Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

 Download WordDownload Word  Download PDFDownload PDF 


Bill home page
Table Of Contents
Previous Fragment    Next Fragment
Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 13-2 General matters relating to offences

Division 566 General matters relating to offences

566-1   Penalties for bodies corporate

                   If a body corporate is convicted of an offence against this Act, the penalty that the court may impose is a fine not exceeding 5 times the maximum amount that, but for this section, the court could impose as a pecuniary penalty for that offence.

566-5   Penalty notices

             (1)  If the Registrar has reason to believe that a person has committed a prescribed offence, the Registrar may, subject to subsection (2), give the person a written notice:

                     (a)  alleging that the person has committed the prescribed offence and giving the prescribed particulars in relation to the prescribed offence; and

                     (b)  setting out the prescribed penalty in respect of the prescribed offence; and

                     (c)  in the case of a prescribed offence constituted by a failure to do a particular act or thing—stating:

                              (i)  that the obligation to do the act or thing continues despite the service of the notice or the payment of the prescribed penalty; and

                             (ii)  that if, within the period specified in the notice (being a period of at least 21 days), the person pays the prescribed penalty to the Registrar and does the act or thing, no further action will be taken against the person in relation to the prescribed offence; and

                            (iii)  that if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the Registrar or has not done the act or thing, proceedings may be instituted against the person; and

                     (d)  in the case of a prescribed offence that is not constituted by a failure to do a particular act or thing—stating:

                              (i)  that if, within the period specified in the notice (being a period of at least 21 days), the person pays the prescribed penalty to the Registrar, no further action will be taken against the person in relation to the prescribed offence; and

                             (ii)  that if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the Registrar, proceedings may be instituted against the person.

             (2)  A notice under subsection (1) is not a legislative instrument.

             (3)  Subsection (1) does not empower the Registrar:

                     (a)  to give a person more than one notice under that subsection in relation to an alleged commission by that person of a particular prescribed offence; or

                     (b)  to give a person a notice under that subsection in relation to a prescribed offence unless proceedings could be instituted against that person for that offence in accordance with section 566-15.

             (4)  A notice under subsection (1) may be given to a natural person either personally or by post.

             (5)  If a notice under subsection (1) is given to a person in relation to a prescribed offence constituted by a failure to do a particular act or thing:

                     (a)  if, within the period specified in the notice, the person pays the prescribed penalty to the Registrar, and does the act or thing—no proceedings may be instituted against the person in respect of the prescribed offence; or

                     (b)  if, at the end of the period specified in the notice, the person has paid the prescribed penalty to the Registrar but has not done the act or thing—no proceedings may be instituted against the person in respect of the prescribed offence, but the obligation to do that act or thing continues, and section 566-10 applies in relation to the continued failure to do that act or thing as if, on the day on which the person so paid the prescribed penalty, the person had been convicted of an offence constituted by a failure to do that act or thing; or

                     (c)  if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the Registrar but had done the act or thing—proceedings may be instituted against the person in respect of the prescribed offence; or

                     (d)  if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the Registrar and has not done the act or thing—the obligation to do that act or thing continues, and proceedings may be instituted against the person in respect of the prescribed offence.

             (6)  If a notice under subsection (1) is given to a person in relation to a prescribed offence, not being an offence constituted by a failure to do a particular act or thing:

                     (a)  if, within the period specified in the notice, the person pays the prescribed penalty to the Registrar—no proceedings may be instituted against the person in respect of the prescribed offence; or

                     (b)  if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the Registrar—proceedings may be instituted against the person in respect of the prescribed offence.

             (7)  The payment of an amount by a person pursuant to a notice served on the person under this section in relation to a prescribed offence is not taken for any purpose to be an admission by that person of any liability in connection with the alleged commission of the prescribed offence.

             (8)  Except as provided by paragraphs (5)(a) and (b) and (6)(a), this section does not affect the operation of any provision of this Act, of the regulations, of the rules or of any other Act in relation to the institution of proceedings in respect of offences that are prescribed offences for the purposes of this section.

             (9)  In this section:

prescribed offence means an offence against this Act that the regulations prescribe for the purposes of this section.

prescribed penalty , in relation to a prescribed offence in relation to which the Registrar may give, or has given, to a person a notice under subsection (1), means a penalty of the amount that the regulations prescribe in relation to the offence.

566-10   Continuing offences

             (1)  If:

                     (a)  by or under a provision, an act is or was required to be done within a particular period or before a particular time; and

                     (b)  failure to do the act within that period or before that time constitutes an offence; and

                     (c)  the act is not done within that period or before that time;

then:

                     (d)  the obligation to do the act continues, after that period has ended or that time has passed, and whether or not a person is or has been convicted of a primary substantive offence in relation to failure to do the act, until the act is done; and

                     (e)  subsections (3) and (4) apply.

             (2)  If:

                     (a)  by or under a provision, an act is or was required to be done but neither a period nor a time for the doing of the act is or was specified; and

                     (b)  failure to do the act constitutes an offence; and

                     (c)  a person is or has been convicted of a primary substantive offence in relation to failure to do the act;

then:

                     (d)  the obligation to do the act continues, despite the conviction, until the act is done; and

                     (e)  subsections (3) and (4) apply.

             (3)  If:

                     (a)  at a particular time, a person is or was first convicted of a substantive offence, or is or was convicted of a second or subsequent substantive offence, in relation to failure to do the act; and

                     (b)  the failure to do the act continued after that time;

then:

                     (c)  the person, in relation to failure to do the act, commits a further offence in respect of so much of the period throughout which the failure to do the act continued or elapsed after that time and before the relevant day in relation to the further offence; and

                     (d)  for the purposes of this Act and of the Crimes Act 1914 , the further offence is taken to be constituted by failure to do the act during so much of that period as so elapsed.

             (4)  If:

                     (a)  the provision referred to in paragraph (1)(a) or (2)(a), as the case may be, provides or provided that:

                              (i)  an officer or employee of a body corporate; or

                             (ii)  a person;

                            who is or was in default, or is or was involved in a contravention constituted by the failure to do the act, commits or committed an offence or contravenes or contravened a provision of this Act; and

                     (b)  throughout a particular period (the relevant period ):

                              (i)  the failure to do the act continued; and

                             (ii)  a person (the derivative offender ) is or was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the failure to do the act; and

                            (iii)  if subparagraph (a)(i) applies—the derivative offender is or was an officer or employee of the body;

then:

                     (c)  if either or both of the following events occurs or occur:

                              (i)  a person is or was convicted, before or during the relevant period, of a primary substantive offence in relation to failure to do the act;

                             (ii)  the derivative offender is or was convicted, before or during the relevant period, of a primary derivative offence in relation to failure to do the act;

                            the derivative offender, in relation to failure to do the act, commits an offence (the relevant offence ) in respect of so much (if any) of the relevant period as elapsed:

                            (iii)  after the conviction referred to in subparagraph (i) or (ii), or after the earlier of the convictions referred to in subparagraphs (i) and (ii), as the case may be; and

                            (iv)  before the relevant day in relation to the relevant offence; and

                     (d)  if, at a particular time during the relevant period, the derivative offender is or was first convicted of a secondary derivative offence, or is or was convicted of a second or subsequent secondary derivative offence, in relation to failure to do the act—the derivative offender, in relation to failure to do the act, commits a further offence in respect of so much of the relevant period as elapsed after that time and before the relevant day in relation to the further offence.

             (5)  If a person, by virtue of subsection (3) or (4), commits an offence in respect of the whole or a part of a particular period, the penalty applicable to the offence is a fine of the amount obtained by multiplying half a penalty unit by the number of days in that period, or in that part of that period, as the case may be.

             (6)  In this section:

in default , in relation to a contravention and to an officer or employee of a body corporate, or to a person, means an officer or employee of the body (including a person who later ceases to be such an officer or employee), or a person, as the case may be, who is involved in the contravention.

primary derivative offence , in relation to failure to do an act, means an offence (other than an offence a person commits by virtue of this section) that a person commits or committed by virtue of being an officer of an Aboriginal and Torres Strait Islander corporation, or a person, who is or was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to failure to do the act.

primary substantive offence , in relation to a failure to do an act, means an offence (other than an offence that a person commits or committed by virtue of this section) constituted by failure to do the act, or by failure to do the act within a particular period or before a particular time.

provision means a section, or a subsection of a section, of this Act.

relevant day , in relation to an offence that a person commits by virtue of this section, means:

                     (a)  if the information relating to the offence specifies a day in relation to the offence for the purposes of this section, being a day not later than the day on which the information is laid—the day the information so specifies; or

                     (b)  in any other case—the day on which the information relating to the offence is laid.

required includes directed.

secondary derivative offence , in relation to failure to do an act, means an offence or further offence that a person, in relation to failure to do the act, commits by virtue of paragraph (4)(c) or (d).

substantive offence , in relation to failure to do an act, means:

                     (a)  a primary substantive offence in relation to failure to do the act; or

                     (b)  a further offence that a person, in relation to failure to do the act, commits by virtue of subsection (3).

             (7)  For the purposes of subsection (4), a provision of this Act is, whether or not it expressly provides as mentioned in paragraph (4)(a), taken to provide that a person who is or was involved in a contravention constituted by a failure to do an act required by the provision contravenes or contravened that provision.

566-15   Time for instituting criminal proceedings

                   Despite anything in any other law, proceedings for an offence against this Act may be instituted:

                     (a)  within the period of 5 years after the act or omission alleged to constitute the offence; or

                     (b)  with the Minister’s consent, at any later time.

566-20   Privilege against self-incrimination not available to bodies corporate in certain proceedings

             (1)  This section applies to a proceeding in a court when exercising jurisdiction in respect of a criminal matter arising under this Act.

             (2)  In the proceeding, a body corporate is not entitled to refuse or fail to comply with a requirement:

                     (a)  to answer a question or give information; or

                     (b)  to produce a book or any other thing; or

                     (c)  to do any other act whatever;

on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend:

                     (d)  to incriminate the body (whether in respect of an offence to which the proceeding relates or otherwise); or

                     (e)  to make the body liable to a penalty (whether in respect of anything to which the proceeding relates or otherwise).

             (3)  Subsection (2) applies whether or not the body concerned is a defendant in the proceeding or in any other proceeding.

566-25   Certain persons to assist in prosecutions

             (1)  If a prosecution in respect of an offence against this Act has been instituted, or the Registrar is of the opinion that a prosecution in respect of an offence against this Act ought to be instituted, against a person (the defendant ), the Registrar may:

                     (a)  if the defendant is a natural person—require any person who is or was a partner, employee or agent of the defendant; or

                     (b)  if the defendant is a body corporate—require any person who is or was an officer, employee or agent of the defendant;

to assist in the prosecution, and the person who is so required must give all assistance in connection with the prosecution that the person is reasonably able to give.

             (2)  The Registrar must not make such a requirement as is mentioned in subsection (1) of a person who, in the opinion of the Registrar, is or is likely to be a defendant in the proceedings or is or has been such a person’s lawyer.

             (3)  If a person to whom paragraph (1)(a) or (b) relates fails to give assistance as required by subsection (1), the person contravenes this section and, without affecting any penalty to which the person may be liable for the contravention, the Court may, on the application of the Registrar, order the person to comply with the requirement within such time, and in such manner, as the Court orders.

             (4)  In this section:

agent , in relation to the defendant, includes:

                     (a)  a banker of the defendant; and

                     (b)  a person engaged as an auditor by the defendant;

whether that person is an employee or an officer of the defendant or not.

             (5)  A requirement by the Registrar under subsection (1) is not a legislative instrument.