Part 3B Australian Securities and Investments Commission

Act & Section

Part 3B Australian Securities and Investments Commission

Type

Criminal Penalties regime

Process

ASIC Act Penalties framework

What

How penalties are applied under the ASIC Act

Observations

s.93C: Punishments available to the court are not to exceed those stated in the section of the ASIC Act that sets out the offence.

s.93D Penalty applicable to an offence committed by an individual is, where a fine is specified, the fine, or where imprisonment is specified, either a term of imprisonment, the fine or both.

If a term of imprisonment is the only punishment specified and the maximum term is less than 10 years, a fine may be imposed using the following formula:

The term of imprisonment expressed in month x 10

[e.g. “2 years imprisonment = 24 months, therefore the fine would be:

24 x 10 = 240 penalty units]

If a term of imprisonment is the only punishment specified and the maximum term is 10 years or more, the fine is the larger of:

(a)   4500 penalty units; and

(b)   if the court can determine the benefit derived and detriment avoided because of the offence—that amount multiplied by 3.

The Scheme under s.93D applies to an individual unless the offence section outlines another specific regime to be implemented.

s.93E Penalty applicable to an offence committed by a body corporate is, where a fine only is stated, that fine multiplied by 10: e.g. 30 penalty units = 300 penalty units.

For an offence where a period of imprisonment is specified, the fine is calculated as set out below.

If the term of imprisonment is less than 10 years, the fine is calculated by using the individual fine calculation as set out above and multiple by a further factor of 10:

The term of imprisonment expressed in month x 10 (to arrive at the individual “rate”, then multiplied by a further factor of 10.

[e.g. “2 years imprisonment = 24 months, therefore the fine would be:

(24 x 10) x 10 = (240 penalty units for the individual) and 2,400 for a corporation.

If a term of imprisonment is the only punishment specified and the maximum term is 10 years or more, the fine is the larger of:

(a)   45,000 penalty units; and

(b)   if the court can determine the benefit derived and detriment avoided because of the offence—that amount multiplied by 3, and

(c)    10% of the annual turnover of the body corporate for the 12-month period ending at the end of the month in which the body corporate committed, or began committing, the offence.

The Scheme under s.93E applies to an individual unless the offence section outlines another specific regime to be implemented.

s.93F Meaning of benefit derived and detriment avoided because of an offence

is, the sum of:

(a)   The total of all benefits obtained by one or more people and that are reasonably consequent on the offending; and

(b)   The total value of the detriments avoided by one or more people and that are reasonably consequent on the offending.

s.93G Where is the penalty for an offence specified? The penalty for an offence is specified in the provision creating the offence, or such other location as that provision specifies.

A penalty is not specified for an offence if it is a consequence for committing the offence that is not a punishment on conviction for the offence.

The following consequences are not punishments:

(a)   A pecuniary penalty order for contravention of a civil penalty provision that relates to the conduct giving rise to the offence;

(b)   An infringement notice in relation to the commission of an alleged offence;

(c)    Administrative consequences for the commission of an offence, e.g.:

                         i.         Disqualification from any office; or

                       ii.         Affects on any licence; or

                      iii.         Other actions by ASIC under the Corporations legislation;

(d)   Any order under the law (including general law) to refund money, pay compensation, relinquish a benefit or make any other payment consequent on the offending;

(e)   Any injunction directing a person to take or refrain from taking, any action consequent on  the offending.

s.93H If no penalty is specified, if the offence is strict liability, 20 penalty units is taken to be specified as the penalty.