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Offences

Misleading or deceptive conduct

Offence title:

 

Misleading or deceptive conduct

Act:

 

12DA Australian Securities and Investments Commission Act

Offence:

(1)   A person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.

Penalty:

 
 

Summary/Indictable/mixed:

 
   

Jurisdiction:

 
 

How committed:

 

A court officer becomes aware of the secret information the Minister wishes to remain secret. The court officer makes a decision to release the information to the press and takes steps to make it happen.

 

Important note:

(1A) Conduct:

(a)   that contravenes:

(i)              section 670A of the Corporations Act (misleading or deceptive takeover document); or

(ii)            section 728 of the Corporations Act (misleading or deceptive fundraising document); or

(iii)           section 738Y of the Corporations Act (other liabilities relating to CSF offer documents); or

(b)   in relation to a disclosure document or statement within the meaning of section 953A of the Corporations Act; or

(c)    in relation to a disclosure document or statement within the meaning of section 1022A of the Corporations Act;

does not contravene subsection (1). For this purpose, conduct contravenes the provision even if the conduct does not constitute an offence, or does not lead to any liability, because of the availability of a defence.

(2)   Nothing in sections 12DB [False or misleading representations] to 12DN [Application of provisions of this Division to information providers] limits by implication the generality of subsection (1).

 

DEFENCE: 12GI - … it is a defence if the defendant establishes:

(a)   that the contravention in respect of which the proceeding was instituted was due to reasonable mistake; or

(b)   that the contravention in respect of which the proceeding was instituted was due to reasonable reliance on information supplied by another person; or

(c)    that:

(i)              the contravention in respect of which the proceeding was instituted was due to the act or default of another person, to an accident or to some other cause beyond the defendant’s control; and

(ii)            the defendant took reasonable precautions and exercised due diligence to avoid the contravention

THIS IS NOT A COMPLETE RECITATION

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