expand the civil penalty regime so that a number of new contraventions become civil penalty provisions; introduce ordinary criminal offences that sit alongside and complement a number of strict and absolute liability offences; introduce a new formula to calculate the maximum financial penalty for criminal offences in the Corporations Act; introduce and apply a new objective only test to all dishonesty offences under the Corporations Act; subject all offences with strict or absolute liability, and certain other offences, to a penalty notice regime; disgorgement remedies should be available in civil penalty proceedings brought by ASIC under the Corporations Act, ASIC Act and Credit Act; and require the courts to give priority to compensating victims over ordering the payment of financial penalties, aligning the Corporations Act with the ASIC Act and Credit Act. In coming to its recommendations, the Taskforce considered the application of the Guide to Framing Commonwealth Offences, released by the Infringement Notices and Enforcement Powers, Department and developed to assist the framing of criminal offences, infringement notices and enforcement provisions that are intended to become part of Commonwealth law. The Guide is accessible on the Attorney-General’s website. On 16 April 2018, the Government agreed to all these recommendations, except the maximum civil penalty amounts, where the Government considered a stronger response was necessary. Summary of new law The Bill introduces a stronger penalty framework to combat misconduct and improve community confidence in the corporate and financial sector. The amendments made by the Bill: update the penalties for certain criminal offences in ASIC administered legislation, including: increasing the maximum imprisonment penalties for certain criminal offences;
expand the civil penalty regime so that a number of new contraventions become civil penalty provisions; introduce ordinary criminal offences that sit alongside and complement a number of strict and absolute liability offences; introduce a new formula to calculate the maximum financial penalty for criminal offences in the Corporations Act; introduce and apply a new objective only test to all dishonesty offences under the Corporations Act; subject all offences with strict or absolute liability, and certain other offences, to a penalty notice regime; disgorgement remedies should be available in civil penalty proceedings brought by ASIC under the Corporations Act, ASIC Act and Credit Act; and require the courts to give priority to compensating victims over ordering the payment of financial penalties, aligning the Corporations Act with the ASIC Act and Credit Act. In coming to its recommendations, the Taskforce considered the application of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, released by the Department and developed to assist the framing of criminal offences, infringement notices and enforcement provisions that are intended to become part of Commonwealth law. The Guide is accessible on the Attorney-General’s website. On 16 April 2018, the Government agreed to all these recommendations, except the maximum civil penalty amounts, where the Government considered a stronger response was necessary. Summary of new law The Bill introduces a stronger penalty framework to combat misconduct and improve community confidence in the corporate and financial sector. The amendments made by the Bill: update the penalties for certain criminal offences in ASIC administered legislation, including: increasing the maximum imprisonment penalties for certain criminal offences;
T328482_Explanatory_Materials.docx