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 952G   OFFENCES OF FINANCIAL SERVICES LICENSEE PROVIDING DISCLOSURE MATERIAL TO AN AUTHORISED REPRESENTATIVE (WHETHER OR NOT KNOWN TO BE DEFECTIVE)  

952G(1)    

For the purposes of this section, a financial services licensee provides disclosure material to an authorised representative of the licensee if:

(a)    

the licensee authorises the distribution by the representative of a disclosure document or statement, being a Financial Services Guide, a Supplementary Financial Services Guide or website disclosure information; or

(b)    

the licensee provides the representative with a disclosure document or statement, being:

(i) a Statement of Advice; or

(ii) a Cash Settlement Fact Sheet; or

(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) ; or

(c)    

the licensee provides the representative with information:

(i) for the purpose of it being included by the representative in a disclosure document or statement, being a Statement of Advice, a Cash Settlement Fact Sheet, or 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) ; or

(ii) knowing that it is likely that it will be so included in such a document.

952G(2)    
A financial services licensee commits an offence if:

(a)    the licensee provides disclosure material (being a disclosure document or statement) to an authorised representative of the licensee as mentioned in paragraph (1)(a) or (b) ; and

(b)    the disclosure document or statement is defective in a respect that does not relate to material required to be in the document or statement only because the representative is also the authorised representative of another financial services licensee.

952G(3)    
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) .

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

952G(4)    
A financial services licensee commits an offence if:

(a)    the licensee provides disclosure material (being information) to an authorised representative of the licensee as mentioned in paragraph (1)(c) ; and

(b)    the authorised representative includes the information in the disclosure document or statement concerned; and

(c)    the disclosure document or statement is defective because it includes that information (whether or not it is also defective for other reasons).

952G(5)    
For the purposes of an offence based on subsection (4) , strict liability applies to the physical element of the offence specified in paragraph (4)(c) .

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

952G(6)    
A financial services licensee commits an offence if:

(a)    the licensee provides disclosure material (being information) to an authorised representative of the licensee as mentioned in paragraph (1)(c) ; and

(b)    the information relates to a matter or matters, but it is only some of the information relating to the matter or matters that the disclosure document or statement concerned is required to contain; and

(c)    the representative prepares the disclosure document or statement on the basis that the information is all the information relating to the matter or matters that the disclosure document or statement is required to contain; and

(d)    the disclosure document or statement is defective because it includes only that information about the matter or matters (whether or not it is also defective for other reasons).

952G(7)    
For the purposes of an offence based on subsection (6) , strict liability applies to the physical elements of the offence specified in paragraphs (6)(b) and (d) .

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

952G(8)    
In any proceedings against a person for an offence based on subsection (2) , it is a defence if the person took reasonable steps to ensure that the disclosure document or statement would not be defective.

Note: A defendant bears an evidential burden in relation to the matters in subsection (8) . See subsection 13.3(3) of the Criminal Code .

952G(9)    
In any proceedings against a person for an offence based on subsection (4) , it is a defence if the person took reasonable steps to ensure that the information they provided would not be such as to make the disclosure document or statement defective.

Note: A defendant bears an evidential burden in relation to the matters in subsection (9) . See subsection 13.3(3) of the Criminal Code .

952G(10)    
In any proceedings against a person for an offence based on subsection (6) , it is a defence if the person took reasonable steps to ensure that the information they provided about the matter or matters would be all the information about the matter or matters that the disclosure document or statement would be required to contain.

Note: A defendant bears an evidential burden in relation to the matters in subsection (10) . See subsection 13.3(3) of the Criminal Code .