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Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 13-1 Offences about false or misleading statements etc.

Division 561 Offences about false or misleading statements etc.

561-1   False or misleading statements

             (1)  A person commits an offence if the person, in a document required by or for the purposes of this Act or lodged with or submitted to the Registrar:

                     (a)  makes or authorises the making of a statement that, to the person’s knowledge, is false or misleading in a material particular; or

                     (b)  omits or authorises the omission of any matter or thing without which the document is, to the person’s knowledge, misleading in a material respect.

Penalty:  200 penalty units or imprisonment for 5 years, or both.

             (2)  A person who makes or authorises the making of a statement that is based on information that, to the person’s knowledge:

                     (a)  is false or misleading in a material particular; or

                     (b)  has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;

is, for the purposes of subsection (1), taken to have made or authorised the making of a statement that, to the person’s knowledge, was false or misleading in a material particular.

             (3)  A person is not liable to be prosecuted for an offence in consequence of a regulation made under section 633-1 as well as for an offence against subsection (1) of this section.

             (4)  A person commits an offence if the person, in a document required by or for the purposes of this Act or lodged with the Registrar:

                     (a)  makes or authorises the making of a statement that is false or misleading in a material particular; or

                     (b)  omits or authorises the omission of any matter or thing without which the document is misleading in a material respect;

without having taken reasonable steps to ensure that the statement was not false or misleading or to ensure that the statement did not omit any matter or thing without which the document would be misleading, as the case may be.

Penalty:  200 penalty units or imprisonment for 5 years, or both.

             (5)  A person who makes or authorises the making of a statement without having taken reasonable steps to ensure that the information on which the statement was based:

                     (a)  was not false or misleading in a material particular; and

                     (b)  did not have omitted from it a matter or thing the omission of which would render the information misleading in a material respect;

is, for the purposes of subsection (4), taken to have made or authorised the making of a statement without having taken reasonable steps to ensure that the statement was not false or misleading.

             (6)  For the purposes of subsections (1) and (4), if:

                     (a)  at a meeting, a person votes in favour of a resolution approving, or otherwise approves, a document required by or for the purposes of this Act or required to be lodged; and

                     (b)  the document contains a statement that, to the person’s knowledge, is false or misleading in a material particular, or omits any matter or thing without which the document is, to the person’s knowledge, misleading in a material respect;

the person is taken to have authorised the making of the statement or the omission of the matter or thing.

             (7)  For the purposes of this section, a statement, report or other document that:

                     (a)  relates to affairs of an Aboriginal and Torres Strait Islander corporation or of a subsidiary of an Aboriginal and Torres Strait Islander corporation; and

                     (b)  is not itself required by this Act to be laid before the corporation in general meeting; and

                     (c)  is attached to or included with a report of the directors sent under Division 342 to members of the corporation or laid before the corporation at an AGM of the corporation;

is taken to be part of the report referred to in paragraph (c).

561-5   False information etc.

             (1)  An officer or employee of an Aboriginal and Torres Strait Islander corporation commits an offence if:

                     (a)  the officer or employee makes available or gives information, or authorises or permits the making available or giving of information, to:

                              (i)  a director, auditor or member of the corporation; or

                             (ii)  if the corporation is taken for the purposes of this Act to be controlled by another Aboriginal and Torres Strait Islander corporation—an auditor of the other corporation; and

                     (b)  the information (whether in documentary or any other form) relates to the affairs of the corporation; and

                     (c)  the information, to the knowledge of the officer or employee:

                              (i)  is false or misleading in a material particular; or

                             (ii)  has omitted from it a matter or thing the omission of which renders the information misleading in a material respect.

Penalty:  200 penalty units or imprisonment for 5 years, or both.

             (2)  An officer or employee of an Aboriginal and Torres Strait Islander corporation commits an offence if:

                     (a)  the officer or employee makes available or gives information, or authorises or permits the making available or giving of information, to:

                              (i)  a director, auditor or member of the corporation; or

                             (ii)  if the corporation is taken for the purposes of this Act to be controlled by another Aboriginal and Torres Strait Islander corporation—an auditor of the other corporation; and

                     (b)  the information (whether in documentary or any other form) related to the affairs of the corporation; and

                     (c)  the information:

                              (i)  is false or misleading in a material particular; or

                             (ii)  has omitted from it a matter or thing the omission of which renders the information misleading in a material respect; and

                     (d)  the officer or employee does not take reasonable steps to ensure that the information:

                              (i)  was not false or misleading in a material particular; and

                             (ii)  did not have omitted from it a matter or thing the omission of which rendered the information misleading in a material respect.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (3)  The references in subsections (1) and (2) to a person making available or giving, or authorising or permitting the making available or giving of, information relating to the affairs of a corporation include references to a person making available or giving, or authorising or permitting the making available or giving of, information as to the state of knowledge of that person with respect to the affairs of the corporation.

             (4)  If information is made available or given to a person referred to in subparagraph (1)(a)(i) or (ii) or (2)(a)(i) or (ii) in response to a question asked by that person, the question and the information are to be considered together in determining whether the information was false or misleading.