Document ID: chunk:federal_register_of_legislation:F2021L01123:reg:4:p7
Version: federal_register_of_legislation:F2021L01123
Segment Type: reg
Provision Reference: reg 4 (pt 7/12)
Character Range: 16808–19651

the BSA or BSA code
               take specified action directed towards ensuring that the person does not contravene the BSA or BSA code, or is unlikely to contravene the Act or code, in the future.[1]

    12.3 It is a requirement that the undertaking must be expressed as an undertaking under section 205W of the BSA.

    12.4 The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA. However, the ACMA may cancel the enforceable undertaking by written notice.

    12.5 The ACMA may commence proceedings in the Federal Court if the ACMA considers that the person has breached the undertaking.

    12.6 An enforceable undertaking may be accepted if, in the opinion of the ACMA, it provides an effective regulatory outcome. In more complex matters, it is not uncommon for there to be a number of issues that may be the subject of concern. It is open to the ACMA to accept an enforceable undertaking with respect to certain aspects of the matter while pursuing other remedies.

    12.7 Whether an enforceable undertaking will be accepted by the ACMA will turn on the facts of the particular matter. The acceptance of an enforceable undertaking in a particular set of circumstances should not be regarded as a binding precedent for future action.

    Discretionary factors

    12.8 There is a range of factors which the ACMA may consider in determining whether an enforceable undertaking should be accepted (see clause 9). The ACMA will generally also consider whether:
               the regulated person or entity is prepared to publicly acknowledge the ACMA's concerns about the conduct and the need for corrective action
               the terms of the undertaking will achieve an effective outcome for those who may have been disadvantaged by the misconduct (if any)
               there is any risk that the undertakings given will not be fulfilled.

    Terms of an undertaking

    12.9 The ACMA will not consider accepting an enforceable undertaking that seeks to impose terms or conditions on the ACMA.

    12.10 The ACMA will not consider accepting an enforceable undertaking where the regulated person or entity:
               seeks to deny liability
               seeks to establish defences for breach of the relevant Act or BSA code
               merely undertakes to comply with the law.

    12.11 The ACMA will also not consider accepting an enforceable undertaking on a confidential basis. It may, however, consider a request that a particular term of the enforceable undertaking not be made public if that term discloses sensitive private, commercial or confidential information. Any such request must be made before the undertaking is executed by the ACMA. The ACMA will carefully consider, but is under no obligation to agree to, any such request.

    12.12 The