Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (17 of 2019)

Schedule 1   Amendment of the Corporations Act 2001

Part 1   Amendments

Corporations Act 2001

86   Section 952E

Repeal the section, substitute:

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

(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 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; and

(b) the disclosure document or statement is defective.

Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in subsections 941C(1), (2), (3) and (3A). See subsection 13.3(3) of the Criminal Code.

Authorised representative gives a defective disclosure statement or document

(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, being a Statement of Advice, 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), in circumstances in which the document or statement is required by a provision of this Part to be given to the person; and

(b) the disclosure document or statement is defective.

Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in subsections 941C(1), (2), (3) and (3A). See subsection 13.3(3) of the Criminal Code.

Exceptions

(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.

(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

(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

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

(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).

(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

(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).