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CORPORATIONS ACT 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS    View history reference

PART 7.7 - FINANCIAL SERVICES DISCLOSURE    View history reference

Division 7 - Enforcement    View history reference

Subdivision A - Offences    View history reference

SECTION 952E  OFFENCE OF GIVING A DEFECTIVE DISCLOSURE DOCUMENT OR STATEMENT (WHETHER OR NOT KNOWN TO BE DEFECTIVE)  

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952E(1)  [ Financial services licensee]  


A person (the providing entity ), being a financial services licensee, commits an offence if:


(a) the providing entity:


(i) gives (see subsection (7)) 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 (7)), 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: A defendant bears an evidential burden in relation to the matters in subsections 941C(1) , (2) and (3) . See subsection 13.3(3) of the Criminal Code .

952E(2)  [ Strict liability]  


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).

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

952E(3)  [ Authorised representative]  


An authorised representative of a financial services licensee commits an offence if:


(a) the representative gives (see subsection (7)) 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
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(b) the disclosure document or statement is defective.

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

952E(4)  [ Strict liability]  


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

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

952E(5)  [ Defence if offence based on s 952E(1) or (3)]  


In any proceedings against a person for an offence based on subsection (1) or (3), 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 (5). See subsection 13.3(3) of the Criminal Code .

952E(6)  [ Defence if offence based on s 952E(3)]  


In any proceedings against a person for an offence based on subsection (3), it is a defence 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: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3) of the Criminal Code .

952E(7)  [ ``give'']  


In this section, give means give by any means (including orally), and is not limited to the meaning it has because of section 940C .


 



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