Listed company – director to notify market operator of shareholdings etc.

Listed company – director to notify market operator of shareholdings etc.

The offence of Director failing to Notify Market Operator of Shareholdings etc. is found in section 205G of the Corporations Act 2001. It is a criminal offence that is committed by a director of a listed public company who failed to notify the relevant market operator of interests in securities and contracts, or interests in a management investment scheme, to the benefit of the director.

Have you been accused of Listed Company – Director to Notify Market Operator of Shareholdings etc.?

ASIC Interview
If you are contacted by an ASIC officer to attend a Police interview you should call us for advice before going in. It is important that you have a criminal law expert on your side. We walk you through the process and tell you what you should and shouldn’t say. It is generally advisable to make a no comment interview but you should speak to us to work out exactly how to approach the interview in your case.

Pleading Not Guilty
Police do not search for evidence that helps your case. They are only interested in evidence that helps them secure a conviction. They have a high burden to meet and must prove the charges against you beyond reasonable doubt. You are innocent until proven guilty. Call us as soon as your received charges and a brief for matters such as this so we can get to work early on to help you prove your innocence.

Pleading Guilty
Just because you are pleading guilty does not mean that you do not have some reason for your offending. Perhaps you made an honest mistake or were not aware of your obligations when you should have been. Our lawyers are criminal law experts and make pleas in mitigation every single day at all levels of the Court hierarchy. We will present your side of the story and your personal circumstances with passion and persuasion to ensure the Court sentences you to the most appropriate disposition.
Matters related to this charge are ordinarily dealt with in the Magistrates’ court.
 
Examples of offences under this provision:
  • The director of a company does not tell the market operator that she has interests in securities in a related body corporate.
  • The director of a company does not properly outline the number of interests he has in securities of the company, and the circumstances giving rise to those interests.
  • The director of a company does not tell the market operator that he is party to a contract that confers a right to shares in a management investment scheme.
  • The director of a company does not update the market operator in relation to any changes in interests within 14 days.
What is the legal definition of Listed Company – Director to Notify Market Operator of Shareholdings etc.?
The Prosecution must show that you failed to give notice to the relevant market operator of your interests in securities of the company or another company. Or your interests in contracts that confer a benefit to you. Or you are party to a contract in a managed investment scheme. Or, you failed to give notice of your appointment as director. Or you failed to give notice that the company had been listed.

Legislation
The section that covers this offence is section 205G of the Corporations Act 2001.
 
  • You notified the market operator of your interests.
  • You do not have any interests in a body corporate or under a management investment scheme.
  • You were not aware that the market operator was not notified of your interests.
  • ASIC made an order relieving you of your duties to notify the market operator of your interests.
There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions in cases like this
  • What is your position in relation to the company?
  • When did you notify the relevant market operator about your appointment as director of the company and/or the listing of the company?
  • Do you have any interests which should be and were not notified to the market operator?
  • Did you update the market operator about any changes in your interests within 14 days?
  • Has ASIC made an order relieving you of your requirements to notify the market operator of your interests?

Most commonly, Listed Company – Director to Notify Market Operator of Shareholdings etc. (s205G of the Corporations Act 2001) will attract a maximum penalty of 30 penalty units.1 This means that you can be fined up to $4,956.60.2

However for more severe offences, you can be sentenced up to two years imprisonment.



[1] http://www5.austlii.edu.au/au/legis/cth/consol_act/ca2001172/sch3schedule.html
[2] The value of each penalty unit will change on 30 June 2020.

What can you be sentenced to for this charge?
The sentence you receive will likely depend on whether prosecution can prove that you had the intention to withhold certain information from the relevant market operator.