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CORPORATIONS ACT 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4B - CIVIL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS  

SECTION 1317G  PECUNIARY PENALTY ORDERS  

Corporation/scheme civil penalty provisions

1317G(1)  

A Court may order a person to pay the Commonwealth a pecuniary penalty of up to $200,000 if:


(a) a declaration of contravention by the person has been made under section 1317E ; and


(aa) the contravention is of a corporation/scheme civil penalty provision; and
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(b) the contravention:


(i) materially prejudices the interests of the corporation or scheme, or its members; or

(ii) materially prejudices the corporation ' s ability to pay its creditors; or

(iii) is serious.

Financial services civil penalty provisions

1317G(1A)  

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A Court may order a person to pay the Commonwealth a pecuniary penalty of the relevant maximum amount if:


(a) a declaration of contravention by the person has been made under section 1317E ; and


(b) the contravention is of a financial services civil penalty provision not dealt with in subsections (1E) to (1G); and
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(c) the contravention:


(i) materially prejudices the interests of acquirers or disposers of the relevant financial products; or

(ii) materially prejudices the issuer of the relevant financial products or, if the issuer is a corporation or scheme, the members of that corporation or scheme; or

(iii) is serious.

1317G(1B)  

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The relevant maximum amount is:


(a) $200,000 for an individual; or


(b) $1 million for a body corporate.

Responsibilities of secretaries etc. for certain corporate contraventions

1317G(1BA)  

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Without limiting subsection (1), if a declaration of contravention by a person of subsection 188(1) or (2) has been made under section 1317E , a Court may order the person to pay the Commonwealth a pecuniary penalty of up to $3,000.

[ CCH Note: Act No 180 of 2012, s 3, Sch 7[1] contained the following application provision (which was effective 11 December 2012):

Application of amendments made by this Act

The amendments made by this Act apply in relation to an act or omission by a body corporate occurring on or after the day this Act commences.

]

Market integrity rules and client money reporting rules

1317G(1C)  

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A Court may order a person to pay the Commonwealth a pecuniary penalty if:


(a) a declaration of contravention by the person has been made under section 1317E ; and


(b) the contravention is of subsection 798H(1) (complying with market integrity rules) or 981M(1) (complying with client money reporting rules).
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1317G(1D)  

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The maximum amount that the court may order the person to pay for contravening a market integrity rule or client money reporting rule is the penalty amount set out in the market integrity rules or client money reporting rules for the rule.

Derivative transaction rules and derivative trade repository rules

1317G(1DA)  

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A Court may order a person to pay the Commonwealth a pecuniary penalty if:


(a) a declaration of contravention by the person has been made under section 1317E ; and


(b) the contravention is of:


(i) section 901E (complying with derivative transaction rules); or

(ii) section 903D (complying with derivative trade repository rules).

1317G(1DB)  

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The maximum amount that the court may order the person to pay for contravening a derivative transaction rule, or a derivative trade repository rule, is the penalty amount specified in those rules for the rule that has been contravened.

Financial benchmark rules and compelled financial benchmark rules

1317G(1DC)  

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A Court may order a person to pay the Commonwealth a pecuniary penalty if:


(a) a declaration of contravention by the person has been made under section 1317E ; and


(b) the contravention is of subsection 908CF(1) (complying with rules about financial benchmarks).

1317G(1DD)  

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The maximum amount that the court may order the person to pay for contravening a financial benchmark rule, or a compelled financial benchmark rule, is the penalty amount specified in those rules for the rule that has been contravened.

Manipulating financial benchmarks

1317G(1DE)  

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A Court may order a person to pay the Commonwealth a pecuniary penalty if:


(a) a declaration of contravention by the person has been made under section 1317E; and


(b) the contravention is of subsection 908DA(1) or (2) or 908DB(1) or (2) .

1317G(1DF)  

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The maximum amount that the court may order the person to pay for contravening a provision mentioned in paragraph (1DE)(b) is:


(a) $200,000 for an individual; or


(b) $1 million for a body corporate.

Best interests obligations and remuneration

1317G(1E)  

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A Court may order a person to pay the Commonwealth a pecuniary penalty if:


(a) a declaration of contravention by the person has been made under section 1317E ; and


(b) the contravention is of one of the following provisions:


(i) subsections 961K(1) and (2) (financial services licensee responsible for breach of certain best interests duties);

(ii) section 961L (financial services licensee to ensure compliance with certain best interests duties);

(iii) subsection 961Q(1) (authorised representative responsible for breach of certain best interests duties);

(iv) section 962P (charging ongoing fee after termination of ongoing fee arrangement);

(v) subsection 962S(1) (fee recipient must give fee disclosure statement);

(vi) subsections 963E(1) and (2) (financial services licensee must not accept conflicted remuneration);

(vii) section 963F (financial services licensee must ensure representatives do not accept conflicted remuneration);

(viii) subsection 963G(1) (authorised representative must not accept conflicted remuneration);

(ix) section 963J (employer must not pay employees conflicted remuneration);

(x) section 963K (financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative);

(xi) subsection 964A(1) (platform operator) must not accept volume-based shelf-space fees);

(xii) subsections 964D(1) and (2) (financial services licensee must not charge asset-based fees on borrowed amounts);

(xiii) subsection 964E(1) (authorised representative must not charge asset-based fees on borrowed amounts);

(xiv) section 965 (anti-avoidance of Part 7.7A provisions).

1317G(1F)  

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The maximum amount that the court may order the person to pay for contravening a provision mentioned in paragraph (1E)(b) (except a provision mentioned in subparagraph (1E)(b)(iv) or (v)) is:


(a) $200,000 for an individual; or


(b) $1 million for a body corporate.

1317G(1G)  

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The maximum amount that the court may order the person to pay for contravening a provision mentioned in subparagraph (1E)(b)(iv) or (v) is:


(a) $50,000 for an individual; or


(b) $250,000 for a body corporate.

Penalty a civil debt etc.

1317G(2)  

The penalty is a civil debt payable to ASIC on the Commonwealth ' s behalf. ASIC or the Commonwealth may enforce the order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

 



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