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Corporations and Trust Laws

  1. The law of privacy was made applicable to Australia in order to protect and promote the privacy of individuals in Australia. It also helps in governing the Australian agencies and other organizations in handling personal information as well as other information related to individuals. The Act in total contains 13 policies, applicable mostly to all the private organizations with an annual turnover of $3million.The organizations which handle personal information also work under the framework of the Privacy Act 1988. The 13 entities in short, are known as the APP policies which also regulate credit reporting, tax file numbers, health and medical research. According to Australian Privacy Laws 1988, Division 2 of the Act specifies Australian Privacy Principles. Division 2 Principle 15 of the Act states that an APP should not do an act or engage in an activity that breaches the principles of Privacy. Hence, the discussion of the details of an applicant over dinner was a breach of section 15 of the Privacy Act 1988. As per the facts of the case, the directors of the company were discussing the details of an applicant with a friend in an overseas company. Division 2, Principle 16C (1) of the Act states that if an APP discloses information about a person to an overseas recipient, Principle 8.1 of the Act would apply to the situation. Federal Court of Australia in the case of privacyCommissioner V Telstra Corporation Limited[1]held that providing the information would have an unreasonable impact on the privacy of the individual whose information is used. If the person who is receiving the information uses that information, it would amount to a breach of Australian privacy principles. Hence the disclosure of the information and bringing huge profits from that information was a clear obligation as per the rules of Australian Privacy laws.[2] Rule 3A of the Act states that Chapter 2 of the Criminal code applies to all the offences that take place against this Act.[3] Division 9 rule 91.1 of the Act states that a person is held liable for an offence if the person is dealing with information of an article, the article is related to national security so, the person will be held liable for imprisonment for 25 years. The punishment can also exceed lifetime imprisonment. In the following case, the company was providing financial help to drone technology entrepreneurs to transfer their latest drone technology which can be used for security purposes using the public as well as private funds. Telling personal information about the applicants to someone else was a clear violation of the privacy laws.

Therefore per the rules of Privacy Act 1988, the directors of the company will be in breach of privacy as per Division 2 principle 15, principle 8.1, and principle 16(c) of the Privacy Act 1988. If the directors breach privacy as per the rules of the Privacy Act, the Criminal Code Act of 1995 will be applicable. The Director will be held liable for imprisonment for 25 years or life imprisonment according to Division 9 Rule 91.1 of the Act.

  1. The Corporation Act of 2001 is an Act that frames the rules and regulations relating to business entities in Australia. All the companies practicing in Australia are governed by the Corporations Act 2001. As per Corporations Act 2001, Chapter 2J, Division 2 of the Act specifies- Share-buy-Backs. Section 257G of the Act specifies that in case if Section 257B is applicable, then the company must include an offer to buy back a statement that sets out all the information to the company and the decision making as to accept the offer or not. In simple words, this section means when a company buys back, it must buy all the information also as to know the company. Section 257 B of the Act states that what will be the price of different types of buybacks: - if the disclosure is made of the relevant information when the offer is to made to be every person who holds the share. 10/12TH limit of the company at any time of the voting share of the company. One of the exceptions of the law has been framed in section 323DA of the act which states that if a person disclose information in order to access or the information is required by the securities and Exchange Commission or by the New York exchange, the person must disclose the information in English and to all the necessary authorities who require information regarding the same. Section 1317AAE of the act states that the disclosure of the information is not valid unless it is made to ASIC, APRA, if the information is made available to a member of Australia federal police or the information is made available to a legal practitioner in the course of his duty. The section also imposes a civil penalty on the person who has used the information in order to gain profit over others. Hence after the application of Corporations Act 2001 on the facts of the case the conclusion can be stated that disclosure of the information is not valid, it can be only held valid if the disclosure of the information is made to a legal entity. Therefore As per the corporations Act, the misuse of the information cannot be done by the directors of the company and if the company does so it will directly affect 1/10th of the price of the share. Section 257G of the Act specifies that in case if Section 257B is applicable, then the company must include an offer to buy back a statement that sets out all the information to the company and the decision making as to accept the offer or not.
  1. Australia has a strong framework to regularize money laundering and terrorism financing. The AML/CTF act prohibits gambling and the sectors that provide financial help to the services that have been listed in the AML/CTF Act. AMT/CTF Act 006 stands for the Anti-Money Laundering and Counter-terrorism Financing Act of 2006. This act was enacted in order to control and regularize anti laundering activities that were taking place in Australia. In the following situation, the Directors of the company are receiving funds from a friend in an overseas company in order to get the money out of the country. Money laundering means making large money from the activities that are not legal. The money that is collected from the activity is laundered in order to make the money appear in good books. Money Laundering is considered to be a serious crime and most of the financial companies have MLP (Money Laundering Policies) in order to prevent ML policies in the organization.[4] As per the Act there is a different legal framework for money laundering and it is considered as a serious offence under the penal code. Terrorist financing on the other hand means the financing of terrorist Act, and of terrorist and terrorist organizations. The financial can take place in the form of financing tangible as well as intangible assets. According to criminal law, money laundering contains a wide range of criminal offences. Part 10.2 of the Criminal code Act 1995 specifies that Money laundering is a serious offence. If a person is held liable for money laundering, the person is held liable for imprisonment that can exceed upto 25 years of age with a fine of A$1,575,000.[5] Section 35H of the Act states that a person is held liable for an offense if the person obtains illegal access to information, the information that is received is personal information or assessment to a person than the person will be held liable for a penalty of 300 penalty units. [6] Section 400(3)(I) of the Act states that a person is guilty of an offence if the person is dealing with either money or other property, the money that the person possess is derived from come criminal activity and the person who is held liable for the same is imposed with a penalty which can be for 25years, fine of 1500 Penalty units or both. In the case of R v Van Loi Nguyen the court held that the number of money laundering cases that are dealt with it is important to trace the limit of the cases in order to formulate a proper discretion under section 400(3)(I) of the [7] The money laundering laws also have an extraterritorial application which means that the law is applicable wholly or partially in Australia aircraft or ship. The act also covers the offences that are committed by an Australian citizen outside Australia. As per the Act, both legal persons and the natural person can be held liable for money laundering as per the rules framed.

Therefore as per the Application of money laundering laws on to the facts of the case, it can be clearly seen that both the directors of the company can be held liable for money laundering as per the relevant sections of the Money laundering and Counterterrorism financing Act,2005. The action of both the Directors obtaining money from overseas clearly amounts to money laundering.

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