New South Wales Consolidated Acts

SYDNEY HARBOUR FORESHORE AUTHORITY ACT 1998 - SECT 38

38 Misuse of information

(1) If, through association with the Authority, a person has knowledge of specific information relating to proposals made, or to be made, by the Authority in respect of the acquisition, development or disposal of land and that information is not generally known but, if generally known, might reasonably be expected to affect materially the market price of that land, the person contravenes this subsection if the person:

(a) deals, directly or indirectly, in that or in any other land for the purpose of gaining an advantage for the person by the use of that information, or

(b) divulges that information for the purpose of enabling another person to gain an advantage by using that information to deal, directly or indirectly, in that or in any other land.

Maximum penalty: 20 penalty units.

Note: The amount for the time being of a penalty unit is specified by section 17 of the Crimes (Sentencing Procedure) Act 1999 .

(2) If, through association with the Authority, a person is in a position to influence proposals made, or to be made, by the Authority in respect of the acquisition, development or disposal of land and does influence the proposals by securing the inclusion or alteration of any matter in, or the exclusion or omission of any matter from, the proposals, the person contravenes this subsection if:

(a) the person does so for the purpose of gaining an advantage for the person, or

(b) the person does so for the purpose of enabling another person to gain an advantage.

Maximum penalty: 20 penalty units.

(3) If:

(a) a contravention of subsection (1) occurs and an advantage referred to in that subsection is gained from any dealing in land to which the contravention relates, or

(b) a contravention of subsection (2) occurs and an advantage referred to in that subsection is gained from any dealing in land to which the contravention relates, being an advantage which would not have been gained if the proposals concerned had not been influenced,

any person who gained that advantage is, whether or not any person has been prosecuted for or convicted of an offence in respect of a contravention of subsection (1) or (2), liable to another person for the amount of any loss incurred by that other person by reason of the gaining of that advantage.

(4) If a loss referred to in subsection (3) is incurred by reason of an advantage gained from a dealing in land, the amount of the loss is the difference between the price at which the dealing was effected and:

(a) in the case of any dealing to which subsection (1) relates, the price that, in the opinion of the court before which it is sought to recover the amount of the loss, would have been the market price of the land at the time of the dealing if the specific information used to gain that advantage had been generally known at that time, or

(b) in any case to which subsection (2) relates, the price that, in the opinion of the court before which it is sought to recover the amount of the loss, would have been the market price of the land at the time of the dealing if the proposals concerned had not been influenced.

(5) An action to recover a loss referred to in subsection (3) may not be brought more than 5 years after the dealing in land in relation to which the loss was incurred.

(6) For the purposes of this section, a person is associated with the Authority:

(a) if the person is a member of the Board, or a member of staff of the Authority, or a person of whose services the Authority makes use, or who is otherwise appointed, employed or engaged, pursuant to this Act, or

(b) if the person is a committee member of an advisory committee, or

(c) if the person is an officer of the Department within the meaning of the Environmental Planning and Assessment Act 1979 or a person who is a member of a committee or subcommittee established by or under that Act, or

(d) if the person is an officer or an employee of a council, or

(e) if the person acts or has acted as banker, Australian legal practitioner, auditor or professional adviser or in any other capacity for the Authority, the Minister, the Department of Urban Affairs and Planning or a council, or

(f) where the person, so associated by virtue of paragraph (e), is a corporation, if the person is a director, manager or secretary of the corporation.