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CORPORATIONS ACT 2001 - SECT 1021C

Offence of failing to give etc. a disclosure document or statement

Strict liability offence

             (1)  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.

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

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

Ordinary offence

             (3)  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.

Defence for authorised representative

             (4)  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 .

Circumstances in which a person is taken not to contravene this section

             (5)  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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