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 952B   MEANING OF DEFECTIVE AND DISCLOSURE DOCUMENT OR STATEMENT  

952B(1)    

In this Subdivision:

defective
, in relation to a disclosure document or statement, means:

(a) if the disclosure document or statement is a Financial Services Guide, a Supplementary Financial Services Guide, website disclosure information, or is information or a statement required by subsection 941C(5) , 941C(7) or 941D(2) :

(i) there is a misleading or deceptive statement in the disclosure document or statement; or

(ii) if it is a Financial Services Guide - there is an omission from the Financial Services Guide of material required by section 942B or 942C ; or

(iii) if it is a Supplementary Financial Services Guide that is given for the purposes of paragraph 941F(d) - there is an omission from the Supplementary Financial Services Guide of material required by that paragraph; or

(iiia) if it is website disclosure information - there is an omission from the document or statement of information that falls within the definition of website disclosure information in section 943J ; or

(iv) if it is information or a statement required by subsection 941C(5) , 941C(7) or 941D(2) - there is an omission from the document or statement of material required by that subsection;

being a statement, or an omission, that is or would be materially adverse from the point of view of a reasonable person considering whether to proceed to be provided with the financial service concerned; or

(b) if the disclosure document or statement is a Statement of Advice, a Cash Settlement Fact Sheet, or information, a statement or a copy of a record required by subsection 946AA(5) , 946B(3) , (6) or (8) or 946C(2) :

(i) there is a misleading or deceptive statement in the disclosure document or statement; or

(ii) if it is a Statement of Advice - there is an omission from the Statement of advice [ sic ] of material required by section 947B , 947C or 947D ; or

(iia) if it is a Cash Settlement Fact Sheet - there is an omission from the Cash Settlement Fact Sheet of material required by section 948F ; or

(iii) if it is information, a statement or a copy of a record required by subsection 946AA(5) , 946B(3) , (6) or (8) or 946C(2) - there is an omission from the information, statement or copy of material required by that subsection or section;

being a statement, or an omission, that is or would be materially adverse from the point of view of a reasonable person considering whether to act in reliance on the advice concerned.

Note: In determining whether a Financial Services Guide is defective, the effect of section 943D must be taken into account (section 943D takes information and statements in a Supplementary Financial Services Guide to be included in the Financial Services Guide it supplements).

disclosure document or statement
means:

(a) a Financial Services Guide; or

(b) a Supplementary Financial Services Guide; or

(ba) website disclosure information; or

(c) a Statement of Advice; or

(ca) a Cash Settlement Fact Sheet; or

(d) 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) .

952B(1A)    

For the avoidance of doubt, if section 941E (information must be up to date) is not complied with in relation to a Financial Services Guide, then, for the purposes of the definition of defective in subsection (1) :

(a)    if the circumstance constituting the non-compliance is that particular information included in the Financial Services Guide is not as up to date as section 941E requires it to be - the information so included constitutes a misleading statement in the Financial Services Guide; and

(b)    if the circumstance constituting the non-compliance is a failure to include particular information that was not previously required to be included in the Financial Services Guide - the failure to include the information constitutes an omission from the Statement of material required by section 942B or 942C .

Note 1: The effect of section 943D (information in a Supplementary Financial Services Guide is taken to be contained in the Financial Services Guide it supplements) must be taken into account in determining whether section 941E is complied with in relation to a Financial Services Guide.

Note 2: Whether the inclusion of out of date information, or the failure to include information, results in the Financial Services Guide being defective as defined in subsection (1) depends on whether the materiality test set out in that definition is satisfied.

952B(1B)    

For the avoidance of doubt, if section 943L (obligation to keep website disclosure information up to date) is not complied with in relation to website disclosure information, then, for the purposes of the definition of defective in subsection (1) :

(a)    if the circumstance constituting the non-compliance is that particular information included in the website disclosure information is not as up to date as section 943L requires it to be - the information so included constitutes a misleading statement in the website disclosure information; and

(b)    if the circumstance constituting the non-compliance is a failure to include particular information that was not previously required to be included in the website disclosure information - the failure to include the information constitutes an omission from the website disclosure information.

Note: Whether the inclusion of out of date information, or the failure to include information, results in website disclosure information being defective as defined in subsection (1) depends on whether the materiality test set out in that definition is satisfied.

952B(2)    
In this Subdivision, a reference (including in the definitions in subsection (1) ) to a document or statement of a kind referred to in a paragraph of the definition of disclosure document or statement in subsection (1) includes a reference to something purporting to be a document or statement of that kind.