In this edition of FSR GPS, we set out some useful tips to help licensees calculate the 30-day reporting deadline under the ASIC breach reporting regime.
A licensee is required to report to ASIC within 30 days after it first knows that, or is reckless with respect to whether, there are reasonable grounds to believe a reportable situation has arisen. However, the legislation actually explains that this deadline is calculated by reference to the interpretive rules contained in the Acts Interpretation Act 1901 (Cth) as at 1 January 2005 (Acts Interpretation Act).`1 These rules, together with rules in the Corporations Act, can often give licensees some flexibility by enabling an extension of the reporting deadline.
| Count calendar days, not business days | Section 912DAA(3) of the Corporations Act refers to "days", not "business days". |
|---|---|
| Do not count the day on which you first know, or are reckless about whether, there are reasonable grounds to believe a reportable situation has arisen | Section 36(1) of the Acts Interpretation Act (as at 1 January
2005) states:
"Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event." |
| The last day of the period (i.e. the "due date") should be counted as the 30th day | Section 105 of the Corporations Act states:
"... in calculating how many days a particular day, act or event is before or after another day, act or event, the first mentioned day, or the day of the first mentioned act or event, is to be counted but not the other day, or the day of the other act or event." |
| If the "due date" falls on a weekend, public holiday or bank holiday, you can make your report on the next day which is not a weekend, public holiday or bank holiday | Section 36(2) of the Acts Interpretation Act (as at 1 January
2005) states:
"Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place." |
Case study: 3 days added to the reporting deadlineIf a licensee located in NSW first knows that there are reasonable grounds to believe a reportable situation has arisen on Thursday 31 August 2023, the last day they could lodge a breach report consistently with the requirements of the breach reporting regime would be Tuesday 3 October 2023 instead of Saturday 30 September. Although the 30th calendar day after 31 August is Saturday 30 September, the deadline does not occur until Tuesday because the deadline cannot fall on a Saturday or a Sunday, and Monday 2 October 2023 is a public holiday in NSW. |
Footnote
1. Corporations Act 2001 (Cth) (Corporations Act) s 5C(2).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
