Offences
- Misleading or deceptive conduct
- False or misleading representations
- False or misleading representations in relation to financial products that involve interests in land
- Cash price to be stated in certain circumstances
- Offering rebates, gifts, prizes etc
- Certain misleading conduct in relation to financial services
- Bait advertising
- Referral selling
- Accepting payment without intending or being able to supply as ordered
- Pyramid selling of financial products
- Unsolicited credit cards and debit cards
- Assertion of right to payment for unsolicited financial services etc.
- Assertion of right to payment for unauthorised advertisements
- Power of Court to prohibit payment or transfer of money or other property
- Examination to take place in private
- Examinee’s lawyer may attend
- Record of examination
- Giving to other persons copies of record
- Copies given subject to conditions
- ASIC may inspect books without charge
- Notice to produce books about affairs of body corporate or registered scheme
- Notice to auditors concerning information and books
- Notice to registered liquidators concerning information and books
- Notice to produce books about financial products
- Notice to produce books about financial services
- Notice to produce documents in person’s possession
- ASIC may authorise persons to require production of books, giving of information etc.
- Powers where books produced or seized
- Powers where books not produced
- Power to require person to identify property of body corporate
- ASIC may give copy of book relating to registered scheme to another person
- ASIC may give information and books in relation to Chapter 5 bodies corporate
- Acquisitions and disposals of financial products
- Acquisitions and disposals of trust property by trustee companies
- Exercise of certain powers of ASIC in relation to financial products
- Exercise of certain powers of ASIC in relation to trust property acquired or disposed of by trustee company
- Disclosures to take place in private
- Lawyer of person making disclosure may attend
- ASIC may cause prosecution to be begun
- Who may be present when hearing takes place in private
- Power to summon witnesses and take evidence
- Contempt of ASIC
- Concealing books relevant to investigation
- Legal professional privilege
- Notification of interests to ASIC
- Confidentiality
- Power to summon witnesses and take evidence
- False evidence
- Contempt of Panel
- Hearings
- Hearings
- Contempt of Disciplinary Board
- Financial Reporting Council’s information gathering powers
- Offences committed partly in and partly out of the jurisdiction
- S.12GB Offences against Subdivision D (Unconscionable conduct and consumer protection in relation to financial services)
- S.12GBCG Civil proceedings after criminal proceedings
- S.12GC Enforcement and recovery of certain fines against Subdivision D (Unconscionable conduct and consumer protection in relation to financial services)
- S.12GI Defences (Unconscionable conduct and consumer protection in relation to financial services)
- 12GLB ASIC Act Punitive orders requiring adverse publicity (Unconscionable conduct and consumer protection in relation to financial services)
- Part 3B Australian Securities and Investments Commission
- ASIC 19 Notice requiring appearance for examination (and the procedure)
- s.68 Australian Securities and Investments Commission
- s.69 Australian Securities and Investments Commission
- s.91 Australian Securities and Investments Commission
- 223 Australian Securities and Investments Commission
- 258 Australian Securities and Investments Commission
Part 3B Australian Securities and Investments Commission
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Act & Section |
Part 3B Australian Securities and Investments Commission |
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Type |
Criminal Penalties regime |
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Process |
ASIC Act Penalties framework |
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What |
How penalties are applied under the ASIC Act |
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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. |