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It is open to the Australian Securities and Investments Commission (ASIC) to pursue civil penalty proceedings instead of criminal proceedings for these offences. If ASIC do pursue the civil penalty regime, an individual is liable for a fine of up to $450,000 and a corporation $1 million.
In making that assessment as to whether to pursue civil penalty proceedings instead of criminal proceedings for these offences, ASIC weighs up a number of factors and works (under an Memorandum of Understanding (MOU) with the Commonwealth director of Public Prosections (CDPP).
Civil penalty proceedings may be more attractive to ASIC as they can be pursued by ASIC itself and not require another agency (CDPP), and they only have to prove the matter on the balance of probabilities and not beyond a reasonable doubt. In addition, civil penalty proceedings can provide quicker settled outcomes.
Nevertheless, Tony D'Alosio, chairman of ASIC, recently acknowledged that ASIC's approach in more recent times has been to pursue criminal proceedings for these offences.
He stated that "Although preparation of such cases takes longer, ASIC's view is that criminal proceedings and sanctions, including imprisonment, are what will 'focus the minds' of those who may be inclined to stray."
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in corporate crime and will be able to guide you through the process while dealing with the various authorities related to your matter.