Financial Services Reform Amendment Act 2003 (141 of 2003)

Schedule 2   Other amendments of the Corporations Act 2001

95U   After section 1021F

Insert:

1021FA Paragraph 1012G(3)(a) obligation - offences relating to communication of information

Offence where information known to be defective

(1) A person (the providing entity ) commits an offence if:

(a) the providing entity communicates information required by paragraph 1012G(3)(a) to another person in circumstances in which the providing entity is required to do so; and

(b) the providing entity knows that the information is defective.

Note: A defendant bears an evidential burden in relation to the matters in sections 1012D and 1012E.

Offence whether or not information known to be defective

(2) A person (the providing entity ) commits an offence if:

(a) the providing entity communicates information required by paragraph 1012G(3)(a) to another person in circumstances in which the providing entity is required to do so; and

(b) the information is defective.

Note: A defendant bears an evidential burden in relation to the matters in sections 1012D and 1012E.

(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.

Defences

(4) In any proceedings against a person for an offence based on subsection (1) or (2), it is a defence if the person took reasonable steps to ensure that the information communicated would not be defective.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3) of the Criminal Code.

(5) In any proceedings against a person for an offence based on subsection (2), it is a defence if the information communicated was defective because of information, or an omission from information, provided to the person (whether in a document or otherwise) by the issuer of the financial product concerned.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the Criminal Code.

1021FB Paragraph 1012G(3)(a) obligation - offences relating to information provided by product issuer for communication by another person

Product issuer knows information is defective

(1) The issuer of a financial product commits an offence if:

(a) the issuer provides information (whether in a document or otherwise) relating to the product to a person:

(i) for the purpose of the information being communicated under paragraph 1012G(3)(a); or

(ii) knowing that it is likely that the information will be so communicated; and

(b) the issuer knows that, if the person communicates the provided information for the purpose of paragraph 1012G(3)(a), the information communicated will be defective.

Product issuer knows information is not all the required information

(2) The issuer of a financial product commits an offence if:

(a) the issuer provides information (whether in a document or otherwise) relating to the product to a person:

(i) for the purpose of it being communicated under paragraph 1012G(3)(a); or

(ii) knowing that it is likely that it will be so communicated; and

(b) the provided information relates to a matter or matters, but the issuer knows that it is not all of the information relating to the matter or matters that is required to be so communicated; and

(c) the issuer is reckless as to whether the person will or may communicate information for the purposes of paragraph 1012G(3)(a) on the basis that the provided information is all the information relating to the matter or matters that is required to be so communicated.

Product issuer provides information that results in information required by paragraph 1012G(3)(a) being defective

(3) The issuer of a financial product commits an offence if:

(a) the issuer provides information (whether in a document or otherwise) relating to the product to a person:

(i) for the purpose of it being communicated under paragraph 1012G(3)(a); or

(ii) knowing that it is likely that it will be so communicated; and

(b) the person communicates the information for the purpose of paragraph 1012G(3)(a); and

(c) the information communicated is defective because it includes the provided information (whether or not it is defective for other reasons).

(4) For the purposes of an offence based on subsection (3), strict liability applies to the physical element of the offence specified in paragraph (3)(c).

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

Defence to subsection (3) offence

(5) In any proceedings against the issuer of a financial product for an offence based on subsection (3), it is a defence if the issuer took reasonable steps to ensure that the information they provided would not be such as to make the information communicated for the purpose of paragraph 1012G(3)(a) defective.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the Criminal Code.

Product issuer does not provide all the required information

(6) The issuer of a financial product commits an offence if:

(a) the issuer provides information (whether in a document or otherwise) relating to the product to a person:

(i) for the purpose of it being communicated under paragraph 1012G(3)(a); or

(ii) knowing that it is likely that it will be so communicated; and

(b) the provided information relates to a matter or matters, but it is not all of the information relating to the matter or matters that is required to be so communicated; and

(c) the person communicates information for the purpose of paragraph 1012G(3)(a) on the basis that the provided information is all the information relating to the matter or matters that is required to be so communicated; and

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

(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.

Defence to subsection (6) offence

(8) In any proceedings against the issuer of a financial product for an offence based on subsection (6), it is a defence if the issuer 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 would be required by paragraph 1012G(3)(a) to be communicated.

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