Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

CORPORATIONS ACT 2001 - SECT 1317E

Declaration of contravention of a civil penalty provision

Declaration 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 .

 

Civil penalty provisions

Column 1

Provision

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)

CS facility licensee to notify ASIC of certain matters

uncategorised

section   828C

complying with CS services rules

uncategorised

section   828D

obligation to notify ASIC of inability to meet obligations under section   828C

uncategorised

subsection   853F(3)

obligations on disqualified individuals

uncategorised

section   901E

complying with derivative transaction rules

uncategorised

section   903D

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   921BA(5)

relevant providers to meet education and training standards

uncategorised

subsection   921BB(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   921F(8)

requirements relating to provisional relevant providers

uncategorised

subsection   921L(2)

relevant providers to comply with direction under paragraph   921L(1)(a)

uncategorised

section   921Y

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

section   961L

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

section   962P

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

section   963F

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

section   963J

employer must not pay employees conflicted remuneration

financial services

section   963K

financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative

financial services

section   963P

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

section   965

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

section   985L

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

section   994D

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

section   994G

failure to notify ASIC

financial services

subsection   994H(3)

failure to provide information to ASIC on request

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

section   1041A

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

section   1041D

dissemination of information about illegal transactions

financial services

subsections   1043A(1) and (2)

insider trading

financial services

section   1101AC

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)

holding of sub - fund assets of a CCIV

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.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback