CORPORATIONS ACT 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

PART 7.9 - FINANCIAL PRODUCT DISCLOSURE AND OTHER PROVISIONS RELATING TO ISSUE, SALE AND PURCHASE OF FINANCIAL PRODUCTS  

Division 7 - Enforcement  

Subdivision A - Offences  

SECTION 1021C   OFFENCE OF FAILING TO GIVE ETC. A DISCLOSURE DOCUMENT OR STATEMENT  

1021C(1)   Strict liability offence.  

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


(a) the providing entity:


(i) is required by a provision of this Part to give another person a Product Disclosure Statement or a Supplementary Product Disclosure Statement (the required disclosure document or statement ); or

(ii) is required by paragraph 1012G(3) (a) to orally communicate information (the required disclosure document or statement ) to another person; and


(b) the providing entity does not:


(i) if subparagraph (a)(i) applies - give (in accordance with section 1015C ) the other person anything purporting to be the required disclosure document or statement by the time they are required to do so; or

(ii) if subparagraph (a)(ii) applies - orally communicate to the other person anything purporting to be the information required by paragraph 1012G(3) (a) by the time they are required to do so.

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

1021C(2)   [ Strict liability offence]  

An offence based on subsection (1) is an offence of strict liability.

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

1021C(3)   Ordinary offence.  

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


(a) the providing entity:


(i) is required by a provision of this Part to give another person a Product Disclosure Statement or a Supplementary Product Disclosure Statement (the required disclosure document or statement ); or

(ii) is required by paragraph 1012G(3) (a) to orally communicate information (the required disclosure document or statement ) to another person; and


(b) the providing entity does not:


(i) if subparagraph (a)(i) applies - give (in accordance with section 1015C ) the other person anything purporting to be the required disclosure document or statement by the time they are required to do so; or

(ii) if subparagraph (a)(ii) applies - orally communicate to the other person anything purporting to be the information required by paragraph 1012G(3) (a) by the time they are required to do so.

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

1021C(4)   Defence for authorised representative.  

In any proceedings against an authorised representative of a financial services licensee for an offence based on subsection (1) or (3), it is a defence if:


(a) the licensee had provided the representative with information or instructions about the giving or communication of disclosure documents or statements; and


(b) the representative ' s failure to give or communicate the required disclosure document or statement occurred because the representative was acting in reliance on that information or those instructions; and


(c) the representative ' s reliance on that information or those instructions was reasonable.

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

1021C(5)   Circumstances in which a person is taken not to contravene this section.  

If:


(a) a person does not give another person a Product Disclosure Statement for a financial product because of section 1012DAA or 1012DA ; and


(b) a notice was given under subsection 1012DAA(2) or 1012DA(5) ; and


(c) the notice purported to comply with subsection 1012DAA(7) or 1012DA(6) but did not actually comply with that subsection;

the person is taken not to contravene this section.


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