An infringement notice is a financial penalty that APRA may impose on entities for certain breaches of the Financial Sector (Collection of Data) Act 2001 (FSCODA) and the Superannuation Industry (Supervision) Act 1993 (SIS Act).
Circumstances in which APRA may serve infringement notices
APRA will consider serving infringement notices in circumstances where it has reasonable grounds to believe that an entity has contravened certain provisions under FSCODA or the SIS Act.
Some of the factors APRA may consider in deciding whether to serve an infringement notice include:
- the significance of the contravention;
- the length of time that has passed from the date of the alleged contravention;
- the entity’s efforts/attempts to remedy the alleged contravention;
- the compliance history of the entity;
- whether the entity is likely to have a defence to the alleged contravention;
- any reasons beyond the entity’s control that have led to the alleged contravention;
- whether legal or review proceedings relating to the alleged contravention have been commenced;
- whether there are other more appropriate enforcement tools available;
- whether issuing an infringement notice will improve the compliance of the entity (or related entities) on whom it is issued and/or that of other industry participants.
Penalties APRA may impose
1.1 Superannuation Industry (Supervision) Act 1993
Under the SIS Act, the penalty specified in an infringement notice must be:
- one-fifth of the maximum pecuniary penalty that a Court could impose on the entity for the offence or offences; or
- one-fortieth of the maximum civil penalty that Court could impose for the contravention or contraventions of a civil penalty provision.
1.2 Financial Sector (Collection of Data) Act 2001
Under FSCODA, the penalty specified in an infringement notice must be the lesser of one-fifth of the maximum penalty that a Court could impose for the offence (or offences) or 50 penalty units.
Timeframe in which an infringement notice must be served
APRA has up to 12 months from the date of the alleged offence in which to serve an infringement notice.
Options for responding to an infringement notice
1.3 Payment of penalty
If an entity decides to pay the penalty specified in an infringement notice by the due date, any liability for the alleged contravention (or contraventions) is taken to be discharged. Payment of the penalty is also not taken as an admission by the entity of guilt or liability for the alleged contravention.
1.4 Application for extension of time to pay penalty
The entity may request that APRA extend the time for payment of the penalty specified in the infringement notice.
1.5 Elect to leave matter for APRA to prosecute or take other action
If the entity decides not to pay the penalty, or informs APRA that it would prefer to defend itself in Court, APRA may exercise its discretion to refer the matter for prosecution (or in the case of the SIS Act, commence civil penalty proceedings).
1.6 Application for withdrawal
The entity may make written representations to APRA seeking withdrawal of an infringement notice.
APRA may also withdraw an infringement notice on its own initiative.
If a notice is withdrawn but a penalty has already been paid, APRA must refund the amount paid.
Publication of infringement notices
APRA will maintain a register of infringement notices on its external website https://www.apra.gov.au/. This will generally record APRA’s decision to serve infringement notices on a particular entity, details of the alleged conduct and the entity’s response.
Having regard to the deterrent effect of publicity, APRA may also decide to issue a press release in relation to the decision to serve an infringement notice.
APRA will, however, consider financial stability considerations before deciding whether to publish a media release and/or include any matter on its public register.
For further information regarding the infringement notice regimes under FSCODA and the SIS Act, please see:
• Part 3 of FSCODA
• Part 3B and Part 22 of the SIS Act