ASIC Act infringement notices: Your rights
This information sheet (INFO 139) explains your options if you receive an ASIC Act infringement notice. It tells you:
- why and when we issue infringement notices
- how to pay the penalty in an infringement notice
- what happens when you pay the penalty
- what happens if you don’t pay the penalty
- what to do if you need more time to pay the penalty, and
- how to apply to have the infringement notice withdrawn.
Why we issue infringement notices
ASIC administers the consumer protection provisions of the Australian Securities and Investments Commission Act 2001 (ASIC Act). These provisions are in substantially the same terms as the Australian Consumer Law but apply to the supply of financial services including credit.
We may issue an infringement notice if we believe certain consumer protection provisions of the ASIC Act have been contravened. These include provisions dealing with:
- unconscionable conduct
- false or misleading representations
- ‘bait’ advertising
- harassment or coercion in connection with the supply of credit or financial services
- pyramid selling
- sending unsolicited credit or debit cards
- failure to respond to a substantiation notice, and
- giving false or misleading information in response to a substantiation notice.
We must issue the infringement notice within 12 months of the date of the alleged contravention. We may choose, but are not obliged, to issue an infringement notice as an alternative to taking civil penalty action.
What you will receive
If you are issued with an infringement notice, you will also receive a covering letter, an invoice for the penalty and this information sheet. The infringement notice will contain a unique identification code, found near the top of the first page of the notice.
How to pay the penalty
You have 28 days from the day after we issue you the infringement notice to pay the penalty. To make payment, follow the instructions in the invoice received with the infringement notice.
What happens when you pay the penalty
If you pay the penalty in full and on time, we may not commence a prosecution or take civil proceedings against you for the alleged breach. Paying the penalty is not an admission of guilt on your part, nor is it a finding of guilt against you.
However, your payment of the infringement notice will not prevent a consumer from taking civil action against you for the alleged breach. Also, we may still apply to the court on behalf of a plaintiff for a compensation order under the ASIC Act for loss or damage arising from the alleged breach.
We will issue a statement about your compliance with the notice as described below; and publish a copy of the notice.
What happens if you don’t pay the penalty
You are not obliged by law to pay the penalty in the infringement notice, and failure to pay the penalty does not create a debt that we can enforce. You may choose not to pay the penalty. However, if you do not pay and we commence a prosecution or a civil penalty proceeding for the alleged breach, the court may impose a higher penalty than that specified in the infringement notice.
What to do if you need more time to pay the penalty
If you need more time to pay the penalty, you may request an extension of time in which to pay. Your request should be received in writing within 28 days of receiving the notice. We may only extend the period of time for payment a further 28 days. If we decide to extend the period of time to pay the penalty, you must pay it within the extended time period.
Your request should:
- specify the infringement notice’s identification code, and
- set out your reasons for requesting the extension of time.
Withdrawal of an infringement notice
We may withdraw an infringement notice of our own accord. You may also apply to have an infringement notice withdrawn. We will consider applications for withdrawal of an infringement notice on their merits.
If the infringement notice has already been paid and we withdraw it, either of our own accord or on application, we will refund the amount of the penalty to you.
Applications for the withdrawal of an infringement notice must be made in writing within 28 days of receiving the notice. Your application must:
- specify the infringement notice’s identification code, and
- set out your reasons for requesting the withdrawal.
You can mail, fax or email your application to us at:
Australian Securities and Investments Commission
GPO Box 9827
In your capital city
Fax: 1300 729 000
Our decision on your application
We have the discretion to grant or refuse an application for withdrawal of an infringement notice.
Our decision is not reviewable by the Administrative Appeals Tribunal
Publication of notices by ASIC
If an infringement notice is complied with we will issue a public statement (whether written or oral) about your compliance with the infringement notice. The statement will be limited to an accurate summary of the infringement notice including:
- your name
- the amount of the penalty payable
- the conduct specified in the notice for which the infringement notice was issued
- a statement that you have complied with the infringement notice
- a statement that compliance with the notice is not an admission of guilt or liability, and
- a statement that you are not regarded as having breached the provision specified in the notice.
ASIC will also publish a copy of the notice complied with and the date of compliance.
Publication of commencement of proceedings
If we begin proceedings against you following withdrawal of, or failure to comply with, an infringement notice we will publish the fact of commencement of the proceedings and details of the outcome of the proceedings in a media release.
Where can I get more information?
- Go to www.comlaw.gov.au for the general legislative provisions dealing with the infringement notice regime, which are set out in Subdivision GC of Division 2 of Part 2 of the ASIC Act.
- Go to www.comlaw.gov.au for more information about the statutory obligations imposed on credit and financial services industry participants in the ASIC Act.
- For more information about your rights when you are unhappy with a decision made by ASIC, see Information Sheet 9 ASIC decisions: Your rights (INFO 9) available at www.asic.gov.au/infosheets.
- Go to www.asic.gov.au/credit for the latest information on Australian Consumer Law and to download copies of regulatory guides.
- ASIC: 1300 300 630.
- Online inquiry: www.asic.gov.au/question.
Please note that this information sheet is intended to give basic information about cooperating with ASIC. It does not cover all the relevant law in relation to cooperating with ASIC and it is not a substitute for professional advice. No section of this information sheet is intended to be all exhaustive or inclusive, and your particular circumstances must be taken into account when determining how the law applies to you.
This is Information Sheet 139 (INFO 139), reissued in September 2013. Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.