Document ID: chunk:federal_register_of_legislation:C2005C00497:clause:2_19:p1
Version: federal_register_of_legislation:C2005C00497
Segment Type: clause
Provision Reference: sch 2 cl 19 (pt 1/2)
Character Range: 20196–22741

19  Disqualified persons must not act for ADIs or authorised NOHCs

 (1) A disqualified person commits an offence if the person is or acts as:
 (a) a director or senior manager of an ADI (other than a foreign ADI); or
 (b) a senior manager of the Australian operations of a foreign ADI; or
 (c) a director or senior manager of an authorised NOHC.

Maximum penalty: Imprisonment for 2 years.

 (2) A disqualified person commits an offence if the person is or acts as:
 (a) a director or senior manager of an ADI (other than a foreign ADI); or
 (b) a senior manager of the Australian operations of a foreign ADI; or
 (c) a director or senior manager of an authorised NOHC.

Maximum penalty: 60 penalty units.

 (3) An offence against subsection (2) is an offence of strict liability.

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

 (4) A body corporate commits an offence if it allows a disqualified person to be or act as:
 (a) if the body corporate is an ADI (other than a foreign ADI)—a director or senior manager of the ADI; or
 (b) if the body corporate is a foreign ADI—a senior manager of the Australian operations of the ADI; or
 (c) if the body corporate is an authorised NOHC—a director or senior manager of the NOHC.

Maximum penalty: 250 penalty units.

 (5) A body corporate commits an offence if it allows a disqualified person to be or act as:
 (a) if the body corporate is an ADI (other than a foreign ADI)—a director or senior manager of the ADI; or
 (b) if the body corporate is a foreign ADI—a senior manager of the Australian operations of the ADI; or
 (c) if the body corporate is an authorised NOHC—a director or senior manager of the NOHC.

Maximum penalty: 60 penalty units.

 (6) An offence against subsection (5) is an offence of strict liability.

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

 (7) In a prosecution under subsection (4) or (5), it is a defence if:
 (a) the person was a disqualified person only because he or she was disqualified by APRA under section 21; and
 (b) the defendant contacted APRA within a reasonable period before allowing the person to be or act as a director or senior manager (as the case may be); and
 (c) the defendant was incorrectly advised by APRA that the person was not a disqualified person under section 21.

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

 (8) A failure to comply with this section does not affect the validity of an appointment