Document ID: chunk:federal_register_of_legislation:C2005C00498:clause:1_952e:p1
Version: federal_register_of_legislation:C2005C00498
Segment Type: clause
Provision Reference: sch 1 cl 952E (pt 1/2)
Character Range: 419944–422733

952E  Offence of giving a defective disclosure document or statement (whether or not known to be defective)

 (1) A person (the providing entity), being a financial services licensee, commits an offence if:
 (a) the providing entity:
 (i) gives (see subsection (7)) another person a disclosure document or statement in circumstances in which the document or statement is required by a provision of this Part to be given to the other person; or
 (ii) is a financial services licensee and gives (see subsection (7)), or makes available to, another person a disclosure document or statement, being a Financial Services Guide or a Supplementary Financial Services Guide, reckless as to whether the other person will or may rely on the information in it; and
 (b) the disclosure document or statement is defective.

Note: A defendant bears an evidential burden in relation to the matters in subsections 941C(1), (2) and (3). See subsection 13.3(3) of the Criminal Code.

 (2) For the purposes of an offence based on subsection (1), strict liability applies to the physical element of the offence specified in paragraph (1)(b).

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

 (3) An authorised representative of a financial services licensee commits an offence if:
 (a) the representative gives (see subsection (7)) a person a disclosure document or statement, being a Statement of Advice, or information or a statement required by subsection 941C(5), 941C(7), 941D(2), 946B(3), 946B(6) or 946C(2), in circumstances in which the document or statement is required by a provision of this Part to be given to the person; and
 (b) the disclosure document or statement is defective.

Note: A defendant bears an evidential burden in relation to the matters in subsections 941C(1), (2) and (3). See subsection 13.3(3) of the Criminal Code.

 (4) For the purposes of an offence based on subsection (3), strict liability applies to the physical element of the offence specified in paragraph (3)(b).

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

 (5) In any proceedings against a person for an offence based on subsection (1) or (3), it is a defence if the person took reasonable steps to ensure that the disclosure document or statement would not be defective.

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 person for an offence based on subsection (3), it is a defence if the disclosure document or statement:
 (a) was provided to the person by a financial services licensee for whom they were, at that time, an authorised representative; or
 (b) was defective because of information, or an omission from information, provided to them