subsection 946A(4) |
obligation to give client a Statement of Advice |
uncategorised |
|
subsection 948C(2) |
obligation to give client a Cash Settlement Fact Sheet |
uncategorised |
|
subsection 952E(9) |
giving a defective disclosure document or statement (whether or not known to be defective) |
uncategorised |
|
subsection 952H(3) |
financial services licensee failing to ensure authorised representative gives disclosure documents or statements as required |
uncategorised |
|
subsections 961K(1) and (2) |
financial services licensee responsible for breach of certain best interests duties |
uncategorised |
|
financial services licensee to ensure compliance with certain best interests duties |
uncategorised | |
|
subsection 961Q(1) |
authorised representative responsible for breach of certain best interests duties |
uncategorised |
|
subsection 962G(4) |
fee recipient must give client a fee disclosure statement |
uncategorised |
|
charging ongoing fee after termination of ongoing fee arrangement |
uncategorised | |
|
subsection 962R(4) |
fee recipient must obtain consent to deduct ongoing fees from an account |
uncategorised |
|
subsection 962S(5) |
fee recipient must obtain consent to arrange for deductions of ongoing fees from an account |
uncategorised |
|
subsection 962S(8) |
fee recipient must not accept payment of ongoing fees resulting from a deduction from an account without consent |
uncategorised |
|
subsection 962U(3) |
fee recipient to confirm receipt of variation or withdrawal of consent for deductions of ongoing fees |
uncategorised |
|
subsection 962V(3) |
fee recipient to give written notice of cessation of consent to account provider |
uncategorised |
|
subsections 963E(1) and (2) |
financial services licensee responsible for breach of ban on conflicted remuneration |
financial services |
|
financial services licensee must ensure representatives do not accept conflicted remuneration |
financial services | |
|
subsection 963G(1) |
authorised representative must not accept conflicted remuneration |
financial services |
|
employer must not pay employees conflicted remuneration |
financial services | |
|
financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative |
financial services | |
|
person covered by section 963M must pay amount etc. in accordance with regulations |
financial services | |
|
subsection 964A(1) |
platform operator must not accept volume-based shelf-space fees |
financial services |
|
subsections 964D(1) and (2) |
financial services licensee responsible for breach of asset-based fees on borrowed amounts |
financial services |
|
subsection 964E(1) |
authorised representative must not charge asset-based fees on borrowed amounts |
financial services |
|
anti-avoidance of Part 7.7A provisions |
financial services | |
|
subsection 981B(3) |
obligation to pay money into an account |
uncategorised |
|
subsection 981C(2) |
various matters relating to accounts maintained for the purposes of section 981B |
uncategorised |
|
subsection 981M(1) |
complying with client money reporting rules |
uncategorised |
|
subsection 985E(1) |
issuing or increasing limit of margin lending facility without having made assessment etc. |
financial services |
|
subsection 985H(1) |
failure to assess a margin lending facility as unsuitable |
financial services |
|
subsection 985J(1) |
failure to give assessment to retail client if requested before issue of facility or increase in limit |
financial services |
|
subsection 985J(2) |
failure to give assessment to retail client if requested after issue of facility or increase in limit |
financial services |
|
subsection 985J(4) |
demanding payment to give assessment to retail client |
financial services |
|
subsection 985K(1) |
issuing or increasing limit of margin lending facility if unsuitable |
financial services |
|
making issue of margin lending facility conditional on retail client agreeing to receive communications through agent |
financial services | |
|
subsection 985M(1) |
failure to notify of margin call where there is no agent |
financial services |
|
subsection 985M(2) |
failure to notify of margin call where there is an agent |
financial services |
|
subsection 993D(4) |
failure to pay loan money into an account as required |
financial services |
|
subsections 994B(2) and (9) |
failure to make and make available target market determinations for financial products |
financial services |
|
subsection 994C(2) |
failure to review target market determinations |
financial services |
|
subsection 994C(4) |
engaging in retail product distribution conduct in relation to financial products before review of target market determinations |
financial services |
|
subsection 994C(5) |
failure to inform regulated persons of obligations not to engage in retail product distribution conduct in relation to financial products before review of target market determinations |
financial services |
|
subsection 994C(7) |
engaging in retail product distribution conduct in relation to financial products before review of target market determinations |
financial services |
|
engaging in retail product distribution conduct where no target market determination |
financial services | |
|
subsections 994E(1) and (3) |
ensuring that retail product distribution conduct is consistent with target market determinations |
financial services |
|
subsections 994F(1) and (3) |
failure to keep records |
financial services |
|
subsections 994F(4), (5) and (6) |
failure to report complaints and other information |
financial services |
|
subsection 994F(8) |
failure to comply with requirements of regulations |
financial services |
|
failure to notify ASIC |
financial services | |
|
subsection 994H(3) |
financial services | |
|
subsections 994J(7) and (8) |
failure to comply with stop order obligations |
financial services |
|
subsection 1012A(5) |
obligation to give Product Disclosure Statement--personal advice recommending particular financial product |
financial services |
|
subsection 1012B(6) |
obligation to give Product Disclosure Statement--situations related to issue of financial products |
financial services |
|
subsection 1012C(11) |
obligation to give Product Disclosure Statement--offers related to sale of financial products |
financial services |
|
subsection 1017BA(4B) |
trustee of regulated superannuation funds--obligation to make product dashboard publicly available |
financial services |
|
subsection 1017BB(5AA) |
trustee of registrable superannuation entities--obligation to make information relating to investment of assets publicly available |
financial services |
|
subsection 1020A(5) |
offers etc. relating to certain managed investment schemes not to be made in certain circumstances |
financial services |
|
subsection 1021E(8) |
preparer of defective disclosure document or statement giving the document or statement (whether or not known to be defective) |
financial services |
|
subsection 1021G(3) |
financial services licensee failing to ensure authorised representative gives etc. disclosure documents or statements as required |
financial services |
|
subsection 1023P(1) |
engaging in conduct contrary to a product intervention order |
financial services |
|
subsection 1023P(2) |
failure to notify retail clients |
financial services |
|
subsection 1023P(4) |
failure to take reasonable steps to make others aware of product intervention order |
financial services |
|
subsection 1023S(1), (2), (3) or (4) |
schemes for avoiding certain product intervention orders |
uncategorised |
|
market manipulation |
financial services | |
|
subsection 1041B(1) |
false trading and market rigging--creating a false or misleading appearance of active trading etc. |
financial services |
|
subsection 1041C(1) |
false trading and market rigging--artificially maintaining etc. market price |
financial services |
|
dissemination of information about illegal transactions |
financial services | |
|
subsections 1043A(1) and (2) |
insider trading |
financial services |
|
failure to comply with an enforceable code provision |
financial services | |
|
a provision of a regulation made under section 1101AD that includes the words "civil penalty" and one or more amounts in penalty units at the foot of the provision |
failure to comply with a civil penalty provision of a mandatory code of conduct |
financial services |
|
subsections 1211B(1) and (2) |
contravening the Passport Rules |
uncategorised |
|
subsection 1224D(1) |
duties owed by director of a CCIV |
corporation/scheme |
|
subsection 1224D(2) |
duties owed by director of a retail CCIV |
corporation/scheme |
|
subsection 1224D(4) |
duties owed by director of a wholesale CCIV |
corporation/scheme |
|
subsection 1224P(2) |
acquisition of share in CCIV by corporate director of retail CCIV |
corporation/scheme |
|
subsection 1225(1) |
duties owed by officers of corporate director of retail CCIV |
corporation/scheme |
|
subsection 1225F(1) |
duties owed by employees of corporate director of retail CCIV |
corporation/scheme |
|
subsection 1230F(5) |
share redemption requirements for CCIVs |
corporation/scheme |
|
subsection 1230S(4) |
cross-investment restrictions or requirements for CCIVs |
corporation/scheme |
|
subsection 1231B(4) |
unauthorised reduction of share capital by a CCIV |
corporation/scheme |
|
subsection 1231J(5) |
directly acquiring own shares |
corporation/scheme |
|
subsections 1234J(1), (2) and (3) |
corporation/scheme | |
|
subsection 1272C(5) |
requirement to have a director identification number |
financial services |
|
subsection 1272D(4) |
requirement to apply for a director identification number |
financial services |
|
subsection 1272G(4) |
applying for additional director identification numbers |
financial services |
|
subsection 1272H(2) |
misrepresenting a director identification number |
financial services |
|
subsections 1308(4) and (5) |
false or misleading documents |
uncategorised |
|
subsection 1309(12) |
false information |
uncategorised |
|
subsection 1317AAE(1) |
breach of confidentiality of identity of whistleblower |
uncategorised |
|
subsections 1317AC(1), (2) and (3) |
victimisation or threatened victimisation of whistleblower |
uncategorised |
|
subclause 29(6) of Schedule 4 |
disclosure for proposed demutualisation |
corporation/scheme |
Note 1: Once a declaration has been made, ASIC can seek a pecuniary penalty order (section 1317G) or (in the case of a corporation/scheme civil penalty provision and certain other civil penalty provisions) a disqualification order (section 206C).
Note 2: The descriptions of matters in column 2 are indicative only.
Note 3: Section 908DD contains some matters relevant for making declarations of contravention for subsections 908DA(1) and (2) and 908DB(1) and (2) (about manipulating financial benchmarks).
Attempt and involvement in contravention treated in same way as actual contravention
(4) A person who:
(a) attempts to contravene a civil penalty provision; or
(b) is involved in a contravention of a civil penalty provision;
is taken to have contravened the provision.