Division 2, subdivision GB of the Australian Securities and Investments Commission Act 2001 contains provisions relating to the issuing of infringement notices for contraventions under the Act, including the requirement that ASIC must believe on reasonable grounds that a contravention has occurred before issue such a notice, the time limit for issue, the contents of the notice, payment period, extensions and the effect of paying it.
Section 12GXB is titled Matters to be included in an infringement notice and forms part of that subdivision.
The section is extracted below.
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The Legislation
Matters to be included in an infringement notice
(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is given; and
(c) state the name of the person to whom the notice is given; and
(d) state the name and contact details of the person who gave the notice; and
(e) give brief details of the alleged contravention, or each alleged contravention, to which the notice relates, including:
(i) the provision that was allegedly contravened; and
(ii) the maximum penalty that a court could impose for each contravention, if the provision were contravened; and
(iii) the time (if known) and day of, and the place of, each alleged contravention; and
(f) state the amount that is payable under the notice; and
(g) give an explanation of how payment of the amount is to be made; and
(h) state that the payment period for the notice will be 28 days, beginning on the day on which the notice is given, unless the period is extended, an arrangement is made for payment by instalments or the notice is withdrawn; and
(i) state that, if the person to whom the notice is given pays the amount within the payment period, then (unless the notice is withdrawn):
(i) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision–the person will not be liable to be prosecuted in a court for the alleged contravention; or
(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision–the person is not liable to be prosecuted in a court, and proceedings seeking a pecuniary penalty order will not be brought, in relation to the alleged contravention; or
(iii) if the alleged contravention is of a civil penalty provision–proceedings seeking a pecuniary penalty order will not be brought in relation to the alleged contravention; and
(j) state that payment of the amount is not an admission of guilt or liability; and
(k) state that the person may apply to ASIC to have the period in which to pay the amount extended or for an arrangement to pay the amount by instalments; and
(l) state that the person may choose not to pay the amount and, if the person does so:
(i) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision–the person may be prosecuted in a court for the alleged contravention; or
(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision–the person may be prosecuted in a court, or proceedings seeking a pecuniary penalty order may be brought, in relation to the alleged contravention; or
(iii) if the alleged contravention is of a civil penalty provision–proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention; and
(m) set out how the notice can be withdrawn; and
(n) state that if the notice is withdrawn:
(i) if the alleged contravention is of an offence provision and would not also constitute a contravention of a civil penalty provision–the person may be prosecuted in a court for the alleged contravention; or
(ii) if the alleged contravention is of an offence provision and would also constitute a contravention of a civil penalty provision–the person may be prosecuted in a court, or proceedings seeking a pecuniary penalty order may be brought, in relation to the alleged contravention; or
(iii) if the alleged contravention is of a civil penalty provision–proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention; and
(o) state that the person may make written representations to ASIC seeking the withdrawal of the notice.
(2) The amount to be stated in the notice for the purposes of paragraph (1)(f) must be equal to the number of penalty units worked out using the following table:
| Number of penalty units | ||
| Item | If the infringement notice is for an alleged contravention of … | the number of penalty units is … |
| 1 | a provision of Subdivision C or D (other than section 12DA or 12DE, subsection 12DG(1) or section 12DI or 12DM) | (a) if the person is a body corporate–60; or
(b) if the person is not a body corporate–12. |
| 2 | section 12GYB | (a) if the person is a body corporate–30; or
(b) if the person is not a body corporate–6. |
| 3 | section 12GYC | (a) if the person is a body corporate–50; or
(b) if the person is not a body corporate–10. |
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