Australian Securities and Investments Commission Act 1989 (Cth)

Australian Securities and Investments Commission Act 1989

Act No. 90 of 1989 as amended

[Note: This Act is repealed by Act No. 55 of 2001]

This compilation was prepared on 14 July 2005

taking into account amendments up to Act No. 100 of 2005

The text of any of those amendments not in force

on that date is appended in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,

Attorney‑General’s Department, Canberra

Contents

•

An Act to provide for the Australian Securities and Investments Commission, a Companies and Securities Advisory Committee and certain other bodies, and for other purposes

Part 1PreliminaryDivision 1Objects1Objects

(1)
The objects of this Act are:
(a)
to provide for the Australian Securities and Investments Commission which will administer such laws of:
(i)
the Commonwealth; and
(ii)
the Capital Territory; and
(iii)
the States and the other Territories;
as confer functions and powers under those laws on the Commission; and
(b)
to provide for the functions, powers and business of the Commission; and
(c)
to establish a Companies and Securities Advisory Committee to provide informed and expert advice to the Minister about the content, operation and administration of those laws, about corporations and about the securities markets and futures markets; and
(d)
to establish a Corporations and Securities Panel, a Companies Auditors and Liquidators Disciplinary Board, an Australian Accounting Standards Board and a Parliamentary Joint Committee on Corporations and Securities.
(2)
In performing its functions and exercising its powers, the Commission must strive to:
(a)
maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and
(b)
promote the confident and informed participation of investors and consumers in the financial system; and
(c)
achieve uniformity throughout Australia in how the Commission and its delegates perform those functions and exercise those powers; and
(d)
administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and
(e)
receive, process and store, efficiently and quickly, the information given to the Commission under the laws that confer functions and powers on it; and
(f)
ensure that information is available as soon as practicable for access by the public; and
(g)
take whatever action it can take, and is necessary, in order to enforce and give effect to the laws that confer functions and powers on it.
(3)
This Act has effect, and is to be interpreted, accordingly.
(4)
Despite subsection (1), this Act is taken not to be, for the purposes of subsection 22(3) of the Acts Interpretation Act 1901, an Act providing for the administration or government of a Territory.

Division 2Citation1AShort title [see Note 1]

This Act may be cited as the Australian Securities and Investments Commission Act 1989.

1BAlternative citations of this Act and regulations under section 251

(1)
This Act (except section 12A and Division 2 of Part 2) may also be referred to as the ASIC Law of the Australian Capital Territory or, subject to section 1D, simply as the ASIC Law.
(2)
Regulations under section 251 may be referred to as the ASIC Regulations of the Australian Capital Territory or, subject to section 1D, simply as the ASIC Regulations.

1CCitation of provisions of this Act, and regulations under section 251, applying as law of another jurisdiction

(1)
This section has effect for the purposes of an Act, a law of the Australian Capital Territory, or an instrument made under an Act or under such a law.
(2)
Where a law of a jurisdiction other than the Capital Territory contains provisions corresponding to sections 5 and 6 of the Corporations Act 1989 and also provides for provisions of this Act to apply as law of that jurisdiction, those provisions of this Act, as so applying, are the ASIC Law of that jurisdiction.
(3)
Where a law of a jurisdiction other than the Capital Territory provides for the regulations in force for the time being under section 251 of this Act to apply for the purposes of the ASIC Law of that jurisdiction, those regulations as so applying are the ASIC Regulations of that jurisdiction.

1DReferences to ASIC Law and ASIC Regulations

(1)
The object of this section is to help ensure that, so far as possible:
(a)
the bodies established by the ASIC Law of the Capital Territory, and the staff of those bodies, can perform functions and exercise powers; and
(b)
persons can have dealings with those bodies;
as if the ASIC Law of the Capital Territory, together with the ASIC Law of each jurisdiction other than the Capital Territory, constituted a single national ASIC Law applying of its own force throughout Australia.
(2)
Subject to this section, a reference in an instrument to the ASIC Law, or to the ASIC Regulations, is to be taken, for the purposes of the laws of the Commonwealth and of the laws of the Capital Territory:
(a)
to be a reference to the ASIC Law, or to the ASIC Regulations, of the Capital Territory; and
(b)
to include a separate reference to the ASIC Law, or to the ASIC Regulations, of each jurisdiction other than the Capital Territory.
(3)
Subsection (2) has effect except so far as the contrary intention appears in the instrument, or the context of the reference otherwise requires.
(4)
Without limiting subsection (3), subsection (2) does not apply in relation to a reference expressed as a reference to the ASIC Law, or to the ASIC Regulations, of a jurisdiction.
(5)
In this section:
instrument means:
(a)
an Act or an instrument made under an Act; or
(b)
a law of the Capital Territory or an instrument made under such a law; or
(c)
an award or other industrial determination or order, or an industrial agreement; or
(d)
any other order (whether executive, judicial or otherwise); or
(e)
a notice, certificate or licence; or
(f)
an agreement; or
(g)
an application made, information laid, affidavit sworn, or warrant issued, for any purpose; or
(h)
an indictment, presentment, summons or writ; or
(j)
any other pleading in, or process issued in connection with, a legal or other proceeding; or
(k)
any other document whatever.

1ESaving of citation provisions of other jurisdictions

Subject to section 1D, section 1B is not intended to prevent a law of a jurisdiction other than the Capital Territory from:
(a)
providing that the ASIC Law, or the ASIC Regulations, of that jurisdiction may be referred to simply as the ASIC Law, or the ASIC Regulations; or
(b)
providing for how a reference to the ASIC Law, or to the ASIC Regulations, is to be interpreted for the purposes of the laws of that jurisdiction.

Division 3Commencement and application2Commencement [see Note 1]

(1)
Part 1 shall commence on the day on which this Act receives the Royal Assent.
(2)
The remaining provisions of this Act shall commence on a day, or respective days, to be fixed by Proclamation.

4Extension to external Territories

This Act extends to such external Territories (if any) as are prescribed.

Division 4Interpretation5Interpretation

(1)
In this Act, unless the contrary intention appears:
AASB means the Australian Accounting Standards Board established by section 226.
absent from office, in relation to a holder of an office, means:
(a)
absent from duty or from Australia; or
(b)
unable, for any reason, to perform the functions of the office.
Advisory Committee means the Companies and Securities Advisory Committee established by section 145.
affairs, in relation to a body corporate, has the same meaning as in section 232 of the Corporations Law.
APRA means the Australian Prudential Regulation Authority.
assist, in relation to a Commission delegate, means:
(a)
to perform functions:
(i)
as a member, officer or employee of the Commission delegate; and
(ii)
in connection with the Commission delegate’s performance or exercise of a function or power delegated under section 102; or
(b)
to perform services for the Commission delegate in connection with the Commission delegate’s performance or exercise of a function or power delegated under section 102.
Australia includes any external Territory to which this Act extends.
books includes:
(a)
a register;
(b)
financial reports or financial records, however compiled, recorded or stored;
(c)
a document;
(d)
banker’s books; and
(e)
any other record of information.
Chairperson means:
(a)
except in Part 11 or in relation to the Disciplinary Board—the Chairperson of the Commission; and
(b)
in Part 11 or in relation to the Disciplinary Board—the Chairperson of the Disciplinary Board.
Commission means the Australian Securities and Investments Commission.
Commission delegate means a person to whom, or a body to which, a function or power is delegated under section 102.
contravention, in relation to a law, includes an ancillary offence relating to an offence against that law.
Convenor means the Convenor of the Advisory Committee.
Corporations Law and Corporations Regulations have the meaning provided for by Parts 2 and 3 of the Corporations Act 1989.
court, except in section 248, includes a tribunal having power to require the production of documents or the answering of questions.
Deputy Chairperson means the Deputy Chairperson of the Commission.
Disciplinary Board means the Companies Auditors and Liquidators Disciplinary Board established by section 202.
eligible employee has the same meaning as in the Superannuation Act 1976.
eligible person, in relation to a person, means a person who:
(a)
if the first‑mentioned person is a body corporate—is or has been an officer of the body within the meaning of a national scheme law or a corresponding previous law; or
(b)
in any case:
(i)
is or has been an employee, agent, banker, solicitor or auditor of; or
(ii)
is acting, or has acted, in any other capacity on behalf of;
the first‑mentioned person.
examination means:
(a)
in this section, and Part 3 (other than subsection 27(2) and Division 9)—an examination of a person pursuant to a requirement made under section 19; or
(b)
in subsection 27(2) and Division 9 of Part 3—an examination of a person pursuant to a requirement made under section 19 or a corresponding provision of the ASIC Law of another jurisdiction.
expenses, in relation to an investigation under Division 1 of Part 3, includes costs and expenses incurred in relation to a proceeding begun under section 50 as a result of the investigation.
fail means refuse or fail.
foreign country means:
(a)
an external Territory to which this Act does not extend; or
(b)
a country outside Australia and the external Territories; or
(c)
a part of such a country.
FRC means the Financial Reporting Council established by section 225.
give has:
(a)
in relation to a document—a meaning affected by section 86; and
(b)
in relation to information—a meaning affected by section 6.
hearing, in this section and Part 3, means a hearing before the Commission and, in sections 52, 54, 55 and 56, includes a part of such a hearing.
House means a House of the Parliament.
information has a meaning affected by section 6.
international accounting standards means accounting standards made by:
(a)
the Board of the International Accounting Standards Committee; or
(b)
another body specified by the regulations.
investigate, in relation to the Commission, means investigate in the course of performing or exercising any of the Commission’s functions and powers.
meeting means:
(a)
in Part 4—a meeting of the Commission;
(b)
in Part 9—a meeting of the Advisory Committee;
(c)
in Part 11—a meeting of the Disciplinary Board.
member means:
(a)
except in Division 2 of Part 4, in Part 9, 10, 11, 12 or 14, or in relation to a Division, the Advisory Committee, the Panel, the Disciplinary Board, the FRC, the AASB or the Parliamentary Committee—a member of the Commission;
(b)
in Part 9 or in relation to the Advisory Committee—a member of the Advisory Committee;
(c)
in Part 10 or in relation to the Panel—a member of the Panel;
(d)
in Part 11 or in relation to the Disciplinary Board—the Chairperson or any other member of the Disciplinary Board;
(e)
in relation to the FRC—a member of the FRC; and
(ea)
in relation to the AASB—a member of the AASB; and
(f)
in Part 14 or in relation to the Parliamentary Committee—a member of the Parliamentary Committee.
national scheme law means:
(a)
the following:
(i)
the Corporations Act 1989;
(ii)
the Corporations Law of the Capital Territory ;
(iii)
this Act (other than section 12A and Division 2 of Part 2); or
(b)
a law of another jurisdiction that corresponds to an Act or Law referred to in paragraph (a).
national scheme law of this jurisdiction means an Act or Law referred to in paragraph (a) of the definition of national scheme law in this subsection.
non‑applied provisions means the following provisions of this Act:
Part 1 (other than section 6A)
Part 2
Section 88
Divisions 1 and 4 of Part 4
Part 5
Part 6
Division 1 of Part 7
Part 8
Part 9
Division 1 of Part 10
Division 1 of Part 11
Part 12
Part 14
Sections 251 and 252.
officer, in relation to a body corporate, includes:
(a)
a director, secretary, executive officer or employee of the body;
(b)
a receiver, or a receiver and manager, of property of the body;
(ba)
an administrator of the body;
(bb)
an administrator of a deed of company arrangement executed by the body;
(c)
an official manager, or a deputy official manager, of the body;
(d)
a liquidator, or a provisional liquidator, of the body; and
(e)
a trustee or other person administering a compromise or arrangement made between the body and any other person or persons.
Panel means the Corporations and Securities Panel established by section 171.
Panel proceedings means proceedings before the Panel on:
(a)
an application made to the Panel under the Corporations Law; or
(b)
a reference of a decision to the Panel for review under the Corporations Law.
Parliamentary Committee means the Parliamentary Joint Committee on Corporations and Securities referred to in section 241.
penalty unit means $100.
power includes an authority.
prescribed means prescribed by this Act or the regulations.
President means the President of the Panel.
proceeding means:
(a)
a proceeding in a court; or
(b)
a proceeding or hearing before, or an examination by or before, a tribunal;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.
produce, except in Part 3, includes permit access to.
property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action and money.
record, in relation to an examination, means the whole or a part of a record made under section 24 of statements made at the examination.
regulations means the ASIC Regulations of this jurisdiction.
report includes an interim report.
staff member means:
(a)
a member of the staff referred to in subsection 120(1) or a person employed under subsection 120(3);
(b)
a person engaged under subsection 121(1); or
(c)
any of the officers, employees and persons who under section 122 are to assist the Commission.
statement, in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination.
superannuation benefits includes:
(a)
benefits in the nature of superannuation benefits; and
(b)
benefits similar to benefits provided under the Superannuation Act 1976; and
(c)
benefits similar to the benefits provided under the Superannuation Act 1990.
Territory means:
(a)
the Capital Territory; or
(b)
an external Territory to which this Act extends.
this Act includes the regulations.
this Law includes the regulations.
tribunal means:
(a)
a tribunal in Australia; or
(b)
any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence.
trust money means money the Commission receives or holds on trust.
witness:
(a)
in relation to a hearing before the Commission, means a person appearing at the hearing to give evidence; or
(b)
in relation to Panel proceedings, means a person appearing in the proceedings to give evidence.
written record, in relation to an examination, means:
(a)
a record of the examination:
(i)
that is made in writing; or
(ii)
as reduced to writing; or
(b)
a part of such a record.
(2)
Subject to this Act, an expression has the same meaning in this Act as in the Corporations Law of the Capital Territory .
(3)
Except so far as the contrary intention appears in this Act, Parts 1.2 and 1.3 (except section 8) of the Corporations Law apply for the purposes of this Act as if the provisions of this Act were provisions of that Law.
(4)
This Part, and Parts 1.2 and 1.3 of the Corporations Law as applying because of subsection (3) of this section, have effect to the exclusion of the Acts Interpretation Act 1901.
(5)
Subject to subsection (4), the Acts Interpretation Act 1901 as amended and in force at the commencement of this subsection applies, and that Act as amended and in force at any later time does not apply, in relation to this Act (other than the non‑applied provisions).

6Giving information

A reference in this Act to giving information includes a reference to:
(a)
explaining or stating a matter;
(b)
identifying a person, matter or thing;
(c)
disclosing information; or
(d)
answering a question.

6AActing appointments

Where a provision of the ASIC Law of this jurisdiction (other than subsection 109ZB(8) of the Corporations Law as it applies because of subsection 5(3) of the ASIC Law) confers on a person or body (in this section called the appointer) a power to appoint a person (in this section called the appointee) to act in a particular office, then, except so far as the ASIC Law otherwise provides, the following paragraphs apply in relation to an appointment made under the provision:
(a)
the appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment;
(b)
the appointer may:
(i)
determine the terms and conditions of the appointment, including remuneration and allowances; and
(ii)
terminate the appointment at any time;
(ba)
in the case of an appointment to act in a vacant office—the appointee must not continue to act in the office for more than 12 months;
(c)
where the appointee is acting in an office other than a vacant office and the office becomes vacant while the appointee is acting, then, subject to paragraph (a), the appointee may continue so to act until:
(i)
the appointer otherwise directs; or
(ii)
the vacancy is filled; or
(iii)
a period of 12 months from the day of the vacancy ends;
whichever happens first;
(d)
the appointment ceases to have effect if the appointee resigns in writing delivered to the appointer;
(e)
while the appointee is acting in the office:
(i)
the appointee has and may exercise all the powers, and shall perform all the functions and duties, of the holder of the office; and
(ii)
any law of this jurisdiction applies in relation to the appointee as if the appointee were the holder of the office.

6BAlterations of names and constitutions

(1)
Where:
(a)
the name of a body established by this Act is changed by law (whether or not the body is incorporated); or
(b)
the name of an office established by this Act is changed by law;
then, unless the contrary intention appears:
(c)
the body or office continues in existence under the new name so that its identity is not affected; and
(d)
a reference, in:
(i)
any Act of this jurisdiction; or
(ii)
any instrument under such an Act; or
(iii)
any award or other industrial determination or order or any industrial agreement; or
(iv)
any other order (whether executive, judicial or otherwise); or
(v)
any contract; or
(vi)
any pleading in, or process issued in connection with, any legal or other proceeding; or
(vii)
any other instrument;
to the body or the office under the former name, except in relation to matters that occurred before the change took place, is taken as a reference to the body or the office under the new name.
(2)
Where the constitution of a body established by this Act is changed by law (whether or not the body is incorporated), then, unless the contrary intention appears:

(a)
the body continues in existence as newly constituted so that its identity is not affected; and
(b)
the alteration does not affect any functions, powers, property, rights, liabilities or obligations of the body; and
(c)
the change does not affect any legal or other proceedings instituted or to be instituted by or against the body, and any legal or other proceedings that might have been continued or commenced by or against the body as previously constituted may be continued or commenced by or against the body as newly constituted; and
(d)
the change does not affect any investigation or inquiry being or proposed to be undertaken by any tribunal, authority or person into any action taken or practice engaged in by the body before the change took place, and any investigation or inquiry that might have been continued or commenced into any such action or practice may be continued or commenced as if the action had been taken or the practice had been engaged in by the body as newly constituted.

6CPresentation of papers to the Parliament

(1)
Where, by this Act, provision is made requiring or permitting the presentation (however expressed) of a paper to the Parliament or to both Houses, or to each or either House, of the Parliament, it is sufficient compliance with the provision, in relation to a House, if:
(a)
the paper is presented in that House in accordance with the rules or orders of the House or, if, under the rules or orders of the House, papers are taken to be presented to the House if they are delivered to the Clerk of the House and recorded in the records of the proceedings of the House, the paper is so delivered and recorded; and
(b)
where the provision provides for a specified person to present the paper or to cause the paper to be presented—that person, or any other person who could by virtue of this or any other Act, or of a law of a Territory, act in the place of that person, makes or causes to be made, as the case may be, the presentation or the delivery of the paper referred to in paragraph (a); and
(c)
where the provision specifies a period within which the paper is to be presented—the presentation, or the delivery and recording, of the paper referred to in paragraph (a) takes place within that period.
(2)
For the purposes of a provision of this Act that refers to papers presented (however the presentation is described) to the Parliament or to both Houses, or to each or either House, of the Parliament:
(a)
presentation of a paper in a House of the Parliament in accordance with the rules or orders of the House; or
(b)
if, under the rules or orders of a House of the Parliament, papers are to be deemed to be presented to the House if they are delivered to the Clerk of the House and recorded in the records of the proceedings of the House—such a delivery and recording of a paper;
is taken to have been presentation of the paper to that House, as described in this Act, effected or caused by the person who so presented or delivered the paper or caused the paper to be so presented or delivered.
(3)
In this section, paper includes:
(a)
an ordinance, rule, regulation or by‑law; and
(b)
a report; and
(c)
any other document or instrument whatever.

6DPeriodic reports

(1)
In this section:
periodic report means a regular report relating to the activities, operations, business or affairs of a body established by this Act.
(2)
Where this or any other Act:
(a)
requires a body to furnish a periodic report to the Minister; but
(b)
does not specify a period within which the report is to be so furnished;
that body must furnish the report to the Minister as soon as practicable after the end of the particular period to which the report relates and, in any event, within 6 months after the end of that particular period.
(3)
Where this or any other Act:
(a)
requires a body to furnish a periodic report to the Minister for presentation to the Parliament; but
(b)
does not specify a period within which the report is to be so presented;
the Minister must cause a copy of the periodic report to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.
(4)
Where:
(a)
this or any other Act requires a body to furnish a periodic report to the Minister within a specified period; and
(b)
the body is of the opinion that it will not be reasonably possible to comply with the requirement;
the body may, within the specified period, apply to the Minister for an extension of the period, and, where the body does so apply, it must give the Minister a statement in writing explaining why, in the body’s opinion, it will not be reasonably possible to comply with the requirement.
(5)
The Minister may, on application under subsection (4), grant such extension as he or she considers reasonable in the circumstances.
(6)
Despite subsection (2) and any other provisions of this Act, where the Minister grants an extension pursuant to an application under subsection (4):
(a)
the Minister must cause to be laid before each House of the Parliament, within 3 sitting days of that House after granting the extension, a copy of the statement given under subsection (4) in respect of the application together with a statement specifying the extension granted and the reasons for granting the extension; and
(b)
the body that made the application must furnish the periodic report to the Minister within the period as so extended; and
(c)
the Minister must cause a copy of the periodic report to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.
(7)
Where this or any other Act requires a body to furnish a periodic report to the Minister within a specified period or an extension of that period under this section and the body fails to do so:
(a)
the body must, not later than 14 days after the end of that specified period or extension, as the case may be, give the Minister a statement in writing explaining why the report was not furnished as required; and
(b)
the Minister must cause a copy of the statement to be laid before each House of the Parliament within 3 sitting days of that House after receiving the statement.

6ELiabilities etc. imposed on Commonwealth by other ASC Laws

(1)
Where Part 16 of the ASIC Law of another jurisdiction is expressed to transfer liabilities of the NCSC to the Commonwealth, those liabilities become liabilities of the Commonwealth by force of this subsection.
(2)
Where Part 16 of the ASIC Law of another jurisdiction is expressed to make the Commonwealth a party to pending proceedings, the Commonwealth becomes a party to those proceedings by force of this subsection.
(3)
Where Part 16 of the ASIC Law of another jurisdiction is expressed to create a right of action against the Commonwealth, that right against the Commonwealth is created by this subsection.

Part 2The Commission and consumer protection in relation to financial servicesDivision 1Establishing the Commission7Establishment

(1)
An Australian Securities Commission is established.
(2)
From the commencement of this subsection, the Commission is to be known as the Australian Securities and Investments Commission.

8Commission is a body corporate

The Commission:
(a)
is a body corporate, with perpetual succession;
(b)
shall have a common seal;
(c)
may acquire, hold and dispose of real and personal property; and
(d)
may sue and be sued in its corporate name.
Note: The Commonwealth Authorities and Companies Act 1997 applies to the Commission. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of officers.

9Membership

(1)
The Commission shall consist of not fewer than 3 nor more than 8 members.
(2)
The Governor‑General shall appoint the members on the nomination of the Minister.
(3)
At least 3 of the members shall be appointed as full‑time members and each of the remaining members (if any) may be appointed as a full‑time member or as a part‑time member.
(4)
The Minister shall nominate a person as a member only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields, namely, business, the administration of companies, the financial markets, law, economics and accounting.
(5)
The performance of the functions or the exercise of the powers of the Commission is not affected by reason only that the number of members, or the number of full‑time members, is less than 3 unless a continuous period of 3 months has elapsed since the number of members, or the number of full‑time members, as the case may be, fell below 3.
(6)
For the purposes of subsection (5), an acting member shall be deemed to be a member.

10Chairperson and Deputy Chairperson

(1)
The Governor‑General shall appoint as Chairperson of the Commission a person who is, or is to be, a full‑time member and may appoint as Deputy Chairperson of the Commission a person (other than the Chairperson) who is, or is to be, a full‑time member.
Note: For the manner in which the Chairperson and Deputy Chairperson may be referred to, see section 18B of the Acts Interpretation Act 1901.

11National scheme functions and powers and other functions and powers conferred by the States and Territories

(1)
The Commission has such functions and powers as are conferred on it by or under the following:
(a)
the Corporations Act 1989;
(b)
the Corporations Law of the Capital Territory;
(c)
this Act (other than section 12A and Division 2 of Part 2).
(1A)
The Commission also has the functions and powers expressed to be conferred upon the NCSC by or under:
(a)
any Act that is a relevant Act for the purposes of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980; or
(b)
any law of a State that corresponds to such an Act.
(1B)
In the performance of a function, or the exercise of a power, referred to in paragraph (1A)(a), the Commission is not subject to any directions other than directions given under section 12.
(2)
The Commission also has the following functions:
(a)
to provide such staff and support facilities to the Panel, the Disciplinary Board and the Review Board as are necessary or desirable for the performance and exercise by the Panel, the Disciplinary Board and the Review Board of their respective functions and powers;
(b)
to advise the Minister about any changes to a national scheme law that, in the Commission’s opinion, are needed to overcome, or would assist in overcoming, any problems that the Commission has encountered in the course of performing or exercising any of its functions and powers.
(3)
The Commission may, on its own initiative or when requested by the Minister, advise the Minister, and make to the Minister such recommendations as it thinks fit, about any matter of a kind referred to in section 148.
(4)
The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions.
(6)
Subject to this Act, the Commission has the general administration of this Act.
(7)
The Commission has any functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction.
(8)
The Commission may, with the consent of the Minister, enter into an agreement or arrangement with a State or Territory for the performance of functions or the exercise of powers by the Commission as an agent of the State or Territory.
(9)
The Commission has such functions and powers as are referred to in such an agreement or arrangement.
(9A)
The Commission may have functions or powers conferred on it by or under a law of a State or Territory if:
(a)
that law provides for, or relates to, the repeal, amendment or termination (however described) of the operation of, any of the replaced legislation within the meaning of item 22 of Schedule 8 to the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999; and
(b)
the conferral of the powers or functions is in accordance with:
(i)
provisions of an agreement entered into by the Commonwealth and the State or Territory, being provisions approved by the Minister for the purposes of this subsection; or
(ii)
an approval given by the Minister for the purposes of this subsection.
The Commission has the functions and powers so conferred by that law.
(10)
The Commission has power to do acts in the Capital Territory in the performance or exercise of any function or power:
(a)
expressed to be conferred on the Commission by a national scheme law of another jurisdiction; or
(b)
referred to in an agreement or arrangement of the kind referred to in subsection (8).

12Directions by Minister

(1)
The Minister may give the Commission a written direction about policies it should pursue, or priorities it should follow, in performing or exercising any of its functions or powers under a national scheme law of this jurisdiction.
(2)
The Minister shall not give a direction under subsection (1) unless he or she has:
(a)
notified the Commission in writing that he or she is considering giving the direction; and
(b)
given the Chairperson an adequate opportunity to discuss with the Minister the need for the proposed direction.
(3)
The Minister shall not give a direction under subsection (1) about a particular case.
(4)
The Commission shall comply with a direction under subsection (1).
(5)
The Minister shall cause a copy of an instrument under subsection (1):
(a)
to be published in the Gazette within 21 days after the instrument is made; and
(b)
to be laid before each House of the Parliament within 15 sitting days of that House after the publication;
but failure of the Minister to do so does not affect the instrument’s validity.

12AOther functions and powers

(1)
The Commission has the functions and powers that are conferred on it by or under Division 2 of Part 2 of this Act and by or under the following Acts:
(a)
the Insurance Act 1973;
(b)
the Insurance (Agents and Brokers) Act 1984;
(c)
the Insurance Contracts Act 1984;
(d)
the Superannuation (Resolution of Complaints) Act 1993;
(e)
the Life Insurance Act 1995;
(f)
the Retirement Savings Accounts Act 1997;
(g)
the Superannuation Industry (Supervision) Act 1993.
(2)
The Commission has the function of monitoring and promoting market integrity and consumer protection in relation to the Australian financial system.
(3)
The Commission has the function of monitoring and promoting market integrity and consumer protection in relation to the payments system by:
(a)
promoting the adoption of approved industry standards and codes of practice; and
(b)
promoting the protection of consumer interests; and
(c)
promoting community awareness of payments system issues; and
(d)
promoting sound customer‑banker relationships, including through:
(i)
monitoring the operation of industry standards and codes of practice; and
(ii)
monitoring compliance with such standards and codes.
(4)
Subsections (2) and (3) confer functions and powers to the extent to which they are not in excess of the legislative power of the Commonwealth.
(5)
The Commission may:
(a)
advise the Minister about any changes to a law listed in subsection (1) that the Commission thinks are needed to help overcome any problems that the Commission has encountered in the course of performing its functions or exercising any of its powers under that law; and
(b)
advise the Minister and make such recommendations as it thinks fit about any matter relating to its functions in subsections (2) and (3).
(6)
The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions.

Division 2Unconscionable conduct and consumer protection in relation to financial servicesSubdivision AApplication12AAConstitutional operation of Division

(1)
Without prejudice to its effect apart from this section, this Division also has effect as provided by this section.
(2)
This Division has, by force of this subsection, the effect it would have if:
(a)
references in this Division to trade or commerce were, by express provision, confined to trade or commerce:
(i)
between Australia and places outside Australia; or
(ii)
among the States; or
(iii)
within a Territory, between a State and a Territory or between 2 Territories; or
(iv)
by way of the supply of services to the Commonwealth or an authority or instrumentality of the Commonwealth; and
(b)
section 12DJ were, by express provision, confined in its operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:
(i)
trade or commerce between Australia and places outside Australia; or
(ii)
trade or commerce among the States; or
(iii)
trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or
(iv)
the supply of services to the Commonwealth or an authority or instrumentality of the Commonwealth; and
(c)
reference in Subdivision E (sections 12EA to 12ED) to a contract for the supply of services or to the supply of services were, by express provision, confined to a contract made, or to the supply of services:
(i)
in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or
(ii)
in the course of, or in relation to, trade or commerce among the States; or
(iii)
in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between 2 Territories; and
(d)
references in this Division to a corporation, except a reference in section 12BA, included a reference to a person other than a corporation.
(3)
In addition to the effect that this Division has as provided by subsection (2), the provisions of Subdivision C (sections 12CA to 12CB) and Subdivision D (sections 12DA to 12DN) have, by force of this subsection, the effect they would have if:
(a)
those provisions were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and
(b)
references in those provisions to a corporation included a reference to a person other than a corporation.
(4)
In addition to the effect that this Division has as provided by subsections (2) and (3), the provisions of Subdivision C (sections 12CA to 12CB) and Subdivision D (sections 12DA to 12DN) also have, by force of this subsection, the effect they would have if:
(a)
those provisions were, by express provision, confined in their operation to engaging in conduct in a Territory; and
(b)
references in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of the promotional activities of a professional person.

12ABSubdivision E (sections 12EA to 12ED) does not apply to contracts entered into before 1 October 1974

Subdivision E (sections 12EA to 12ED) does not apply to a contract entered into before 1 October 1974.

12ACDivision extends to some conduct outside Australia

(1)
This Division extends to the engaging in conduct outside Australia by:
(a)
bodies corporate incorporated or carrying on business within Australia; or
(b)
Australian citizens; or
(c)
persons ordinarily resident within Australia .
(2)
If a claim under section 12GF is made in a proceeding, a person may rely at a hearing in respect of that proceeding on conduct to which a provision of this Division extends because of subsection (1) of this section only if the Minister consents in writing to the reliance.
(3)
A person other than the Minister or the Commission may apply to the Court for an order under subsection 12GM(1) or (2) in a proceeding in respect of conduct to which a provision of this Division extends because of subsection (1) of this section only if the Minister consents in writing to the application.
(4)
The Minister must give a consent under subsection (2) or (3) in respect of a proceeding unless, in the Minister’s opinion:
(a)
the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct; and
(b)
it is not in the national interest to give the consent.

12ADApplication of Division to Commonwealth and Commonwealth authorities

(1) Subject to this section, this Division binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.
(2)
Subject to subsections (3), (4), (5) and (6), this Division applies as if:
(a)
the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and
(b)
each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business;
were a corporation.
(3)
Nothing in this Division makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.
(4)
The protection in subsection (3) does not apply to an authority of the Commonwealth.
(5)
For the purposes of this section, the following transactions do not amount to carrying on a business:
(a)
a transaction involving only persons who are all acting for the Crown in right of the Commonwealth (and none of whom is an authority of the Commonwealth);
(b)
a transaction involving only persons who are all acting for the same authority of the Commonwealth;
(c)
a transaction involving only the Crown in right of the Commonwealth and one or more non‑commercial authorities of the Commonwealth;
(d)
a transaction involving only non‑commercial authorities of the Commonwealth.
(6)
Subsection (5) does not limit the things that do not amount to carrying on a business for the purposes of this section.
(7)
For the purposes of this section, an authority of the Commonwealth is non‑commercial if:
(a)
it is constituted by only one person; and
(b)
it is neither a trading corporation nor a financial corporation.

12AESaving of other laws and remedies

(1)
Except as provided by subsection (2), Subdivision D (sections 12DA to 12DN) and Subdivision E (sections 12EA to 12ED) are not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2)
If:
(a)
an act or omission of a person is both an offence against section 12GB and an offence under the law of a State or Territory; and
(b)
the person is convicted of either of those offences;
the person is not liable to be convicted of the other of those offences.
(3)
Except as expressly provided by Subdivision D (sections 12DA to 12DN) or Subdivision E (sections 12EA to 12ED), nothing in those Subdivisions is taken to limit, restrict or otherwise affect any right or remedy a person would have had if that Subdivision had not been enacted.
(4)
This Division does not affect the operation of:
(a)
the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Division; or
(b)
the law relating to breaches of confidence;
but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Division.

Subdivision BInterpretation12BAInterpretation

(1)
In this Division, unless the contrary intention appears:
acquire, in relation to services, includes accept.
acquisition of services has the meaning given by section 12BD.
authority, in relation to a State or Territory (including an external Territory), means:
(a)
a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or
(b)
an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.
authority of the Commonwealth means:
(a)
a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or
(b)
an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.
business includes a business not carried on for profit.
consumer has the meaning given by section 12BC.
conduct has the meaning given by subsection (2).
contract has the meaning given by section 12BE.
corporation means a body corporate that:
(a)
is a foreign corporation; or
(b)
is a trading corporation formed within the limits of Australia or is a financial corporation so formed; or
(c)
is incorporated in a Territory; or
(d)
is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c).
covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land) and proposed covenant has a corresponding meaning.
engage in conduct has the meaning given by subsection (2).
Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).
financial corporation:
(a)
means a financial corporation within the meaning of paragraph 51(xx) of the Constitution; and
(b)
includes a body corporate that carries on as its sole or principal business the business of:
(i)
banking (other than State banking not extending beyond the limits of the State concerned); or
(ii)
insurance (other than State insurance not extending beyond the limits of the State concerned).
financial product means:
(a)
a facility for taking money on deposit (otherwise than as part‑payment for identified services) made available in the course of conducting a banking business within the meaning of the Banking Act 1959; or
(b)
a security; or
(c)
a futures contract; or
(d)
a contract of insurance (including a life policy or a sinking fund policy within the meaning of the Life Insurance Act 1995); or
(e)
a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997; or
(f)
a superannuation interest within the meaning of the Superannuation Industry (Supervision) Act 1993;
but does not include a foreign exchange contract.
financial service means a service that:
(a)
consists of providing a financial product; or
(b)
is otherwise supplied in relation to a financial product.
foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory.
misleading has the meaning given by section 12BB.
price includes a charge of any description.
provision, in relation to an understanding, means any matter forming part of the understanding.
re‑supply of services has the meaning given by section 12BD.
send includes deliver, and sent and sender have corresponding meanings.
services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce but does not include:
(a)
the supply of goods within the meaning of the Trade Practices Act 1974; or
(b)
the performance of work under a contract of service.
supply:
(a)
includes provide, grant or confer when used as a verb in relation to services; and
(b)
has a corresponding meaning when used as a noun;
and supplied and supplier have corresponding meanings.
supply of services has the meaning given by section 12BD.
Territory means:
(a)
an internal Territory; or
(b)
the Territory of Christmas Island; or
(c)
the Territory of Cocos (Keeling) Islands.
the Court or the Federal Court means the Federal Court of Australia.
trade or commerce means trade or commerce within Australia or between Australia and places outside Australia .
trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.
unsolicited financial services means financial services supplied to a person without any request made by the person or on the person’s behalf.
(2)
In this Division:
(a)
a reference to engaging in conduct is a reference to doing or refusing to do any act, including:
(i)
making, or giving effect to a provision of, a contract or arrangement; or
(ii)
arriving at, or giving effect to a provision of, an understanding; or
(iii)
requiring the giving of, or giving, a covenant; and
(b)
a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to doing or refusing to do any act, including:
(i)
making, or giving effect to a provision of, a contract or arrangement; or
(ii)
arriving at, or giving effect to a provision of, an understanding; or
(iii)
requiring the giving of, or giving, a covenant; and
(c)
a reference to refusing to do an act includes a reference to:
(i)
refraining (otherwise than inadvertently) from doing that act; or
(ii)
making it known that that act will not be done; and
(d)
a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

12BBMisleading representations

(1)
For the purposes of section 12CB and Subdivision D (sections 12DA to 12DN), if a corporation makes a representation about a future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation is taken to be misleading.
(2)
For the purpose of applying subsection (1) to a proceeding concerning a representation made by a corporation about a future matter, the corporation is taken not to have had reasonable grounds for making the representation unless it adduces evidence to the contrary.
(3)
Subsection (1) does not limit by implication the meaning of a reference in this Division to:
(a)
a misleading representation; or
(b)
a representation that is misleading in a material particular; or
(c)
conduct that is misleading or is likely or liable to mislead.

12BCConsumers

(1)
For the purposes of this Division, unless the contrary intention appears, a person is taken to have acquired particular financial services as a consumer if, and only if:
(a)
the price of the services did not exceed the prescribed amount; or
(b)
if the price of the services exceeded the prescribed amount—the services were of a kind ordinarily acquired for personal, domestic or household use; or
(c)
if the services were acquired by a person within the meaning of subsection (2) and the price of the services exceeded the prescribed amount—the services were of a kind ordinarily acquired for business use.
(2)
For the purposes of this Division, person includes:
(a)
a person or corporation employing fewer than 20 people; or
(b)
if the person or corporation is engaged in the manufacture of any goods—a person or corporation employing fewer than 100 people.
(3)
For the purposes of subsection (1):
(a)
the prescribed amount is:
(i)
$40,000; or
(ii)
if a greater amount is prescribed for the purposes of this paragraph—that greater amount; and
(b)
subject to paragraph (c), the price of services purchased by a person is taken to have been the amount paid or payable by the person for the services; and
(c)
if a person purchased services together with other property or services, or with both other property and services, and a specified price was not allocated to the services in the contract under which they were purchased, the price of the services is taken to have been:
(i)
the price at which, at the time of the acquisition, the person could have purchased the services from the supplier without the other property or services; or
(ii)
if, at the time of the acquisition, the services were only available for purchase from the supplier together with the other property or services but, at that time, services of the kind acquired were available for purchase from another supplier without other property or services—the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or
(iii)
if, at the time of the acquisition, services of the kind acquired were not available for purchase from any supplier except together with other property or services—the value of the services at that time; and
(d)
if a person acquired services otherwise than by way of purchase, the price of the services is taken to have been:
(i)
the price at which, at the time of the acquisition, the person could have purchased the services from the supplier; or
(ii)
if, at the time of the acquisition, the services were not available for purchase from the supplier, or were available only together with other property or services, but, at that time, services of the kind acquired were available for purchase from another supplier—the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or
(iii)
if services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier, or were not available except together with other property or services—the value of the services at that time; and
(e)
without limiting by implication the meaning of the expression services in subsection 12BA(1), the obtaining of credit by a person in connection with the person’s acquisition of services is taken to be the acquisition by the person of a service and any amount by which the amount paid or payable by the person for the services is increased by reason of the person’s so obtaining credit is taken to be paid or payable by the person for that service.
(4)
If it is alleged in a proceeding under this Division, or in any other proceeding in respect of a matter arising under this Division, that a person was a consumer in relation to particular services, it is presumed that the person was a consumer in relation to those services unless the contrary is established.

12BDAcquisition, supply and re‑supply

In this Division, unless the contrary intention appears:
(a)
a reference to the supply or acquisition of services includes a reference to agreeing to supply or acquire services; and
(b)
a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and
(c)
a reference to the re‑supply of services (the original services) acquired from a person (the original supplier) includes a reference to:
(i)
a supply of the original services to another person in an altered form or condition; and
(ii)
a supply to another person of other services that are substantially similar to the original services and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.

12BEApplication of Division in relation to leases and licences of land and buildings

In this Division:
(a)
a reference to a contract includes a reference to a lease of, or a licence in respect of, land or a building or part of a building (despite the express references in this Division to such leases or licences); and
(b)
a reference to making or entering into a contract, in relation to such a lease or licence, is a reference to granting or taking the lease or licence.

Subdivision CUnconscionable conduct12CAUnconscionable conduct within the meaning of the unwritten law of the States and Territories

(1)
A corporation must not, in trade or commerce, engage in conduct in relation to financial services if the conduct is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.
(2)
This section does not apply to conduct that is prohibited by section 12CB.

12CBUnconscionable conduct

(1)
A corporation must not, in trade or commerce, in connection with the supply or possible supply of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable.
(2)
Without limiting the matters to which the Court may have regard for the purpose of determining whether a corporation has contravened subsection (1) in connection with the supply or possible supply of services to a person (the consumer), the Court may have regard to:
(a)
the relative strengths of the bargaining positions of the corporation and the consumer; and
(b)
whether, as a result of conduct engaged in by the corporation, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the corporation; and
(c)
whether the consumer was able to understand any documents relating to the supply or possible supply of the services; and
(d)
whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the corporation or a person acting on behalf of the corporation in relation to the supply or possible supply of the services; and
(e)
the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent services from a person other than the corporation.
(3)
A corporation is not taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of financial services to a person merely because the corporation:
(a)
institutes legal proceedings in relation to that supply or possible supply; or
(b)
refers a dispute or claim in relation to that supply or possible supply to arbitration.
(4)
For the purpose of determining whether a corporation has contravened subsection (1) in connection with the supply or possible supply of financial services to a person:
(a)
the Court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b)
the Court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(5)
A reference in this section to financial services is a reference to financial services of a kind ordinarily acquired for personal, domestic or household use.

Subdivision DConsumer protection12DAMisleading or deceptive conduct

(1)
A corporation must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.
(1A)
This section does not apply to dealings in securities.
(2)
Nothing in sections 12DB to 12DN limits by implication the generality of subsection (1).

12DBFalse or misleading representations

(1)
A corporation must not, in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services:
(a)
falsely represent that services are of a particular standard, quality, value or grade; or
(b)
falsely represent that a particular person has agreed to acquire services; or
(c)
represent that services have sponsorship, approval, performance characteristics, uses or benefits they do not have; or
(d)
represent that the corporation has a sponsorship, approval or affiliation it does not have; or
(e)
make a false or misleading representation with respect to the price of services; or
(f)
make a false or misleading representation concerning the need for any services; or
(g)
make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.
(2)
This section does not apply to dealings in securities.

12DCFalse representations and other misleading or offensive conduct in relation to securities that involve interests in land

(1)
A corporation must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of a security that consists of or includes an interest in land, or in connection with the promotion by any means of the sale or grant of an interest in land:
(a)
represent that the corporation has a sponsorship, approval or affiliation it does not have; or
(b)
make a false or misleading representation concerning the nature of the interest in the land, the price payable for the security, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put or the existence or availability of facilities associated with the land; or
(c)
offer gifts, prizes or other free items with the intention of not providing them or of not providing them as offered.

(2)
A corporation must not use physical force or undue harassment or coercion in connection with the sale or grant, or the possible sale or grant, of a security that consists of or includes an interest in land or the payment for an interest in land.
(3)
In this section:
interest, in relation to land, means:
(a)
a legal or equitable estate or interest in the land; or
(b)
a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or
(c)
a right, power or privilege over, or in connection with, the land.

12DDCash price to be stated in certain circumstances

(1)
A corporation must not, in trade or commerce, in connection with:
(a)
the supply or possible supply of financial services; or
(b)
the promotion by any means of the supply or use of financial services;
make a representation about an amount that, if paid, would constitute a part of the consideration for the supply of the services unless the corporation also specifies the cash price for the services.
(2)
This section does not apply to dealings in securities.

12DEOffering gifts and prizes

A corporation must not, in trade or commerce, in connection with:
(a)
the supply or possible supply of financial services; or
(b)
the promotion by any means of the supply or use of financial services;
offer gifts, prizes or other free items with the intention of not providing them, or of not providing them as offered.

12DFCertain misleading conduct in relation to financial services

A corporation must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any financial services.

12DGBait advertising

(1)
A corporation must not, in trade or commerce, advertise financial services for supply at a specified price, if there are reasonable grounds, of which the corporation is aware or ought reasonably to be aware, for believing that the corporation will not be able to offer for supply those services at that price:
(a)
for a period that is; and
(b)
in quantities that are;
reasonable having regard to the nature of the market in which the corporation carries on business and the nature of the advertisement.
(2)
A corporation that has, in trade or commerce, advertised financial services for supply at a specified price must offer such services for supply at that price:
(a)
for a period that is; and
(b)
in quantities that are;
reasonable having regard to the nature of the market in which the corporation carries on business and the nature of the advertisement.
(3)
In a prosecution of a corporation under Subdivision G (sections 12GA to 12GO) in relation to a failure to offer financial services to a person (the customer) in accordance with subsection (2), it is a defence if the corporation establishes that:
(a)
it offered to supply, or to procure another person to supply, services of the kind advertised to the customer within a reasonable time, in a reasonable quantity and at the advertised price; or
(b)
it offered to supply immediately, or to procure another person to supply within a reasonable time, equivalent services to the customer in a reasonable quantity and at the price at which the first‑mentioned services were advertised;
and, in either case, if the offer was accepted by the customer, the corporation has so supplied, or procured another person to supply, services.

12DHReferral selling

A corporation must not, in trade or commerce, induce a consumer to acquire financial services by representing that the consumer will, after the contract to acquire the services is made, receive a rebate, commission or other benefit in return for:
(a)
giving the corporation the names of prospective customers; or
(b)
otherwise assisting the corporation to supply financial services to other consumers;
if receipt of the rebate, commission or other benefit is contingent on an event occurring after that contract is made.

12DIAccepting payment without intending or being able to supply as ordered

A corporation must not, in trade or commerce, accept payment or other consideration for financial services if, at the time of the acceptance:
(a)
the corporation intends:
(i)
not to supply the services; or
(ii)
to supply services materially different from the services in respect of which the payment or other consideration is accepted; or
(b)
there are reasonable grounds, of which the corporation is aware or ought reasonably to be aware, for believing that the corporation will not be able to supply the services within the period specified by the corporation or, if no period is specified, within a reasonable time.

12DJHarassment and coercion

A corporation must not use physical force, or undue harassment or coercion, in connection with:
(a)
the supply or possible supply of financial services to a consumer; or
(b)
the payment for financial services by a consumer.

12DKPyramid selling of securities

(1)
A corporation contravenes this section if:
(a)
the corporation is the promoter of, or (if there are more than one) one of the promoters of, or is a participant in, a trading scheme to which this section applies; and
(b)
a person who is a participant in that trading scheme, or has applied or been invited to become a participant in that trading scheme, makes any payment to or for the benefit of the corporation; and
(c)
the person is induced to make the payment because the prospect is held out to him or her of receiving payments or other benefits in respect of the introduction (whether by himself or herself or by another person) of other persons who become participants in that trading scheme.
(2)
A corporation also contravenes this section if:
(a)
the corporation is the promoter of, or (if there are more than one) one of the promoters of, is a participant in, or is otherwise acting in accordance with, a trading scheme to which this section applies; and
(b)
the corporation, by holding out to any person the prospect of receiving payments or other benefits in respect of the introduction (whether by himself or herself or by another person) of other persons who become participants in that trading scheme, attempts to induce that person:
(i)
if he or she is already a participant in that trading scheme, to make any payment to or for the benefit of the promoter or any of the promoters or to or for the benefit of a participant in that trading scheme; or
(ii)
if he or she is not already a participant in that trading scheme, to become such a participant and to make a payment of a kind mentioned in subparagraph (i).
(3)
A corporation also contravenes this section if the corporation promotes, or takes part in the promotion of, a scheme under which:
(a)
a payment is to be made by a person who participates, or who has applied or been invited to participate, in the scheme to or for the benefit of the corporation or another person who takes part in the promotion of the scheme or to or for the benefit of another person who participates in the scheme; and
(b)
the inducement for making the payment is the holding out to the person who makes or is to make the payment the prospect of receiving payments from other persons who may participate in the scheme.
(4)
For the purposes of subsection (1), (2) or (3):
(a)
a prospect of a kind mentioned in that subsection is taken to be held out to a person whether it is held out so as to confer on him or her a legally enforceable right or not; and
(b)
in determining whether an inducement or attempt to induce is made by holding out a prospect of a kind mentioned in that subsection, it is sufficient if a prospect of that kind constitutes or would constitute a substantial part of the inducement; and
(c)
any reference to the making of a payment to or for the benefit of a person includes a reference to the making of a payment partly to or for the benefit of that person and partly to or for the benefit of one or more other persons.
(5)
For the purposes of this section, a scheme is a trading scheme to which this section applies if the scheme includes the following elements:
(a)
securities are to be provided by the person promoting the scheme (the promoter) or, in the case of a scheme promoted by 2 or more persons acting in concert (the promoters), are to be provided by one or more of those persons; and
(b)
the securities so provided are to be supplied to or for other persons under transactions arranged or effected by persons who participate in the scheme (each of whom is in this section referred to as a participant), being persons not all of whom are promoters.
(6)
For the purposes of subsection (5):
(a)
a scheme shall be taken to include the element referred to in paragraph (5)(b) whether a participant who is not a promoter acts in relation to a transaction referred to in that paragraph in the capacity of a servant or agent of the promoter or of one of the promoters or in any other capacity; and
(b)
a scheme includes any arrangements made in connection with the carrying on of a business, whether those arrangements are made or recorded wholly or partly in writing or not; and
(c)
a reference to the provision of a security by a person includes a reference to the provision of a security under arrangements to which that person is a party.

12DLUnsolicited debit cards

(1)
A corporation must not send a person:
(a)
a debit card that allows access to an account that is a financial product; or
(b)
an article that may be used as a debit card of that kind;
except in accordance with subsection (2).
(2)
A corporation may send the person the card:
(a)
in pursuance of a request in writing by the person who will be under a liability to the person who issued the card in respect of the use of the card; or
(b)
in renewal or replacement of, or in substitution for:
(i)
a card of the same kind previously sent to the first‑mentioned person in pursuance of a request in writing by the person who was under a liability to the person who issued the card previously so sent in respect of the use of that card; or
(ii)
a card of the same kind previously sent to the first‑mentioned person and used for a purpose for which it was intended to be used.
(3)
Subsection (1) applies only in relation to the sending of a card by or on behalf of the person who issued the card.
(4)
A corporation must not take any action that enables a person who has a credit card to use the card as a debit card except in accordance with a request in writing by the person.
(5)
In this section:
article includes a token, card or document.
credit card means:
(a)
any article of a kind commonly known as a credit card; or
(b)
any similar article intended for use in obtaining cash, goods or services on credit;
and includes any article of a kind that persons carrying on business commonly issue to their customers or prospective customers for use in obtaining goods or services from those persons on credit.
debit card means an article intended for use by a person in obtaining access to an account that is:
(a)
held by the person for the purpose of withdrawing or depositing cash or obtaining goods or services; and
(b)
a financial product.

12DMAssertion of right to payment for unsolicited financial services

(1)
A corporation must not, in trade or commerce, assert a right to payment from a person for unsolicited financial services unless the corporation has reasonable cause to believe that there is a right to payment.
(2)
For the purposes of this section, a corporation is taken to assert a right to a payment from a person for unsolicited financial services if the corporation:
(a)
makes a demand for the payment or asserts a present or prospective right to the payment; or
(b)
threatens to bring any legal proceedings with a view to obtaining the payment; or
(c)
places, or causes to be placed, the name of the person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment; or
(d)
invokes, or causes to be invoked, any other collection procedure, or threatens to do so, with a view to obtaining the payment; or
(e)
sends any invoice or other document stating the amount of the payment or setting out the price of the services and not stating as prominently (or more prominently) that no claim is made to the payment or to payment of the price.
(3)
For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a corporation is taken to have been sent by that corporation unless the contrary is established.
(4)
In a proceeding against a corporation in respect of a contravention of this section, the burden lies on the corporation of proving that the corporation had reasonable cause to believe that there was a right to payment.

12DNApplication of provisions of Division to prescribed information providers

(1)
Nothing in section 12DA, 12DB, 12DC or 12DF applies to a prescribed publication of matter by a prescribed information provider, other than:
(a)
a publication of matter in connection with:
(i)
the supply or possible supply of financial services; or
(ii)
the sale or grant, or possible sale or grant, of securities that consist of, or include, interests in land; or
(iii)
the promotion by any means of the supply or use of financial services; or
(iv)
the promotion by any means of the sale or grant of securities that consist of, or include, interests in land;
if:
(v)
the services were relevant services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider; or
(vi)
the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with:
(A)
a person who supplies financial services of that kind, or who sells or grants securities of that kind; or
(B)
a body corporate that is related to a body corporate that supplies financial services of that kind, or that sells or grants securities of that kind; or
(b)
a publication of an advertisement.
(2)
For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if:
(a)
in any case—the publication was made by the prescribed information provider in the course of carrying on a business of providing information; or
(b)
in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition)—the publication was by way of a radio or television broadcast by the prescribed information provider.
(3)
In this section:
prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes:
(a)
the holder of a licence granted under the Broadcasting Services Act 1992; and
(b)
a person who is the provider of a broadcasting service under a class licence under that Act; and
(c)
the holder of a licence continued in force by subsection 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992; and
(d)
the Australian Broadcasting Corporation; and
(e)
the Special Broadcasting Service Corporation.
relevant financial services, in relation to a prescribed information provider, means financial services of a kind supplied by the prescribed information provider or, if the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.
relevant interests in land, in relation to a prescribed information provider, means interests in land, being interests of a kind sold or granted by the prescribed information provider or, if the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.

Subdivision EConditions and warranties in consumer transactions12EAConflict of laws

If:
(a)
the proper law of a contract for the supply by a corporation of financial services to a consumer would, but for a term that it should be the law of some other country or a term to the like effect, be the law of any part of Australia; or
(b)
a contract for the supply by a corporation of financial services to a consumer contains a term that purports to substitute, or has the effect of substituting, provisions of the law of some other country, or of a State or Territory, for all or any of the provisions of this Subdivision (sections 12EA to 12ED);
this Subdivision applies to the contract notwithstanding that term.

12EBApplication of provisions not to be excluded or modified

(1)
A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void if it purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying:
(a)
the application of all or any of the provisions of this Subdivision (sections 12EA to 12ED); or
(b)
the exercise of a right conferred by such a provision; or
(c)
any liability of the corporation for breach of a condition or warranty implied by such a provision.
(2)
A term of a contract is not taken to exclude, restrict or modify the application of a provision of this Subdivision unless the term does so expressly or is inconsistent with that provision.

12ECLimitation of liability for breach of certain conditions or warranties

(1)
Subject to this section, a term of a contract for the supply by a corporation of financial services other than services of a kind ordinarily acquired for personal, domestic or household use is not void under section 12EB merely because the term limits the liability of the corporation for a breach of a condition or warranty to:
(a)
the supplying of the services again; or
(b)
the payment of the cost of having the services supplied again.
(2)
Subsection (1) does not apply in relation to a term of a contract if the person to whom the services were supplied establishes that it is not fair or reasonable for the corporation to rely on that term of the contract.
(3)
In determining for the purposes of subsection (2) whether or not reliance on a term of a contract is fair or reasonable, a court must have regard to all the circumstances of the case and, in particular, to the following matters:
(a)
the strength of the bargaining positions of the corporation and the person to whom the services were supplied (the buyer) relative to each other, taking into account, among other things, the availability of equivalent services and suitable alternative sources of supply;
(b)
whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity to acquire the services or equivalent services from any source of supply under a contract that did not include that term;
(c)
whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties).

12EDWarranties in relation to the supply of financial services

(1)
In every contract for the supply of financial services by a corporation to a consumer in the course of a business, there is an implied warranty that:
(a)
the services will be rendered with due care and skill; and
(b)
any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied.
(2)
If:
(a)
a corporation supplies financial services to a consumer in the course of a business; and
(b)
the consumer, expressly or by implication, makes known to the corporation:
(i)
any particular purpose for which the services are required; or
(ii)
the result that he or she desires the services to achieve;
there is an implied warranty that:
(c)
the services supplied under the contract for the supply of the services; and
(d)
any materials supplied in connection with those services;
will be reasonably fit for that purpose or are of such a nature and quality that they might reasonably be expected to achieve that result, except if the circumstances show that the consumer does not rely, or that it is unreasonable for him or her to rely, on the corporation’s skill or judgment.

The Australian Prudential Regulation Authority Act 1998 came into operation on 1 July 1998 (see Gazette 1998, No. S316).
Schedule 1 to the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998 commenced on 1 July 1998.
(f) The Financial Sector Reform (Consequential Amendments) Act 1998 was amended by Schedule 6 (item 19) only of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999, subsection 3(9) of which provides as follows:
(9)
Items 18 and 19 of Schedule 6 are taken to have commenced immediately before the commencement of the Australian Prudential Regulation Authority Act 1998.
The Australian Prudential Regulation Authority Act 1998 came into operation on 1 July 1998 (see Gazette 1998, No. S316).
(fa) The Financial Sector Reform (Consequential Amendments) Act 1998 was amended by Schedule 7 (item 18) only of the Corporate Law Economic Reform Program Act 1999, subsection 2(5) of which provides as follows:
(5)
Item 18 of Schedule 7 is taken to have commenced on the day on which the Financial Sector Reform (Consequential Amendments) Act 1998 received the Royal Assent.
The Financial Sector Reform (Consequential Amendments) Act 1998 received the Royal Assent on 29 June 1998.
(g) The Australian Securities and Investments Commission Act 1989 was amended by Schedule 1 only of the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998, subsection 2(2)(a) of which provides as follows:
(2)
The following provisions of this Act commence on the commencement of the Australian Prudential Regulation Authority Act 1998:
(a)
Schedule 1;
The Australian Prudential Regulation Authority Act 1998 came into operation on 1 July 1998 (see Gazette 1998, No. S316).
(h) The Australian Securities and Investments Commission Act 1989 was amended by Schedule 4 (items 1–5) only of the Company Law Review Act 1998, subsections 2(2) and (4) of which provide as follows:
(2)
Subject to subsection (3), section 3 and Schedules 1, 2, 3 and 4 commence on a day to be fixed by Proclamation.
The date fixed in pursuance of subsection 2(2) was 1 July 1998 (see Gazette 1998, No. S316).
(4)
The amendments in Schedules 1, 2, 3 and 4 commence on the day determined under subsections (2) and (3) in this order:
(a)
first, items 29, 30 and 199 of Schedule 3;
(b)
then, the items in Schedules 1, 2 and 4 and the remaining items in Schedule 3 (other than items 32, 85, 158 and 198);
(c)
then, items 32, 85, 158 and 198 of Schedule 3.
(ha) The Company Law Review Act 1998 was amended by Schedule 9 (item 1) only of the Corporate Law Economic Reform Program Act 1999, subsection 2(8) of which provides as follows:
(8)
Item 1 of Schedule 9 is taken to have commenced on the day on which the Company Law Review Act 1998 received the Royal Assent.
(i) The Australian Securities and Investments Commission Act 1989 was amended by Schedule 2 (Part 2) only of the Managed Investments Act 1998, section 2 of which provides as follows:
2
This Act commences immediately after all the items in Schedules 1, 2, 3 and 4 of the Company Law Review Act 1998 have commenced.
The date fixed in pursuance of section 2 was 1 July 1998 (see Gazette 1998, No. S316).
(ia) The Managed Investments Act 1998 was amended by Schedule 9 (item 2) only of the Corporate Law Economic Reform Program Act 1999, subsection 2(9) of which provides as follows:
(9)
Item 2 of Schedule 9 is taken to have commenced on the day on which the Managed Investments Act 1998 received the Royal Assent.
The Managed Investments Act 1998 received the Royal Assent on 29 June 1998
(j) The Australian Securities and Investments Commission Act 1989 was amended by Schedule 6 (items 1–3) only of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999, subsections 3(1) and (6) of which provide as follows:
(1)
Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(6)
Item 3 of Schedule 6 commences on a day to be fixed by Proclamation. [see Note 2]
(k) The Australian Securities and Investments Commission Act 1989 was amended by Schedule 1 (items 239–251) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:
(1)
In this Act, commencing time means the time when the Public Service Act 1999 commences.
(2)
Subject to this section, this Act commences at the commencing time.
(l) The Australian Securities and Investments Commission Act 1989 was amended by Schedule 2, Schedule 4, Schedule 7 (items 1‑17), Schedule 10 (item 55) and Schedule 12 (items 1, 4–14, 26 and 28–32) only of the Corporate Law Economic Reform Program Act 1999, subsections 2(2)(b), (c) and (4) of which provide as follows:
(2)
The following provisions commence on a day or days to be fixed by Proclamation:
(b)
the items in Schedules 1 to 7 (other than item 18 of Schedule 7);
(c)
the items in Schedules 10, 11 and 12.
(4)
If an item in Schedule 11 or 12 does not commence under subsection (2) within the period of 12 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
(m) The Australian Securities and Investments Commission Act 1989 was amended by Schedule 3 only of the Jurisdiction of Courts Legislation Amendment Act 2000, subsection 2(4) of which provides as follows:
(4)
Schedule 3 is taken to have commenced immediately after the commencement of the items in Parts 1, 2 and 4 of Schedule 4 to the Corporate Law Economic Reform Program Act 1999.
Parts 1, 2 and 4 of Schedule 4 commenced on 13 March 2000 (see Gazette 2000, No. S114)
(ma) Subsection 2(1) (item 39) of the Statute Law Revision Act 2005 provides as follows:
(1)
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Provision(s)	Commencement	Date/Details
39. Schedule 2, item 21	Immediately after the time specified in the Jurisdiction of Courts Legislation Amendment Act 2000 for the commencement of section 2 of that Act.	30 May 2000

Provision(s)

Commencement

Date/Details

39.

Schedule 2, item 21

Immediately after the time specified in the Jurisdiction of Courts Legislation Amendment Act 2000 for the commencement of section 2 of that Act.

30 May 2000

(n) The Australian Securities and Investments Commission Act 1989 was repealed by Schedule 1 (item 1) only of the Corporations (Repeals, Consequentials and Transitionals) Act 2001, subsection 2(2) of which provides as follows:
(2)
Schedules 1 and 2 commence, or are taken to have commenced, at the same time as the Corporations Act 2001.

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Title........................................	am. No. 54, 1998
Div. 1 of Part 1 ....................... (s. 1)	ad. No. 110, 1990
S. 1.........................................	rep. No. 110, 1990
ad. No. 110, 1990
am. No. 110, 1991; No. 54, 1998
Div. 2 of Part 1 ....................... (ss. 1A‑1E)	ad. No. 110, 1990
S. 1A......................................	ad. No. 110, 1990
am. No. 54, 1998
S. 1B......................................	ad. No. 110, 1990
am. Nos. 48 and 54, 1998; No. 156, 1999
Ss. 1C‑1E...............................	ad. No. 110, 1990
am. No. 156, 1999
Heading to Div. 3 of Part 1.....	ad. No. 110, 1990
S. 3.........................................	rep. No. 110, 1990
Heading to Div. 4 of Part 1.....	ad. No. 110, 1990
S. 5.........................................	am. No. 110, 1990; No. 110, 1991; Nos. 94 and 210, 1992; No. 104, 1994; Nos. 48, 54 and 61, 1998 (as am. by No. 156, 1999); No. 156, 1999
S. 6A......................................	ad. No. 110, 1990
am. No. 110, 1991; No. 156, 1999
Ss. 6B‑6D...............................	ad. No. 110, 1990
S. 6E......................................	ad. No. 110, 1991
am. No. 156, 1999
Heading to Part 2...................	rs. No. 48, 1998
Heading to Div. 1 of Part 2.....	ad. No. 48, 1998
S. 7.........................................	am. No. 54, 1998
Note to s. 8.............................	ad. No. 152, 1997
S. 9.........................................	am. No. 41, 1990; No. 54, 1998
S. 10.......................................	am. No. 152, 1997
Note to s. 10...........................	ad. No. 152, 1997
Heading to s. 11.....................	am. No. 54, 1998
rs. No. 44, 1999
S. 11.......................................	am. No. 110, 1990; No. 48, 1998; No. 44, 1999
S. 12.......................................	am. No. 110, 1990
Heading to s. 12A...................	rs. No. 44, 1999
S. 12A....................................	ad. No. No. 54, 1998
am. No. 48, 1998
Div. 2 of Part 2 ....................... (ss. 12AA‑12AE, 12BA‑12BE, 12CA, 12CB, 12DA‑12DN, 12EA‑12ED, 12FA, 12GA‑12GO, 12HA‑12HD, 12IA)	ad. No. 48, 1998
Ss. 12AA‑12AE......................	ad. No. 48, 1998
Ss. 12BA‑12EE......................	ad. No. 48, 1998
S. 12CA..................................	ad. No. 48, 1998
S. 12CB..................................	ad. No. 48, 1998
Ss. 12DA, 12DB.....................	ad. No. 48, 1998
am. No. 156, 1999
S. 12DC..................................	ad. No. 48, 1998
S. 12DD..................................	ad. No. 48, 1998
am. No. 156, 1999
Ss. 12DE‑12DK......................	ad. No. 48, 1998
S. 12DL..................................	ad. No. 48, 1998 (as am. by No. 156, 1999)
Ss. 12DM, 12DN....................	ad. No. 48, 1998
Ss. 12EA‑12ED......................	ad. No. 48, 1998
S. 12FA..................................	ad. No. 48, 1998
S. 12GA..................................	ad. No. 48, 1998
Heading to s. 12GB................	am. No. 156, 1999
S. 12GB..................................	ad. No. 48, 1998
am. No. 156, 1999
Ss. 12GC, 12GD....................	ad. No. 48, 1998
Ss. 12GE, 12GF.....................	ad. No. 48, 1998
am. No. 156, 1999
Ss. 12GG, 12GH....................	ad. No. 48, 1998
S. 12GI...................................	ad. No. 48, 1998
am. No. 156, 1999
Ss. 12GJ‑12GL.......................	ad. No. 48, 1998
Ss. 12GM, 12GN....................	ad. No. 48, 1998
am. No. 156, 1999
S. 12GO.................................	ad. No. 48, 1998
Ss. 12HA‑12HD......................	ad. No. 48, 1998
S. 12IA...................................	ad. No. 48, 1998
Subdiv. J of Div. 2 of Part 2 ... (ss. 12JA‑12JE)	ad. No. 57, 2000
Ss. 12JA‑12JE.......................	ad. No. 57, 2000
Div. 1A of Part 3 .................... (s. 12B)	ad. No. 48, 1998
S. 12B....................................	ad. No. 48, 1998
S. 13.......................................	am. No. 110, 1990; Nos. 48 and 62, 1998 (as am. by No. 156, 1999); No. 156, 1999
S. 14.......................................	am. No. 110, 1990
S. 14A....................................	ad. No. 110, 1990
S. 15.......................................	am. No. 110, 1990
S. 22.......................................	am. No. 104, 1994
Ss. 25, 26...............................	am. No. 104, 1994
S. 27.......................................	am. No. 110, 1990
S. 28.......................................	am. No. 110, 1990; No. 62, 1998 (as am. by No. 156, 1999)
S. 29.......................................	am. No. 110, 1990
Heading to s. 30.....................	am. No. 62, 1998 (as am. by No. 156, 1999)
S. 30.......................................	am. No. 62, 1998 (as am. by No. 156, 1999)
S. 32A....................................	ad. No. 48, 1998
S. 33.......................................	am. Nos. 48 and 62, 1998 (as am. by No. 156, 1999)
S. 34.......................................	am. No. 48, 1998
Ss. 35‑37................................	am. No. 110, 1990
S. 39A....................................	ad. No. 62, 1998 (as am. by No. 156, 1999)
S. 40.......................................	rs. No. 110, 1990
S. 42.......................................	rep. No. 110, 1990
S. 43.......................................	am. No. 110, 1990; No. 110, 1991; No. 156, 1999
S. 45.......................................	rep. No. 110, 1990
S. 46.......................................	am. No. 110, 1990; No. 110, 1991
S. 47.......................................	am. No. 104, 1994
S. 49.......................................	am. No. 110, 1990; No. 110, 1991; No. 48, 1998
S. 50.......................................	am. No. 110, 1990
S. 51.......................................	am. No. 110, 1990; No. 156, 1999
Ss. 53, 54...............................	am. No. 110, 1990
S. 56.......................................	am. No. 110, 1990; No. 104, 1994
S. 57.......................................	am. No. 110, 1990
S. 59.......................................	am. No. 110, 1990
Ss. 61, 62...............................	am. No. 110, 1990
S. 63.......................................	am. No. 48, 1998
Ss. 64‑66................................	am. No. 104, 1994
S. 67.......................................	am. No. 110, 1990; No. 104, 1994; No. 48, 1998
S. 68.......................................	am. No. 110, 1990; No. 27, 1992
S. 69.......................................	am. No. 104, 1994
S. 75.......................................	am. No. 104, 1994
S. 76.......................................	am. No. 110, 1990; No. 27, 1992
S. 77.......................................	am. No. 110, 1990
S. 79.......................................	am. No. 110, 1990
S. 80.......................................	am. No. 110, 1990; No. 48, 1998
S. 81.......................................	am. No. 110, 1990; No. 61, 1998 (as am. by No. 156, 1999)
S. 83A....................................	ad. No. 110, 1990
S. 86.......................................	am. No. 110, 1990; No. 115, 1995; No. 61, 1998 (as am. by No. 156, 1999)
S. 88.......................................	am. No. 110, 1990; No. 110, 1991; No. 3, 1995; No. 156, 1999
S. 91.......................................	am. No. 110, 1990; No. 210, 1992; No. 104, 1994; No. 48, 1998
S. 93.......................................	am. No. 110, 1990
S. 93AA..................................	ad. No. 54, 1998
Part 3A................................... (s. 93A)	ad. No. 62, 1998
S. 93A....................................	ad. No. 62, 1998
S. 95.......................................	am. No. 110, 1990
S. 96.......................................	rs. No. 110, 1990
S. 102.....................................	am. No. 110, 1990; No. 110, 1991; Nos. 48 and 54, 1998; No. 44, 1999
S. 111.....................................	am. No. 122, 1991; No. 94, 1992
S. 113.....................................	rs. No. 122, 1991
am. No. 146, 1999
S. 114.....................................	am. No. 94, 1992
Div. 3 to Part 5........................ (s. 119A)	ad. No. 110, 1990
S. 119A..................................	ad. No. 110, 1990
Ss. 120‑122............................	am. No. 146, 1999
S. 122A..................................	ad. No. 110, 1990
S. 123.....................................	rs. No. 54, 1998; No. 156, 1999
S. 124.....................................	am. No. 152, 1997; No. 156, 1999
S. 125.....................................	am. No. 104, 1994; No. 146, 1999
S. 127.....................................	am. No. 110, 1990; No. 110, 1991; No. 31, 1994; No. 104, 1994; Nos. 48 and 54, 1998; No. 156, 1999
S. 127A..................................	ad. No. 110, 1991
am. No. 104, 1994
Heading to Div. 3 of Part 7.....	am. No. 110, 1991
S. 128.....................................	rs. No. 110, 1991
am. No. 104, 1994
S. 129.....................................	am. No. 110, 1991
S. 134.....................................	am. No. 110, 1990
S. 135.....................................	am. No. 110, 1990; No. 110, 1991; No. 152, 1997; No. 54, 1998; No. 156, 1999
S. 136.....................................	rep. No. 152, 1997
S. 137.....................................	am. No. 152, 1997
S. 138.....................................	rs. No. 152, 1997
am. Nos. 48 and 54, 1998; No. 156, 1999
S. 141.....................................	am. No. 152, 1997
Ss. 143, 144...........................	rep. No. 152, 1997
Note to s. 146.........................	ad. No. 152, 1997
Ss. 147, 148...........................	am. No. 110, 1990
S. 148A..................................	ad. No. 31, 1994
S. 156.....................................	am. No. 146, 1999
S. 158.....................................	am. No. 146, 1999
S. 161.....................................	am. No. 152, 1997
S. 162.....................................	rep. No. 152, 1997
S. 164.....................................	rep. No. 152, 1997
S. 167.....................................	am. No. 152, 1997
Ss. 169, 170...........................	rep. No. 152, 1997
Ss. 172, 173...........................	am. No. 110, 1990
S. 174.....................................	rs. No. 110, 1990
am. No. 110, 1991
S. 180.....................................	rs. No. 122, 1991
am. No. 146, 1999
S. 184.....................................	am. No. 110, 1990; No. 104, 1994; No. 156, 1999
S. 185.....................................	am. No. 110, 1990; No. 104, 1994
Heading to Div. 3 of Part 10...	am. No. 104, 1994
rs. No. 156, 1999
S. 187.....................................	am. No. 104, 1994; No. 156, 1999
Heading to s. 188...................	am. No. 156, 1999
S. 188.....................................	rs. No. 104, 1994
am. No. 156, 1999
S. 189.....................................	rs. No. 104, 1994
am. No. 104, 1994
rep. No. 156, 1999
S. 190.....................................	am. No. 104, 1994; No. 156, 1999
S. 191.....................................	rs. No. 104, 1994
rep. No. 156, 1999
S. 192.....................................	am. No. 104, 1994; No. 156, 1999
S. 193.....................................	rs. No. 104, 1994
rs. No. 156, 1999
S. 193A..................................	ad. No. 104, 1994
rep. No. 156, 1999
S. 194.....................................	am. No. 104, 1994
rs. No. 156, 1999
S. 195.....................................	rs. No. 104, 1994; No. 156, 1999
S. 196.....................................	am. No. 110, 1990; No. 104, 1994
rep. No. 156, 1999
S. 197.....................................	am. No. 110, 1990; No. 104, 1994; No. 156, 1999
S. 198.....................................	am. No. 104, 1994
Ss. 199‑201............................	am. No. 104, 1994; No. 156, 1999
S. 201A..................................	ad. No. 104, 1994; No. 156, 1999
S. 203.....................................	am. No. 110, 1991
S. 204.....................................	rs. No. 110, 1990
am. No. 110, 1991
S. 213.....................................	am. No. 110, 1990
S. 216.....................................	am. No. 104, 1994
Ss. 219, 220...........................	am. No. 104, 1994
S. 221.....................................	am. No. 110, 1990
Heading to Part 12.................	rs. No. 110, 1990; No. 156, 1999
Part 12 (ss. 224‑234)..............	rep. No. 156, 1999
Part 12 ................................... (ss. 224‑234, 235A‑235C, 236A‑236D, 237, 238)	ad. No. 156, 1999
S. 224.....................................	rs. No. 110, 1990; No. 156, 1999
S. 225.....................................	am. No. 110, 1990
rs. No. 156, 1999
S. 226.....................................	am. No. 110, 1990; No. 210, 1992; No. 61, 1998 (as am. by No. 156, 1999)
rs. No. 156, 1999
Ss. 227‑230............................	rs. No. 156, 1999
S. 231.....................................	am. No. 110, 1990
rs. No. 156, 1999
S. 232.....................................	rs. No. 156, 1999
Ss. 233, 234...........................	am. No. 110, 1990
rs. No. 156, 1999
Ss. 235A‑235C.......................	ad. No. 156, 1999
Ss. 236A‑236D.......................	ad. No. 156, 1999
Ss. 237, 238...........................	ad. No. 156, 1999
Part 13 ................................... (ss. 235‑240)	rep. No. 110, 1990
Ss. 235‑240............................	rep. No. 110, 1990
S. 243A..................................	ad. No. 110, 1990
am. No. 156, 1999
Ss. 243B, 243C......................	ad. No. 110, 1990
S. 243CA................................	ad. No. 57, 2000
S. 243D..................................	ad. No. 110, 1990
am. No. 188, 1991; No. 156, 1999
S. 244A..................................	ad. No. 104, 1994
S. 245.....................................

am. No. 110, 1990; No. 54, 1998
S. 246.....................................	am. No. 110, 1990; No. 210, 1992; No. 48, 1998 (as am. by No. 44, 1999); No. 54, 1998
S. 248.....................................	am. No. 110, 1990
Ss. 249, 250...........................	rep. No. 110, 1990
Heading to s. 251...................	am. No. 156, 1999
S. 251.....................................	am. No. 110, 1990; No. 156, 1999
S. 252.....................................	ad. No. 110, 1990
Part 16 ................................... (ss. 253‑262)	ad. No. 110, 1991
Ss. 253‑262............................	ad. No. 110, 1991
Part 17 ................................... (ss. 263‑267)	ad. No. 104, 1994
Ss. 263‑267............................	ad. No. 104, 1994
Part 18.................................... (s. 268)	ad. No. 54, 1998
S. 268.....................................	ad. No. 54, 1998

Note 2

Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 (No. 44, 1999)

The following amendment commences on proclamation:

Schedule 6

Subparagraph 127(4)(aa)(ii)

Repeal the subparagraph.

As at 14 July 2005 no date had been fixed and the amendment is not incorporated in this compilation.

Table A

Application, saving or transitional provisions

Financial Sector Reform (Amendments and Transitional Provisions) Act 1998 (No. 54, 1998)

Schedule 19

46
Regulations may deal with other transitional matters
The regulations may deal with other transitional matters relating to the amendments and repeals made by the Schedules to this Act, or relating to the establishment of the Australian Prudential Regulation Authority.

Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 (No. 44, 1999)

Schedule 8

22
Regulations may deal with transitional, saving or application matters
(1) The regulations may deal with matters of a transitional, saving or application nature relating to:
(a)
the transition from the application of provisions of the replaced legislation to the application of provisions of the Banking Act 1959, the Life Insurance Act 1995, the Financial Sector (Transfers of Business) Act 1999, the Financial Sector (Shareholdings) Act 1998 or the Australian Prudential Regulation Authority Act 1998; or
(b)
the transition, for The Cairns Cooperative Weekly Penny Savings Bank Limited, from the application of provisions of the Financial Intermediaries Act 1996 of Queensland to the application of provisions of any of the Acts referred to in paragraph (a); or
(c)
the amendments and repeals made by the Schedules to this Act.
(2) Without limiting subitem (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:
(a)
by applying (with or without modifications) to the matter:
(i)
provisions of a law of the Commonwealth, or of a State or Territory; or
(ii)
provisions of a repealed or amended law of the Commonwealth, or of a State or Territory, in the form that those provisions took before the repeal or amendment; or
(iii)
a combination of provisions referred to in subparagraphs (i) and (ii);
(b)
by otherwise specifying rules for dealing with the matter;
(c)
by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of a law of the Commonwealth.
(3) Without limiting subitems (1) and (2), the regulations may provide for the continued effect, for the purposes of a provision of a law of the Commonwealth, of a thing done or instrument made, or a class of things done or instruments made, before the transfer date under or for the purposes of a provision of a law of a State or Territory. In the case of an instrument or class of instruments, the regulations may provide for the instrument or instruments to continue to have effect subject to modifications.
(4) Without limiting subitem (3), regulations providing for the continued effect of things done or instruments made may permit all or any of the following matters to be determined in writing by a specified person, or by a person included in a specified class of persons:
(a)
the identification of a thing done or instrument made, or a class of things done or instruments made, that is to continue to have effect;
(b)
the purpose for which a thing done or instrument made, or a class of things done or instruments made, is to continue to have effect;
(c)
any modifications subject to which an instrument made, or a class of instruments made, is to continue to have effect.
(5) Despite subsection 48(2) of the Acts Interpretation Act 1901, regulations for the purposes of this item:
(a)
may be expressed to take effect from a date before the regulations are notified in the Gazette; and
(b)
may provide for a determination of a kind referred to in subitem (4) to take effect from a date before the determination is made (including a date before the regulations are notified in the Gazette).
(6) In this item, a reference to a law, whether of the Commonwealth or of a State or Territory, includes a reference to an instrument made under such a law.

(7) In this item:

replaced legislation means:
(a)
the AFIC Codes; and
(b)
the Financial Institutions Codes; and
(c)
the Friendly Societies Codes; and
(d)
the Australian Financial Institutions Commission Act 1992 of Queensland, and any Act of another State or of a Territory that provides for the application, as a law of the State or Territory, of the Code set out in section 21 of the Australian Financial Institutions Commission Act 1992 of Queensland; and
(e)
the Financial Institutions (Queensland) Act 1992 of Queensland, and any Act of another State or of a Territory that provides for the application, as a law of the State or Territory, of the Code set out in section 30 of the Financial Institutions (Queensland) Act 1992 of Queensland; and
(f)
the Friendly Societies (Victoria) Act 1996 of Victoria, and any Act of another State or of a Territory that provides for the application, as a law of the State or Territory, of the Code set out in the Schedule to the Friendly Societies (Victoria) Act 1996 of Victoria; and
(g)
the Friendly Societies (Western Australia) Act 1999; and
(h)
any other law of a State or Territory prescribed by the regulations for the purposes of this definition.

Power to make regulations

The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters required or permitted by this Act to be prescribed.