Corporations Act 2001

CHAPTER 6D - FUNDRAISING  

PART 6D.3 - PROHIBITIONS, LIABILITIES AND REMEDIES (OTHER THAN FOR CSF OFFERS)  

Division 1 - Prohibitions and liabilities  

SECTION 734   RESTRICTIONS ON ADVERTISING AND PUBLICITY  

No advertising or publicity for offers covered by the exception for 20 issues in 12 months

734(1)    
A person must not:

(a)    advertise; or

(b)    publish a statement that directly or indirectly refers to;

an offer, or intended offer, of securities that would need a disclosure document but for subsection 708(1) (exception for 20 issues in 12 months).

Advertising or publicity for offers that need a disclosure document

734(2)    

If an offer, or intended offer, of securities needs a disclosure document, a person must not:

(a)    advertise the offer or intended offer; or

(b)    publish a statement that:

(i) directly or indirectly refers to the offer or intended offer; or

(ii) is reasonably likely to induce people to apply for the securities.

734(2A)    

Subsection (2) does not apply if the advertisement or publication is authorised by subsection (4) , (5) , (6) or (7) .

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) , see subsection 13.3(3) of the Criminal Code .

Strict liability offences

734(2B)    

An offence based on subsection (1) or (2) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

Image advertising

734(3)    
In deciding whether a statement:

(a)    indirectly refers to an offer, or intended offer, of securities; or

(b)    is reasonably likely to induce people to apply for securities;

have regard to whether the statement:

(c)    forms part of the normal advertising of a body ' s products or services and is genuinely directed at maintaining its existing customers, or attracting new customers, for those products or services; and

(d)    communicates information that materially deals with the affairs of the body; and

(e)    is likely to encourage investment decisions being made on the basis of the statement rather than on the basis of information contained in a disclosure document.

Dissemination of disclosure document

734(4)    
A person may disseminate a disclosure document that has been lodged with ASIC without contravening subsection (2) . This does not apply if an order under section 739 is in force in relation to the offer.

Note: Subsection (4) has an extended operation in relation to recognised offers under Chapter 8 (see subsection 1200L(1) ).

Advertising and publicity before the disclosure document is lodged

734(5)    
Before the disclosure document is lodged, an advertisement or publication does not contravene subsection (2) if it:

(a)    

if the offer is of securities in a class already quoted - includes a statement that:

(i) if the securities are likely to be offered by way of issue - identifies the issuer of the securities; and

(ii) if the securities are likely to be offered pursuant to sale offers to which section 707 will apply - identifies the issuer of the securities and the seller of the securities; and

(iii) in any case - a disclosure document for the offer will be made available when the securities are offered; and

(iv) indicates when and where the disclosure document is expected to be made available; and

(v) a person should consider the disclosure document in deciding whether to acquire the securities; and

(vi) anyone who wants to acquire the securities will need to complete the application form that will be in or will accompany the disclosure document; and

(b)    

in any other case - contains the following but nothing more:

(i) a statement that identifies the offeror and the securities;

(ii) a statement that a disclosure document for the offer will be made available when the securities are offered;

(iii) a statement that anyone who wants to acquire the securities will need to complete the application form that will be in or will accompany the disclosure document;

(iv) a statement of how to arrange to receive a copy of the disclosure document.

To satisfy paragraph (b), the advertisement or publication must include all of the statements referred to in subparagraphs (i), (ii) and (iii). It may include the statement referred to in subparagraph (iv).

Note: Subsection (5) has an extended operation in relation to recognised offers under Chapter 8 (see subsection 1200L(2) ).

Advertising and publicity after the disclosure document is lodged

734(6)    
After the disclosure document is lodged, an advertisement or publication does not contravene subsection (2) if it includes a statement that:

(a)    

identifies:

(i) if the securities are offered by way of issue - the issuer of the securities; or

(ii) if the securities are offered pursuant to sale offers to which section 707 applies or will apply - the issuer of the securities and the seller of the securities; and

(b)    

indicates that the disclosure document for the offer is available and where it can be obtained; and

(c)    

the offers of the securities will be made in, or accompanied by, a copy of the disclosure document; and

(d)    

a person should consider the disclosure document in deciding whether to acquire the securities; and

(e)    

anyone who wants to acquire the securities will need to complete the application form that will be in or will accompany the disclosure document.

Note: Subsection (6) has an extended operation in relation to recognised offers under Chapter 8 (see subsection 1200L(3) ).

General exceptions

734(7)    
An advertisement or publication does not contravene subsection (2) if it:

(a)    

relates to an offer of securities of a listed body and consists of a notice or report by the body, or one of its officers, about its affairs to the relevant market operator; or

(b)    consists solely of a notice or report of a general meeting of the body; or

(c)    

consists solely of a report about the body that is published by the body and:

(i) does not contain information that materially affects affairs of the body other than information previously made available in a disclosure document that has been lodged, a CSF offer document that has been published on a platform of a CSF intermediary, an annual report or a report referred to in paragraph (a) or (b); and

(ii) does not refer (whether directly or indirectly) to the offer; or

(d)    is a news report or is genuine comment, in a newspaper or periodical or on radio or television relating to:

(i) a disclosure document that has been lodged or information contained in such a disclosure document; or

(ii) a notice or report covered by paragraph (a), (b) or (c); or

(e)    is a report about the securities of a body or proposed body published by someone who is not:

(i) the body; or

(ii) acting at the instigation of, or by arrangement with, the body; or

(iii) a director of the body; or

(iv) a person who has an interest in the success of the issue or sale of the securities.

Paragraphs (d) and (e) do not apply if anyone gives consideration or another benefit for publishing the report.

Liability of publishers

734(8)    
A person does not contravene subsection (1) or (2) by publishing an advertisement or statement if they publish it in the ordinary course of a business of:

(a)    publishing a newspaper or magazine; or

(b)    broadcasting by radio or television;

and the person did not know and had no reason to suspect that its publication would amount to a contravention of a provision of this Chapter.

Note: Depending on the circumstances of the publication, the person may, however, commit an offence by being involved in someone else ' s contravention of subsection (1) or (2) .

Pathfinder documents

734(9)    
A person does not contravene subsection (1) or (2) by sending a draft disclosure document for securities to a person if an offer of the securities to the person would not require a disclosure document because of subsection 708(8) or (10) (sophisticated investors) or 708(11) (professional investors).