Credit infringement notices -your rights
This information sheet (INFO 128) explains your options if you receive a credit infringement notice. It tells you:
- the effects of payment and non-payment of an infringement notice
- your rights relating to an infringement notice, including applying for an extension of time for payment of the penalty, applying to pay the penalty by instalments and applying to have the infringement notice withdrawn.
Why we issue infringement notices
ASIC has a statutory power to issue an infringement notice under the National Consumer Credit Protection Regulations 2010 (National Credit Regulations).
Under the National Credit Regulations, we may issue an infringement notice if we believe certain provisions of the National Consumer Credit Protection Act 2009 (National Credit Act) have been contravened. The notice must be served within 12 months of the date of the commission of the alleged offence. We have a discretion, not an obligation, to issue an infringement notice as an alternative to commencing a criminal prosecution or 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 and this information sheet. The covering letter will state why the infringement notice has been issued.
How to pay the penalty
Payment is due within 28 days of receiving the infringement notice. Payment should be made according to the instructions in the invoice received with 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 can apply for either an extension of time or to pay the penalty by instalments: see How to apply. However, an extension may only be granted for a further period of up to 28 days. If you apply to pay the penalty by instalments, it is important to ensure that you propose a feasible instalment plan. If we grant you an extension, or allow an instalment payment plan, you must pay the penalty in accordance with those arrangements.
Effect of payment of the penalty
If you pay the penalty in full and within time, your liability for the alleged breach is discharged and we may not commence a prosecution or take civil proceedings for the alleged breach. You will not be taken to have admitted guilt in respect of the alleged breach, nor are you taken to have been found guilty of the alleged breach.
However, your payment of the penalty does not preclude a consumer from taking civil action against you for the alleged breach or ASIC from applying to the court on behalf of a plaintiff for a compensation order under the National Credit Act for loss or damage arising from the alleged breach.
Effect of non-payment of the penalty
You are not obliged by law to pay the penalty contained in the infringement notice and failure to pay the penalty does not create a debt that ASIC can enforce. You may in fact choose not to pay the penalty and have the matter dealt with in a court. If you do not pay and we commence a prosecution or civil penalty proceedings for the alleged breach, the court may impose a higher penalty than the penalty specified in the infringement notice.
Withdrawal of an infringement notice
We may withdraw an infringement notice of our own volition. You may also apply to have an infringement notice withdrawn: see ‘How to apply’ below (hot link). However, we must have regard to the following matters when considering your application:
whether you have previously been convicted of an offence against the National Credit Act or transitional legislation
whether you have previously been found to have contravened a civil penalty provision
the circumstances surrounding the breach set out in the infringement notice
whether you have previously been issued with an infringement notice for an offence of the same kind, and whether you paid that penalty
any other relevant matter.
A decision on an application to withdraw an infringement notice will be made by a different ASIC officer from the officer who made the decision to issue the infringement notice. If we withdraw an infringement notice either of our own accord, or upon application, after the penalty has been paid, we will refund the amount of the penalty to the person who paid it.
How to apply
Applications for an extension of time, payment by instalments and withdrawal of an infringement notice must be made in writing within 28 days of receiving the infringement notice. Your application must:
specify the unique identification code found in the top left-hand corner of the infringement notice
set out your reasons for requesting the application
if applying for an instalment plan, provide details of the amount and frequency of the instalments you propose to pay.
Send your application to:
Credit Infringement Notice Officer
Australian Securities and Investments Commission
GPO Box 9827
Melbourne Vic 3001
Or facsimile: 03 9280 3444
Or email: CreditInfringementNotices@asic.gov.au
Our decision on your application
We have a discretion to grant or refuse an application for extending time for payment, for an instalment plan or for withdrawal of an infringement notice. However, we must provide you with a decision as to whether your application is granted or refused within 14 days of receiving your application. If you do not receive a response within 14 days, ASIC is deemed to have refused your application.
Our decisions on extending time for payment, and whether to accept an instalment plan or withdraw an infringement notice, are not decisions that are 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:
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 credit infringement notice regime, which are set out in Pt 6–2 of Ch 6 of the National Credit Regulations
Go to www.comlaw.gov.au for further information about the statutory obligations imposed on credit industry participants in the National Credit 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)
Go to www.asic.gov.au/credit for the latest information on credit and to download copies of regulatory guides
Subscribe to ASIC updates on credit at www.asic.gov.au/credit-update
ASIC Infoline 1300 300 630
Online enquiry: www.asic.gov.au/question
Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice. Omission of any matter on this information sheet will not relieve a company or its officers from any penalty incurred by failing to comply with the statutory obligations of the National Credit Act.
You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases your particular circumstances must be taken into account when determining how the law applies to you.
This is Information Sheet 128 (INFO 128), updated August 2016. Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.