CORPORATE LAW REFORM ACT 1992 No. 210 of 1992 - SECT 17
CORPORATE LAW REFORM ACT 1992 No. 210 of 1992 - SECT 17
17. After section 1317C of the Corporations Law the following Part is inserted: "PART 9.4B - CIVIL AND CRIMINAL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS "Division 1 - Preliminary Civil penalty provisions "1317DA. Each of the following provisions of the Corporations Law of this jurisdiction is a civil penalty provision: Subsections 232(2), (4), (5) and (6); Subsections 243ZE(2) and (3); Subsection 318(1); Section 588G. Person involved in contravening a provision taken to have contravened the provision "1317DB. For the purposes of this Part, a person who is involved in a contravention of a particular provision of this Law or a corresponding law is taken to have contravened that provision. Contravention committed partly in, and partly out of, the jurisdiction "1317DC. Where: (a) a person does or omits to do an act outside this jurisdiction; and (b) if the person had done or omitted to do that act in this jurisdiction, the person would, because of also having done or omitted to do an act in this jurisdiction, have contravened a civil penalty provision; the person contravenes that provision. Reciprocity in relation to contraventions "1317DD. Where: (a) a person does or omits to do an act in this jurisdiction; and (b) if the person had done or omitted to do that act in another jurisdiction, the person would have contravened a provision of the Corporations Law of another jurisdiction that corresponds to a civil penalty provision; the person contravenes that civil penalty provision. "Division 2 - Civil penalty orders Court may make civil penalty orders "1317EA.(1) This section applies if the Court is satisfied that a person has contravened a civil penalty provision, whether or not the contravention also constitutes an offence because of section 1317FA. Note: Section 1317HF provides that a certificate by a court that the court has declared a person to have contravened a civil penalty provision is conclusive evidence of the contravention. "(2) The Court is to declare that the person has, by a specified act or omission, contravened that provision in relation to a specified corporation, but need not so declare if such a declaration is already in force under Division 4. "(3) The Court may also make against the person either or both of the following orders in relation to the contravention: (a) an order prohibiting the person, for such period as is specified in the order, from managing a corporation; (b) an order that the person pay to the Commonwealth a pecuniary penalty of an amount so specified that does not exceed $200,000. "(4) The Court is not to make an order under paragraph (3)(a) if it is satisfied that, despite the contravention, the person is a fit and proper person to manage a corporation. "(5) The Court is not to make an order under paragraph (3)(b) unless it is satisfied that the contravention is a serious one. "(6) The Court is not to make an order under paragraph (3)(b) if it is satisfied that an Australian court has ordered the person to pay damages in the nature of punitive damages because of the act or omission constituting the contravention. "(7) Section 91A defines what, for the purposes of this section, constitutes managing a corporation. Who may apply for civil penalty order "1317EB.(1) An application for a civil penalty order may be made by: (a) the Commission; or (b) a Commission delegate; or (c) some other person authorised in writing by the Minister, under this paragraph, to make the application. "(2) A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to applications in relation to specified contraventions, or all contraventions, of civil penalty provisions. "(3) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983 or of that Act as applying as a law of this jurisdiction. Time limit for application "1317EC. An application for a civil penalty order may be made within 6 years after the contravention. Application for civil penalty order is a civil proceeding "1317ED.(1) In hearing and determining an application for a civil penalty order, the Court is to apply the rules of evidence and procedure that it applies in hearing and determining civil matters. "(2) Subsection (1) has effect subject to the rules. Person must comply with order not to manage corporation "1317EF.(1) A person who is subject to a civil penalty disqualification must not manage a corporation except with the leave of the Court. "(2) Section 91A defines what, for the purposes of this section, constitutes managing a corporation. "(3) When granting leave under subsection (1), the Court may impose such conditions or restrictions as it thinks appropriate. "(4) A person must not contravene a condition or restriction imposed under subsection (3). "(5) A person may only apply for leave under subsection (1) if he or she has given the Commission at least 21 days notice of the application. "(6) On the application of the Commission, the Court may revoke leave granted under subsection (1). Enforcement of order to pay pecuniary penalty "1317EG. Where the Court makes under paragraph 1317EA(3)(b) an order that a person pay a pecuniary penalty: (a) the penalty is payable to the Commission on the Commonwealth's behalf; and (b) the Commission or the Commonwealth may enforce the order as if it were a judgment of the Court. Commission may require a person to give assistance in connection with application for civil penalty order "1317EH.(1) This section applies where it appears to the Commission that a person may have contravened a civil penalty provision. "(2) If the Commission, on reasonable grounds, suspects or believes that a person can give information relevant to an application for a civil penalty order in relation to the contravention, whether or not such an application has been made, the Commission may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application. "(3) Subsection (2) does not apply in relation to: (a) the person referred to in subsection (1); or (b) a person who is or has been that person's lawyer. "(4) Where a person fails to give assistance as required under subsection (2): (a) the person contravenes this subsection; and (b) the Court may, on the application of the Commission, order the person to comply with the requirement as specified in the order. "(5) Nothing in paragraph (4)(b) affects any penalty for a contravention of subsection (4). "(6) Nothing in this section limits, or is limited by: (a) section 1317; or (b) section 49 of the ASC Law. "Division 3 - Criminal proceedings When contravention of civil penalty provision is an offence "1317FA.(1) A person is guilty of an offence if the person contravenes a civil penalty provision: (a) knowingly, intentionally or recklessly; and (b) either: (i) dishonestly and intending to gain, whether directly or indirectly, an advantage for that or any other person; or (ii) intending to deceive or defraud someone. "(2) A person who contravenes a civil penalty provision is not guilty of an offence except as provided by subsection (1). Application for civil penalty order precludes later criminal proceedings "1317FB. Criminal proceedings for an offence constituted by a contravention of a civil penalty provision cannot be begun if a person has already applied for a civil penalty order in relation to the same contravention, even if the application has been finally determined or otherwise disposed of. "Division 4 - Effect of criminal proceedings on application for civil penalty order When Division applies "1317GA. This Division applies if criminal proceedings are begun against a person for an offence constituted by a contravention of a civil penalty provision. Effect during criminal proceedings "1317GB.(1) An application may be made for a civil penalty order against the person in relation to the same contravention. "(2) However, an application is stayed, because of this subsection, until: (a) the criminal proceedings; and (b) all appeals and applications for review (including appeals and applications for review under this Division) arising out of the criminal proceedings; have been finally determined or otherwise disposed of. Final outcome precluding application for civil penalty order "1317GC. When the criminal proceedings, appeals and applications for review are finally determined or otherwise disposed of: (a) an application for a civil penalty order in relation to the same contravention cannot be made (except under this Division); and (b) such an application that was stayed because of subsection 1317GB(2) is, because of this section, dismissed; if the result of the criminal proceedings, appeals and applications for review is: (c) a court finding the person guilty of the offence; or Note: Section 73A defines when a court is taken to find a person guilty of an offence. (d) the person being acquitted of the offence, unless there is in force a declaration that the person committed the contravention; or Note: This kind of declaration is made under section 1317GF, 1317GG or 1317GH. (e) a declaration by a court that the evidence in a committal proceeding for the offence could not satisfy the Court, on an application for a civil penalty order, that the person committed the contravention; or Note: This kind of declaration is made under section 1317GE. (f) a declaration by the Court that the person committed the contravention; or Note: This kind of declaration is made under section 1317GF or 1317GH. (g) an order by a court prohibiting an application for a civil penalty order in relation to the contravention from being made or from proceeding; or Note: This kind of order is made under section 1317GJ. (h) the Court, on an appeal or review, affirming, varying or substituting a declaration that the person committed the contravention. Note: Section 1317GK applies in this case. Final outcome not precluding application for civil penalty order "1317GD. If the result of the criminal proceedings, appeals and applications for review being finally determined or otherwise disposed of is: (a) a declaration by a court (other than the Court) that the person committed the contravention; or Note: This kind of declaration is made under section 1317GF, 1317GG or 1317GH. (b) none of the results referred to in section 1317GC; then: (c) if an application for a civil penalty order in relation to the contravention was stayed because of subsection 1317GB(2) - the application may proceed; or (d) otherwise - such an application may be made and may proceed; as if the criminal proceedings had never begun. After unsuccessful committal proceeding, court may preclude application for civil penalty order "1317GE.(1) If: (a) a proceeding in a court for the commitment of the person for trial for the offence is finally determined or otherwise disposed of without the person being committed for trial for the offence; and (b) the court is satisfied that the evidence in the proceeding could not satisfy the Court, on an application for a civil penalty order in relation to the contravention, that the person committed the contravention; the court may declare that it is so satisfied. "(2) A declaration under subsection (1) is subject to appeal or review in the same way as any other order or decision made in the proceeding. Application for civil penalty order based on alternative verdict at jury trial "1317GF.(1) This section applies if the person is tried on indictment for the offence and the jury is satisfied beyond reasonable doubt that the person committed the contravention, but is not satisfied beyond reasonable doubt that the person did so as mentioned in subsection 1317FA(1). "(2) The jury may find the person not guilty of the offence, but guilty of the contravention. "(3) If the jury does so, the court is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified corporation. "(4) If the court is the Court, it may then proceed to make orders under subsection 1317EA(3) on the application of the prosecutor or someone else who has power under section 1317EB to apply for a civil penalty order in relation to the contravention. "(5) Subsection (4) has effect despite section 1317EC. "(6) A declaration under subsection (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention. Application for civil penalty order based on alternative finding by court of summary jurisdiction "1317GG.(1) This section applies if, on the hearing of a proceeding for the summary conviction of the person for the offence, the court is satisfied beyond reasonable doubt that the person committed the contravention but is not satisfied beyond reasonable doubt that the person did so as mentioned in subsection 1317FA(1). "(2) The court may find the person not guilty of the offence, but guilty of the contravention. "(3) If the court does so, it is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified corporation. "(4) A declaration under subsection (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention. Application for civil penalty order based on alternative finding by appeal court "1317GH.(1) This section applies if: (a) a court finds the person guilty of the offence; and (b) on appeal or review, a court makes an order determining the criminal proceedings for the offence in a way that does not involve convicting the person of that or any other offence; and (c) the court is satisfied beyond reasonable doubt that the person committed the contravention. "(2) The court may declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified corporation. "(3) If the court is the Court, it may then proceed to make orders under subsection 1317EA(3) on the application of the prosecutor or someone else who has power under section 1317EB to apply for a civil penalty order in relation to the contravention. "(4) Subsection (3) has effect despite section 1317EC. "(5) A declaration under subsection (2) is subject to appeal or review in the same way as any other order or decision that was made on the appeal or review or might have been made. After setting aside declaration, court may preclude application for civil penalty order "1317GJ. If a court sets aside a declaration made under section 1317GF, 1317GG or 1317GH, the court may, by order, prohibit an application for a civil penalty order in relation to the contravention from being made or from proceeding. On unsuccessful appeal against declaration, Court may make civil penalty orders "1317GK.(1) This section applies if, on an appeal from, or review of, a declaration made under section 1317GF, 1317GG or 1317GH by a court other than the Court, the Court determines the appeal or review by: (a) affirming or varying the declaration; or (b) substituting another declaration for the first-mentioned declaration. "(2) The Court may then proceed to make orders under subsection 1317EA(3) on the application of the prosecutor or someone else who has power under section 1317EB to apply for a civil penalty order in relation to the contravention. "(3) Subsection (2) has effect despite section 1317EC. Appeals under this Division "1317GL. For the purposes of an appeal or review under subsection 1317GE(2), 1317GF(6), 1317GG(4) or 1317GH(5), a law about appeals or review has effect with such modifications as the circumstances require. "Division 5 - Compensation for loss suffered by corporation On application for civil penalty order, Court may order compensation "1317HA.(1) Where, on an application for a civil penalty order against a person in relation to a contravention, the Court is satisfied that: (a) the person committed the contravention; and (b) the corporation in relation to which the contravention was committed has suffered loss or damage as a result of the act or omission constituting the contravention; the Court may (whether or not it makes an order under subsection 1317EA(3)) order the person to pay to the corporation compensation of such amount as the order specifies. "(2) A corporation may intervene in an application for a civil penalty order against a person in relation to a contravention, unless the application was made under Division 4. "(3) A corporation that so intervenes is entitled to be heard: (a) only if the Court is satisfied that the person committed the contravention in relation to that corporation; and (b) only on the question whether the Court should order the person to pay compensation to the corporation because of the contravention. Criminal court may order compensation "1317HB.(1) If: (a) a court finds a person guilty of an offence constituted by a contravention of a civil penalty provision in relation to a corporation; and (b) the court is satisfied that the corporation has suffered loss or damage as a result of the act or omission constituting the contravention; the court may (whether or not it imposes a penalty) order the person to pay to the corporation compensation of such amount as the order specifies. Note: Section 73A defines when a court is taken to find a person guilty of an offence. "(2) If: (a) a court declares under Division 4 that a person has, by an act or omission, contravened a civil penalty provision in relation to a corporation; and (b) the court is satisfied that the corporation has suffered loss or damage as a result of that act or omission; the court may (whether or not it makes an order under subsection 1317EA(3)) order the person to pay to the corporation compensation of such amount as the order specifies. Enforcement of order under section 1317HA or 1317HB "1317HC. An order to pay compensation that a court makes under section 1317HA or 1317HB may be enforced as if it were a judgment of the court. Recovery of profits, and compensation for loss, resulting from contravention "1317HD.(1) Where a person contravenes a civil penalty provision in relation to a corporation, the corporation may, by proceedings in a court of competent jurisdiction, recover from the person, as a debt due to the corporation: (a) if that or another person has made a profit because of the act or omission constituting the contravention - an amount equal to the amount of that profit; and (b) if the corporation has suffered loss or damage as a result of that act or omission - an amount equal to the amount of that loss or damage; whether or not: (c) the first-mentioned person has been convicted of an offence in relation to the contravention; or (d) a civil penalty order has been made against the first-mentioned person in relation to the contravention. "(2) Proceedings under this section may only be begun within 6 years after the contravention. Effect of sections 1317HA, 1317HB and 1317HD "1317HE. Sections 1317HA, 1317HB and 1317HD: (a) have effect in addition to, and not in derogation of, any rule of law about the duty or liability of a person because of the person's office or employment in relation to a corporation; and (b) do not prevent proceedings from being instituted in respect of a breach of such a duty or in respect of such a liability. Certificates evidencing contravention "1317HF. For the purposes of this Part, a certificate that: (a) purports to be signed by the Registrar or other proper officer of an Australian court; and (b) states: (i) that that court has declared that a specified person has, by a specified act or omission, contravened a specified civil penalty provision in relation to a specified corporation; or (ii) that a specified person was convicted by that court of an offence constituted by a specified contravention of a civil penalty provision in relation to a specified corporation; or (iii) that a specified person charged before that court with such an offence was found in that court to have committed the offence but that the court did not proceed to convict the person of the offence; is, unless it is proved that the declaration, conviction or finding was set aside, quashed or reversed, conclusive evidence: (c) that the declaration was made, that the person was convicted of the offence, or that the person was so found, as the case may be; and (d) that the person committed the contravention. "Division 6 - Miscellaneous Relief from liability for contravention of civil penalty provision "1317JA.(1) In this section: 'eligible proceedings' means proceedings for a contravention of a civil penalty provision (including proceedings under section 588M, 588W or 1317HD of the Corporations Law of this jurisdiction) but does not include proceedings for an offence (except so far as the proceedings relate to the question whether the court should make an order under section 588K or 1317HB of that Law). "(2) Where, in eligible proceedings against a person, it appears to the court that the person has, or may have, contravened a civil penalty provision but that: (a) the person has acted honestly; and (b) having regard to all the circumstances of the case (including, where applicable, those connected with the person's appointment as an officer of a corporation or of a Part 5.7 body), the person ought fairly to be excused for the contravention; the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention. "(3) In determining under subsection (2) whether a person ought fairly to be excused for a contravention of section 588G, the matters to which regard is to be had include, but are not limited to: (a) any action the person took with a view to appointing an administrator of the company or Part 5.7 body; and (b) when that action was taken; and (c) the results of that action. "(4) Where a person thinks that eligible proceedings will or may be begun against him or her, he or she may apply to the Court for relief. "(5) On an application under subsection (4), the Court may grant relief under subsection (2) as if the eligible proceedings had been begun in the Court. "(6) For the purposes of subsection (2) as applying for the purposes of a case tried by a judge with a jury: (a) a reference in that subsection to the court is a reference to the judge; and (b) the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate. "(7) Nothing in this section limits, or is limited by, section 1318. Effect of contravening civil penalty provisions of Corporations Law of 2 or more jurisdictions "1317JB.(1) This section applies where an act or omission constitutes: (a) a contravention (in this section called the 'local contravention') of a civil penalty provision; and (b) a contravention (in this section called the 'other contravention') of a provision of the Corporations Law of another jurisdiction that corresponds to that civil penalty provision. "(2) A person who has been punished for an offence constituted by the other contravention is not liable to be punished for an offence constituted by the local contravention. "(3) If a civil penalty order within the meaning of that Law has been made in relation to the other contravention, no civil penalty order within the meaning of this Law can be made in relation to the local contravention. "(4) Criminal proceedings for an offence constituted by the local contravention cannot be begun if a person has already applied for a civil penalty order, within the meaning of that Law, in relation to the other contravention, even if the application has been finally determined or otherwise disposed of. "(5) Sections 1317GB, 1317GC and 1317GD apply in relation to the local contravention as if: (a) criminal proceedings of a particular kind for an offence constituted by the other contravention were proceedings of the corresponding kind for an offence constituted by the local contravention; and (b) a court within the meaning of that Law were a court within the meaning of this Law; and (c) anything done under a provision of Division 4 of Part 9.4B of that Law had been done under the corresponding provision of this Law. "(6) Nothing in this section limits, or is limited by, anything in section 1310A, 1310B or 1317FB. "(7) The effect that sections 1317GB, 1317GC and 1317GD have because of subsection (5) of this section is additional to, and does not prejudice, the effect those sections otherwise have. Part does not limit power to award punitive damages "1317JC. Nothing in this Part limits a court's power to order someone to pay damages in the nature of punitive damages because of an act or omission constituting a contravention of a civil penalty provision.".