Corporations Act 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4 - OFFENCES  

Division 1 - Specific offences  

SECTION 1309   FALSE INFORMATION ETC.  

1309(1)    

An officer or employee of a corporation who makes available or gives information, or authorises or permits the making available or giving of information, to:

(a)    a director, auditor, member, debenture holder or trustee for debenture holders of the corporation; or

(b)    if the corporation is taken for the purposes of Chapter 2M to be controlled by another corporation - an auditor of the other corporation; or

(c)    

an operator of a financial market (whether the market is operated in Australia or elsewhere) or an officer of such a market; or

(ca)    

a CSF intermediary;

being information, whether in documentary or any other form, that relates to the affairs of the corporation and that, to the knowledge of the officer or employee:

(d)    is false or misleading in a material particular; or

(e)    has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;

contravenes this subsection.

Note: This subsection applies in relation to CCIVs with modifications: see section 1242D .

1309(2)    

An officer or employee of a corporation who makes available or gives information, or authorises or permits the making available or giving of information, to:

(a)    a director, auditor, member, debenture holder or trustee for debenture holders of the corporation; or

(b)    if the corporation is taken for the purposes of Chapter 2M to be controlled by another corporation - an auditor of the other corporation; or

(c)    

an operator of a financial market (whether the market is operated in Australia or elsewhere) or an officer of such a market;

being information, whether in documentary or any other form, relating to the affairs of the corporation that:

(d)    is false or misleading in a material particular; or

(e)    has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;

without having taken reasonable steps to ensure that the information:

(f)    was not false or misleading in a material particular; and

(g)    did not have omitted from it a matter or thing the omission of which rendered the information misleading in a material respect;

contravenes this subsection.

Note: This subsection applies in relation to CCIVs with modifications: see section 1242D .

1309(3)    
The references in subsections (1) and (2) to a person making available or giving, or authorising or permitting the making available or giving of, information relating to the affairs of a corporation include references to a person making available or giving, or authorising or permitting the making available or giving of, information as to the state of knowledge of that person with respect to the affairs of the corporation.

1309(4)    
Where information is made available or given to a person referred to in paragraph (1)(a) , (b) or (c) or (2)(a) , (b) or (c) in response to a question asked by that person, the question and the information are to be considered together in determining whether the information was false or misleading.

1309(5)    

For the purposes of this section:

(a)    

a notice under subsection 708AA(2) , 708A(5) , 1012DAA(2) or 1012DA(5) is taken to be a notice required for the purposes of this Act; and

(b)    

a notice under subsection 708AA(2) , 708A(5) , 1012DAA(2) or 1012DA(5) is taken to be misleading in a material respect if it omits information that is excluded information for the purposes of section 708AA , 708A , 1012DAA or 1012DA .

1309(6)    

Paragraphs (1)(a) and (b) do not apply in relation to a corporation that is an Aboriginal and Torres Strait Islander corporation.

Note: Similar offences are created in relation to Aboriginal and Torres Strait Islander corporations under section 561-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .

1309(7)    

For the purposes of subsection (2) , a person is taken to have taken reasonable steps to ensure that information was not false or misleading in a material particular if the person proves that:

(a)    the person made all inquiries (if any) that were reasonable in the circumstances; and

(b)    after doing so, the person believed on reasonable grounds that the information was not misleading or deceptive in a material particular.

1309(8)    

For the purposes of subsection (2) , a person is taken to have taken reasonable steps to ensure that information did not have omitted from it any matter or thing the omission of which rendered the information misleading in a material respect if the person proves that:

(a)    the person made all inquiries (if any) that were reasonable in the circumstances; and

(b)    after doing so, the person believed on reasonable grounds that there was no such omission.

1309(9)    

For the purposes of subsection (2) , a person is taken to have taken reasonable steps to ensure that information was not false or misleading in a material particular if the person proves that:

(a)    

the person relied on information given to the person by:

(i) if the person is a body - someone other than a director, employee or agent of the body; or

(ii) if the person is an individual - someone other than an employee or agent of the individual; and

(b)    the reliance placed on that information by the person was reasonable in all the circumstances.

Note: This subsection applies in relation to information given to CCIVs with modifications: see section 1242D .

1309(10)    
For the purposes of subsection (2) , a person is taken to have taken reasonable steps to ensure that information did not have omitted from it any matter or thing the omission of which rendered the information misleading in a material respect if the person proves that:

(a)    the person relied on information given to the person by:

(i) if the person is a body - someone other than a director, employee or agent of the body; or

(ii) if the person is an individual - someone other than an employee or agent of the individual; and

(b)    the reliance placed on that information by the person was reasonable in all the circumstances.

Note: This subsection applies in relation to information given to CCIVs with modifications: see section 1242D .

Fault-based offence

1309(11)    

A person commits an offence if the person contravenes subsection (1) or (2) .

Civil liability

1309(12)    

A person contravenes this subsection if the person contravenes subsection (2) .

Note: This subsection is a civil penalty provision (see section 1317E ).