Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .

PART 7.7 - FINANCIAL SERVICES DISCLOSURE  

Division 7 - Enforcement  

Subdivision A - Offences  

SECTION 952E   GIVING A DEFECTIVE DISCLOSURE DOCUMENT OR STATEMENT (WHETHER OR NOT KNOWN TO BE DEFECTIVE)  

Financial services licensee gives a defective disclosure document or statement

952E(1)    
A person (the providing entity ), being a financial services licensee, contravenes this subsection if:

(a)    

the providing entity:

(i) gives (see subsection (5) ) another person a disclosure document or statement (other than website disclosure information) in circumstances in which the document or statement is required by a provision of this Part to be given to the other person; or

(ii) is a financial services licensee and gives (see subsection (5) ), or makes available to, another person a disclosure document or statement, being a Financial Services Guide or a Supplementary Financial Services Guide, reckless as to whether the other person will or may rely on the information in it; or

(iii) makes available a disclosure document or statement, being website disclosure information, in circumstances in which it is required by a provision of this Part to do so; or

(iv) makes available on its website a disclosure document or statement, being website disclosure information, reckless as to whether a person will or may rely on the information; and

(b)    the disclosure document or statement is defective.

Authorised representative gives a defective disclosure statement or document

952E(2)    
An authorised representative of a financial services licensee contravenes this subsection if:

(a)    

the representative gives (see subsection (5) ) a person a disclosure document or statement that is one of the following, in circumstances in which the document or statement is required by a provision of this Part to be given to the person:

(i) a Statement of Advice;

(ii) a Cash Settlement Fact Sheet;

(iii) information, a statement or a copy of a record required by subsection 941C(5) or (7) , 941D(2) , 946AA(5) , 946B(3) , (6) or (8) or 946C(2) ; and

(b)    the disclosure document or statement is defective.

Exceptions

952E(3)    
A person does not contravene subsection (1) or (2) if the person took reasonable steps to ensure that the disclosure document or statement would not be defective.

Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in subsection (3) . See subsection 13.3(3) of the Criminal Code .

952E(4)    
A person does not contravene subsection (2) if the disclosure document or statement:

(a)    was provided to the person by a financial services licensee for whom they were, at that time, an authorised representative; or

(b)    was defective because of information, or an omission from information, provided to them by a financial services licensee for whom they were, at that time, an authorised representative.

Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in subsection (4) . See subsection 13.3(3) of the Criminal Code .

Meaning of give

952E(5)    
In this section, give means give by any means (including orally), and is not limited to the meaning it has because of section 940C .

Fault-based offence

952E(6)    
A person commits an offence if the person contravenes subsection (1) or (2) .

952E(7)    
For the purposes of an offence based on subsection (1) , strict liability applies to the physical element of the offence specified in paragraph (1)(b) .

952E(8)    
For the purposes of an offence based on subsection (2) , strict liability applies to the physical element of the offence specified in paragraph (2)(b) .

Civil liability

952E(9)    
A person contravenes this subsection if the person contravenes subsection (1) or (2) .

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