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Offences

Confidentiality

Offence title:

 

Confidentiality

Act:

 

127 Australian Securities and Investments Commission Act

Offence:

This section provides for a number of offences. ASIC has an obligation to keep information confidential unless specifically authorised to release it.

 

ss. (4E) A person must not intentionally or recklessly fail to comply with a condition imposed under subsection (4D). The offence is committed if the Chairperson has authorised the release of particular information to a body corporate, on certain conditions, and the body corporate, officers, employees or agents, fails to comply with those conditions.

 

ss. (4EA) If ASIC discloses confidential information to an approved disciplinary body, that body or a member of that body, must not disclose it to any other person and may only use the information to decide if a disciplinary proceeding should be commenced.

 

ss. (4EB) If ASIC discloses confidential information to a prescribed body, the body or a member of that body, must not disclose it to any other person and may only use the information for the prescribed functions in relation to registered liquidators.

 

ss. (4F) If information is disclosed to a body corporate under subsection (4B), the body corporate, or an officer, employee or agent of the body corporate, must not intentionally or recklessly disclose the information to a person who is not an officer, employee or agent of the body corporate; or use the information.

 

Penalty:

 

ss. (4E), (4EA), (4EB), (4F) 2 years imprisonment.

 

Summary/Indictable/mixed:

 

Mixed

 

Jurisdiction:

 

Local, District or Supreme Court

 

How committed:

 

An employee is aware of an investigation into a corporate they have shares in, as a consequence of receiving sensitive information they are placed in a conflict with their duties versus their personal financial position. The person fails to provide a written notice to ASIC and fails to remove themselves from their position.

 

Important note:

Defence:

 

ss. (4FA) Subsection (4F) does not apply to the extent that:

(a)   the person has the written consent of the Chairperson; or

(b)   the information is used for the purpose of monitoring compliance with, enforcing, or performing functions or exercising powers under:

                         i.         the Corporations Act; or

                       ii.         the business law of a State that is not in this jurisdiction; or

                      iii.         a foreign business law; or

                      iv.         the operating rules (if any), of the body corporate.

 

The defendant bears the onus of proof.

 

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