CHAPTER 6D
-
FUNDRAISING
PART 6D.3
-
PROHIBITIONS, LIABILITIES AND REMEDIES (OTHER THAN FOR CSF OFFERS)
History
Pt 6D.3 heading substituted by No 17 of 2017, s 3, Sch 1
[
11] (effective 28 September 2017).
Division 1A
-
Introduction
CCH Note:
Division 1A is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
History
Div 1A inserted by No 17 of 2017, s 3, Sch 1
[
12] (effective 28 September 2017).
SECTION 725A
725A
PART GENERALLY DOES NOT APPLY IN RELATION TO CSF OFFERS
CCH Note:
Section 725A is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Part
6D.3A
(Crowd-sourced funding) contains a separate regime for the making of CSF offers. The provisions in this Part do not apply in relation to CSF offers, except as expressly provided in this Part or in Part
6D.3A
.
Note 1: The fact that a company makes a CSF offer of securities does not prevent the company from also making an offer of securities of the same class in reliance on a provision of section
708
(see section
738E
).
Note 2: Division
1A
of Part
7.12
(Employee share schemes) contains a separate regime for the making of offers under employee share schemes. The provisions of this Part do not apply in relation to offers that are eligible to be made under that Division: see subsection
1100ZC(2)
and section
1100ZD
.
History
S 725A amended by No 14 of 2022, s 3, Sch 4[19] and
[
20] (effective 1 October 2022).
S 725A inserted by No 17 of 2017, s 3, Sch 1
[
12].
Division 1
-
Prohibitions and liabilities
CCH Note:
Division 1 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
SECTION 726
726
OFFERING SECURITIES IN A BODY THAT DOES NOT EXIST
CCH Note:
Section 726 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
A person must not offer securities of a body that has not been formed or does not exist if the offer would need disclosure to investors under
Part 6D.2
if the body did exist. This is so even if it is proposed to form or incorporate the body.
History
S 726 substituted by No 122 of 2001, s 3, Sch 1, Pt 2
[
427] (effective 11 March 2002).
SECTION 727
OFFERING SECURITIES WITHOUT A CURRENT DISCLOSURE DOCUMENT
CCH Note:
Section 727 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Offer of securities needs lodged disclosure document
727(1)
A person must not make an offer of securities, or distribute an application form for an offer of securities, that needs disclosure to investors under Part
6D.2
unless a disclosure document for the offer has been lodged with ASIC.
[
CCH Note:
S 727(1) will be amended by No 69 of 2020, s 3, Sch 1[1121], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Offer form to be included in or accompanied by disclosure document
727(2)
A person must not make an offer of securities, or distribute an application form for an offer of securities, that needs disclosure to investors under Part
6D.2
unless:
(a)
if a prospectus is used for the offer
-
the offer or form is:
(i)
included in the prospectus; or
(ii)
accompanied by a copy of the prospectus; or
(b)
if both a prospectus and a profile statement are used for the offer
-
the offer or form is:
(i)
included in the prospectus or profile statement; or
(ii)
accompanied by a copy of the prospectus or profile statement; or
(c)
if an offer information statement is used for the offer
-
the offer or form is:
(i)
included in the statement; or
(ii)
accompanied by a copy of the statement.
Note: Sections
706
,
707
,
708
,
708AA
and
708A
say when the offer needs disclosure to investors under Part
6D.2
.
History
S 727(2) (Note) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
89].
S 727(2) (Note) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
18].
Non-quoted securities
-
waiting period after lodgment before processing applications for securities
727(3)
A person must not accept an application for, or issue or transfer, non-quoted securities offered under a disclosure document until the period of 7 days after lodgment of the disclosure document has ended. ASIC may extend the period by notice in writing to the person offering the securities. The period as extended must end no more than 14 days after lodgment.
Simple corporate bonds
727(3A)
Subsection
(3)
does not apply in relation to an offer of securities under a 2-part simple corporate bonds prospectus if the securities are in the same class as existing securities that are quoted on a prescribed financial market immediately before the application period for the prospectus but for differences as to:
(a)
the fixed term of the securities (if any); or
(b)
the rate at which interest is payable under the securities; or
(c)
the dates on which the holders are to be paid interest under the securities.
History
S 727(3A) inserted by No 100 of 2014, s 3, Sch 1
[
38].
Issue or transfer not to breach section 708 ceiling
727(4)
If a person relies on subsection
708(1)
to make offers of securities without disclosure to investors under Part
6D.2
, the person must not issue or transfer securities without disclosure to investors under that Part if the issue or transfer would result in a breach of the 20 investors ceiling or the $2 million ceiling (see subsections
708(3)
,
(4)
,
(5)
,
(6)
and
(7)
).
Circumstances in which a person is taken not to contravene this section
727(5)
If:
(a)
a person relies on subsection
708AA(2)
or
708A(5)
to make offers of securities for issue or sale without disclosure to investors under Part
6D.2
; and
(b)
the notice given under that subsection purported to comply with subsection
708AA(7)
or
708A(6)
but did not actually comply with subsection
708AA(7)
or
708A(6)
;
the person is taken not to contravene this section.
History
S 727(5) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
90
-
91].
S 727(5) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
19].
Civil liability
727(6)
A person contravenes this subsection if the person contravenes subsection
(1)
,
(2)
,
(3)
or
(4)
.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 727(6) inserted by No 17 of 2019, s 3, Sch 1
[
37] (effective 13 March 2019).
SECTION 728
MISSTATEMENT IN, OR OMISSION FROM, DISCLOSURE DOCUMENT
CCH Note:
Section 728 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Misleading or deceptive statements, omissions and new matters
728(1)
A person must not offer securities under a disclosure document if there is:
(a)
a misleading or deceptive statement in:
(i)
the disclosure document; or
(ii)
any application form that accompanies the disclosure document; or
(iii)
any document that contains the offer if the offer is not in the disclosure document or the application form; or
(b)
an omission from the disclosure document of material required by section
710
,
711
,
712
,
713
,
713C
,
713D
,
713E
,
714
or
715
; or
(c)
a new circumstance that:
(i)
has arisen since the disclosure document was lodged; and
(ii)
would have been required by section
710
,
711
,
712
,
713
,
713C
,
713D
,
713E
,
714
or
715
to be included in the disclosure document if it had arisen before the disclosure document was lodged.
Note 1: The person may make further offers after making up the deficiency in the current disclosure document by lodging a supplementary or replacement document.
Note 2: See sections
731
,
732
and
733
for defences.
Note 3: Section
1041H
imposes liabilities in respect of other conduct related to the offering of the securities.
[
CCH Note:
S 728(1) will be amended by No 69 of 2020, s 3, Sch 1[1122], by inserting
"
with the Registrar
"
after
"
lodged
"
in para (c)(i) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 728(1) amended by No 100 of 2014, s 3, Sch 1
[
39] and
[
40].
S 728(1) (Note 3) amended by No 5 of 2011, s 3, Sch 1
[
38].
Forecasts and other forward-looking statements
728(2)
A person is taken to make a misleading statement about a future matter (including the doing of, or refusing to do, an act) if they do not have reasonable grounds for making the statement. This subsection does not limit the meaning of a reference to a misleading statement or a statement that is misleading in a material particular.
Offence if statement, omission or new matter materially adverse
728(3)
A person commits an offence if they contravene subsection
(1)
and:
(a)
the misleading or deceptive statement; or
(b)
the omission or new circumstance;
is materially adverse from the point of view of an investor.
Civil liability if statement, omission or new matter materially adverse
728(4)
A person contravenes this subsection if:
(a)
the person contravenes subsection
(1)
; and
(b)
either:
(i)
the misleading or deceptive statement; or
(ii)
the omission or new circumstance;
is materially adverse from the point of view of an investor.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 728(4) inserted by No 17 of 2019, s 3, Sch 1
[
38] (effective 13 March 2019).
SECTION 729
RIGHT TO RECOVER FOR LOSS OR DAMAGE RESULTING FROM CONTRAVENTION
CCH Note:
Section 729 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
729(1)
Right to compensation.
A person who suffers loss or damage because an offer of securities under a disclosure document contravenes subsection
728(1)
may recover the amount of the loss or damage from a person referred to in the following table if the loss or damage is one that the table makes the person liable for. This is so even if the person did not commit, and was not involved in, the contravention.
People liable on disclosure document
|
[
operative
]
|
|
These people
…
|
are liable for loss or damage caused by
…
|
1 |
the person making the offer |
any contravention of subsection
728(1)
in relation to the disclosure document |
2 |
each director of the body making the offer if the offer is made by a body |
any contravention of subsection
728(1)
in relation to the disclosure document |
3 |
a person named in the disclosure document with their consent as a proposed director of the body whose securities are being offered |
any contravention of subsection
728(1)
in relation to the disclosure document |
4 |
an underwriter (but not a sub-underwriter) to the issue or sale named in the disclosure document with their consent |
any contravention of subsection
728(1)
in relation to the disclosure document |
5 |
a person named in the disclosure document with their consent as having made a statement: |
the inclusion of the statement in the disclosure document |
|
(a) |
that is included in the disclosure document; or |
|
|
(b) |
on which a statement made in the disclosure document is based |
|
6 |
a person who contravenes, or is involved in the contravention of, subsection 728(1) |
that contravention |
Note: Item 2
-
director
includes a shadow director (see section
9
).
729(1A)
Table items 2 and 3 in subsection (1) do not apply to an offer of simple corporate bonds under a 2-part simple corporate bonds prospectus.
History
S 729(1A) inserted by No 100 of 2014, s 3, Sch 1
[
41] (effective 19 December 2014).
729(2)
A person who acquires securities as a result of an offer that was accompanied by a profile statement is taken to have acquired the securities in reliance on both the profile statement and the prospectus for the offer.
729(3)
An action under subsection (1) may begin at any time within 6 years after the day on which the cause of action arose.
729(4)
This Part does not affect any liability that a person has under any other law.
Note: Conduct that contravenes subsection
728(1)
is expressly excluded from the operation of section
1041H
.
History
S 729(4) (Note) amended by No 5 of 2011, s 3, Sch 1
[
39] (effective 22 March 2011).
SECTION 730
PEOPLE LIABLE ON DISCLOSURE DOCUMENT TO INFORM PERSON MAKING THE OFFER ABOUT DEFICIENCIES IN THE DISCLOSURE DOCUMENT
CCH Note:
Section 730 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
730(1)
A person referred to in the table in section
729
must notify the person making the offer in writing as soon as practicable if they become aware during the application period that:
(a)
a material statement in the disclosure document is misleading or deceptive; or
(b)
there is a material omission from the disclosure document of material required by section
710
,
711
,
712
,
713
,
713C
,
713D
,
713E
,
714
or
715
; or
(c)
a material new circumstance that:
(i)
has arisen since the disclosure document was lodged; and
(ii)
would have been required by section
710
,
711
,
712
,
713
,
713C
,
713D
,
713E
,
714
or
715
to be included in the disclosure document if it had arisen before the disclosure document was lodged.
[
CCH Note:
S 730(1) will be amended by No 69 of 2020, s 3, Sch 1[1122], by inserting
"
with the Registrar
"
after
"
lodged
"
in para (c)(i) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 730(1) amended by No 100 of 2014, s 3, Sch 1
[
42] and
[
43].
730(1A)
For the purposes of subsection (1) of this section, disregard subsection
729(1A)
.
History
S 730(1A) inserted by No 100 of 2014, s 3, Sch 1
[
44].
730(2)
An offence based on subsection (1) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 730(2) inserted by No 117 of 2001, s 3, Sch 1
[
256].
SECTION 731
DUE DILIGENCE DEFENCE FOR PROSPECTUSES
CCH Note:
Section 731 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Reasonable inquiries and reasonable belief
-
statements
731(1)
A person does not commit an offence against subsection 728(3), and is not liable under section 729 for a contravention of subsection 728(1), because of a misleading or deceptive statement in a prospectus if the person proves that they:
(a)
made all inquiries (if any) that were reasonable in the circumstances; and
(b)
after doing so, believed on reasonable grounds that the statement was not misleading or deceptive.
Reasonable inquiries and reasonable belief
-
omissions
731(2)
A person does not commit an offence against subsection 728(3), and is not liable under section 729 for a contravention of subsection 728(1), because of an omission from a prospectus in relation to a particular matter if the person proves that they:
(a)
made all inquiries (if any) that were reasonable in the circumstances; and
(b)
after doing so, believed on reasonable grounds that there was no omission from the prospectus in relation to that matter.
SECTION 732
LACK OF KNOWLEDGE DEFENCE FOR OFFER INFORMATION STATEMENTS AND PROFILE STATEMENTS
CCH Note:
Section 732 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
732(1)
Not knowing statement misleading or deceptive.
A person does not commit an offence against subsection 728(3), and is not liable under section 729 for a contravention of subsection 728(1), because of a misleading or deceptive statement in an offer information statement or profile statement if the person proves that they did not know that the statement was misleading or deceptive.
732(2)
Not knowing there was an omission.
A person does not commit an offence against subsection 728(3), and is not liable under section 729 for a contravention of subsection 728(1), because of an omission from an offer information statement or profile statement in relation to a particular matter if the person proves that they did not know that there was an omission from the statement in relation to that matter.
SECTION 733
GENERAL DEFENCES FOR ALL DISCLOSURE DOCUMENTS
CCH Note:
Section 733 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Reasonable reliance on information given by someone else
-
statements and omissions
733(1)
A person does not commit an offence against subsection
728(3)
, and is not liable under section
729
for a contravention against subsection
728(1)
, because of a misleading or deceptive statement in, or an omission from, a disclosure document if the person proves that they placed reasonable reliance on information given to them by:
(a)
if the person is a body
-
someone other than a director, employee or agent of the body; or
(b)
if the person is an individual
-
someone other than an employee or agent of the individual.
733(2)
For the purposes of subsection
(1)
, a person is not the agent of a body or individual merely because they perform a particular professional or advisory function for the body or individual.
Withdrawal of consent
-
statements and omissions
733(3)
A person who is named in a disclosure document as:
(a)
being a proposed director or underwriter; or
(b)
making a statement included in the document; or
(c)
making a statement on the basis of which a statement is included in the document;
does not commit an offence against subsection
728(3)
, and is not liable under section
729
for a contravention against subsection
728(1)
, because of a misleading or deceptive statement in, or an omission from, a disclosure document if the person proves that they publicly withdrew their consent to being named in the document in that way.
Unawareness of new matter
733(4)
A person does not commit an offence against subsection
728(3)
, and is not liable under section
729
for a contravention of subsection
728(1)
, because of a new circumstance that has arisen since the disclosure document was lodged if the person proves that they were not aware of the matter.
[
CCH Note:
S 733(4) will be amended by No 69 of 2020, s 3, Sch 1[1123], by inserting
"
with the Registrar
"
after
"
lodged
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
SECTION 734
RESTRICTIONS ON ADVERTISING AND PUBLICITY
CCH Note:
Section 734 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
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.
History
S 734(2) amended by No 117 of 2001, s 3, Sch 1
[
257].
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
.
History
S 734(2A) inserted by No 117 of 2001, s 3, Sch 1
[
258].
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
.
History
S 734(2B) inserted by No 117 of 2001, s 3, Sch 1
[
258].
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)
).
[
CCH Note:
S 734(4) will be amended by No 69 of 2020, s 3, Sch 1
[
1124], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 734(4) (Note) inserted by No 85 of 2007, s 3, Sch 1
[
11].
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)
).
History
S 734(5) (Note) inserted by No 85 of 2007, s 3, Sch 1
[
12].
S 734(5) amended by No 101 of 2007, s 3, Sch 1
[
210] and
[
211].
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)
).
History
S 734(6) (Note) inserted by No 85 of 2007, s 3, Sch 1
[
13].
S 734(6) amended by No 101 of 2007, s 3, Sch 1
[
212].
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.
History
S 734(7) amended by No 17 of 2017, s 3, Sch 1
[
13].
S 734(7) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
428].
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).
SECTION 735
OBLIGATION TO KEEP CONSENTS AND OTHER DOCUMENTS
CCH Note:
Section 735 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
735(1)
A person who offers securities under a disclosure document must keep a consent required in respect of the document by subsection 716(2) or section 720.
735(2)
An offence based on subsection (1) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 735(2) inserted by No 117 of 2001, s 3, Sch 1
[
259].
SECTION 736
736
SECURITIES HAWKING PROHIBITED
(Repealed by No 135 of 2020, Sch 5
[
1] (effective 5 October 2021).)
Division 2
-
Remedies
CCH Note:
Division 2 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
SECTION 737
REMEDIES FOR INVESTORS
CCH Note:
Section 737 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
737(1)
Right to withdraw and have money returned.
If securities are issued to a person in contravention of section 724 (situation calling for a supplementary or replacement document), the person has the right to return the securities and to have their application money repaid. This is so even if the company that issued the securities is being wound up.
737(2)
[
Need for written notice]
A right referred to in subsection (1) is exercisable by written notice given to the company within 1 month after the date of the issue.
737(3)
[
Personal liability]
If the body or the seller does not repay the money as required by subsection (1), the directors of the body or seller are personally liable to repay the money.
SECTION 738
738
SECURITIES MAY BE RETURNED AND REFUND OBTAINED
(Repealed by No 135 of 2020, Sch 5
[
1] (effective 5 October 2021).)