Corporations Amendment Regulations 2002 (No. 2) (Cth)
Corporations Amendment Regulations 2002 (No. 2) 1
Statutory Rules 2002 No. 16 2
I, PETER JOHN HOLLINGWORTH, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the
Corporations Act 2001. Dated 14 February 2002
PETER HOLLINGWORTH
Governor-General
By His Excellency’s Command
IAN CAMPBELL
Parliamentary Secretary to the Treasurer
• •
These Regulations are the
Corporations Amendment Regulations 2002 (No. 2) .
(1) Regulations 1, 2 and 3, and Schedule 1, commence at 12.01 am (in the Australian Capital Territory) on 11 March 2002.
(2) Schedule 2 commences on the commencement of the
Family Law Legislation Amendment (Superannuation) Act 2001 .
Schedules 1 and 2 amend the
Corporations Regulations 2001 .
(regulation 3)
[ 1 ] Subregulation 1.0.02 (1), after definition of unrestricted non-preserved benefits
insert
warrant means a financial product that is:
(a) a derivative under section 761D of the Act that is:
(i) transferable; and
(ii) traded on any regulated financial market (unless the something else mentioned in paragraph 761D (1) (c) of the Act is a rate, index or commodity); or
(b) a security because of paragraph (c) of the definition of
security in section 761A of the Act.
after Chapter 7
insert and Part 10.2
substitute
Part 6.5 The takeover procedure
6.5.01 Wholesale holder of securities — telephone monitoring during bid period
(1) For paragraph 648J (4) (a) of the Act, the amount applicable in relation to securities to which that paragraph applies is $500 000, determined on the basis of the market value of the securities.
(2) For paragraph 648J (4) (d) of the Act, the following persons are prescribed:
(a) a director of a recorder mentioned in subsection 648J (1) of the Act;
(b) an executive officer of a recorder mentioned in subsection 648J (1) of the Act.
(3) For paragraph 648J (4) (d) of the Act, an authorised representative of a financial services licensee is prescribed only if the authorised representative:
(a) is acting on behalf of the recorder in relation to a takeover bid; and
(b) is not involved in a telephone call as a holder of shares in the bidder or the target.
insert
Part 6D.5 Fundraising — miscellaneous
6D.5.01 Warrants that are securities For paragraph 742 (1) (b) of the Act, a warrant that is a security is exempted from all provisions of Chapter 6D of the Act.
insert
7.1.03A Basic deposit products
(1) For subparagraph (d) (ii) of the definition of
basic deposit product in section 761A of the Act, this regulation applies in relation to ADIs entitled under theBanking Act 1959 to use any of the following expressions in relation to their financial business:
(a) credit union;
(b) credit society;
(c) credit co-operative;
(d) building society.
(2) The prior notice requirement is a period not more than 7 days before a withdrawal or transfer of funds from a facility made available by the ADI.
insert
7.1.04A Meaning of class and kind of financial products and financial services
(1) For section 761CA of the Act, this regulation applies in relation to paragraph (a) of the definition of
custodial arrangement in subsection 1012IA (1) of the Act.(2) Each of the following is a kind of financial product:
(a) for interests in a managed investment scheme, all the interests in that managed investment scheme;
(b) in any other case, all the financial products issued by a person or the person’s related bodies corporate.
substitute
7.1.07 Specific things that are not financial products: surety bonds
(1) This regulation applies to an arrangement between 2 persons (
person 1 andperson 2 ) made in the following circumstances:
(a) person 1 enters into the arrangement in order to meet a requirement of another arrangement between person 1 and a person other than person 2 (
person 3 );(b) under the arrangement, person 2 undertakes to make a payment to, or perform an obligation for the benefit of, person 3 in circumstances specified as part of the arrangement;
(c) under the arrangement, person 1 is liable to person 2 for any payments made, or liabilities, costs or expenses incurred, by person 2 in making the payment to, or performing the obligation for the benefit of, person 3;
(d) the arrangement does not constitute a financial product under section 764A of the Act.
(2) For paragraph 765A (1) (y) of the Act, the arrangement is not a financial product.
7.1.07A Specific things that are not financial products: rental agreements
(1) This regulation applies to an arrangement between 2 persons (
person 1 andperson 2 ) made in the following circumstances:
(a) person 1 leases or rents something from person 2;
(b) under the arrangement, person 1 makes a payment to person 2 to reduce the amount that person 1 would otherwise have to pay to person 2 under the leasing or rental agreement;
(c) the payment relates to the event of an accident or other eventuality affecting the thing that is being leased or rented.
Example Collision damage waiver insurance for a rental car.
(2) For paragraph 765A (1) (y) of the Act, the arrangement is not a financial product.
insert
7.1.08A Meaning of financial product advice : exempt document or statement
(1) For subparagraph (a) (ii) of the definition of
exempt document or statement in subsection 766B (9) of the Act, the following documents and statements are prescribed:
(a) a Product Disclosure Statement that contains personal advice or general advice about a financial product other than the financial product to which the Statement relates;
(b) a Financial Services Guide that contains personal advice;
(c) a document or statement that would but for this regulation, be an exempt document or statement only because it is prepared or given in accordance with section 1018A of the Act;
(d) a record of advice mentioned in subsection 946B (3A) of the Act.
Note The effect of subparagraph (a) (ii) of that definition is that a prescribed document or statement is not an exempt document or statement.
(2) For paragraph (b) of the definition of
exempt document or statement in subsection 766B (9) of the of the Act, the following documents and statements are prescribed:
(a) a disclosure document;
(b) a bidder’s statement;
(c) a target’s statement.
Note The effect of paragraph (b) of that definition is that a prescribed document or statement is an exempt document or statement.
(3) For paragraph (b) of the definition of
exempt document or statement in subsection 766B (9) of the of the Act, the following documents and statements are prescribed:
(a) in relation to an interest in a managed investment scheme to which Division 2 of Part 7.9 of the Act does not apply — a disclosure document:
(i) that does not contain personal advice; and
(ii) that does not contain general advice about another product;
(b) in relation to a derivative to which Division 2 of Part 7.9 of the Act does not apply — information mentioned in section 1210 of the old Corporations Act:
(i) that does not contain personal advice; and
(ii) that does not contain general advice about another product;
(c) in relation to a superannuation product to which Division 2 of Part 7.9 of the Act does not apply — information mentioned in:
(i) section 153 or 159 of the SIS Act; or
(ii) Part 2 of the SIS Regulations;
as in force immediately before the FSR commencement that does not contain personal advice and that does not contain general advice about another product;
(d) in relation to an RSA product to which Division 2 of Part 7.9 of the Act does not apply — information mentioned in section 56 of the RSA Act, as in force immediately before the FSR commencement that:
(i) does not contain personal advice; and
(ii) does not contain general advice about another product;
(e) in relation to an investment life insurance product or a life risk insurance product — a document or statement that contains information given in accordance with Circular G.I.1, issued by the Insurance and Superannuation Commission in February 1996, that:
(i) does not contain personal advice; and
(ii) does not contain general advice about another product.
Note The effect of paragraph (b) of that definition is that a prescribed document or statement is an exempt document or statement.
omit
omit compensation.
insert compensation; or
insert
(d) insurance that:
(i) provides cover for the death of, or injury to, a driver of a motor vehicle which is caused by the fault of that person when driving; and
(ii) is provided only in conjunction with, and at no extra cost to, insurance mentioned in subparagraph (c) (ii).
Note See also regulation 7.9.14B.
substitute
(4) For paragraph (1) (a), property is taken to be wholly or predominantly used for personal, domestic or household purposes if the insured gives the insurer a statement, before the insurance product is issued, that the property is intended to be used wholly or predominantly for 1 or more of those purposes.
omit $100 000; and
insert $500 000; and
insert
7.1.30 Information and advice about voting For paragraph 766A (2) (b) of the Act, a circumstance in which a person is taken not to provide a financial service within the meaning of paragraph 766A (1) (a) of the Act is that:
(a) the service provided by the person consists only of advising another person in relation to the manner in which:
(i) voting rights attaching to securities; or
(ii) voting rights attaching to interests in managed investment schemes;
may or should be exercised; and
(b) the advice is not intended to influence any decision in relation to financial products other than a decision about voting; and
(c) the advice could not be reasonably be regarded as intended to influence a decision in relation to financial products, other than a decision about voting; and
(d) the advice does not relate to a vote that relates to a dealing in financial products.
Note A service that includes advice which is intended to influence the decision to acquire securities in another company would be not provided in circumstances covered by this regulation.
7.1.31 Passing on prepared documents For paragraph 766A (2) (b) of the Act, a circumstance in which a person (
person 1 ) is taken not to provide a financial service within the meaning of paragraph 766A (1) (a) of the Act is that:
(a) person 1 provides a service to a person; and
(b) the service consists only of passing on, publishing, distributing or otherwise disseminating a document that contains financial product advice; and
(c) the document was provided by another person (
person 2 ); and(d) person 2 is not acting on behalf of person 1; and
(e) person 1 is not the holder of a financial services licence that authorises person 1 to provide financial product advice; and
(f) person 1 does not select the content of the document, modify the content of the document or otherwise exercise control over the content of the document; and
(g) a reasonable person would not consider that person 1 provided, endorsed or otherwise assumed responsibility for the financial product advice contained in the document.
7.1.32 Remuneration packages For paragraph 766A (2) (b) of the Act, a circumstance in which a person (
person 1 ) is taken not to provide a financial service within the meaning of paragraph 766A (1) (a) of the Act is that:
(a) person 1 provides advice to another person; and
(b) the advice relates only to the structuring of remuneration packages for the other person’s employees.
Division 4 Dealings in financial products
7.1.34 Enforcement of rights For subsection 766C (7) of the Act, conduct that:
(a) is the enforcement of rights by a person under a credit facility; and
(b) is carried on by a person acting as an attorney in accordance with a power of attorney;
is not dealing in a financial product.
omit facility licence).
insert facility licence);
insert
(e) Sydney Futures Exchange Limited (in its capacity as a body corporate that has an Australian market licence).
omit Subdivision 4.6,
insert Subdivision 4.7,
after market licensee concerned
insert , and that suspension has not been removed
substitute
(ii) if the dealer has been suspended by the participating market licensee concerned, and that suspension has not been removed — the selling client has supplied, or is ready, willing and able to supply, to the dealer settlement documents for the purposes of the sale; and
omit dealer 1’s obligations
insert the dealer’s obligations
after market licensee concerned
insert , and that suspension has not been removed
after market licensee concerned
insert , and that suspension has not been removed
omit
omit subregulation (8).
insert subregulation (7).
omit such a business on that day,
insert such a business,
omit such a business on that day,
insert such a business,
omit on a particular day,
insert at a particular time,
omit on that day
insert at that time
substitute
(b) either:
(i) the dealer was carrying on a securities business in Australia at that time; or
(ii) the last business that the dealer carried on in Australia before that time was a securities business, and the person’s claim relates to that business as it was carried on in Australia.
substitute
(1) The total amounts paid out of the Fund in connection with claims that:
(a) because of a dealer having become insolvent on a particular day, this Subdivision entitles persons to make; and
(b) are allowed by the SEGC;
must not exceed an amount equal to 14% of the minimum amount of the Fund as at the end of that day.
substitute
(a) the claimant has assigned any of its rights or remedies in relation to the loss; and
(aa) the claimant has received a benefit from any person for assigning the right or remedy; and
omit rights and remedies
insert rights or remedies
omit to the amount
insert by the amount
omit the SEGC’s right to be subrogated to any of the claimant’s rights and remedies in relation to the loss to which the claim relates.
insert the SEGC’s ability under section 892F of the Act to recover the amount of the compensation that would otherwise be payable to the claimant in respect of the claimant’s claim.
substitute
7.5.85 Prescribed body corporate with arrangements covering clearing and settlement facility support For subsection 891A (1) of the Act, each of the following bodies is a prescribed body corporate:
(a) ASX Settlement and Transfer Corporation Pty Limited (also known as ‘ASTC’);
(b) Options Clearing House Pty Ltd (also known as ‘OCH’).
substitute
(e) a financial service provided by a person (
person 1 ) in the following circumstances:
(i) the service consists only of:
(A) informing a person (
person 2 ) that a financial services licensee, or a representative of the financial services licensee, is able to provide a particular financial service, or a class of financial services; and(B) giving person 2 information about how person 2 may contact the financial services licensee or representative;
(ii) person 1 is not a representative of the financial service licensee, or of a related body corporate of the financial services licensee;
(iii) person 1 discloses to person 2, when the service is provided:
(A) any benefits (including commission) that person 1, or an associate of person 1, may receive in respect of the service; and
(B) any benefits (including commission) that person 1, or an associate of person 1, may receive that are attributable to the service;
(iv) the disclosure mentioned in subparagraph (iii) is provided in the same form as the information mentioned in subparagraph (i);
(ea) a financial service provided by a person (
person 1 ) in the following circumstances:
(i) the service consists only of:
(A) informing a person (
person 2 ) that a financial services licensee, or a representative of the financial services licensee, is able to provide a particular financial service, or a class of financial services; and(B) giving person 2 information about how person 2 may contact the financial services licensee or representative;
(ii) person 1 is a representative of the financial service licensee, or of a related body corporate of the financial services licensee;
omit Paragraph (1) (e)
insert Subregulation (1)
insert
(4) In relation to a regulated principal under Division 1 of Part 10.2 of the Act:
(a) a reference in paragraph (1) (e) or (ea) to a financial services licensee includes the regulated principal; and
(b) paragraph (a) ceases to apply at the end of the transition period in relation to the regulated principal.
insert
7.6.01A Providing financial services on behalf of a person who carries on a financial services business For subparagraph 911B (1) (c) (iv) of the Act, travellers’ cheques are prescribed.
omit For subsection 914A (8)
insert
(1) For subsection 914A (8)
omit the financial services licensee must lodge with ASIC in the prescribed form particulars of the change within 10 business days after the change;
insert the financial services licensee must ensure that particulars of the change are lodged with ASIC in the prescribed form within 10 business days after the change;
insert
(ca) a condition that the financial services licensee must ensure that each representative of the financial services licensee that may give an authorisation to another representative is aware of the requirements in subsections 916F (1) and (3) of the Act;
substitute
(e) a condition that the financial services licensee must ensure that, before:
(i) the financial services licensee authorises a person to provide a financial service on its behalf as mentioned in section 916A of the Act; or
(ii) a body corporate that is an authorised representative of the financial services licensee authorises an individual to provide a financial service on behalf of the financial services licensee as mentioned in section 916B of the Act;
reasonable inquiries are made to establish:
(iii) the person’s identity; and
(iv) whether the person has already been allocated a number by ASIC as an authorised representative;
(f) a condition that the financial services licensee must ensure that, if:
(i) ASIC has allocated a number to an authorised representative; and
(ii) the financial services licensee, or a body corporate that has authorised an individual to provide a financial service on behalf of the financial services licensee as mentioned in section 916B of the Act, lodges a document with ASIC that refers to the authorised representative;
the document refers to the number.
omit the request.
insert the request;
insert
(i) a condition that, if a financial services licensee becomes aware of any change in control of the financial services licensee, the financial services licensee must lodge with ASIC, in the prescribed form, particulars of the change not later than 10 business days after the change;
(j) a condition that, on the request of any person, the financial services licensee must make available a copy of its financial services licence within a reasonable time for inspection by that person.
insert
(2) For paragraph (1) (i):
(a) a
change in control , in relation to a financial services licensee, includes a transaction, or a series of transactions in a 12 month period, that results in a person having control of the financial services licensee (either alone or together with associates of the person); and(b)
control , in relation to a financial services licensee, means:
(i) if the financial services licensee is a body corporate:
(A) having the capacity to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the financial services licensee; or
(B) directly or indirectly holding more than one half of the issued share capital of the financial services licensee (not including any part of the issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(ii) the capacity to control the composition of the financial services licensee’s board or governing body; or
(iii) the capacity to determine the outcome of decisions about the licensee’s financial and operating policies; and
(c) for subparagraph (b) (iii), the following matters must be taken into account in determining whether a person has the capacity to determine the outcome of decisions about a financial services licensee’s financial and operating policies:
(i) the practical influence the person can exert (rather than the rights it can enforce);
(ii) any practice or pattern of behaviour affecting the financial services licensee’s financial or operating policies is to be taken into account (whether or not it involves a breach of an agreement or a breach of trust).
omit general financial advice
insert general advice
omit general financial advice
insert general advice
omit general financial advice
insert general advice
omit general financial advice
insert general advice
insert
(3) For paragraph 940C (7) (b) of the Act, a document, information or statement that is to be given in electronic form must, as far as practicable, be presented in a way that will allow the person to whom it is given to keep a copy of it so that the person can have ready access to it in the future.
(4) A document or statement that is to be given in electronic form must be presented in a way that clearly identifies the information that is part of the document or statement.
insert
7.7.05A Financial Services Guide given by authorised representative of financial services licensee: authorised representative number For paragraph 942C (2) (m) of the Act, the Financial Services Guide given by an authorised representative must include the authorised representative number allocated by ASIC to the authorised representative.
omit does not require a financial services licensee that is an ADI to pay money
insert does not prevent a financial services licensee that is an ADI from paying money
substitute
(6) For paragraph 981C (b) of the Act, in relation to moneys received in relation to insurance products, the financial services licensee must ensure that:
(a) the balance of moneys in an account maintained by the financial services licensee under section 981B of the Act; and
(b) the total amount previously withdrawn from the account and currently invested under subregulation (2);
is at least the sum of:
(c) any amounts that an insurer is entitled to receive from the account; and
(d) any amounts that an insured or intending insured is entitled to receive from the account.
(6A) For paragraph (6) (c), if, at a particular time, money received by a financial services licensee for or on account of an insurer as mentioned in paragraph 7.8.01 (4) (a) is paid into the account, the insurer is taken to be entitled to receive payment of:
(a) the amount; or
(b) if any deductions from the amount are authorised by a written agreement between the insurer and the broker — the amount less the deductions;
throughout the period:
(c) beginning at that time; and
(d) ending when the payment is actually made to the insurer;
whether or not the amount has been invested under subregulation (2).
(6B) For paragraph (6) (d), if, at a particular time, money received by a financial services licensee for or on account of an insured or intending insured as mentioned in paragraph 7.8.01 (4) (b) is paid into an account, the insured or intending insured is taken to be entitled to receive payment of the amount throughout the period:
(a) beginning at that time; and
(b) ending when the payment is actually made to the insured or intending insured;
whether or not the amount has been invested under subregulation (2).
(6C) On application by a financial services licensee in the prescribed form, ASIC may consent in writing to the minimum balance of monies received in relation to insurance products being less than the level specified in subregulation (6).
substitute
(a) give notice to the insured or intending insured, in a form (if any) approved by ASIC for this paragraph, that the risk has not been accepted; and
substitute
(a) give notice to the insured or intending insured, in a form (if any) approved by ASIC for this paragraph, of the extent to which the risk has not been accepted; and
insert
(1A) However, this regulation does not apply in relation to dealings by a financial services licensee in derivatives on behalf of other people.
Note See regulation 7.8.10.
substitute
(ii) the partners in the firm; or
(iii) the financial services licensee’s own account; or
(iv) other financial services licensees; or
(v) representatives of the financial services licensee; or
(vi) employees of the financial services licensee; and
after the funds
insert , or financial products, used
[ 60 ] Subregulation 7.9.01 (1), after definition of amount
insert
annuity has the same meaning as in regulation 1.05 of the SIS Regulations.
[ 61 ] Subregulation 7.9.01 (1), definition of charge , paragraph (a)
omit a trustee,
insert a product issuer,
[ 62 ] Subregulation 7.9.01 (1), definition of contribution charge , paragraph (b)
substitute
(b) is made:
(i) against contributions made in respect of a product holder; or
(ii) when the product holder acquires an interest in the financial product against:
(A) the product holder’s benefits in the fund or financial product (as appropriate); or
(B) the product holder, or another person on the product holder’s behalf.
[ 63 ] Subregulation 7.9.01 (1), definition of death and disability insurance charge
substitute
death and disability insurance charge means a charge that:
(a) is made against:
(i) contributions made in respect of a product holder; or
(ii) a product holder’s benefits in a fund or financial product (as appropriate); or
(iii) the investment earnings of a fund or financial product (as appropriate); or
(iv) the assets of a fund or financial product (as appropriate); or
(v) a product holder or another person on the product holder’s behalf; and
(b) is used by the product issuer solely to pay:
(i) an insurance premium, including stamp duty on the premium, to an insurer; or
(ii) a charge by the product issuer;
for insurance against:
(iii) the product issuer’s liability to provide a benefit payable by the product issuer:
(A) for the product holder on or after the death of the product holder; or
(B) to the product holder when the product holder stops work because of illness; or
(iv) either:
(A) the death of the product holder; or
(B) the product holder’s inability to work because of illness.
[ 64 ] Subregulation 7.9.01 (1), definition of direct account charge , paragraph (a)
substitute
(a) is made against a product holder’s benefits; and
[ 65 ] Subregulation 7.9.01 (1), definition of exit charge
substitute
exit charge means a charge that:
(a) is made against:
(i) a product holder’s benefits in a fund or financial product; or
(ii) a product holder or another person on the product holder’s behalf; and
(b) is only made when a payment is:
(i) made in respect of a product holder; or
(ii) transferred.
[ 66 ] Subregulation 7.9.01 (1), after definition of investment management charge
insert
lost member has the meaning given by the SIS regulations.
lost RSA holder has the meaning given by the RSA regulations.
[ 67 ] Subregulation 7.9.01 (1), definition of net earnings rate
omit
rate
[ 68 ] Subregulation 7.9.01 (1), definition of ongoing management charge
substitute
ongoing management charge means a charge that:
(a) is made against:
(i) a product holder’s benefits in a fund or financial product; or
(ii) the assets or investment earnings of the fund or financial product (as appropriate); or
(iii) a product holder or another person on the product holder’s behalf; and
(b) is not:
(i) a contribution charge, death and disability insurance charge, exit charge or switching charge; or
(ii) a charge that:
(A) is made for a service requested by the product holder that the product holder could not reasonably expect to receive unless the product holder asked for it and paid a reasonable charge; and
(B) is provided by the provider; and
(C) is reasonable; and
(c) is worked out in accordance with Schedule 10.
Note Also see subregulation (4).
[ 69 ] Subregulation 7.9.01 (1), definition of switching charge
substitute
switching charge means a charge that:
(a) is made against:
(i) a product holder’s benefits in a fund or financial product (as appropriate); or
(ii) the product holder or another person on the product holder’s behalf; and
(b) is made for the transfer of all or part of the product holder’s benefits in the fund or financial product (as appropriate) from one investment strategy to another.
[ 70 ] Subregulation 7.9.01 (1), after definition of unfunded defined benefits fund
insert
withdrawal benefit has the same meaning as in the SIS Regulations.
substitute
(b) either:
(i) the person’s membership changes to membership in relation to another sub-plan; or
(ii) the person holds interests in 2 or more sub‑plans at the same time;
insert
7.9.02A Alternative ways of giving Product Disclosure Statement
(1) For subsection 1015C (4) of the Act, the following are alternative ways of giving a Product Disclosure Statement to a person:
(a) making the Product Disclosure Statement available to the person in any way agreed to by the person;
(b) making the Product Disclosure Statement available to the person’s agent in any way agreed to by the agent.
(2) If a provision of the Act or these Regulations imposes additional requirements in relation to a matter in subregulation (1), the alternative way of giving a Product Disclosure Statement is subject to the requirements.
Note Regulation 7.9.02B is an example of an additional requirement.
7.9.02B Product Disclosure Statement in electronic form
(1) For paragraph 1015C (5) (b) of the Act, a statement that is to be given in electronic form must, as far as practicable, be presented in a way that will allow the person to whom it is given to keep a copy of it so that the person can have ready access to it in the future.
(2) A statement that is to be given in electronic form must be presented in a way that clearly identifies the information that is part of the statement.
substitute
7.9.04 Product Disclosure Statement to be provided later
(1) For section 1012F of the Act:
(a) the issue of an interest by the trustee of a regulated superannuation fund that is not a public offer superannuation fund is a specified superannuation interest; and
(b) the issue of an interest by the trustee of a successor fund in relation to the transfer of benefits to the fund is a specified superannuation interest.
(2) For paragraph 1020G (1) (c) of the Act:
(a) section 1012B of the Act is modified in its application in relation to the specified superannuation interest as set out in Part 17 of Schedule 10A; and
(b) section 1012I of the Act is modified in its application in relation to the specified superannuation interest as set out in Part 17 of Schedule 10A.
substitute
Subdivision 2.4 Additional obligations for eligible rollover funds
insert
7.9.06A Relevant superannuation entities For the definition of
relevant superannuation entity in subsection 1016A (1) of the Act, a public offer superannuation entity is specified.
7.9.06B Application forms
(1) For paragraph 1016A (2) (f) of the Act, the following situation in which a restricted issue occurs is prescribed:
(a) the financial product is a superannuation product;
(b) the interest is issued by the trustee of a public offer superannuation entity in relation to the payment of benefits to the entity:
(i) from an EPSSS; and
(ii) in accordance with an application made under the provisions of section 243 of the SIS Act, as applied by subregulation (2) (the
applied provisions );(c) if the application is the first application under the applied provisions made to the trustee of the public offer superannuation entity by the trustee of the EPSSS on behalf of any person — the application is an eligible application.
(2) For paragraph (1) (b), section 243 of the SIS Act applies in relation to the payment of benefits from the EPSSS to a public offer superannuation entity as if:
(a) a reference in that section to a transferor fund were a reference to the EPSSS; and
(b) a reference in that section to an eligible rollover fund were a reference to the public offer superannuation entity.
insert
Division 2A Product Disclosure Statement for warrants
7.9.07A Warrants
(1) This regulation applies in relation to warrants.
(2) For paragraph 1020G (2) (a) of the Act, section 1010A of the Act is modified by adding after subsection 1010A (1):
‘(1A) Despite subsection (1), this Part applies in relation to a financial product to which regulation 7.9.07A of the
Corporations Regulations 2001 applies.’.(3) For paragraph 761E (7) (a) of the Act, if the financial product is entered into, or acquired, on a financial market through an arrangement made by a financial services licensee acting on behalf of another person:
(a) the financial services licensee is not taken to be the issuer of the financial product; and
(b) the warrant issuer is taken to be the issuer of the financial product.
(4) For paragraph 761E (7) (a) of the Act, if the financial product is entered into, or acquired, on a financial market through an arrangement made by an authorised representative of a financial services licensee acting on behalf of another person (not being the licensee):
(a) the financial services licensee is not taken to be the issuer of the financial product; and
(b) the warrant issuer is taken to be the issuer of the financial product.
(5) For paragraph 1013F (2) (f) of the Act:
(a) information that is, or is required to be, disclosed to the market in relation to the underlying thing from which a warrant derives its value, including information published by a market operator in relation to financial products (including warrants and types of warrants) in the form of market data or educational material which is generally made available to the public by the market operator is a matter that may be taken into account for section 1013F of the Act; and
(b) other information that a market operator is required to disclose to the market, in accordance with the Act, including:
(i) information that was required to be disclosed to the market operator; and
(ii) information that the operator was required to disclose in order to meet its obligations under the Act;
is a matter that may be taken into account for section 1013F of the Act; and
(c) information that is generally made available to the public by a market operator in relation to financial products, including information published about a warrant that is entered into or acquired on a financial market in the form of market data or educational material, is a matter that may be taken into account for section 1013F of the Act.
(6) For paragraph 1017B (3) (c) of the Act, a way in which the warrant issuer may notify a holder of a matter to which that paragraph applies is by giving the relevant information to the operator of the financial market on which the warrant was entered into or acquired.
(7) For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act applies in relation to a warrant as if the words ‘but not more than 3 months after, the change or event occurs’ in item 1 of the table in subsection 1017B (5) of the Act were omitted.
(8) In this regulation:
warrant issuer , in relation to a warrant, means the person who:
(a) determines the terms of the warrant, including the rights and conditions of the warrant; and
(b) is responsible for obligations owed under the terms of the warrant.
Division 2B Product Disclosure Statement for market-traded derivatives
7.9.07B Product Disclosure Statements for certain market-traded derivatives
(1) For paragraph 1020G (1) (c) of the Act, subregulations (2) and (3) apply if:
(a) the standard terms and conditions relating to a type of derivative are:
(i) specified by the market operator; and
(ii) made generally available to the public; and
(b) the financial services licensee in relation to the derivative is taken to be the issuer of the derivative under subsection 761E (6) of the Act; and
(c) a retail client for the derivative has agreed to the terms and conditions as applicable to the financial product or products that are the subject of the transaction.
(2) Subsection 1013D (1) of the Act is modified in its application to the derivative as if the information required by paragraphs 1013D (1) (b), (c), (d) and (f) were required to be included as general information about the type of derivative, including, for example:
(a) general information about exercise prices for the type of derivative; and
(b) general information about expiry dates for the type of derivative; and
(c) general information about exercise styles for the type of derivative.
(3) For paragraph 1013F (2) (f) of the Act:
(a) information that is, or is required to be, disclosed to the market in relation to the underlying thing from which a derivative derives its value, including information published by a market operator in relation to financial products (including derivatives and types of derivatives) in the form of market data or educational material which is generally made available to the public by the market operator is a matter that may be taken into account for section 1013F of the Act; and
(b) other information that a market operator is required to disclose to the market, in accordance with the Act, including:
(i) information that was required to be disclosed to the market operator; and
(ii) information that the operator was required to disclose in order to meet its obligations under the Act;
is a matter that may be taken into account for section 1013F of the Act; and
(c) information that is generally made available to the public by a market operator in relation to financial products, including information published about derivatives and types of derivatives in the form of market data or educational material, is a matter that may be taken into account for section 1013F of the Act.
7.9.07C Remedies for Product Disclosure Statements for certain market-traded derivatives For paragraph 1016F (7) (a) of the Act, financial products that are derivatives are excluded from section 1016F if the rules of a licensed market or a licensed CS facility permit the closing out of the derivatives by the matching up of the arrangement with another arrangement of the same kind under which a person has assumed an offsetting position.
substitute
(1) This Division applies in relation to:
(a) superannuation products; and
(b) RSA products; and
(c) annuity products.
substitute
7.9.10 Application of Subdivision 4.2
(1) This Subdivision applies in relation to:
(a) a regulated superannuation entity; and
(b) an RSA; and
(c) the provider of an annuity product.
(2) In this Subdivision:
fund includes:
(a) in respect of a regulated superannuation fund — a sub-plan as mentioned in regulation 7.9.02; and
(b) an annuity product.
omit superannuation entity or RSA is:
insert superannuation entity (or, if relevant, the sub-plan), RSA or provider of the annuity is:
omit for a regulated superannuation fund that is not a self managed superannuation fund or a capital guaranteed fund —
insert for a regulated superannuation fund (that is not a self managed superannuation fund or a capital guaranteed fund), or the provider of an annuity (in respect of an annuity that meets the standard mentioned in subregulation 1.05 (4) of the SIS Regulations) —
omit for a capital guaranteed fund or an RSA —
insert for a capital guaranteed fund, an RSA or the provider of an annuity (otherwise than in respect of an annuity that meets the standard mentioned in subregulation 1.05 (4) of the SIS Regulations) —
omit the entity or RSA
insert the superannuation entity, RSA or provider of an annuity
omit For paragraph 1020G (1) (c)
insert
(1) For paragraph 1020G (1) (c)
insert
(2) For paragraph 1020G (1) (c) of the Act, section 1017A of the Act is modified by adding after subsection 1017A (2):
‘(2A) If the person has requested information in relation to an ongoing management charge for a particular investment strategy, and the product issuer or seller has provided a Product Disclosure Statement that includes information in accordance with paragraph 8.2 (b) of Schedule 10B to the
Corporations Regulations 2001 , the information must include the following:
(a) the information mentioned in paragraphs 8.1 (a), (b) and (c) of Schedule 10B;
(b) the statement:
‘The approximate effect of the ongoing management charges (based on the charges for the year to [
insert most recent year ]) on your benefits can be shown by multiplying this percentage by the amount in your account. The following example shows the approximate amount of the ongoing management charges for an account balance of $10 000 in relation to the identified investment strategy. The actual effect of ongoing management charges will depend on the [insert ‘fund’s’, ‘life insurer’s’or other appropriate description ] charging arrangements and your individual circumstances. In particular, the amount in your account [if more than one identified investment strategy — and your chosen investment strategy] may have a significant effect on the amount of charges borne.’;followed by an example in relation to the identified investment strategy;
(c) the statements in paragraphs 8.4 (b), (c) and (d) of Schedule 10B;
(d) the statement:
‘The ongoing management charge for a [
insert ‘fund’, ‘life insurer’, ‘provider of an annuity’or other appropriate description ] is required by law to be calculated and disclosed. Its purpose is to give a broad indication of the level of costs incurred by a particular fund as a percentage of the value of assets.Costs include all fees, charges and expenses except for [
insert ‘switching costs’, ‘entry and exit charges’or other appropriate description ]. The level of costs incurred by an individual product holder will depend on individual circumstances and as a percentage of value of the fund assets of the individual may be more or less than the ongoing management charge.The ongoing management charge should not be taken to be representative of the actual fees, charges and expenses that will be borne by an individual.
Full details of fees, charges and expenses applicable to individual circumstances are set out in [
section X ] of the Product Disclosure Statement.’;presented in accordance with item 8 of Schedule 10B.
(3) For paragraph 1020G (1) (c) of the Act, subsection 1017A (5) of the Act is modified by adding at the end of the subsection:
‘(other than a charge for collecting or providing information in relation to an ongoing management charge for a particular investment strategy if the product issuer or seller has provided a Product Disclosure Statement that includes the information in accordance with item 8 of Schedule 10B to the
Corporations Regulations 2001 ).’.
after eligible application
insert (as the case requires under paragraph 1016A (2) (b) or (c) of the Act)
after eligible application
insert mentioned in paragraph 1016A (2) (a) of the Act
omit moneys
insert monies
insert
7.9.14A Treatment of arrangements under which a person can instruct another person to acquire a financial product For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act applies as if the definition of
instruction in subsection 1012IA (1) of the Act were modified by adding at the end ‘, including a direction to follow an investment strategy mentioned in paragraph 52 (4) (a) of theSuperannuation Industry (Supervision) Act 1993 ’.
substitute
Subdivision 4.4 Product information for certain insurance products
7.9.14B Product information For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act is modified in its application in relation to financial products as if:
(a) that Part applied to a financial product mentioned in paragraph 7.1.14 (2) (d); and
(b) the following section were inserted after section 1019B of the Act:
‘1019C
Information about certain vehicle insurance
(1) This section applies in relation to the issue of a financial product mentioned in paragraph 7.1.14 (2) (d) of the
Corporations Regulations 2001 .(2) The product issuer of the financial product must, as soon as practicable after issuing the financial product, give the holder of the financial product a statement that contains the information mentioned in paragraphs 1013D (1) (a) and (b) unless:
(a) the product holder already has a statement containing that information; or
(b) the product issuer believes on reasonable grounds that the product holder has already received a statement containing that information.
(3) The product issuer must give the statement in the same way as a Product Disclosure Statement is to be given under subsection 1015C.
(4) The product issuer is not required to comply with any other requirements in Divisions 2 to 6 (inclusive) in relation to the issue of the financial product.
(5) The product issuer must not refuse, or intentionally or recklessly fail, to comply with subsections (2) and (3).
Penalty: 50 penalty units.
(6) Subsection (5) does not apply to the extent that the product issuer has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6A), see subsection 13.3(3) of the Criminal Code.
(7) Divisions 1 and 7 do not apply in relation to the product issuer in relation to the financial product mentioned in paragraph 7.1.14 (2) (d) of the
Corporations Regulations 2001 .’.
Division 4A General
7.9.14C Labour standards and environmental, social and ethical considerations For paragraph 1013D (4) (c) of the Act, the more detailed information to be included in a Product Disclosure Statement about the extent to which labour standards or environmental, social or ethical considerations are taken into account in the selection, retention or realisation of an investment is:
(a) a statement that the product issuer does, or does not, take into account labour standards for the purpose of selecting, retaining or realising the investment; and
(b) a statement that the product issuer does, or does not, take into account environmental, social or ethical considerations for the purpose of selecting, retaining or realising the investment; and
(c) if the Product Disclosure Statement includes a statement that the product issuer does take into account labour standards for the purpose of selecting, retaining or realising the investment — a statement outlining:
(i) the standards that the product issuer considers to be labour standards for that purpose; and
(ii) the extent to which the product issuer takes those standards into account in the selection, retention or realisation of the investment; and
(d) if the Product Disclosure Statement includes a statement that the product issuer does take into account environmental, social or ethical considerations for the purpose of selecting, retaining or realising the investment — a statement outlining:
(i) the considerations that the product issuer regards as environmental, social or ethical considerations for that purpose; and
(ii) the extent to which the product issuer takes those considerations into account in the selection, retention or realisation of the investment.
omit defined withdrawal benefit for the member or RSA holder under the SIS Regulations
insert withdrawal benefit for the member or RSA holder
omit Division 8;
insert regulation 7.9.75;
omit actual or notional
insert annual effective
omit Division 3.3 of
omit subsection 1017DA (1) of the Act,
insert paragraph 1017D (5) (g) of the Act,
after the following
insert , in addition to the details mentioned in regulations 7.9.19 and 7.9.22
substitute
Subdivision 5.4 Periodic statements for retail clients for financial products that have an investment component: additional information for superannuation entities and RSA providers
omit the following:
insert the following details (in addition to the details mentioned in regulation 7.9.20 or 7.9.26, as appropriate):
after holder
insert (if applicable)
omit (other than a pooled superannuation trust)
substitute
(4) In relation to a fund reporting period, information required to be given under Subdivisions 5.5 to 5.7 need only be given to persons who are product holders on the day on which the fund report containing the information is completed.
omit Division 8;
insert regulation 7.9.75;
omit
omit Subdivision 4.7 of Division 4; or
insert Subdivision 5.7 of Division 5; or
substitute
(1) This regulation applies if a decision is made in relation to a complaint in accordance with the internal dispute resolution mechanism of:
(a) a regulated superannuation fund; or
(b) an approved deposit fund; or
(c) an RSA.
omit trustee’s
omit paragraph 1020 (2) (b) of the Act,
insert paragraph 1020G (2) (b) of the Act,
insert
Division 5A Dealing with money received for financial product before the product is issued
7.9.61A Lost application money
(1) This regulation applies if:
(a) a product provider is not able to return money in compliance with subsection 1017E (4) of the Act; and
(b) the product provider is not able to issue or transfer a financial product to, or in accordance with the instructions of, the person who paid that money in compliance with subsection 1017E (4); and
(c) the money is to be transferred to ASIC to be dealt with under Part 9.7 of the Act.
(2) This regulation also applies if:
(a) money is taken out of an account mentioned in subsection 1017E (2) of the Act by a product provider for the purpose of returning it to the person by whom it was paid in compliance with paragraph 1017E (3) (a); and
(b) the product provider is not able to return the money in compliance with subsection 1017E (4).
(3) For paragraph 1017E (3) (d) of the Act, the situations mentioned in subregulations (1) and (2) are situations in which money may be taken out of an account mentioned in section 1017E.
(4) For paragraph 1017E (4) (c) of the Act, the product provider must, after taking the money out of the account:
(a) transfer the money to ASIC to be dealt with under Part 9.7 of the Act; and
(b) give ASIC any information in the possession of the product provider that could reasonably assist ASIC to assess a claim by a person that the person is entitled to the money.
7.9.61B Issue of substitute insurance product
(1) This regulation applies if:
(a) money is paid to acquire an insurance product (the
new product ); and(b) the product provider issues another product (the
other product ) which is the same as the new product except for the date on which it ceases to have effect; and(c) the product provider has not issued the new product.
(2) For paragraph 1017E (3) (d) of the Act, the situation mentioned in subregulation (1) is a situation in which money may be taken out of an account mentioned in section 1017E.
(3) For paragraph 1017E (4) (c) of the Act, the product provider must, after taking the money out of the account:
(a) issue the new product before the date on which the other product ceases to have effect; or
(b) return the money to the person by whom it was paid before the date on which the other product ceases to have effect.
7.9.61C Cheques For paragraph 1020G (1) (c) of the Act, section 1017E of the Act is modified in its application in relation to a financial product as if the following subsection were inserted after subsection 1017E (1):
‘(1A) For this section, if a payment is made by cheque, the payment is taken to have been paid to, and received by, the product provider when the cheque is honoured.’.
Division 5B Confirming transactions
7.9.61D Transactions involving superannuation products
(1) For paragraph 1020G (1) (c) of the Act, this section applies in relation to the following financial products:
(a) an interest in a regulated superannuation fund that is not a public offer superannuation fund;
(b) an RSA product that has been issued to the product holder because of the operation of subsection 52 (4) of the RSA Act;
(c) an interest in an eligible rollover fund of which the product holder became a member under section 243 of the SIS Act;
(d) an interest in an eligible rollover fund of which the product holder became a member in the circumstances mentioned in section 89 of the RSA Act;
(e) an interest in a public offer superannuation fund that is not an eligible successor fund if:
(i) the product holder is a standard employer-sponsored member of the fund; or
(ii) the product holder is a person who became a member of the fund in the circumstances mentioned in regulation 7.9.06A.
(2) Part 7.9 of the Act applies in relation to the financial products as if the following subsection were inserted after subsection 1017F (5A) of the Act:
‘(5B) For a financial product mentioned in regulation 7.9.61D of the
Corporations Regulations 2001 :
(a) subsection (5A) does not apply if the responsible person in relation to a transaction involving the financial product provides the holder of the financial product with a facility that is able to be accessed by the holder:
(i) by phone; or
(ii) by writing; or
(iii) by another method that the responsible person knows, or reasonably believes, that the product holder is able to use; and
(b) confirmation may be provided by means of the facility mentioned in paragraph (a).’.
omit in the following circumstances:
insert if:
after relates to
insert the termination of
omit product;
insert product; and
omit in the following circumstances:
insert if:
after not required to be confirmed
insert to the product holder
omit RSA.
insert RSA; and
insert
(3) For paragraph 1017F (4) (e) of the Act, the following transactions in relation to a financial product are not required to be confirmed:
(a) debiting for fees or charges in respect of the financial product or other transactions involving the financial product;
(b) debiting for charges or duties on deposits into, or withdrawals from, the financial product that are payable under a law of the Commonwealth or of a State or Territory;
(c) debiting an amount from a basic deposit product if:
(i) the holder of the product has been given a periodic statement under section 1017D of the Act not later than 6 months after the transaction occurs; and
(ii) the periodic statement contains the information about the transaction that is required by that section;
(d) crediting an amount to a basic deposit product if:
(i) the holder of the product has been given a periodic statement under section 1017D of the Act not later than 6 months after the transaction occurs; and
(ii) the periodic statement contains the information about the transaction that is required by that section.
(4) For paragraph 1017F (4) (e) of the Act, the following transactions in relation to a financial product are not required to be confirmed:
(a) a transaction that is required or authorised by a law of the Commonwealth or of a State or Territory;
(b) a transaction:
(i) consisting solely of an additional contribution towards the financial product; and
(ii) in relation to which the holder has agreed to the timing and amount, or method of calculating the amount, of the additional contribution;
(c) a transaction:
(i) consisting solely of a withdrawal from the financial product; and
(ii) in relation to which the holder has agreed to the timing and amount, or method of calculating the amount, of the withdrawal;
(d) a transaction:
(i) consisting solely of the acquisition of managed investment products; and
(ii) in relation to which the holder has agreed to the timing and amount, or method of calculating the amount, of the acquisition; and
(iii) in relation to which the holder of the managed investment products, before agreeing to the acquisition, already held or had agreed to acquire managed investment products that were interests in the same registered managed investment scheme as the managed investment products that are to be acquired under the agreement;
(e) a transaction that relates to:
(i) a superannuation product or an RSA product; and
(ii) a superannuation surcharge liability for a product holder arising under section 10 of the
Superannuation Contribution Tax (Assessment and Collections) Act 1997 ;(f) the acceptance or settlement of a claim relating to an insurance product;
(g) a transaction consisting of:
(i) the generating by a financial product of a financial return or other benefit for the holder of the product; or
(ii) the payment to that holder of that return or other benefit, if the holder has agreed to the method by which the payment will be made.
insert
7.9.63A Persons who must confirm transactions
(1) For paragraph 1017F (9) (a) of the Act, this regulation modifies subsection 1017F (2) of the Act to change the person required to provide confirmation of a transaction.
(2) A transaction:
(a) that is not the issue of a financial product (other than a derivative that is not a warrant); and
(b) in which a financial services licensee deals in the financial product on behalf of the holder of the financial product; and
(c) by which the holder acquires or disposes of all or part of the financial product;
must be confirmed by the financial services licensee.
(3) A transaction:
(a) to which subregulation (2) does not apply; and
(b) by which a financial product is issued to a holder;
must be confirmed by the issuer of the financial product.
(4) A transaction:
(a) that is a sale pursuant to an offer to which section 1012C of the Act applies; and
(b) to which subregulation (2) does not apply; and
(c) by which a holder acquires a financial product;
must be confirmed by the seller of the financial product.
(5) A transaction:
(a) to which subregulation (2) does not apply; and
(b) by which the holder of the financial product disposes of all or part of the financial product to the issuer of the financial product;
must be confirmed by the issuer of the financial product.
(6) A transaction that:
(a) relates to a financial product held by a particular holder; and
(b) occurs while that holder holds the financial product; and
(c) is not the acquisition or a disposal of all or part of the financial product;
must be confirmed by the issuer of the financial product.
7.9.63B Content of confirmation of transactions — general
(1) For paragraph 1017F (8) (d) of the Act, this regulation applies in relation to a transaction that is the acquisition or disposal of a financial product.
(2) The confirmation of the transaction must identify:
(a) the financial product; and
(b) the number or amount of financial products that are the subject of the transaction.
(3) If the transaction takes place in the ordinary course of business on a licensed financial market, the confirmation of the transaction must also identify each licensed financial market of which the responsible person is a participant.
(4) If the responsible person is dealing on their own behalf with a person who is not a financial services licensee, the confirmation of the transaction must also state that the responsible person is dealing in that way.
(5) Subregulation (4) does not apply if:
(a) the transaction is the issue of a product; and
(b) the responsible person is the product issuer.
(6) If:
(a) the financial product is able to be traded on a market; and
(b) the transaction did not take place in the ordinary course of business on a licensed market;
the confirmation of the transaction must also include a statement to that effect.
(7) If the transaction took place in the ordinary course of business of a licensed market, the confirmation of the transaction must also include the name by which that market is generally known.
(8) If the transaction involves more than one financial product, the confirmation of the transaction must also include the price per unit of the financial products.
(9) For paragraph 1017F (9) (c) of the Act, paragraph 1017F (8) (a) of the Act is modified in its application to a transaction involving a basic deposit product (other than an acquisition or disposal of the product) by omitting ‘and the holder’.
7.9.63C Confirmation of transaction — multiple transactions
(1) For paragraph 1017F (9) (b) of the Act, subregulation (2) applies in relation to a transaction if:
(a) the responsible person is a participant of a licensed market; and
(b) the transaction takes place in accordance with the operating rules of the licensed market; and
(c) the transaction forms part of a series of transactions made to complete an order placed with a financial services licensee; and
(d) the holder of the product has given to the financial services licensee, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with the financial services licensee by the holder, prior authorisation to give to the client a single confirmation in respect of a series of transactions carried out under the order instead of an individual confirmation in respect of each transaction in the series.
(2) Subsection 1017F (5) of the Act is taken to be satisfied if, in respect of the transaction:
(a) the financial services licensee gives to the holder a single confirmation in respect of the series of transactions in which the transaction is included that:
(i) is in accordance with the authorisation; and
(ii) subject to subregulation (4), complies with the Act; and
(b) the confirmation is given:
(i) as soon as practicable; or
(ii) otherwise as permitted by the operating rules of that licensed market.
(3) For paragraph 1017F (9) (c) of the Act, subregulation (4) applies in relation to a transaction if:
(a) the responsible person is a participant of a licensed market; and
(b) the transaction takes place in accordance with the operating rules of the licensed market; and
(c) the transaction forms part of a series of transactions made to complete an order placed with a financial services licensee; and
(d) the holder of the product has given to the financial services licensee, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with the financial services licensee by the holder, prior authorisation to give to the client a single confirmation in respect of the series of transactions that specifies the average price per unit of financial products acquired or disposed of in the series of transactions, instead of an individual confirmation in respect of each transaction in the series, that specifies the price per unit of the financial products acquired or disposed of in the transaction to which each confirmation relates.
(4) Subregulation 7.9.63B (7) is taken to be satisfied if, in respect of the transaction:
(a) the financial services licensee gives the confirmation to the holder in accordance with the authorisation; and
(b) unless otherwise provided by the operating rules of the licensed market, the financial services licensee, if requested to do so by the client, also gives to the holder a document that specifies the price per unit of the financial products sold or bought in each transaction in the series.
(5) For this regulation, an authorisation given by a person to a financial services licensee:
(a) must be given orally, or in writing, by the person; and
(b) is effective until it is revoked, either orally or in writing, by the person.
(6) If a person gives an oral authorisation to a financial services licensee, or revokes an authorisation orally, the financial services licensee must:
(a) make a written record of the authorisation or revocation; and
(b) send a copy of the written record to the person.
(7) In this regulation:
order means an instruction, or a series of instructions, to acquire or dispose of financial products.
7.9.63D Confirmation of transaction — information about cooling-off period
(1) For paragraph 1017F (8) (d) of the Act, this regulation applies in relation to a transaction:
(a) that is the acquisition of a financial product to which:
(i) regulation 7.9.14, 7.9.66 or 7.9.68 applies; and
(ii) to which regulation 7.9.64 does not apply; or
(b) relating to an RSA product to which subsection 1012I (2) of the Act applies, other than:
(i) an acquisition to which subsection 52 (5) of the RSA Act applies; or
(ii) a transaction in which the product holder disposes of the holder’s interest in the product before the time that confirmation of the acquisition is required under section 1017F of the Act.
(2) The confirmation of the transaction must identify information about any cooling‑off regime that applies in respect of acquisitions of the product (whether the regime is provided for by a law or otherwise).
7.9.63E Confirmation of transaction — facility that provides written confirmation For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act applies to all financial products and transactions as if subsection 1017F (5) of the Act were modified by omitting:
‘An arrangement under which the holder may request or require another person to provide a confirmation does not count as a facility that satisfies paragraph (b).’
and inserting:
‘An arrangement under which the holder may request or require another person (other than the responsible person or a person acting on behalf of the responsible person) to provide a confirmation does not count as a facility that satisfies paragraph (b).’.
omit required by
insert made under
omit or (d);
insert or (d); or
insert
(iii) a public offer superannuation entity that is a successor fund in relation to the transfer of benefits to that fund; or
(iv) a public offer superannuation entity that is an eligible rollover fund in relation to which the superannuation product is issued pursuant to Part 24 of the SIS Act or Part 9 of the RSA Act;
omit duration; or
insert duration; and
omit subject.
insert subject;
insert
(h) a managed investment product in relation to which subsection 1016D (2) of the Act applies.
omit or an RSA product
omit : transfer between superannuation entities or RSAs
omit
omit It is a requirement
insert For subsection 1019B (2) of the Act, it is a requirement
omit return the superannuation product
insert return a superannuation product
after benefits
insert within the meaning of the SIS Regulations
after benefits
insert within the meaning of the SIS Regulations
omit the holder of the superannuation product, or the RSA holder, must nominate a superannuation fund, approved deposit fund
insert the holder of the product must nominate a superannuation entity
substitute
(3) The right of return is taken to have been exercised only on receipt by the provider of the nomination.
(4) The holder must make the nomination not later than 1 month after notifying the product issuer of the right to exercise the right of return.
(5) The holder must notify the product issuer in writing or by electronic means.
(6) For subsection 1019B (7) of the Act, if:
(a) a holder nominates a superannuation entity or RSA; and
(b) the superannuation entity or RSA does not accept the nomination;
the product issuer may rollover or transfer the holder’s benefits to an eligible rollover fund.
substitute
(b) either:
(i) the financial product has been issued for a specific period; or
(ii) the premium for the financial product has been paid in relation to cover for a specific period; and
substitute
General
(9) If the financial product is subject to a distribution to which subregulation 7.9.70 (2) applies, the amount that would otherwise be repaid may be reduced by the amount of that distribution.
omit For paragraph 1020G (2) (a) of the Act, subsections 1019B (1) and (2)
insert For paragraph 1020G (1) (c) of the Act, subsection 1019A (1) and paragraph 1019A (3) (a)
omit those subsections
insert those provisions
omit a standard employer-sponsor of a public offer superannuation entity or an RSA, to the extent only of the employee’s interest in the superannuation entity or RSA.
insert a standard employer-sponsor in respect of the issue of a superannuation product to an employee of the standard employer-sponsor as a standard employer-sponsored member in accordance with subparagraph 1016A (2) (b) (iii) of the Act.
substitute
(2) For paragraph 1020G (1) (c) of the Act, subsection 1019B (1) of the Act is modified in its application to the issue of a superannuation product mentioned in subregulation (1) as if a reference in subsection 1019B (1) to money paid to acquire a financial product were a reference to all monies paid in relation to the superannuation product.
(3) For subsection 1019B (2) of the Act, it is a requirement of the exercise of the right to return a superannuation product mentioned in subregulation (1) that, if the monies to be repaid include mandated employer contributions, the standard employer-sponsor must nominate a superannuation fund, approved deposit fund or RSA into which the mandated employer contributions are to be repaid.
(4) The right of return is taken to have been exercised only on receipt by the provider of the nomination.
(5) The standard employer-sponsor must make the nomination not later than 1 month after notifying the product issuer of the right to exercise the right of return.
(6) The standard employer-sponsor must notify the product issuer in writing or by electronic means.
(7) For subsection 1019B (7) of the Act, if the right of return is exercised by a standard employer-sponsor under this regulation, the product issuer must return the money as directed.
(8) For subsection 1019B (7) of the Act, if the right of return is exercised by a standard employer-sponsor under this regulation, and if the monies to be repaid include monies paid for the superannuation product by the standard employer-sponsored member (the
relevant monies ) the relevant monies are to be paid by the product issuer:
(a) in respect of benefits defined under the SIS Regulations as a restricted non-preserved benefits or preserved benefits (
restricted monies ) — to a superannuation entity or RSA as directed by the standard employer-sponsored member; or(b) in respect of any other relevant monies paid by the standard employer-sponsored member — as directed by the standard employer-sponsored member.
(9) For subsection 1019B (7) of the Act, if:
(a) a financial product mentioned in this regulation is subject to the nomination of a further superannuation entity or RSA; and
(b) the application in relation to the issue of a financial product is not accepted by the nominated superannuation entity or RSA;
the product issuer may rollover or transfer the holder’s benefits to an eligible rollover fund.
omit require
insert provide
omit includes
insert is taken to include
omit sections 1017D
insert section 1017D
insert
7.9.72A Modification of section 1013D of the Act: amount payable for financial product For paragraph 1020G (1) (c) of the Act, paragraph 1013D (1) (d) of the Act is modified as if the paragraph stated that information about an amount that will or may be payable in respect of a financial product is taken to have been provided if the Product Disclosure Statement states the basis on which the amount of liability would be calculated rather than specifying an amount.
substitute
(1) For paragraph (c) of the definition of
eligible application in subsection 1016A (1) of the Act, an application form for a financial product, for use by a client, that is attached to, accompanying or derived from a Product Disclosure Statement must require the following information:
(a) the applicant’s name;
(b) the applicant’s date of birth;
(c) the applicant’s address.
omit include
insert require
insert
7.9.80A Short selling of securities, managed investment products and certain other financial products
(1) For subsection 1020B (2) of the Act, this regulation applies in relation to:
(a) a sale of bonds issued by a government; or
(b) a sale of debentures or bonds of a body corporate if the amount of debentures or bonds on issue with the same maturity and coupon terms exceeds $100 000 000 in value.
(2) Section 1020B of the Act does not have effect if the seller of the bonds or debentures:
(a) sells the bonds or debentures as principal; and
(b) is entitled to use the clearing and settlement facilities of:
(i) Austraclear; or
(ii) RITS; or
(iii) a licensed clearing and settlement facility; and
(c) believes on reasonable grounds that arrangements can be put in place before the time for delivery of the bonds or debentures that will enable the bonds or debentures to be unconditionally vested in the purchaser by the time for delivery.
Division 9 Additional requirements for transfer of lost members and lost RSA holders
7.9.81 Lost members
(1) For paragraph 1020G (1) (c) of the Act, this regulation applies in relation to a restricted issue of a relevant financial product if:
(a) the issue is mentioned in paragraph 1016A (2) (c) of the Act; and
(b) the recipient is a lost member.
(2) Part 7.9 of the Act applies in relation to the restricted issue as if paragraph 1016A (2) (c) of the Act included an obligation on the trustee of the fund that is applying for the issue on behalf of the recipient to give to the trustee that is to issue the financial product:
(a) a statement that the recipient is a lost member; and
(b) if the recipient has specifically asked the trustee making the application not to disclose information of a specified kind — a statement to that effect; and
(c) all information in the possession of the trustee making the application that could reasonably help the other trustee to locate or identify the recipient, other than information of a kind that the recipient has specifically asked the trustee not to disclose.
7.9.82 Lost RSA holders
(1) For paragraph 1020G (1) (c) of the Act, this regulation applies in relation to a restricted issue of a relevant financial product if:
(a) the issue is mentioned in paragraph 1016A (2) (d) of the Act; and
(b) the recipient is a lost RSA holder.
(2) Part 7.9 of the Act applies in relation to the restricted issue as if paragraph 1016A (2) (d) of the Act included an obligation on the RSA provider that is applying for the issue on behalf of the recipient to give to the trustee that is to issue the financial product:
(a) a statement that the recipient is a lost RSA holder; and
(b) if the recipient has specifically asked the RSA holder not to disclose information of a specified kind — a statement to that effect; and
(c) all information in the possession of the RSA holder that could reasonably help the trustee to locate or identify the recipient, other than information of a kind that the recipient has specifically asked the RSA holder not to disclose.
Division 10 References to responsible person
7.9.83 References
(1) For paragraph 1020G (1) (c) of the Act:
(a) Part 7.9 of the Act applies in relation to a superannuation product as if a reference to a responsible person in any of the provisions mentioned in subregulation (2) were a reference to the superannuation entity; and
(b) Part 7.9 of the Act applies in relation to an RSA product as if a reference to a responsible person in any of the provisions mentioned in subregulation (2) were a reference to the RSA.
(2) For subregulation (1), the provisions are:
(a) subparagraph 1017C (2) (b) (ii); and
(b) subparagraph 1017C (2) (c) (i); and
(c) subparagraph 1017C (2) (d) (ii); and
(d) subparagraph 1017C (3) (a) (ii); and
(e) subparagraph 1017C (3) (b) (i); and
(f) subparagraph 1017C (3) (c) (ii).
Part 7.10 Market misconduct and other prohibited conduct relating to financial products and financial services
7.10.01 Division 3 financial products For paragraph (d) of the definition of
Division 3 financial products in section 1042A of the Act, superannuation products provided by a superannuation entity that is not a public offer entity are prescribed.
insert
Part 9.12 Matters relating to regulations
9.12.01 Exemptions from Chapter 6D or 7 Subsection 1043A (1) of the Act does not have effect in relation to the following:
(a) the obtaining by a director of a share qualification;
(b) the application for, and acquisition under that application of, financial products of a body corporate by, or by a trustee for, employees of that body, or of a body corporate that is related to the first-mentioned body under a superannuation scheme, pension fund or other scheme established solely or primarily for the benefit of the employees;
(c) a transaction entered into by a person in accordance with his or her obligations under an underwriting agreement;
(d) a person holding the office of:
(i) personal representative of a deceased person; or
(ii) liquidator; or
(iii) trustee under Parts IV, X and XI of the
Bankruptcy Act 1966 ;in respect of a transaction entered into by the person in good faith in the performance of the functions of the office;
(e) a sale of financial products under:
(i) a mortgage or charge of the financial products; or
(ii) a mortgage, charge, pledge or lien of documents of title to the financial products.
substitute
10.2.02 Definitions In this Part:
old Corporations Regulations means these Regulations as in force immediately before the FSR commencement.
Note Section 9 and Part 10.2 of the Act include a number of definitions of words and expressions that are relevant to the operation of this Part. They have the same meanings when used in this Part.Part 10.2 also includes several expressions that have particular meanings in the context of particular provisions or circumstances, including
relevant old legislation ,relevant new legislation andtransition period .
omit Divisions 6 to 9
insert Division 1, and Divisions 6 to 9,
omit Divisions 6 to 9
(e) all amendments of the
Family Law (Superannuation) Regulations 2001 enacted before the FSR commencement were in force on the FSR commencement.(3) Subregulation (2) applies only to the extent that dealing with a matter in accordance with that subregulation is not inconsistent with compliance with:
(a) the following provisions, and any associated provisions:
(i) section 153, and all the provisions of Divisions 3 and 4 of Part 19, of the
Superannuation Industry (Supervision) Act 1993 as in force immediately before the FSR commencement;(ii) the version of section 153A of that Act that was provided for in Modification Declaration no. 15 as in force immediately before the FSR commencement, being a declaration of modification made under section 332 of that Act; and
(b) section 51, and all the provisions of Divisions 4 and 5 of Part 5, of the
Retirement Savings Accounts Act 1997 as in force immediately before the FSR commencement, and any associated provisions.
Division 45 Arrangements relating to certain reporting periods
10.2.206 Fund information for retail clients for financial products that have an investment component: superannuation
(1) For section 1444 of the Act, this regulation applies in relation to a fund reporting period under Subdivision 2.4.1 of the SIS Regulations that had not ended before the FSR commencement.
(2) On and after the FSR commencement, the fund reporting period is taken to continue until the time that the period would have ended under Subdivision 2.4.1.
10.2.207 Periodic statements for retail clients for financial products that have an investment component
(1) For section 1444 of the Act, this regulation applies if:
(a) a person acquired a financial product, as described in subsection 1017D (1) of the Act, before the issuer of the financial product ceased to be a regulated principal; and
(b) a period that would have been a reporting period under section 1017D of the Act (as modified by Part 16 of Schedule 10A), if that section had applied when the financial product was acquired, had not ended before the issuer of the product ceased to be a regulated principal.
(2) On and after the time when the issuer of the product ceases to be a regulated principal, the fund reporting period is taken to continue until the time that the period would end in accordance with section 1017D of the Act.
Division 46 Arrangements relating to passbook accounts
10.2.208 Periodic statements
(1) For section 1444 of the Act, this regulation applies in relation to a basic deposit product:
(a) for which the holder of the product is provided with, and keeps, a document commonly referred to as a ‘passbook’ into which entries of deposits to and withdrawals from the product are recorded by the product issuer; and
(b) that was issued before the FSR commencement.
(2) Section 1017D of the Act does not apply in relation to the basic deposit product.
10.2.209 Confirmation of transactions
(1) For section 1444 of the Act, this regulation applies in relation to a basic deposit product:
(a) for which the holder of the product is provided with, and keeps, a document commonly referred to as a ‘passbook’ into which entries of deposits to and withdrawals from the product are recorded by the product issuer; and
(b) that was issued before the FSR commencement.
(2) Section 1017F of the Act does not apply in relation to the basic deposit product.
omit Corporations Law
insert
Corporations Act 2001
omit EXECUTION OF A DOCUMENT OF
omit This notice relates to the unauthorised execution of a document of transfer of securities
insert This notice relates to the unauthorised transfer of securities
omit
the dealer who is claimed to have executed the document of transfer of securities
insert
the dealer who is claimed to have transferred securities
after net assets of the fund
insert or product
omit excluding the amount
insert excluding, in relation to a fund, the amount
insert
1A. In dealing with a class of annuity products, the net assets of a fund or product are the net assets backing:
(a) the annuity product; or
(b) the class of annuity products that includes the annuity product.
omit other than a trustee of the fund or an employee of the fund; and
insert other than the product issuer or an employee of the product issuer; and
omit paid to the fund;
insert paid to the fund or product issuer;
omit each mention of the trustee
insert the product issuer
after regulations 7.9.02,
insert 7.9.04,
omit
2.1 After subsection 1012D (9)
insert
Recommendation, issue or sale situation — takeover or merger
(9A) In a recommendation situation, issue situation or sale situation, the issuer does not have to give a Product Disclosure Statement if a person:
insert
2.1 After subsection 1012D (9B)
insert
Recommendation, issue or sale situation — takeover or merger
(9C) In a recommendation situation, issue situation or sale situation, the issuer does not have to give a Product Disclosure Statement if a person:
substitute
Part 3 Modifications relating to insurance options under contract associated with superannuation interest
3.1 After subsection 1012D (9B)
insert
Insurance options
(9C) A product issuer does not have to give a Product Disclosure Statement to a person if:
(a) a product holder seeks to change the coverage of insurance options under a contract associated with a superannuation interest; and
(b) information in relation to the change of insurance options has not already been given in a periodic statement or in accordance with other periodic reporting requirements under Division 3.
(9D) If subsection (9C) applies:
(a) the product issuer must ensure that the product holder has sufficient information to enable the product holder to make an informed decision; and
(b) that subsection does not prevent the product issuer from complying with paragraph (a) by giving the product holder a Product Disclosure Statement.
[ 217 ] Schedule 10A, item 6.1, new subsection 1016A (2A)
omit or an RSA product
[ 218 ] Schedule 10A, item 6.1, new paragraph 1016A (2A) (b)
omit or an RSA
[ 219 ] Schedule 10A, item 6.1, new subparagraph 1016A (2A) (b) (i)
omit or RSA
[ 220 ] Schedule 10A, item 6.2, new subsection 1016A (3A)
omit
omit employer-sponsor
insert employer-sponsored
omit a cessation of
insert the cessation of the member’s
substitute
(9A) In a recommendation situation, issue situation or sale situation, a regulated person does not have to give the client a Product Disclosure Statement if:
(a) the financial product is an RSA product; and
(b) subsection 1012I (2) applies.
[ 224 ] Schedule 10A, item 7.1, new subsection 1017D (10)
omit each mention of member reporting period
insert reporting period
[ 225 ] Schedule 10A, item 7.1, new subsection 1017D (12)
omit each mention of member reporting period
insert reporting period
[ 226 ] Schedule 10A, item 7.1, new subsection 1017D (13)
omit For subsection (11),
insert For subsection (12),
[ 227 ] Schedule 10A, item 7.1, new subsection 1017D (14)
omit member reporting period
insert reporting period
[ 228 ] Schedule 10A, item 7.1, new subsection 1017D (16)
substitute
(16) In this section:
mandated employer-financed benefits has the same meaning as in subregulation 5.01 (1) of theSuperannuation Industry (Supervision) Regulations 1994 .
member protection standards has the same meaning as in theSuperannuation Industry (Supervision) Regulations 1994 .
protected member has the same meaning as in theSuperannuation Industry (Supervision) Regulations 1994 .
[ 229 ] Schedule 10A, item 8.1, new paragraph 1017D (9) (c)
omit the annual actual or notional
insert the effective
[ 230 ] Schedule 10A, item 8.1, new subsection 1017D (17)
substitute
(17) In this section:
mandated employer-financed benefits has the same meaning as in theRetirement Savings Accounts Regulations 1997 .
protected member has the same meaning as in theRetirement Savings Accounts Regulations 1997 .
RSA holder-protection standards has the same meaning as in theRetirement Savings Accounts Regulations 1997 .
[ 231 ] Schedule 10A, item 9.1, new paragraph 1017C (7A) (b)
omit Division 4;
insert Division 3;
[ 232 ] Schedule 10A, item 10.1, new paragraph 1017B (5B) (a)
omit entity;
insert entity of a kind that has an adverse effect on:
(i) the amount of the relevant financial product; or
(ii) the benefits to which the holder of the relevant financial product may become entitled; or
(iii) the circumstances in which the benefits to which the holder of the relevant financial product may become entitled would become payable;
[ 233 ] Schedule 10A, item 10.1, new paragraph 1017B (5B) (b)
omit RSA;
insert RSA of a kind that has an adverse effect on:
(i) the amount of the RSA; or
(ii) the benefits to which the RSA holder may become entitled; or
(iii) the circumstances in which the benefits to which the RSA holder may become entitled would become payable;
[ 234 ] Schedule 10A, item 11.1, new subsection 1017C (8D)
omit Subdivision 4.9
insert Subdivision 5.9
[ 235 ] Schedule 10A, item 12.2, after new subsection 1017DA (3A)
insert
(3B) A reference in this section to a Product Disclosure Statement includes:
(a) in relation to a superannuation product to which Division 2 of Part 7.9 of the Act does not apply — information mentioned in section 153 or 159 of the SIS Act, as in force immediately before the FSR commencement; and
(b) in relation to an RSA product to which Division 2 of Part 7.9 of the Act does not apply — information mentioned in section 56 of the RSA Act, as in force immediately before the FSR commencement.
insert
Part 17 Modifications relating to application forms for specified superannuation products
17.1 After subsection 1012B (4)
insert
(4A) A regulated person:
(a) need not give a client a Product Disclosure Statement for a financial product at or before the time when it would otherwise be required to be given; and
(b) must give the client the Product Disclosure Statement as soon as is reasonably practical and in any event within 3 months after the product is issued to the client; and
(c) need not give the client the Product Disclosure Statement at all if the client ceases to be a member of the superannuation fund concerned before the regulated person is required to give the Product Disclosure Statement under paragraph (b).
(4B) Subsections (3), (4) and (4A) apply only in respect of:
(a) in the case of an eligible rollover fund:
(i) persons who become members of the fund by being issued with a superannuation interest under section 243 of the SIS Act; and
(ii) persons who become members of the fund in circumstances mentioned in section 89 of the RSA Act; and
(b) in the case of a public offer superannuation fund that is not a successor fund in relation to the financial product issued to the client:
(i) standard employer-sponsored members of the fund; and
(ii) persons who become members of the fund in circumstances mentioned in regulation 7.9.06A of the
Corporations Regulations 2001 .
17.2 After subsection 1012I (2B)
insert
(2C) If a trustee of an EPSSS:
(a) applies, in circumstances mentioned in regulation 7.9.06A of the
Corporations Regulations 2001 , on behalf of a person for the issue of an interest in a relevant superannuation entity; and(b) has not previously applied in those circumstances for the issue of an interest in that entity on behalf of any person;
the person (the
issuer ) who is to issue the interest to the person must, at or before the time when the interest is issued to the person, give the trustee a Product Disclosure Statement in accordance with this Division for the interest.
omit (regulation 7.9.12)
insert (regulation 7.9.11)
omit and the trustee of the fund.
insert , or the product issuer, as appropriate.
omit the trustee.
insert the financial product issuer (if applicable).
omit the fund; and
insert the financial product; and
omit if an employer
insert in relation to a superannuation product — if an employer
omit superannuation products
insert financial products
omit join the fund.’.
insert acquire the product.’.
omit each mention of the trustee
insert the financial product issuer
omit a member
insert a product holder
omit If the fund
insert If the product issuer
after the first mention of allocated pension
insert or annuity that meets the standard mentioned in subregulation 1.05 (4) of the SIS Regulations
after allocated pension
insert or annuity
after allocated pension
insert or annuity
omit on joining the fund.
insert on acquiring the product.
omit members
insert product holders
omit the trustee
insert the financial product issuer
omit members
insert product holders
omit members’
insert product holders’
[ 255 ] Schedule 10B, sub-subparagraph 7.1 (b) (ii) (B)
omit members’
insert product holders’
omit the member
insert the product holder
omit members,
insert product holders,
omit the trustee
insert the product issuer
substitute
8 Ongoing management charges
8.1 The statement:
‘The ongoing management charges charged by a [
insert ‘trustee’, ‘life insurer’, ‘provider of an annuity’or other appropriate description ] over a year can be expressed as a percentage of its assets.In the last [
insert ‘year’, ‘2 years’, ‘3 years’, ‘4 years’or ‘5 years’as appropriate ], the ongoing management charges, expressed as a percentage of the fund’s assets, were:’;followed (if there are no identified investment strategies) by a statement for the overall fund, the product issuer or the provider of an annuity of:
(a) the actual ongoing management charge percentage for the required periods: and
(b) the actual ongoing management charge percentage relating to the management of investments for the required periods; and
(c) the actual ongoing management charge percentage not relating to the management of investments for the required periods.
8.2 If there are identified investment strategies, the statement in item 8.1 must also be followed by:
(a) a statement, for each identified investment strategy, of:
(i) the actual ongoing management charge percentage for the required periods and the converted amount for each percentage; and
(ii) the actual ongoing management charge percentage relating to the management of investments for the required periods; and
(iii) the actual ongoing management charge percentage not relating to the management of investments for the required periods; or
(b) a statement:
(i) of the highest and lowest actual ongoing management charge percentage for the required periods in respect of all investment strategies and the converted amount for each percentage; and
(ii) of the highest and lowest actual ongoing management charge percentages relating to the management of investments for the required periods in respect of all investment strategies; and
(iii) of the highest and lowest actual ongoing management charge percentages not relating to the management of investments for the required periods in respect of all investment strategies; and
(iv) that information on the specific ongoing management charge calculations for a particular investment strategy are available on request, and details of how to request the information.
8.3 For item 8.2, the converted amount is $10 000 multiplied by the ongoing management charge percentage.
8.4 After the disclosure of the ongoing management charges as mentioned in items 8.1 and 8.2:
(a) the statement:
‘The approximate effect of the ongoing management charges (based on the charges for the year to [
insert most recent year ]) on your benefits can be shown by multiplying this percentage by the amount in your account. The following example shows the approximate amount of the ongoing management charges for an account balance of $10,000 in relation to the overall [insert ‘fund’, ‘life insurer’, ‘provider of an annuity’or other appropriate description ]. The actual effect of ongoing management charges will depend on the [insert ‘fund’s’, ‘life insurer’s’or other appropriate description ] charging arrangements and your individual circumstances. In particular, the amount in your account [if more than one identified investment strategy — and your chosen investment strategy] may have a significant effect on the amount of charges borne.’;followed by an example deriving the converted amount for the overall fund, product issuer or provider of an annuity; and
(b) a statement that identifies the charges that are included in:
(i) the actual ongoing management charge; and
(ii) the actual ongoing management charge relating to the management of investments; and
(iii) the actual ongoing management charge not related to the management of investments;
and disclosed under item 8.1; and
(c) a statement that the person should read the charges section of the document; and
(d) a statement that past charges should not be taken to be an indication of future charges; and
(e) the statement:
‘The ongoing management charge for a [
insert ‘fund’, ‘life insurer’, ‘provider of an annuity’or other appropriate description ] is required by law to be calculated and disclosed. Its purpose is to give a broad indication of the level of costs incurred by a particular fund or provider of an annuity as a percentage of the value of assets.Costs include all fees, charges and expenses except for [
insert ‘switching costs, ‘entry and exit charges’or other appropriate description ]. The level of costs incurred by an individual product holder will depend on individual circumstances and as a percentage of value of the fund assets of the individual may be more or less than the ongoing management charge.The ongoing management charge should not be taken to be representative of the actual fees, charges and expenses that will be borne by an individual.
Full details of fees, charges and expenses applicable to individual circumstances are set out in [
section X ] of this document.’.8.5 Item 8.4 does not apply to a year of income if the fund, entity or investment strategy was not operating for the whole income year.
8.6 For item 8, the required periods are:
(a) the latest year of income at the time the Product Disclosure Statement is published; and
(b) the 4 previous years of income (except that this does not apply to a previous year of income ending on or before 30 June 2001).
8.7 The information mentioned in items 8.1 and 8.2 must not have been first published or issued by the fund more than 15 months before the date the information was given to the person.
after the SIS Regulations
insert (if applicable)
omit and the trustee of the fund or RSA.
insert , or the product issuer, as appropriate
omit the trustee.
insert the financial product issuer (if applicable).
omit superannuation products
insert financial products
omit join the fund or RSA.’.
insert acquire the financial product.’.
omit superannuation arrangements
insert superannuation or financial arrangements
omit superannuation arrangements; and
insert superannuation or financial arrangements; and
after each mention of allocated pension
insert or annuity
omit
joining the fund or RSA.
insert acquiring the financial product.
omit members
insert product holders
omit expressed either as a fixed amount or as a percentage
insert expressed as a fixed amount or, if it is not practicable to express a fixed amount, as a percentage
omit a member; or
insert a product holder; or
omit the member’s
insert the product holder’s
omit the member
insert the product holder
omit the trustee
insert the financial product issuer
substitute
(b) the RSA holder-protection standards under the RSA Regulations (if applicable).
(regulation 3)
insert
Division 11 Superannuation to which arrangements apply under the Family Law Act 1975
7.9.84 Definitions for Division 11 In this Division:
adjusted base amount , in relation to a non-member spouse on a day, means the adjusted base amount applicable to the non-member spouse on that day worked out under regulation 47 of theFamily Law (Superannuation) Regulations 2001 .
base amount , in relation to a non-member spouse means the amount mentioned in regulation 45 of theFamily Law (Superannuation) Regulations 2001 .
base amount payment split , in relation to a superannuation interest, means a payment split under which a base amount is allocated to the non-member spouse in relation to the superannuation interest under Part VIIIB of theFamily Law Act 1975 .
flag lifting agreement means a flag lifting agreement under Part VIIIB of theFamily Law Act 1975 .
member spouse , in relation to a superannuation interest that is subject to a payment split, means the person who is the member spouse in relation to the interest under Part VIIIB of theFamily Law Act 1975 .
non-member spouse , in relation to a superannuation interest that is subject to a payment split, means the person who is the non-member spouse in relation to the interest under Part VIIIB of theFamily Law Act 1975 .
payment split means a payment split under Part VIIIB of theFamily Law Act 1975 .
payment split notice means a notice given by a product issuer under:
(a) regulation 7A.03 of the SIS Regulations; or
(b) regulation 4A.03 of the RSA Regulations.
percentage-only interest has the meaning given by Part VIIIB of theFamily Law Act 1975 .
percentage payment split , in relation to a superannuation interest, means a payment split under a superannuation agreement, flag lifting agreement or splitting order that specifies a percentage that is to apply to all splittable payments in respect of the superannuation interest.
splitting order means a splitting order under Part VIIIB of theFamily Law Act 1975 .
superannuation agreement means a superannuation agreement under Part VIIIB of theFamily Law Act 1975 .
superannuation interest means a superannuation interest to which Part VIIIB of theFamily Law Act 1975 applies.
7.9.85 Application of Division 11 This Division applies in relation to a superannuation interest.
7.9.86 Acquisition of financial product For paragraph 761E (7) (a) of the Act, if:
(a) a person is a non-member spouse; and
(b) an entitlement to a benefit in relation to a superannuation interest under a payment split is first issued, granted or otherwise made available to that person;
the person is taken to have been issued with a superannuation product or an RSA product as appropriate.
7.9.87 Modification of Act: Product Disclosure Statement in relation to superannuation interest under Family Law Act
(1) Subject to subregulation (4), for paragraph 1020G (1) (c) of the Act, paragraph 1012F (b) of the Act is modified in its application in relation to:
(a) a superannuation interest; and
(b) the non-member spouse who acquires the superannuation interest;
in accordance with subregulation (2).
(2) Paragraph 1012F (b) is taken to require a regulated person to give the non-member spouse a Product Disclosure Statement when the regulated person gives a payment split notice to the non-member spouse.
(3) If paragraph 1012F (b), as modified in accordance with subregulation (2), applies in relation to a superannuation interest, regulation 7.9.04 does not apply in relation to the interest and the non-member spouse.
(4) For paragraph 1020G (1) (a) of the Act, if the governing rules of a superannuation entity do not provide for a non-member spouse to become a member of a superannuation fund in relation to the superannuation entity, section 1012B is modified by adding, after subsection 1012B (1):
‘(1A) This section does not apply in relation to:
(a) a superannuation interest; and
(b) the non-member spouse who acquires the superannuation interest;
if the governing rules of a superannuation entity do not provide for a non-member spouse to become a member of a superannuation fund in relation to the superannuation entity.’.
7.9.88 Statement content in relation to superannuation interest under Family Law Act: superannuation fund
(1) For subparagraphs 1017DA (1) (a) (ii) and (iii), and paragraph 1017DA (1) (b), of the Act, a trustee of a superannuation entity that is a product issuer must give to a non-member spouse in relation to a superannuation product issued under a payment splita statement providing the following information:
(a) the contact details for the product issuer;
(b) if the interest is not a percentage-only interest and the payment split is a base amount payment split:
(i) the base amount allocated to the non‑member spouse under the relevant agreement, flag lifting agreement or splitting order; and
(ii) the method by which the base amount will be adjusted on an ongoing basis; and
(iii) whether the governing rules of the fund would allow the non-member spouse to become a member of the superannuation entity; and
(iv) information about the options available to the non-member spouse in relation to the interest under Part 7A of the SIS Regulations;
(c) if the interest is not a percentage-only interest and the payment split is a percentage payment split:
(i) the percentage that is to apply to all splittable payments in respect of the interest; and
(ii) whether the governing rules of the fund would allow the non-member spouse to become a member of the superannuation entity; and
(iii) information about the options available to the non-member spouse in relation to the interest under Part 7A of the SIS Regulations;
(d) if the interest is a percentage-only interest:
(i) the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order; and
(ii) if the payment is under a superannuation agreement or flag lifting agreement, whether the percentage is to apply for the purposes of subparagraph 90MJ (1) (b) (i) of the
Family Law Act 1975 ; and(iii) if the payment split is under a splitting order, whether the order is made under paragraph 90MT (1) (c) of the
Family law Act 1975 ;(e) the circumstances in which the entitlement of the non-member spouse will be come payable;
(f) the entitlement of the non-member spouse if, at the time when the statement is given:
(i) a payment were to be made in respect of the interest; and
(ii) the payment would be an eligible termination payment under Subdivision AA of Division 2 of Part III of the
Income Tax Assessment Act 1936 ;and the value that the components of the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act would have;
(g) information about the dispute resolution system that covers complaints by holders of the product and about how that system may be accessed;
(h) details of any amounts payable by the non‑member spouse in respect of the payment split, and arrangements for the payment of any such amounts.
(2) For paragraph 1017DA (2) (b) of the Act, the statement mentioned in subregulation (1) is to be provided by a regulated person when the regulated person gives a payment split notice to the non-member spouse.
7.9.89 Statement content in relation to superannuation interest under Family Law Act: RSA
(1) For subparagraphs 1017DA (1) (a) (ii) and (iii), and paragraph 1017DA (1) (b), of the Act, an RSA provider that is a product issuer must give to a non‑member spouse in relation to an RSA product issued under a payment split a statement providing the following information:
(a) the contact details for the product issuer;
(b) if the payment split is a base amount payment split:
(i) the base amount allocated to the non‑member spouse under the relevant superannuation agreement, flag lifting agreement or splitting order; and
(ii) the method by which the base amount will be adjusted on an ongoing basis;
(c) if the payment split is a percentage payment split, the percentage that is to apply to all splittable payments in respect of the interest;
(d) the circumstances in which the entitlement of the non-member spouse will become payable;
(e) the options available under Part 4A of the RSA Regulations in relation to the non-member spouse’s entitlement in respect of the interest;
(f) the entitlement of the non-member spouse if, at the time when the notice is given:
(i) a payment were to be made in respect of the interest; and
(ii) the payment would be an eligible termination payment under Subdivision AA of Division 2 of Part III of the
Income Tax Assessment Act 1936 ;and the value that the components of the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act would have;
(g) information about the dispute resolution system that covers complaints by holders of the product and about how that system may be accessed;
(h) details of any amounts payable by the non‑member spouse in respect of the payment split, and arrangements for the payment of any such amounts.
(2) For paragraph 1017DA (2) (b) of the Act, the statement mentioned in subregulation (1) is to be provided by a regulated person when the regulated person gives a payment split notice to the non-member spouse.
7.9.90 Information for existing holders of superannuation products and RSA products in relation to superannuation interest
(1) For paragraph 1020G (1) (c) of the Act, this regulation applies in relation to a non-member spouse.
(2) The definition of
concerned person in subsection 1017C (9) of the Act is modified by adding after paragraph (a) of the definition:
‘(aa) is a non-member spouse in relation to a superannuation product or an RSA product that is issued in relation to a payment split; or’.
7.9.91 Periodic statements for retail clients for financial products that have an investment component — general
(1) For paragraph 1020G (1) (a) of the Act, this regulation applies in relation to a non-member spouse who holds a superannuation or RSA product by way of a payment split.
(2) The product issuer in relation to the superannuation product or RSA product is not required to comply with:
(a) paragraphs 1017D (5) (a) to (f) of the Act; and
(b) regulation 7.9.72 and subregulation 7.9.75 (1).
7.9.92 Periodic statements for retail clients for financial products that have an investment component — superannuation interest other than percentage-only interest
(1) For paragraph 1017D (5) (g) of the Act, this regulation applies if:
(a) an interest in a superannuation product is subject to a base amount payment split; and
(b) the interest is not a percentage-only interest; and
(c) the interest is in the growth phase; and
(d) none of the following has occurred under Part 7A of the SIS Regulations:
(i) a new membership interest has been created for the non-member spouse in relation to the payment split;
(ii) the transferable benefits of the non-member spouse have been transferred or rolled out of the superannuation fund;
(iii) the amount to which the non-member spouse is entitled under the payment split has been paid, as a lump sum, to the non‑member spouse.
(2) This regulation also applies if:
(a) an interest in an RSA product is subject to a base amount payment split; and
(b) the interest is in the growth phase; and
(c) none of the following has occurred under Part 4A of the RSA Regulations:
(i) a new RSA has been opened for the non‑member spouse;
(ii) the transferable benefits of the non-member spouse have been transferred or rolled out of the RSA;
(iii) the amount to which the non-member spouse is entitled under the payment split has been paid, as a lump sum, to the non‑member spouse.
(3) The periodic statement for the member spouse and the non-member spouse must include the following information:
(a) the value of the adjusted base amount applicable to the non-member spouse at the end of the reporting period;
(b) the amount of the adjustment in the reporting period;
(c) the method used to calculate the adjustment, including the applicable interest rate required under regulation 48 of the
Family Law (Superannuation) Regulations 2001 .
7.9.93 Trustees of superannuation entities —additional obligation to provide information in relation to superannuation interest
(1) For paragraph 1017DA (2) (a) of the Act, no information is to be provided to a non-member spouse under section 1017DA of the Act if the governing rules of a superannuation entity do not provide for the non‑member spouse to become a member of a superannuation fund in relation to the superannuation entity.
(2) For paragraph 1017DA (2) (b) of the Act, if the governing rules of a superannuation entity provide for a non-member spouse to become a member of a superannuation fund in relation to the superannuation entity fund:
(a) information is to be provided to the non-member spouse under section 1017DA of the Act (and Subdivisions 5.4 to 5.7 of Part 7.9 of these Regulations) when the payment split notice is given to the non-member spouse; and
(b) the information is to be provided with the Product Disclosure Statement.
7.9.94 Division 5 of Part 7.9 of the Act not to apply in relation to non-member spouse For paragraph 1019A (2) (c) of the Act, Division 5 of Part 7.9 of the Act does not apply in relation to the issue of a superannuation product or RSA product to a non-member spouse who acquires the superannuation interest by means of a payment split.
Note The non-member spouse may also wish to acquire an interest in the superannuation fund, or become an RSA holder, by making an application. In that case, regulation 7.9.94 would not apply and Division 5 of Part 7.9 of the Act would apply to the extent that that Division provides.
1. These Regulations amend Statutory Rules 2001 No. 193, as amended by 2001 Nos. 208, 318 and 319; 2002 No. 15.
2. Notified in the
Commonwealth of Australia Gazette on 21 February 2002.
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