Document ID: chunk:federal_register_of_legislation:C2005C00498:clause:1_1021c
Version: federal_register_of_legislation:C2005C00498
Segment Type: clause
Provision Reference: sch 1 cl 1021C
Character Range: 658131–661023

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 read another person a statement (the required disclosure document or statement); 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—read the other person anything purporting to be the required disclosure document or statement when they are required to do so.

Note: A defendant bears an evidential burden in relation to the matters in sections 1012D 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 read another person a statement (the required disclosure document or statement); 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—read the other person anything purporting to be the required disclosure document or statement when they are required to do so.

Note: A defendant bears an evidential burden in relation to the matters in sections 1012D 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 of disclosure documents or statements; and
 (b) the representative's failure to give 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.