33Misuse of information

#### 33 Misuse of information 33 Misuse of information > > (1) Where, through association with a corporation, a person has knowledge of specific information relating to proposals made, or to be made, by the corporation in respect of the use and development 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 is guilty of an offence against this Act if the person— > > > > > (a) deals, directly or indirectly, in that land for the purpose of gaining an advantage for himself or herself 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 land, > > > > and is liable to a penalty not exceeding 20 penalty units. > > > (2) Where, through association with a corporation, a person is in a position to influence proposals made, or to be made, by the Corporation in respect of the use and development 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 is guilty of an offence against this Act if— > > > > > (a) the person does so for the purpose of gaining an advantage for himself or herself, or > > > > > (b) the person does so for the purpose of enabling another person to gain an advantage, > > > > and is liable to a penalty not exceeding 20 penalty units. > > > (3) Where— > > > > > (a) an offence under subsection (1) is committed and an advantage, referred to in that subsection, is gained from any dealing in land to which the offence relates, or > > > > > (b) an offence under subsection (2) is committed and an advantage, referred to in that subsection, is gained from any dealing in land 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 under subsection (1) or (2), as the case may be, liable to another person for the amount of any loss incurred by that other person by reason of the gaining of that advantage. > > > (4) Where 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 or profit, referred to in subsection (3), may not be brought after the expiration of five years next succeeding the dealing in land to which the transaction relates. > > > (6) For the purposes of this section, a person is associated with a corporation— > > > > > (a) in the case of a development corporation—if the person is a member of the board or officer or employee of the development corporation or a person appointed to a committee or a sub-committee of the development corporation, > > > > > (ai) (Repealed) > > > > > (b) if the person is a member of staff of the Department of Urban Affairs and Planning, > > > > > (c) (Repealed) > > > > > (d) if the person is an officer or servant of a council, > > > > > (e) if the person acts or has acted as banker, Australian legal practitioner, auditor or professional adviser or in any other capacity for the corporation, the Department of Urban Affairs and Planning or a council, or > > > > > (f) where the person, so associated by virtue of paragraph (e), is a body corporate, if the person is a director, manager or secretary of that body corporate. > > > (7) In this section, a reference to gaining an advantage does not include a reference to Landcom (or any other public authority prescribed by the regulations) gaining an advantage. > > **s 33:** Am 1979 No 136, Sch 1 (5); 1981 No 31, Sch 1 (12); 1986 No 218, Sch 18 (3); 1992 No 9, Sch 1 (12); 1992 No 112, Sch 1; 1999 No 31, Sch 1.17 \[6\]; 2007 No 27, Sch 3.1; 2008 No 26, Sch 1 \[9\]; 2012 No 93, Sch 2.6.