Who is an insider?
Insiders can be any person or corporation with information not generally available or information which would lead the reasonable person to expect it to have a material effect on the price or value of financial products. Financial products are securities, derivatives, interests in managed funds, debentures, government issued stocks or bonds, some superannuation products and other financial products. Information is considered to be generally available if it consists of readily observable matter or would have become known to those investing.
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It is an offence for a person (the insider), to apply for, acquire, or dispose of financial products or enter into an agreement to apply for, acquire or dispose of financial product with insider information (Section 1043A(1) of the Corporations Act 2001 (Cth)).
It is also an offence for the insider to procure another person to carry out the above.
There are a number of exceptions to this as detailed in sections 1043B – 1043L of the Corporations Act (Cth).
The maximum penalty for this offence is 15 years imprisonment (Schedule 3 of Corporations Act).
It is a defence if the information came into possession as a result of information that would or would be likely to come to the attention of persons who commonly invest in financial products of a kind whose price might be affected by the information, or
If the other party to the transaction/agreement knew or ought to reasonably have known of the information before entering into the transaction/agreement
The burden is on you to establish the facts and circumstances that give rise to your defence.
If you have been charged with insider trading, you should seek legal advice as soon as possible. One of our lawyers can help you determine what your options are and how to deal with the charges.