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 12GXF is titled Withdrawal of an infringement notice and forms part of that subdivision.
The section is extracted below.
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Withdrawal of an infringement notice
Representations seeking withdrawal of notice
(1) A person to whom an infringement notice has been given may, within 28 days after the infringement notice is given, make written representations to ASIC seeking the withdrawal of the notice.
Withdrawal of notice
(2) ASIC may withdraw an infringement notice given to a person:
(a) if the person makes representations to ASIC in accordance with subsection (1); or
(b) on ASIC’s own initiative.
ASIC may do so before or after the end of the payment period.
(3) ASIC must, within 14 days after a representation is made in accordance with subsection (1):
(a) decide to withdraw, or refuse to withdraw, the infringement notice; and
(b) if ASIC decides to withdraw the notice–give the applicant a withdrawal notice in accordance with subsection (6); and
(c) if ASIC decides to refuse to withdraw the notice–give the applicant notice of that fact.
(4) When deciding whether to withdraw, or refuse to withdraw, an infringement notice, ASIC:
(a) must take into account any written representations seeking the withdrawal that were given by the person to ASIC; and
(b) may take into account the following:
(i) whether a court has previously imposed a penalty on the person for a contravention of a provision of this Act;
(ii) the circumstances of the alleged contravention;
(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a provision of this Act;
(iv) any other matter ASIC considers relevant.
(5) If ASIC does not comply with subsection (3):
(a) ASIC is taken to have refused to withdraw the infringement notice; and
(b) the refusal is taken to have occurred on the last day of the 14 day period.
Notice of withdrawal
(6) The withdrawal notice must state:
(a) the person’s name and address; and
(b) the day the infringement notice was given; and
(c) the identifying number of the infringement notice; and
(d) that the infringement notice is withdrawn; and
(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.
Refund of amount if infringement notice withdrawn
(a) ASIC withdraws the infringement notice; and
(b) the person has already paid the amount stated in the notice;
ASIC must refund to the person an amount equal to the amount paid.
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Proven Track Record of Exceptional Results
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Free First Appointment
For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.
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All NSW Courts
From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.
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Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.
All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.
An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.
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Results-Focused Law Firm
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Team of Lawyers Behind You
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Familiar with Magistrates and Judges
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