CORPORATIONS ACT 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4 - OFFENCES  

Division 1 - Specific offences  

SECTION 1308   FALSE OR MISLEADING STATEMENTS  

1308(1)  
A corporation must not advertise or publish:

(a) a statement of the amount of its capital that is misleading; or

(b) a statement in which the total of all amounts paid and unpaid on shares in the company is stated but the amount of paid up capital or the amount of any charge on uncalled capital is not stated.

1308(1A)  

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

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

1308(2)  
A person who, in a document required by or for the purposes of this Act or lodged with or submitted to ASIC, makes or authorises the making of a statement that to the person ' s knowledge is false or misleading in a material particular, or omits or authorises the omission of any matter or thing without which the document is to the person ' s knowledge misleading in a material respect, is guilty of an offence.

1308(3)  
A person who makes or authorises the making of a statement that is based on information that to the person ' s knowledge:

(a) is false or misleading in a material particular; or

(b) has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;

is, for the purposes of subsection (2), taken to have made or authorised the making of a statement that to the person ' s knowledge was false or misleading in a material particular.

1308(3A)  
A person is not liable to be proceeded against for an offence in consequence of a regulation made under section 1364 as well as for an offence against subsection (2) of this section.

1308(4)  

A person who, in a document required by or for the purposes of this Act or lodged:

(a) makes or authorises the making of a statement that is false or misleading in a material particular; or

(b) omits or authorises the omission of any matter or thing without which the document is misleading in a material respect;

without having taken reasonable steps to ensure that the statement was not false or misleading in a material particular or to ensure that the document did not omit any matter or thing without which the document would be misleading in a material respect, as the case may be, is guilty of an offence.

1308(5)  
A person who makes or authorises the making of a statement without having taken reasonable steps to ensure that the information on which the statement was based:

(a) was not false or misleading in a material particular; and

(b) did not have omitted from it a matter or thing the omission of which would render the information misleading in a material respect;

is, for the purposes of subsection (4), taken to have made or authorised the making of a statement without having taken reasonable steps to ensure that the statement was not false or misleading.

1308(6)  
For the purposes of subsections (2) and (4), where:

(a) at a meeting, a person votes in favour of a resolution approving, or otherwise approves, a document required by or for the purposes of this Act or required to be lodged; and

(b) the document contains a statement that, to the person ' s knowledge, is false or misleading in a material particular, or omits any matter or thing without which the document is, to the person ' s knowledge, misleading in a material respect;

the person is taken to have authorised the making of the statement or the omission of the matter or thing.

1308(7)  
For the purposes of this section, a statement, report or other document that:

(a) relates to affairs of a company or of a subsidiary of a company; and

(b) is not itself required by this Act to be laid before the company in general meeting; and

(c) is attached to or included with a report of the directors provided under section 314 to members of the company or laid before the company at an annual general meeting of the company;

is taken to be part of the report referred to in paragraph (c).

1308(8)  

A person must not, in connection with an application for an Australian CS facility licence, Australian financial services licence or Australian market licence:

(a) make a statement that is false or misleading in a material particular knowing it to be false or misleading; or

(b) omit to state any matter or thing knowing that because of that omission the application is misleading in a material respect.

1308(9)  

For the purposes of this section:

(a) a notice under subsection 708AA(2) , 708A(5) , 1012DAA(2) or 1012DA(5) is taken to be a notice required for the purposes of this Act; and

(b) a notice under subsection 708AA(2) , 708A(5) , 1012DAA(2) or 1012DA(5) is taken to be misleading in a material respect if it fails to comply with paragraph 708AA(7)(d) , 708A(6)(e) , 1012DAA(7)(e) or 1012DA(6)(f) .

1308(10)  

For the purposes of subsection (4), a person is taken to have taken reasonable steps to ensure that a statement was not false or misleading in a material particular if the person proves that:

(a) the person made all inquiries (if any) that were reasonable in the circumstances; and

(b) after doing so, the person believed on reasonable grounds that the statement was not misleading in a material particular.

1308(11)  

For the purposes of subsection (4), a person is taken to have taken reasonable steps to ensure that a document did not omit any matter or thing without which the document would be misleading in a material respect if the person proves that:

(a) the person made all inquiries (if any) that were reasonable in the circumstances; and

(b) after doing so, the person believed on reasonable grounds that there was no such omission.

1308(12)  

For the purposes of subsection (4), a person is taken to have taken reasonable steps to ensure that a statement was not false or misleading in a material particular if the person proves that:

(a) the person relied on information given to the person by:

(i) if the person is a body - someone other than a director, employee or agent of the body; or

(ii) if the person is an individual - someone other than an employee or agent of the individual; and

(b) the reliance placed on that information by the person was reasonable in all the circumstances.

1308(13)  
For the purposes of subsection (4), a person is taken to have taken reasonable steps to ensure that a document did not omit any matter or thing without which the document would be misleading in a material respect if the person proves that:

(a) the person relied on information given to the person by:

(i) if the person is a body - someone other than a director, employee or agent of the body; or

(ii) if the person is an individual - someone other than an employee or agent of the individual; and

(b) the reliance placed on that information by the person was reasonable in all the circumstances.