Commonwealth Numbered Acts

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.".