The breach reporting regime continues to give rise to ambiguity for licensees. As we have commented previously, there continues to be a mismatch in breach reporting practices across the industry and ASIC expectations, as well as a divergence of breach reporting practices between licensees.
A common area of over-reporting is in the context of reporting breaches of criminal offence provisions. A breach of certain criminal offence provisions under financial services law is automatically reportable to ASIC under section 912DAA of the Corporations Act 2001 (Cth) (Corporations Act), due to the provisions on 'deemed significance'. However, in our experience, the applicable 'fault elements' for a criminal offence provision are overlooked or misunderstood when assessing whether there has been a breach.
This edition of our 'FSR GPS' (Guidelines, Principles and Strategies) series provides practical step-by-step guide on how to assess criminal offence provisions in the context of ASIC's breach reporting regime.
Download and read our insights here.
In this article, we outline:
- why some licensees may be over-reporting where conduct has occurred contrary to a criminal offence provision;
- key steps for assessing whether a criminal offence has been committed under the Corporations Act;
- how to identify the 'silent' fault elements that must be made out; and
- examples of key criminal offence provisions in the Corporations Act that require proof of one or more fault elements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.