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CORPORATIONS ACT 2001 - SECT 1021NB

Offences relating to obligation to make superannuation investment information publicly available

Failure to comply with obligation to make information publicly available

             (1)  A person commits an offence if:

                     (a)  the person is a trustee of a registrable superannuation entity; and

                     (b)  as trustee, the person is required, under section 1017BB, to make information publicly available on the entity's website; and

                     (c)  the information is not made publicly available as required by that section.

Offence where information known to be defective

             (2)  A person commits an offence if:

                     (a)  the person is a trustee of a registrable superannuation entity; and

                     (b)  as trustee, the person is required, under section 1017BB, to make information publicly available; and

                     (c)  information is made publicly available in purported compliance with that requirement; and

                     (d)  the trustee knows that:

                              (i)  the information is misleading or deceptive; or

                             (ii)  there is an omission from the information.

Offence whether or not information known to be defective

             (3)  A person commits an offence if:

                     (a)  the person is a trustee of a registrable superannuation entity; and

                     (b)  as trustee, the person is required, under section 1017BB, to make information publicly available; and

                     (c)  information is made publicly available in purported compliance with that requirement; and

                     (d)  either:

                              (i)  the information is misleading or deceptive; or

                             (ii)  there is an omission from the information.

             (4)  For the purposes of an offence based on subsection (3), strict liability applies to the physical element of the offence specified in subparagraph (3)(d)(i) or (ii).

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

Defences

             (5)  In any proceedings against a trustee of a registrable superannuation entity for an offence based on subsection (1), it is a defence if the information would have been made publicly available but for the fact that the trustee or another trustee of the entity was unable to obtain the information after taking reasonable steps to do so.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the Criminal Code .

             (6)  In any proceedings against a trustee of a registrable superannuation entity for an offence based on subparagraph (2)(d)(ii) or (3)(d)(ii), it is a defence if:

                     (a)  there was an omission from the information made publicly available because the trustee or another trustee of the entity was unable to obtain the information after taking reasonable steps to do so; or

                     (b)  both of the following apply:

                              (i)  the information was omitted because it would have been misleading or deceptive;

                             (ii)  the trustee or another trustee of the entity took reasonable steps to obtain information that would not have been misleading or deceptive.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3) of the Criminal Code .

             (7)  In any proceedings against a trustee of a registrable superannuation entity for an offence based on subparagraph (3)(d)(i), it is a defence if the trustee or another trustee of the entity took reasonable steps to ensure that the information made publicly available would not be misleading or deceptive.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (7). See subsection 13.3(3) of the Criminal Code .



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