Financial Services Reform Act 2001 (Cth)
This compilation was prepared on 18 July 2005
[Schedule 5 (item 6) amended subsection 2(2)
Schedule 5 (item 7) repealed subsection 2(7)
Schedule 5 (item 8) repealed Schedule 1 (item 250)
Schedule 5 (items 6 to 8) commenced on 15 December 2001]
[Schedule 2 (item 13) amended heading to item 334 of Schedule 1
Schedule 2 (item 13) commenced immediately after 11 March 2002]
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
This Act may be cited as the
Financial Services Reform Act 2001 .
(1) The following provisions:
(a) this section and section 1;
(b) Part 1 of Schedule 3;
commence:
(c) unless paragraph (d) applies—on the day on which this Act receives the Royal Assent; or
(d) if that day is the day on which the
Corporations Act 2001 commences or an earlier day—immediately after the commencement of that Act.
(2) Subject to subsections (3) to (6), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
(3) A day fixed by a Proclamation under subsection (2) cannot be a day before the day on which the
Corporations Act 2001 commences.(4) If a day fixed by a Proclamation under subsection (2) is the same day as the day on which the
Corporations Act 2001 commences, the provisions of this Act to which that Proclamation applies are taken to commence immediately after the commencement of theCorporations Act 2001 .(5) The following provisions must commence on the same day:
(a) all the provisions of Schedule 1;
(b) all the provisions of Schedule 2.
(6) If a provision of this Act to which subsection (2) applies does not commence under that subsection within the period of 12 months beginning on the day on which the
Corporations Act 2001 commences, it commences on the first day after the end of that period.
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Repeal the Chapters, substitute:
The main object of this Chapter is to promote:
(a) confident and informed decision making by consumers of financial products and services while facilitating efficiency, flexibility and innovation in the provision of those products and services; and
(b) fairness, honesty and professionalism by those who provide financial services; and
(c) fair, orderly and transparent markets for financial products; and
(d) the reduction of systemic risk and the provision of fair and effective services by clearing and settlement facilities.
An outline of this Chapter is set out in the table below.
1 | 7.1 | definitions of key concepts and of commonly occurring expressions |
2 | 7.2 | licensing of financial markets other matters relating to financial markets |
3 | 7.3 | licensing of clearing and settlement facilities other matters relating to clearing and settlement facilities |
4 | 7.4 | limitation on ownership of certain licensees individuals who are disqualified from being involved in certain licensees |
5 | 7.5 | compensation regimes for financial markets |
6 | 7.6 | licensing of providers of financial services other related matters (e.g. restrictions on use of terminology; agreements with unlicensed persons relating to provision of financial services) |
7 | 7.7 | disclosure requirements for financial services licensees and their authorised representatives disclosure requirements for certain people who are not required to be licensed |
8 | 7.8 | other conduct requirements for financial services licensees (e.g. dealing with client money and property; financial records, statements and audit) special provisions relating to insurance |
9 | 7.9 | financial product disclosure requirements other requirements relating to issue and sale of financial products |
10 | 7.10 | market misconduct and other prohibited conduct relating to financial products and services |
11 | 7.11 | title to, and transfer of, certain securities and other financial products |
12 | 7.12 | qualified privilege in certain situations other miscellaneous matters |
In this Chapter:
able to be traded , in relation to a market,includes (but is not limited to) admitted to quotation on the market.
acquire , in relation to a financial product, has a meaning affected by section 761E.
arrangement means, subject to section 761B, a contract, agreement, understanding, scheme or other arrangement (as existing from time to time):
(a) whether formal or informal, or partly formal and partly informal; and
(b) whether written or oral, or partly written and partly oral; and
(c) whether or not enforceable, or intended to be enforceable, by legal proceedings and whether or not based on legal or equitable rights.
Australian CS facility licence means a licence under section 824B that authorises a person to operate a clearing and settlement facility.
Australian financial services licence means a licence under section 913B that authorises a person who carries on a financial services business to provide financial services.
Australian market licence means a licence under section 795B that authorises a person to operate a financial market.
authorised representative of a financial services licensee means a person authorised in accordance with section 916A or 916B to provide a financial service or financial services on behalf of the licensee.
basic deposit product means a deposit product that is a facility in relation to which the following conditions are satisfied:
(a) the terms applicable to the facility (the
governing terms ) do not permit the amount from time to time standing to the credit of the facility to be reduced otherwise than in consequence of one or more of the following:
(i) a withdrawal, transfer or debit on the instruction of, or by authority of, the depositor, not being on account of entry fees, exit fees or charges for the management of the funds (but this does not exclude charges for the maintenance of the facility itself);
(ii) a payment of charges or duties on deposits into, or withdrawals from, the facility that are payable under a law of the Commonwealth or of a State or Territory;
(iii) a payment that a law of the Commonwealth, or of a State or Territory, requires to be made out of the facility;
(iv) a payment that an order of a court requires to be made out of the facility;
(v) the exercise of a right to combine accounts;
(vi) the correction of an error;
(vii) any other circumstances specified in regulations made for the purposes of this subparagraph; and
(b) any return to be generated for the depositor on the amount from time to time standing to the credit of the facility is an amount that is set out in, or that is calculated by reference to a rate or rates that are set out in, the governing terms; and
(c) either:
(i) there is no minimum period before which funds cannot be withdrawn or transferredfrom the facility without a reduction in the return generated for the depositor; or
(ii) if there is such a period, it expires on or before the end of the period of 2 years starting on the day on which funds were first deposited in the facility; and
(d) funds are able to be withdrawn or transferred from the facility on the instruction of, or by authority of, the depositor:
(i) without any prior notice to the ADI that makes the facility available; or
(ii) if the ADI that makes the facility available is included in a class of ADIs specified in regulations made for the purposes of this subparagraph—subject to a prior notice requirement that does not exceed the period specified in those regulations in relation to that class of ADIs;
whether or not the withdrawal or transfer will attract a reduction in the return generated for the depositor as mentioned in subparagraph (c)(i); and
(e) any other conditions specified in regulations made for the purposes of this paragraph.
binder means an authorisation given to a person by a financial services licensee who is an insurer to do either or both of the following:
(a) enter into contracts that are risk insurance products on behalf of the insurer as insurer; or
(b) deal with and settle, on behalf of the insurer, claims relating to risk insurance products against the insurer as insurer;
but does not include an authorisation of a kind referred to in paragraph (a) that is limited to effecting contracts of insurance by way of interim cover unless there is also in existence an authority given by the insurer to the person to enter into, on behalf of the insurer and otherwise than by way of interim cover, contracts of insurance.
body regulated by APRA has the meaning given by subsection 3(2) of theAustralian Prudential Regulation Authority Act 1998 .
carried on in this jurisdiction , in relation to a financial services business, has a meaning affected by section 911D.
certificate cancellation provisions , in relation to a prescribed CS facility, means the provisions of the facility’s operating rules that deal with:
(a) the cancellation of documents of title to financial products transferred through the facility; and
(b) matters incidental to the cancellation of those documents.
class , in relation to financial products or financial services, has a meaning affected by regulations made for the purposes of section 761CA.
clearing and settlement facility has the meaning given by Division 6.
CS facility licensee means a person who holds an Australian CS facility licence.
custodial or depository service that a person provides has the meaning given by section 766E.
dealing in a financial product has the meaning given by section 766C (anddeal has a corresponding meaning).
declared professional body means a body, or the part of a body, in relation to which a declaration under subsection 918B(1) is in force.
deposit product means a financial product described in paragraph 764A(1)(i).
derivative has the meaning given by section 761D.
dispose , in relation to a financial product, includes terminate or close out the legal relationship that constitutes the financial product.
disqualified individual means an individual who is disqualified within the meaning given by section 853A.
execution‑related telephone advice has the meaning given by subsection 946B(1).
financial market has the meaning given by Division 5.
financial product has the meaning given by Division 3.Note: References in this Chapter to financial products have effect subject to particular express exclusions for particular purposes—see e.g. sections 1010A and 1074A.
financial product advice has the meaning given by section 766B.
financial product advice law means:
(a) a provision of Chapter 7 that covers conduct relating to the provision of financial product advice (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of financial product advice; or
(b) a provision of Chapter 9 as it applies in relation to a provision referred to in paragraph (a); or
(c) a provision of Division 2 of Part 2 of the ASIC Act that covers conduct relating to the provision of financial product advice (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of financial product advice; or
(d) any other Commonwealth, State or Territory legislation that covers conduct relating to the provision of financial product advice (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of financial product advice.
financial service has the meaning given by Division 4.
financial services business means a business of providing financial services.Note: The meaning of
carry on a financial services business is affected by section 761C.
Financial Services Guide means a Financial Services Guide required by section 941A or 941B to be given in accordance with Division 2 of Part 7.7.
financial services law means:
(a) a provision of this Chapter or of Chapter 5C, 6, 6A, 6B, 6C or 6D; or
(b) a provision of Chapter 9 as it applies in relation to a provision referred to in paragraph (a); or
(c) a provision of Division 2 of Part 2 of the ASIC Act; or
(d) any other Commonwealth, State or Territory legislation that covers conduct relating to the provision of financial services (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of financial services.
financial services licensee means a person who holds an Australian financial services licence.
foreign exchange contract means a contract:
(a) to buy or sell currency (whether Australian or not); or
(b) to exchange one currency (whether Australian or not) for another (whether Australian or not).
funeral benefit means a benefit that consists of the provision of funeral, burial or cremation services, with or without the supply of goods connected with such services.
general advice has the meaning given by subsection 766B(4).
general insurance product means a financial product described in paragraph 764A(1)(d).
holder ,in relation to a financial product, means the person to whom the financial product was issued, or if it has (since issue) been disposed of to another person who has not themselves disposed of it, that other person (andhold has a corresponding meaning).
insurance product means a financial product described in paragraph 764A(1)(d), (e) or (f).
investment life insurance product means a financial product described in paragraph 764A(1)(f).
involved in a market licensee or CS facility licensee, or in an applicant for such a licence, has the meaning given by section 853B.
issue , in relation to a financial product, has a meaning affected by section 761E.
issuer , in relation to a financial product, has a meaning affected by section 761E.
kind , in relation to financial products or financial services, has a meaning affected by regulations made for the purposes of section 761CA.
licensed CS facility means a clearing and settlement facility the operation of which is authorised by an Australian CS facility licence.
licensed market means a financial market the operation of which is authorised by an Australian market licence.
life risk insurance product means a financial product described in paragraph 764A(1)(e).
listing rules of a financial market, or proposed financial market, means any rules (however described) that are made by the operator of the market, or contained in the operator’s constitution, and that deal with:
(a) admitting entities to, or removing entities from, the market’s official list, whether for the purpose of enabling financial products of those entities to be traded on the market or for other purposes; or
(b) the activities or conduct of entities that are included on that list.
lodge with ASIC , when used in a provision of this Chapter in relation to which regulations made for the purposes of this definition state that the lodgment is to be in a prescribed form, means lodge with ASIC in a prescribed form.Note: See section 350 for the meaning of
lodge in a prescribed form .
makes a market for a financial producthas the meaning given by section 766D.
managed investment product means a financial product described in paragraph 764A(1)(b).
market licensee means a person who holds an Australian market licence.
operated in this jurisdiction :
(a) in relation to a financial market, has a meaning affected by section 791D; and
(b) in relation to a clearing and settlement facility, has a meaning affected by section 820D.
operating rules :
(a) of a clearing and settlement facility, or proposed clearing and settlement facility, means any rules (however described) made by the operator of the facility, or contained in the operator’s constitution, that deal with:
(i) the activities or conduct of the facility; or
(ii) the activities or conduct of persons in relation to the facility;
but does not include any such rules that deal with matters in respect of which licensed CS facilities must have written procedures under regulations made for the purposes of subsection 822A(2); or
(b) of a financial market, or proposed financial market, means any rules (however described), including the market’s listing rules (if any), that are made by the operator of the market, or contained in the operator’s constitution, and that deal with:
(i) the activities or conduct of the market; or
(ii) the activities or conduct of persons in relation to the market;
but does not include:
(iii) any such rules that deal with matters in respect of which licensed markets must have written procedures under regulations made for the purposes of subsection 793A(2); or
(iv) compensation rules within the meaning of Part 7.5.
participant :
(a) in relation to a clearing and settlement facility, means a person who is allowed to directly participate in the facility under the facility’s operating rules and, when used in any of the following provisions, also includes a recognised affiliate in relation to the facility:
(i) paragraph 821B(2)(b);
(ii) section 822B;
(iii) subsection 915F(2);
(iv) any other provisions prescribed by regulations made for the purposes of this subparagraph; and
(b) in relation to a financial market, means a person who is allowed to directly participate in the market under the market’s operating rules and, when used in any of the following provisions, also includes a recognised affiliate in relation to the market:
(i) paragraph 792B(2)(b);
(ii) section 793B;
(iii) section 883A;
(iv) subsection 915F(2);
(v) paragraphs 923B(3)(a) and (b);
(vi) any other provisions prescribed by regulations made for the purposes of this subparagraph.
person has a meaning affected by section 761F (which deals with partnerships) and section 761FA (which deals with multiple trustees).
personal advice has the meaning given by subsection 766B(3).
prescribed CS facility means a licensed CS facility that is prescribed by regulations made for the purposes of this definition.
Product Disclosure Statement means a Product Disclosure Statement:
(a) required by section 1012A, 1012B, 1012C or 1012I to be given in accordance with Division 2 of Part 7.9; or
(b) that section 1012H requires an issuer of a financial product to take reasonable steps to ensure is given to a new group member in accordance with Division 2 of Part 7.9.
provide , in relation to a financial product, has a meaning affected by section 761E.
recognised affiliate , in relation to a clearing and settlement facility or a financial market, means a person who is:
(a) recognised by the operating rules of the facility or market as a suitably qualified affiliate of the facility or market; and
(b) involved in the carrying on of a financial services business (including as an employee, director or in some other capacity).
relevant personal circumstances , in relation to advice provided or to be provided to a person in relation to a matter, are such of the person’s objectives, financial situation and needs as would reasonably be considered to be relevant to the advice.
retail client has the meaning given by section 761G.
risk insurance product means a financial product described in paragraph 764A(1)(d) or (e).
RSA product means a financial product described in paragraph 764A(1)(h).
security means:
(a) a share in a body; or
(b) a debenture of a body; or
(c) a legal or equitable right or interest in a security covered by paragraph (a) or (b); or
(d) an option to acquire, by way of issue, a security covered by paragraph (a), (b) or (c);
but does not include an excluded security. In Part 7.11, it also includes a managed investment product.
Statement of Advice means a Statement of Advice required by section 946A to be given in accordance with Subdivisions C and D of Division 3 of Part 7.7.
superannuation product means a financial product described in paragraph 764A(1)(g).
Supplementary Financial Services Guide has the meaning given by section 943A.
Supplementary Product Disclosure Statement has the meaning given by section 1014A.
title document , for a financial product, means a certificate or other document evidencing ownership of the financial product.
wholesale client has the meaning given by section 761G.
If:
(a) an arrangement, when considered by itself, does not constitute a derivative, or some other kind of financial product; and
(b) that arrangement, and one or more other arrangements, if they had instead been a single arrangement, would have constituted a derivative or other financial product; and
(c) it is reasonable to assume that the parties to the arrangements regard them as constituting a single scheme;
the arrangements are, for the purposes of this Part, to be treated as if they together constituted a single arrangement.
In working out whether someone carries on a financial services business, Division 3 of Part 1.2 needs to be taken into account. However, paragraph 21(3)(e) does not apply for the purposes of this Chapter.
The regulations may include provisions identifying, or providing for the identification of, what constitutes a
class orkind of financial products or financial services for the purposes of a provision or provisions of this Chapter.
(1) For the purposes of this Chapter, subject to subsections (2), (3) and (4), a
derivative is an arrangement in relation to which the following conditions are satisfied:
(a) under the arrangement, a party to the arrangement must, or may be required to,provide at some future time consideration of a particular kind or kinds to someone; and
(b) that future time is not less than the number of days, prescribed by regulations made for the purposes of this paragraph, after the day on which the arrangement is entered into; and
(c) the amount of the consideration, or the value of the arrangement, is ultimately determined, derived from or varies by reference to (wholly or in part) the value or amount of something else (of any nature whatsoever and whether or not deliverable), including, for example, one or more of the following:
(i) an asset;
(ii) a rate (including an interest rate or exchange rate);
(iii) an index;
(iv) a commodity.
(2) Without limiting subsection (1), anything declared by the regulations to be a derivative for the purposes of this section is a derivative for the purposes of this Chapter. A thing so declared is a derivative despite anything in subsections (3) and (4).
(3) Subject to subsection (2), the following are not derivatives for the purposes of this Chapter even if they are covered by the definition in subsection (1):
(a) an arrangement in relation to which subparagraphs (i), (ii) and (iii) are satisfied:
(i) a party has, or may have, an obligation to buy, and another party has, or may have, an obligation to sell, tangible property (other than Australian or foreign currency) at a price and on a date in the future; and
(ii) the arrangement does not permit the seller’s obligations to be wholly settled by cash, or by set‑off between the parties, rather than by delivery of the property; and
(iii) neither usual market practice, nor the rules of a licensed market or a licensed CS facility, permits the seller’s obligations to be closed out by the matching up of the arrangement with another arrangement of the same kind under which the seller has offsetting obligations to buy;
but only to the extent that the arrangement deals with that purchase and sale;
(b) a contract for the future provision of services;
(c) anything that is covered by a paragraph of subsection 764A(1), other than paragraph (c) of that subsection;
(d) anything declared by the regulations not to be a derivative for the purposes of this Chapter.
(4) Subject to subsection (2), an arrangement under which one party has an obligation to buy, and the other has an obligation to sell, property is not a derivative for the purposes of this Chapter merely because the arrangement provides for the consideration to be varied by reference to a general inflation index such as the Consumer Price Index.
General
(1) This section defines when a financial product is
issued to a person. It also defines who theissuer of a financial product is. If a financial product is issued to a person:
(a) the person
acquires the product from the issuer; and(b) the issuer
provides the product to the person.Note: Some financial products can also be acquired from, or provided by, someone other than the issuer (e.g. on secondary trading in financial products).
Issuing a financial product
(2) Subject to this section, a financial product is
issued to a person when it is first issued, granted or otherwise made available to a person.(3) Subject to this section, a financial product specified in the table is issued to a person when the event specified for that product occurs:
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(3A) For the avoidance of doubt, none of the following are taken to give rise to the issue of a financial product to a person (the
client ):
(a) the client making a further contribution to a superannuation fund of which the client is already a member;
(b) the client making a further deposit into an RSA maintained in the client’s name;
(c) the client making a further payment under a life insurance investment product;
(d) the client making a further deposit into a deposit product;
(e) the client engaging in conduct specified in regulations made for the purposes of this paragraph in relation to a financial product already held by the client.
Issuer of a financial product
(4) Subject to this section, the
issuer , in relation to a financial product issued to a person (theclient ), is the person responsible for the obligations owed, under the terms of the facility that is the product:
(a) to, or to a person nominated by, the client; or
(b) if the product has been transferred from the client to another person and is now held by that person or another person to whom it has subsequently been transferred—to, or to a person nominated by, that person or that other person.
Note: For example, the issuer of a direct debit facility is the financial institution with which the account to be debited is held, rather than the persons to whom payments can be made using the facility.
(5) Subject to subsection (7), each person who is a party to a financial product that:
(a) is a derivative; and
(b) is not entered into, or acquired, on a financial market;
is taken to be an issuer of the product.
Note 1: Under paragraph (1)(a), each person who is a party to the derivative will also acquire the financial product at the time of its issue as specified in subsection (3).
Note 2: Although each party to the derivative is an issuer, whether any particular party has disclosure or other obligations under this Chapter will depend on the circumstances (e.g. whether the issue occurs in the course of a business of issuing financial products and whether any of the other parties is a retail client).
(6) Subject to subsection (7), the issuer of a financial product that:
(a) is a derivative; and
(b) is entered into, or acquired, on a financial market;
is taken to be:
(c) if the product is entered into, or acquired, on the market through an arrangement made by a financial services licensee acting on behalf of another person—the financial services licensee; or
(d) if the product is entered into, or acquired, on the market through an arrangement made by an authorised representative of a financial services licensee acting on behalf of another person (not being the licensee)—the financial services licensee; or
(e) if neither paragraph (c) nor (d) applies—the market operator.
(7) The regulations may make provision determining all or any of the following for the purposes of this Chapter:
(a) the meaning of
issue (and/or related parts of speech, includingissuer ) in relation to a class of financial products;(b) the meaning of
acquire (and/or related parts of speech) in relation to a class of financial products;(c) the meaning of
provide (and/or related parts of speech) in relation to a class of financial products.Regulations made for the purposes of this subsection have effect despite anything else in this section.
(1) This Chapter applies to a partnership as if the partnership were a person, but it applies with the following changes:
(a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners;
(b) any contravention of a provision of this Chapter, or a provision of this Act that relates to a requirement in a provision of this Chapter, that would otherwise be a contravention by the partnership is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each partner who:
(i) aided, abetted, counselled or procured the relevant act or omission; or
(ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).
(2) For the purposes of this Chapter, a change in the composition of a partnership does not affect the continuity of the partnership.
(3) Subsections (1) and (2) have effect subject to:
(a) an express or implied contrary intention in a provision or provisions of this Chapter; and
(b) the regulations, which may exclude or modify the effect of those subsections in relation to specified provisions.
(1) This section applies in relation to a trust while the trust continues to have:
(a) 2 or more trustees; or
(b) a single trustee who was a trustee of the trust at a time when it had 2 or more trustees.
(2) Subject to subsections (3) and (4), during a period while this section applies to a trust, this Chapter applies to the trust as if the trustee or trustees of the trust from time to time during the period constituted a single legal entity (the
notional entity ) that remained the same for the duration of that period.Note: So, for example, while this section applies to a trust, a licence granted under this Chapter to the trustees of the trust will continue in force, despite a change in the persons who are the trustees.
(3) During any period or part of a period while this section applies to a trust and the trust has 2 or more trustees, this Chapter applies to the trustees as mentioned in subsection (2), but it applies with the following changes:
(a) obligations that would be imposed on the notional entity are imposed instead on each trustee, but may be discharged by any of the trustees;
(b) any contravention of a provision of this Chapter, or a provision of this Act that relates to a requirement in a provision of this Chapter, that would otherwise be a contravention by the notional entity is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each trustee who:
(i) aided, abetted, counselled or procured the relevant act or omission; or
(ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the trustee).
(4) During any period or part of a period while this section applies to a trust and the trust has only one trustee, this Chapter applies to the trustee as mentioned in subsection (2), but it applies with the following changes:
(a) obligations that would be imposed on the notional entity are imposed instead on that single trustee;
(b) any contravention of a provision of this Chapter, or a provision of this Act that relates to a requirement in a provision of this Chapter, that would otherwise be a contravention by the notional entity is taken (whether for the purposes of criminal or civil liability) to have been a contravention by that single trustee.
(5) Subsections (2), (3) and (4) have effect subject to:
(a) an express or implied contrary intention in a provision or provisions of this Chapter; and
(b) the regulations, which may exclude or modify the effect of those subsections in relation to specified provisions.
Providing a financial product or financial service to a person as a retail client
(1) For the purposes of this Chapter, a financial product or a financial service is provided to a person as a
retail client unless subsection (5), (6) or (7) provides otherwise.Note: The references in this section to providing a financial product to a person are not to be taken to imply that the provision of a financial product is not also the provision of a financial service (see the meaning of
dealing in section 766C).
Acquiring a financial product or financial service as a retail client
(2) For the purposes of this Chapter, a person to whom a financial product or financial service is provided as a retail client is taken to acquire the product or service as a retail client.
Disposing of a financial product as a retail client
(3) If a financial product is provided to a person as a retail client, any subsequent disposal of all or part of that product by the person is, for the purposes of this Chapter, a disposal by the person as a retail client.
Wholesale clients
(4) For the purposes of this Chapter, a financial product or a financial service is provided to, or acquired by, a person as a
wholesale client if it is not provided to, or acquired by, the person as a retail client.
General insurance products
(5) For the purposes of this Chapter, if a financial product is, or a financial service provided to a person relates to, a general insurance product, the product or service is provided to the person as a retail client if:
(a) either:
(i) the person is an individual; or
(ii) the insurance product is or would be for use in connection with a small business (see subsection (12)); and
(b) the general insurance product is:
(i) a motor vehicle insurance product (as defined in the regulations); or
(ii) a home building insurance product (as defined in the regulations); or
(iii) a home contents insurance product (as defined in the regulations); or
(iv) a sickness and accident insurance product (as defined in the regulations); or
(v) a consumer credit insurance product (as defined in the regulations); or
(vi) a travel insurance product (as defined in the regulations); or
(vii) a personal and domestic property insurance product (as defined in the regulations); or
(viii) a kind of general insurance productprescribed by regulations made for the purposes of this subparagraph.
In any other cases, the provision to a person of a financial product that is, or a financial service that relates to, a general insurance product does not constitute the provision of a financial product or financial service to the person as a retail client.
Superannuation products and RSA products
(6) For the purposes of this Chapter:
(a) if a financial product provided to a person is a superannuation product or an RSA product, the product is provided to the person as a retail client; and
(b) if a financial service (other than the provision of a financial product) provided to a person who is not covered by subparagraph (c)(i) or (ii) relates to a superannuation product or an RSA product, the service is provided to the person as a retail client; and
(c) if a financial service (other than the provision of a financial product) provided to a person who is:
(i) the trustee of a superannuation fund, an approved deposit fund, a pooled superannuation trust or a public sector superannuation scheme (within the meaning of the
Superannuation Industry (Supervision) Act 1993 ) that has net assets of at least $10 million; or(ii) an RSA provider (within the meaning of the
Retirement Savings Accounts Act 1997 );relates to a superannuation product or an RSA product, that does not constitute the provision of a financial service to the person as a retail client.
Other kinds of financial product
(7) For the purposes of this Chapter, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA product, the product or service is provided to the person as a retail client unless one or more of the following paragraphs apply:
(a) the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of this paragraph as being applicable in the circumstances (but see also subsection (10)); or
(b) the financial product, or the financial service, is provided for use in connection with a business that is not a small business (see subsection (12));
(c) the financial product, or the financial service, is not provided for use in connection with a business, and the person who acquires the product or service gives the provider of the product or service, before the provision of the product or service, a copy of a certificate given within the preceding 6 months by a qualified accountant (as defined in section 9) that states that the person:
(i) has net assets of at least the amount specified in regulations made for the purposes of this subparagraph; or
(ii) has a gross income for each of the last 2 financial years of at least the amount specified in regulations made for the purposes of this subparagraph a year;
(d) the person is a professional investor.
Offence proceedings—defendant bears evidential burden in relation to matters referred to in paragraphs (7)(a) to (d)
(8) In a prosecution for an offence based on a provision of this Chapter, a defendant bears an evidential burden in relation to the matters in paragraphs (7)(a) to (d) as if those matters were exceptions for the purposes of subsection 13.3(3) of the
Criminal Code .
Other proceedings relating to subsection (7) products—presumption in non‑criminal proceedings of retail client unless contrary established
(9) If:
(a) it is alleged in a proceeding under this Chapter (not being a prosecution for an offence), or in any other proceeding (not being a prosecution for an offence) in respect of a matter arising under this Chapter, that a particular financial product or financial service was provided to a person as a retail client; and
(b) the product or the service is one to which subsection (7) applies;
it is presumed that the product or service was provided to the person as a retail client unless the contrary is established.
Note 1: There is no such presumption in relation to the provision of a product or service that is or relates to a general insurance product, a superannuation product or an RSA product. Whether or not such a product, or a service relating to such a product, was provided to a person as a retail client is to be resolved as provided in subsection (5) or (6), as the case requires.
Note 2: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in paragraphs (7)(a) to (d) (see subsection (8)).
Regulations and paragraph (7)(a)
(10) In addition to specifying an amount or amounts for the purposes of paragraph (7)(a), the regulations may do either or both of the following:
(a) deal with how a price or value referred to in that paragraph is to be calculated, either generally or in relation to a specified class of financial products;
(b) modify the way in which that paragraph applies in particular circumstances.
Regulations and paragraph (7)(c)
(10A) In addition to specifying amounts for the purposes of subparagraphs (7)(c)(i) and (ii), the regulations may do either or both of the following:
(a) deal with how net assets referred to in subparagraph (7)(c)(i) are to be determined and valued, either generally or in specified circumstances;
(b) deal with how gross income referred to in subparagraph (7)(c)(ii) is to be calculated, either generally or in specified circumstances.
What happens if a package of general insurance products and other kinds of financial products is provided?
(11) If:
(a) either:
(i) in a single transaction, 2 or more financial products are provided to a person; or
(ii) a single financial service provided to a person relates to 2 or more financial products; and
(b) one or more, but not all, of the financial products are general insurance products;
subsection (5) applies to the transaction or service so far as it relates to the general insurance products, and subsection (6) or (7), as the case requires, applies to the transaction or service so far as it relates to other financial products.
Definition
(12) In this section:
small business means a business employing less than:
(a) if the business is or includes the manufacture of goods—100 people; or
(b) otherwise—20 people.
(1) A reference in a provision of this Chapter to this Chapter, or to a particular provision or group of provisions of this Chapter, includes (unless a contrary intention appears) a reference to regulations, or other instruments, made for the purposes of this Chapter, or for the purposes of that provision or any of those provisions, as the case requires.
(2) Subsection (1) has effect as if provisions in Part 10.2 (transitional provisions) that relate to matters dealt with in this Chapter were part of this Chapter.
General definition
(1) Subdivision B sets out a general definition of
financial product . Subject to subsections (2) and (3), a facility is a financial product if it falls within that definition.
Specific inclusions
(2) Subdivision C identifies, or provides for the identification of, kinds of facilities that, subject to subsection (3), are financial products (whether or not they are within the general definition).
Overriding exclusions
(3) Subdivision D identifies, or provides for the identification of, kinds of facilities that are not financial products. These facilities are not financial products:
(a) even if they are within the general definition; and
(b) even if they are within a class of facilities identified as mentioned in subsection (2).
If a financial product is a component of a facility that also has other components, this Chapter, in applying to the financial product, only applies in relation to the facility to the extent it consists of the component that is the financial product.
Note: So, e.g., Part 7.9 does not require disclosures to be made in relation to those other components.
In this Division:
facility includes:
(a) intangible property; or
(b) an arrangement or a term of an arrangement (including a term that is implied by law or that is required by law to be included); or
(c) a combination of intangible property and an arrangement or term of an arrangement.
Note: 2 or more arrangements may be taken to constitute a single arrangement—see section 761B.
(1) For the purposes of this Chapter, a
financial product is a facility through which, or through the acquisition of which, a person does one or more of the following:
(a) makes a financial investment (see section 763B);
(b) manages financial risk (see section 763C);
(c) makes non‑cash payments (see section 763D).
This has effect subject to section 763E.
(2) For the purposes of this Chapter, a particular facility that is of a kind through which people commonly make financial investments, manage financial risks or make non‑cash payments is a
financial product even if that facility is acquired by a particular person for some other purpose.(3) A facility does not cease to be a financial product merely because:
(a) the facility has been acquired by a person other than the person to whom it was originally issued; and
(b) that person, in acquiring the product, was not making a financial investment or managing a financial risk.
For the purposes of this Chapter, a person (the
investor )makes a financial investment if:
(a) the investor gives money or money’s worth (the
contribution ) to another person and any of the following apply:
(i) the other person uses the contribution to generate a financial return, or other benefit, for the investor;
(ii) the investor intends that the other person will use the contribution to generate a financial return, or other benefit, for the investor (even if no return or benefit is in fact generated);
(iii) the other person intends that the contribution will be used to generate a financial return, or other benefit, for the investor (even if no return or benefit is in fact generated); and
(b) the investor has no day‑to‑day control over the use of the contribution to generate the return or benefit.
Note 1: Examples of actions that constitute making a financial investment under this subsection are:
(a) a person paying money to a company for the issue to the person of sharesin the company (the company uses the money to generate dividends for the person and the person, as a shareholder, does not have control over the day‑to‑day affairs of the company); or
(b) a person contributing money to acquire interests in a registered scheme from the responsible entity of the scheme (the scheme uses the money to generate financial or other benefits for the person and the person, as a member of the scheme, does not have day‑to‑day control over the operation of the scheme).
Note 2: Examples of actions that do not constitute making a financial investment under this subsection are:
(a) a person purchasing real property or bullion (while the property or bullion may generate a return for the person, it is not a return generated by the use of the purchase money by another person); or
(b) a person giving money to a financial services licenseewho is to use it to purchase shares for the person (while the purchase of the shares will be a financial investment made by the person, the mere act of giving the money to the licensee will not of itself constitute making a financial investment).
For the purposes of this Chapter, a person
manages financial risk if they:
(a) manage the financial consequences to them of particular circumstances happening; or
(b) avoid or limit the financial consequences of fluctuations in, or in the value of, receipts or costs (including prices and interest rates).
Note 1: Examples of actions that constitute managing a financial risk are:
(a) taking out insurance; or
(b) hedging a liability by acquiring a futures contract or entering into a currency swap.
Note 2: An example of an action that does not constitute managing a financial risk is employing a security firm (while that is a way of managing the risk that thefts will happen, it is not a way of managing the financial consequences if thefts do occur).
(1) For the purposes of this Chapter, a person
makes non‑cash payments if they make payments, or cause payments to be made, otherwise than by the physical delivery of Australian or foreigncurrency in the form of notes and/or coins.Note: Examples of actions that constitute making non‑cash payments are:
(a) making payments by means of a facility for direct debit of a deposit account; or
(b) making payments by means of a facility for the use of cheques; or
(c) making payments by means ofa purchased payment facility within the meaning of the
Payment Systems (Regulation) Act 1998 , such as a smart card; or(d) making payments by means of traveller’s cheques (whether denominated in Australian or foreign currency).
(2) For the purposes of this Chapter, the following are not
making non‑cash payments , even if they might otherwise be covered by subsection (1):
(a) making payments by means of a facility in relation to which one of the following applies:
(i) there is only one person to whom payments can be made by means of the facility;
(ii) the facility is, or is of a kind,specified in the regulations as being a facility that is not to be covered by this section because of restrictions relating to the number of people to whom payments can be made by means of the facility, or relating to the number of persons who can use the facility to make payments;
(b) making payments by means of:
(i) a letter of credit from a financial institution; or
(ii) a cheque drawn by a financial institution on itself; or
(iii) a guarantee given by a financial institution.
(1) If:
(a) something (the
incidental product ) that, but for this section, would be a financial product because of this Subdivision is:
(i) an incidental component of a facility that also has other components; or
(ii) a facility that is incidental to one or more other facilities; and
(b) it is reasonable to assume that the main purpose of:
(i) if subparagraph (a)(i) applies—the facility referred to in that subparagraph, when considered as a whole; or
(ii) if subparagraph (a)(ii) applies—the incidental product, and the other facilities referred to in that subparagraph, when considered as a whole;
is not a financial product purpose;
the incidental product is not a financial product because of this Subdivision (however, it may still be a financial product because of Subdivision C).
(2) In this section:
financial product purpose means a purpose of:
(a) making a financial investment; or
(b) managing financial risk; or
(c) making non‑cash payments.
(1) Subject to Subdivision D, the following are
financial products for the purposes of this Chapter:
(a) a security;
(b) any of the following in relation to a registered scheme:
(i) an interest in the scheme;
(ii) a legal or equitable right or interest in an interest covered by subparagraph (i);
(iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii);
(ba) any of the following in relation to a managed investment scheme that is not a registered scheme, other than a scheme (whether or not operated in this jurisdiction) in relation to which none of paragraphs 601ED(1)(a), (b) and (c) are satisfied:
(i) an interest in the scheme;
(ii) a legal or equitable right or interest in an interest covered by subparagraph (i);
(iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii);
(c) a derivative;
(d) a contract of insurance that is not a life policy, or a sinking fund policy, within the meaning of the
Life Insurance Act 1995 , but not including such a contract of insurance:
(i) to the extent that it provides for a benefit to be provided by an association of employees that is an organisation within the meaning of the
Workplace Relations Act 1996 for a member of the organisation or a dependant of a member; or(ii) to the extent that it provides for benefits, pensions or payments described in paragraph 11(3)(c) of the
Life Insurance Act 1995 ; or(iii) to the extent that it provides for the provision of a funeral benefit; or
(iv) issued by an employer to an employee of the employer;
(e) a life policy, or a sinking fund policy, within the meaning of the
Life Insurance Act 1995 , that is a contract of insurance, but not including such a policy:
(i) to the extent that it provides for a benefit to be provided by an association of employees that is an organisation within the meaning of the
Workplace Relations Act 1996 for a member of the organisation or a dependant of a member; or(ii) to the extent that it provides for benefits, pensions or payments described in paragraph 11(3)(c) of the
Life Insurance Act 1995 ; or(iii) to the extent that it provides for the provision of a funeral benefit; or
(iv) issued by an employer to an employee of the employer;
(f) a life policy, or a sinking fund policy, within the meaning of the
Life Insurance Act 1995 , that is not a contract of insurance, but not including such a policy:
(i) to the extent that it provides for a benefit to be provided by an association of employees that is an organisation within the meaning of the
Workplace Relations Act 1996 for a member of the organisation or a dependant of a member; or(ii) to the extent that it provides for benefits, pensions or payments described in paragraph 11(3)(c) of the
Life Insurance Act 1995 ; or(iii) to the extent that it provides for the provision of a funeral benefit; or
(iv) issued by an employer to an employee of the employer;
(g) a superannuation interest within the meaning of the
Superannuation Industry (Supervision) Act 1993 ;(h) an RSA (retirement savings account) within the meaning of the
Retirement Savings Accounts Act 1997 ;(i) any deposit‑taking facility made available by an ADI (within the meaning of the
Banking Act 1959 )in the course of its banking business (within the meaning of that Act), other than an RSA (RSAs are covered by paragraph (h));(j) a debenture, stock or bond issued or proposed to be issued by a government;
(k) a foreign exchange contract that is not:
(i) a derivative (derivatives are covered by paragraph (c)); or
(ii) a contract to exchange one currency (whether Australian or not) for another that is to be settled immediately;
(m) anything declared by the regulations to be a financial product for the purposes of this section.
Note: Even though something is expressly excluded from one of these paragraphs, it may still be a financial product (subject to Subdivision D) either because:
(a) it is covered by another of these paragraphs; or
(b) it is covered by the general definition in Subdivision B.
(2) For the purpose of paragraphs (1)(d), (e) and (f),
contract of insurance includes:
(a) a contract that would ordinarily be regarded as a contract of insurance even if some of its provisions are not by way of insurance; and
(b) a contract that includes provisions of insurance in so far as those provisions are concerned, even if the contract would not ordinarily be regarded as a contract of insurance.
(1) Despite anything in Subdivision B or Subdivision C, the following are not
financial products for the purposes of this Chapter:
(a) an excluded security;
(b) an undertaking by a body corporate to pay money to a related body corporate;
(c) health insurance provided as part of a health insurance business (as defined in subsection 67(4) of the
National Health Act 1953 );(d) insurance provided by the Commonwealth;
(e) State insurance or Northern Territory insurance, including insurance entered into by:
(i) a State or the Northern Territory; and
(ii) some other insurer;
as joint insurers;
(f) insurance entered into by the Export Finance and Insurance Corporation, other than a short‑term insurance contract within the meaning of the
Export Finance and Insurance Corporation Act 1991 ;(g) reinsurance;
(h) any of the following:
(i) a credit facility within the meaning of the regulations;
(ii) a facility for making non‑cash payments (see section 763D), if payments made using the facility will all be debited to a credit facility covered by subparagraph (i);
(i) a facility:
(i) that is an approved RTGS system within the meaning of the
Payment Systems and Netting Act 1998 ; or(ii) for the transmission and reconciliation of non‑cash payments (see section 763D), and the establishment of final positions, for settlement through an approved RTGS system within the meaning of the
Payment Systems and Netting Act 1998 ;(j) a facility that is a designated payment system for the purposes of the
Payment Systems (Regulation) Act 1998 ;(k) a facility for the exchange and settlement of non‑cash payments (see section 763D) between providers of non‑cash payment facilities;
(l) a facility that is:
(i) a financial market; or
(ii) a clearing and settlement facility; or
(iii) a payment system operated as part of a clearing and settlement facility;
(m) a contract to exchange one currency (whether Australian or not) for another that is to be settled immediately;
(n) so much of an arrangement as is not a derivative because of paragraph 761D(3)(a);
(p) an arrangement that is not a derivative because of subsection 761D(4);
(q) an interest in a superannuation fund of a kind prescribed by regulations made for the purposes of this paragraph;
(r) any of the following:
(i) an interest in something that is not a managed investment scheme because of paragraph (c), (e), (f), (k), (l) or (m) of the definition of
managed investment scheme in section 9;(ii) a legal or equitable right or interest in an interest covered by subparagraph (i);
(iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii);
(s) any of the following in relation to a managed investment scheme (whether or not operated in this jurisdiction) in relation to which none of paragraphs 601ED(1)(a), (b) and (c) are satisfied and that is not a registered scheme:
(i) an interest in the scheme;
(ii) a legal or equitable right or interest in an interest covered by subparagraph (i);
(iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii);
(t) a deposit‑taking facility that is, or is used for, State banking;
(u) a benefit provided by an association of employees that is an organisation within the meaning of the
Workplace Relations Act 1996 for a member of the organisation or a dependant of a member;(v) either of the following:
(i) a contract of insurance; or
(ii) a life policy or a sinking fund policy, within the meaning of the
Life Insurance Act 1995 , that is not a contract of insurance;issued by an employer to an employee of the employer;
(w) a funeral benefit;
(x) physical equipment or physical infrastructure by which something else that is a financial product is provided;
(y) a facility, interest or other thing declared by regulations made for the purposes of this subsection not to be a financial product;
(z) a facility, interest or other thing declared by ASIC under subsection (2) not to be a financial product.
(2) ASIC may declare that a specified facility, interest or other thing is not a financial product for the purposes of this Chapter. The declaration must be in writing and ASIC must publish notice of it in the
Gazette .
(1) For the purposes of this Chapter, subject to paragraph (2)(b), a person provides a
financial service if they:
(a) provide financial product advice (see section 766B); or
(b) deal in a financial product (see section 766C); or
(c) make a market for a financial product (see section 766D); or
(d) operate a registered scheme; or
(e) provide a custodial or depository service (see section 766E); or
(f) engage in conduct of a kind prescribed by regulations made for the purposes of this paragraph.
(2) The regulations may set out:
(a) the circumstances in which persons facilitating the provision of a financial service (for example, by publishing information) are taken also to provide that service; or
(b) the circumstances in which persons are taken to provide, or are taken not to provide, a financial service.
(3) To avoid doubt, a person’s conduct is not the provision of a
financial service if it is done in the course of work of a kind ordinarily done by clerks or cashiers.(4) For the purposes of this section, a person is not
operating a registered scheme merely because:
(a) they are acting as an agent or employee of another person; or
(b) they are taking steps to wind up the scheme.
(1) For the purposes of this Chapter,
financial product advice means a recommendation or a statement of opinion, or a report of either of those things, that:
(a) is intended to influence a person or persons in making a decision in relation to a particular financial product or class of financial products, or an interest in a particular financial product or class of financial products; or
(b) could reasonably be regarded as being intended to have such an influence.
However, the provision or giving of an exempt document or statement is not to be taken to be a provision of financial product advice.
(2) There are 2 types of financial product advice: personal advice and general advice.
(3) For the purposes of this Chapter,
personal advice is financial product advice that is given or directed to a person (including by electronic means) in circumstances where:
(a) the provider of the advice has considered one or more of the person’s objectives, financial situation and needs; or
(b) a reasonable person might expect the provider to have considered one or more of those matters.
(4) For the purposes of this Chapter,
general advice is financial product advice that is not personal advice.
(5) The following advice is not financial product advice:
(a) advice given by a lawyer in his or her professional capacity, about matters of law, legal interpretation or the application of the law to any facts;
(b) except as may be prescribed by the regulations—any other advice given by a lawyer in the ordinary course of activities as a lawyer, that is reasonably regarded as a necessary part of those activities;
(c) except as may be prescribed by the regulations—advice given by a tax agent registered under Part VIIA of the
Income Tax Assessment Act 1936 , that is given in the ordinary course of activities as such an agent and that is reasonably regarded as a necessary part of those activities.(6) If:
(a) in response to a request made by a person (the
inquirer ) to another person (theprovider ), the provider tells the inquirer the cost, or an estimate of the likely cost, of a financial product (for example, an insurance product); and(b) that cost or estimate is worked out, or said by the provider to be worked out, by reference to a valuation of an item (for example, a house or car to which an insurance policy would relate), being a valuation that the provider suggests or recommends to the inquirer;
the acts of telling the inquirer the cost, or estimated cost, and suggesting or recommending the valuation, do not, of themselves, constitute the making of a recommendation (or the provision of any other kind of financial product advice) relating to the financial product.
(7) If:
(a) in response to a request made by a person (the
inquirer ) to another person (theprovider ), the provider tells the inquirer information about:
(i) the cost of a financial product; or
(ii) the rate of return on a financial product; or
(iii) any other matter identified in regulations made for the purposes of this subparagraph; and
(b) the request could also have been complied with (but was not also so complied with) by telling the inquirer equivalent information about one or more other financial products;
the act of telling the inquirer the information does not, of itself, constitute the making of a recommendation (or the provision of any other kind of financial product advice) in relation to the financial product referred to in paragraph (a).
(8) Subsections (5), (6) and (7) are not intended to affect, in any way, the determination of whether situations not covered by those subsections do, or do not, constitute the provision of financial product advice.
(9) In this section:
exempt document or statement means:
(a) a document prepared, or a statement given, in accordance with requirements of this Chapter, other than:
(i) a Statement of Advice; or
(ii) a document or statement of a kind prescribed by regulations made for the purposes of this subparagraph; or
(b) any other document or statement of a kind prescribed by regulations made for the purposes of this paragraph.
(1) For the purposes of this Chapter, the following conduct (whether engaged in as principal or agent) constitutes
dealing in a financial product:
(a) applying for or acquiring a financial product;
(b) issuing a financial product;
(c) in relation to securities or managed investment interests—underwriting the securities or interests;
(d) varying a financial product;
(e) disposing of a financial product.
(2) Arranging for a person to engage in conduct referred to in subsection (1) is also
dealing in a financial product, unless the actions concerned amount to providing financial product advice.(3) A person is taken not to
deal in a financial product if the person deals in the product on their own behalf (whether directly or through an agent or other representative), unless:
(a) the person is an issuer of financial products; and
(b) the dealing is in relation to one or more of those products.
(3A) For the purposes of subsection (3), a person (the
agent ) who deals in a product as an agent or representative of another person (theprincipal ) is not taken to deal in the product on the agent’s own behalf, even if that dealing, when considered as a dealing by the principal, is a dealing by the principal on the principal’s own behalf.(4) Also, a transaction entered into by a person who is, or who encompasses or constitutes in whole or in part, any of the following entities:
(a) a government or local government authority;
(b) a public authority or instrumentality or agency of the Crown;
(c) a body corporate or an unincorporated body;
is taken not to be
dealing in a financial product by that person if the transaction relates only to:
(d) securities of that entity; or
(e) if the entity is a government—debentures, stocks or bonds issued or proposed to be issued by that government.
(5) Paragraph (4)(c) does not apply if the entity:
(a) carries on a business of investment in securities, interests in land or other investments; and
(b) in the course of carrying on that business, invests funds subscribed, whether directly or indirectly, after an offer or invitation to the public (within the meaning of section 82) made on terms that the funds subscribed would be invested.
(6) A transaction entered into by a sub‑underwriter of an issue of securities that relates only to the sub‑underwriting is taken not to be
dealing in a financial product.(7) The regulations may prescribe conduct that is taken not to be
dealing in a financial product.
(1) For the purposes of this Chapter, a person
makes a market for a financial product if:
(a) either through a facility, at a place or otherwise, the person regularly states the prices at which they propose to acquire or dispose of financial products on their own behalf; and
(b) other persons have a reasonable expectation that they will be able to regularly effect transactions at the stated prices; and
(c) the actions of the person do not, or would not if they happened through a facility or at a place, constitute operating a financial market because of the effect of paragraph 767A(2)(a).
(2) Paragraph (1)(a) does not apply to a person stating prices at which they propose to acquire or dispose of financial products if:
(a) the person is the issuer of the products; and
(b) the products are superannuation products, managed investment products or financial products referred to in paragraph 764A(1)(ba) (which relates to unregistered managed investment schemes).
(1) For the purposes of this Chapter, a person (the
provider ) provides acustodial or depository service to another person (theclient ) if, under an arrangement between the provider and the client, or between the provider and another person with whom the client has an arrangement, (whether or not there are also other parties to any such arrangement), a financial product, or a beneficial interest in a financial product, is held by the provider in trust for, or on behalf of, the client or another person nominated by the client.(2) The following provisions apply in relation to a custodial or depository service:
(a) subject to paragraph (b), for the purposes of this Chapter, the time at which a custodial or depository service is provided is the time when the financial product or beneficial interest concerned is first held by the provider as mentioned in subsection (1);
(b) for the purposes of Part 7.6, and of any other provisions of this Act prescribed by regulations made for the purposes of this paragraph, the continued holding of the financial product or beneficial interest concerned by the provider as mentioned in subsection (1) also constitutes the provision of a custodial or depository service.
Note: Because of paragraph (a) (subject to regulations made for the purposes of paragraph (b)), the requirements of Part 7.7 relating to financial services disclosure need only be complied with before the product or interest is first held by the provider. However, because of paragraph (b), the provider will be subject to the licensing and related requirements of Part 7.6 for so long as they continue to hold the product or interest.
(3) However, the following conduct does not constitute providing a
custodial or depository service :
(a) the operation of a clearing and settlement facility;
(b) the operation of a registered scheme, or the holding ofthe assets of a registered scheme;
(c) the operation of a regulated superannuation fund, an approved deposit fund or a pooled superannuation trust (within the meaning of the
Superannuation Industry (Supervision) Act 1993 );(d) the provision of services to a related body corporate;
(e) any other conduct of a kind prescribed by regulations made for the purposes of this paragraph.
(1) For the purposes of this Chapter, a
financial market is a facility through which:
(a) offers to acquire or dispose of financial products are regularly made or accepted; or
(b) offers or invitations are regularly made to acquire or dispose of financial products that are intended to result or may reasonably be expected to result, directly or indirectly, in:
(i) the making of offers to acquire or dispose of financial products; or
(ii) the acceptance of such offers.
(2) However, the following conduct does not constitute operating a
financial market for the purposes of this Chapter:
(a) a person making or accepting offers or invitations to acquire or dispose of financial products on the person’s own behalf, or on behalf of one party to the transaction only, unless the regulations specify circumstances in which such conduct does constitute operating a financial market and the person’s conduct occurs in circumstances so specified;
(b) conducting treasury operations between related bodies corporate;
(c) a person, being the holder of a licence under an Australian law relating to the licensing of auctioneers, conducting an auction of forfeited shares;
(d) any other conduct of a kind prescribed by regulations made for the purposes of this paragraph.
(1) For the purposes of this Chapter, a
clearing and settlement facility is a facility that provides a regular mechanism for the parties to transactions relating to financial products to meet obligations to each other that:
(a) arise from entering into the transactions; and
(b) are of a kind prescribed by regulations made for the purposes of this paragraph.
Example 1: A facility that provides a regular mechanism for stockbrokers to pay for the shares they buy and to be paid for the shares they sell, and for records of those transactions to be processed to facilitate registration of the new ownership of the shares, would be a
clearing and settlement facility (assuming that the relevant obligations are of a kind prescribed by regulations made for the purposes of this section).Example 2: A facility that provides a regular mechanism for registering trade in derivatives on a futures market and that enables the calculation of payments that market participants owe by way of margins would also be a
clearing and settlement facility (assuming that the relevant obligations are of a kind prescribed by regulations made for the purposes of this section).(2) However, the following conduct does not constitute operating a
clearing and settlement facility for the purposes of this Chapter:
(a) an ADI (within the meaning of the
Banking Act 1959 ) acting in the ordinary course of its banking business;(b) a person acting on their own behalf, or on behalf of one party to a transaction only;
(c) a person who provides financial services to another person dealing with the other person’s accounts in the ordinary course of the first person’s business activities;
(d) the actions of a participant in a clearing and settlement facility who has taken on the delivery or payment obligations, in relation to a particular financial product, of another person who is a party to a transaction relating to a financial product;
(e) conducting treasury operations between related bodies corporate;
(h) operating a facility for the exchange and settlement of non‑cash payments (see section 763D) between providers of non‑cash payment facilities;
(i) any other conduct of a kind prescribed by regulations made for the purposes of this paragraph.
The
Criminal Code (except Part 2.5) applies to all offences based on the provisions of this Chapter.Note 1: Chapter 2 of the
Criminal Code sets out the general principles of criminal responsibility.Note 2: For the meaning of
offence based on a provision, see the definition in section 9.
(1) Subject to subsections (7) and (8), conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body, within the scope of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
is taken, for the purposes of a provision of this Chapter, or a proceeding under this Chapter, to have been engaged in also by the body corporate.
(2) Conduct engaged in by a person (for example, the giving of money or property) in relation to:
(a) a director, employee or agent of a body corporate, acting within the scope of their actual or apparent authority; or
(b) any other person acting at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of a body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
is taken, for the purposes of a provision of this Chapter, or a proceeding under this Chapter, to have been engaged in also in relation to the body corporate.
(3) If, in a proceeding under this Chapter in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body, it is sufficient to show that a director, employee or agent of the body, being a director, employee or agent by whom the conduct was engaged in within the scope of the person’s actual or apparent authority, had that state of mind. For this purpose, a person acting as mentioned in paragraph (1)(b) is taken to be an agent of the body corporate concerned.
(4) Subject to subsections (7) and (8), conduct engaged in on behalf of a person other than a body corporate:
(a) by an employee or agent of the person, acting within the scope of the actual or apparent authority of the employee or agent; or
(b) by any other person acting at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
is taken, for the purposes of a provision of this Chapter, or of a proceeding under this Chapter, to have been engaged in also by the first‑mentioned person.
(5) Conduct engaged in by a person (for example, the giving of money or property) in relation to:
(a) an employee or agent of a person (the
principal ) other than a body corporate, acting within the scope of their actual or apparent authority; or(b) any other person acting at the direction or with the consent or agreement (whether express or implied) of an employee or agent of a person (the
principal ) other than a body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;is taken, for the purposes of a provision of this Chapter, or of a proceeding under this Chapter, to have been engaged in also in relation to the principal.
(6) If, in a proceeding under this Chapter in respect of conduct engaged in by a person other than a body corporate, it is necessary to establish the state of mind of the person, it is sufficient to show that an employee or agent of the person, being an employee or agent by whom the conduct was engaged in within the scope of the employee’s or agent’s actual or apparent authority, had that state of mind. For this purpose, a person acting as mentioned in paragraph (4)(b) is taken to be an agent of the person first referred to in subsection (4).
(7) Nothing in this section, or in any other law (including the common law), has the effect that, for the purposes of a provision of Part 7.7, or a proceeding under this Chapter that relates to a provision of Part 7.7, a financial service provided by person in their capacity as an authorised representative of a financial services licensee is taken, or taken also, to have been provided by that financial services licensee.
(8) Nothing in this section, or in any other law (including the common law), has the effect that, for the purposes of a provision of Division 2 of Part 7.9, or a proceeding under this Chapter that relates to a provision of Division 2 of Part 7.9, conduct engaged in by a person in their capacity as a regulated person (within the meaning of section 1011B) is taken, or taken also, to have been engaged in by another such regulated person.
(8A) Nothing in this section, other than subsections (7) and (8), excludes or limits the operation of subsection 601FB(2) in relation to the provisions of this Chapter or to proceedings under this Chapter.
(9) The regulations may provide that this section, or a particular provision of this section, has effect for specified purposes subject to modifications specified in the regulations. The regulations have effect accordingly.
(10) In this section:
(a) a reference to a proceeding
under this Chapter includes a reference to:
(i) a prosecution for an offence based on a provision of this Chapter; and
(ii) a proceeding under a provision of Part 9.4B that relates to a provision of this Chapter; and
(iii) any other proceeding under any other provision of Chapter 9 that relates to a provision of this Chapter; and
(b) a reference to
conduct is a reference to an act, an omission to perform an act, or a state of affairs; and(c) a reference to the
state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose.Note: For the meaning of
offence based on a provision, see the definition in section 9.
(1) For the purposes of this Chapter, or of a proceeding under this Chapter, if:
Note: For example, a document given to ASIC for the purposes of subsection 792C(1) will be covered by this subsection.
Add:
Note: See also subsection (2A) for when certain documents are taken to have been lodged with ASIC.
Insert:
(ja) subsection 674(2) or 675(2) (continuous disclosure);
Insert:
229A | Subsection 674(2) | 200 penalty units or imprisonment for 5 years, or both. |
229B | Subsection 674(5) | 100 penalty units or imprisonment for 2 years, or both. |
229C | Subsection 675(2) | 200 penalty units or imprisonment for 5 years, or both. |
Omit “Corporations and Securities Panel”, substitute “Takeovers Panel”.
Omit “Corporations and Securities Panel”, substitute “Takeovers Panel”.
Repeal the heading, substitute:
Add:
It was renamed by the
Financial Services Reform Act 2001 .
Repeal the subsection.
Repeal the definition.
Repeal the definition.
Repeal the definition, substitute:
associate has the meaning given by sections 10 to 17.
9
Section 9 (paragraph (b) of the definition of continuously quoted securities ) Repeal the paragraph, substitute:
(b) are securities of an entity in relation to which the following subparagraphs are satisfied:
(i) no exemption under section 111AS or 111AT, or modification under section 111AV, covered the entity, or any person as director or auditor of the entity, at any time in that 12 months; and
(ii) no exemption under paragraph 741(1)(a), or declaration under paragraph 741(1)(b), relating to a provision that is a disclosing entity provision for the purposes of Division 4 of Part 1.2A covered the entity, or any person as director or auditor of the entity,at any time in that 12 months; and
(iii) no order under section 340 or 341 covered the entity, or any person as director or auditor of the entity, at any time in that 12 months;
Repeal the definition.
10A
Section 9 (definition of old Corporations Law ) Omit “Part 11.1”, substitute “Part 10.1”.
Omit “Corporations and Securities Panel”, substitute “Takeovers Panel”.
Repeal the definition, substitute:
qualified accountant has the meaning given by section 88B.
Repeal the definition.
14
Section 9 (paragraph (b) of the definition of substantial holding ) Omit “takeover period”, substitute “bid period”.
Omit “company”, substitute “body or managed investment scheme”.
Repeal the section, substitute:
(1) Subject to subsection 16(1), but despite anything else in this Part, this section applies for the purposes of interpreting a reference to an associate (the
associate reference ), in relation to a designated body, if:
(a) the reference occurs in a provision of Chapter 6, 6A, 6B or 6C; or
(b) the reference occurs in a provision outside those Chapters that relates to any of the following matters:
(i) the extent, or restriction, of a power to exercise, or to control the exercise of, the votes attached to voting shares in the designated body;
(ii) the primary person’s voting power in the designated body;
(iii) relevant interests in securities in the designated body;
(iv) a substantial holding in the designated body;
(v) a takeover bid for securities in the designated body;
(vi) the compulsory acquisition, or compulsory buy‑out, of securities in the designated body.
(2) For the purposes of the application of the associate reference in relation to the designated body, a person (the
second person ) is an associate of the primary person if, and only if, one or more of the following paragraphs applies:
(a) the primary person is a body corporate and the second person is:
(i) a body corporate the primary person controls; or
(ii) a body corporate that controls the primary person; or
(iii) a body corporate that is controlled by an entity that controls the primary person;
(b) the second person is a person with whom the primary person has, or proposes to enter into, a relevant agreement for the purpose of controlling or influencing the composition of the designated body’s board or the conduct of the designated body’s affairs;
(c) the second person is a person with whom the primary person is acting, or proposing to act, in concert in relation to the designated body’s affairs.
(3) For the purposes of the application of this section in relation to a designated body that is a managed investment scheme:
(a) a reference to controlling or influencing the composition of the designated body’s board is taken to be a reference to controlling or influencing:
(i) if the scheme is a registered scheme—whether a particular company becomes or remains the scheme’s responsible entity; or
(ii) if the scheme is not a registered scheme—whether a particular person is appointed, or remains appointed, to the office (by whatever name it is known) in relation to the scheme that corresponds most closely to the office of responsible entity of a registered scheme; and
(b) a reference to voting shares in the designated body is taken to be a reference to voting interests in the managed investment scheme.
(4) In relation to a matter relating to securities in a designated body, a person may be an associate of the body and the body may be an associate of the person.
(5) In this section:
designated body means:
(a) a body; or
(b) a managed investment scheme.
Omit “and relates to a matter that is not of a kind referred to in paragraph 12(1)(a), (b) or (c)”.
Insert:
(1) For the purposes of this Act, a
qualified accountant is a person covered by a declaration in force under subsection (2).(2) ASIC may, in writing, declare that all members of a specified professional body, or all persons in a specified class of members of a specified professional body, are qualified accountants for the purposes of this Act.
(3) ASIC may, in writing, vary or revoke a declaration made under subsection (2).
Omit “or”, substitute “and”.
Omit “, 601CZB or 1070”, substitute “or 601CZB”.
Omit “body corporate” (wherever occurring), substitute “designated body”.
Note: The heading to section 610 is altered by omitting “
body corporate ” and substituting “body or managed investment scheme ”.Note: The heading to subsection 610(1) is altered by omitting “
body corporate ” and substituting “body or managed investment scheme ”.
Omit “Corporations and Securities Panel”, substitute “Takeovers Panel”.
Add:
When a designated body is a managed investment scheme
(5) For the purposes of the application of this section in relation to a designated body that is a managed investment scheme:
(a) a reference to voting shares in the designated body is taken to be a reference to voting interests in the scheme; and
(b) a reference to the election of directors of the designated body is taken to be a reference to:
(i) if the scheme is a registered scheme—the appointment of a responsible entity for the scheme; or
(ii) if the scheme is not a registered scheme—the appointment of a person to the office (by whatever name it is known) in relation to the scheme that corresponds most closely to the office of responsible entity of a registered scheme; and
(c) a reference to the designated body’s constitution is taken to be a reference to the scheme’s constitution.
Meaning of designated body
(6) In this section:
designated body means:
(a) a body; or
(b) a managed investment scheme.
Omit all the words after “merely because” (including the note), substitute “of paragraph 12(2)(a)”.
Omit “The person is entitled to receive the improved consideration immediately, or immediately after the exercise of the election.”.
Insert:
(2A) The person is entitled to receive the improved consideration immediately, subject to the following paragraphs:
(a) if the time for payment of the consideration in accordance with subsection 620(2) has not yet occurred, the person is not entitled to receive the improved consideration until that time;
(b) if the person has to make an election before being entitled to the improved consideration, the person is not entitled to receive the improved consideration until the later of:
(i) the time when the election is made; and
(ii) the time applicable under paragraph (a).
Repeal the heading, substitute:
After “and”, insert “, subject to subsection (2),”.
Add:
(2) The 90% holder may pay different amounts for the securities in the class acquired if the differences are attributable to either or both of the following:
(a) the fact that there are differences in the accrued dividend or distribution entitlements of the securities;
(b) the fact that there are differences in the amounts paid up, or that remain unpaid, on the securities.
Omit “takeover period”, substitute “bid period or objection period”.
Omit “company” (wherever occurring), substitute “body”.
Note: The heading to section 720 “
Consents for issue offers ” is omitted.
28 Section 9 (at the end of the definition of books ) Add:
; but does not include an index or recording made under Subdivision D of Division 5 of Part 6.5.
29 At the end of Division 5 of Part 6.5 of Chapter 6 Add:
(1) The bidder or target (the
recorder ) must make a clear sound recording of all telephone calls the recorder makes during the bid period:
(a) to a person (the
holder ) who holds:
(i) securities in the bid class; or
(ii) if the bid extends to securities that come to be in the bid class due to the conversion of or exercise of rights attached to other securities—those other securities;
(b) to discuss the takeover bid (whether or not for some other purpose as well).
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(1A) If the recorder invites the holder to call the recorder to discuss the takeover bid (whether or not for some other purpose as well), then the recorder must make a clear sound recording of all telephone calls that:
(a) the holder makes to the recorder during the bid period; and
(b) are made by the holder to discuss the takeover bid (whether or not for some other purpose as well).
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) A person who is involved in a contravention of subsection (1) contravenes this subsection.
Note 1: Section 79 defines
involved .Note 2: A contravention of this subsection is an offence (see subsection 1311(1)).
(3) Subsection (1) or (1A) does not apply if the holder is a wholesale holder.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the
Criminal Code .(4) A holder of securities is a
wholesale holder if:
(a) the value of the securities equals or exceeds the amount specified in the regulations made for the purposes of this paragraph; or
(b) a qualified accountant has given the holder a certificate referred to in paragraph 761G(7)(c) within the preceding 6 months; or
(c) the holder is a professional investor; or
(d) the holder is a person, or a member of a class of persons, prescribed in the regulations made for the purposes of this paragraph.
The recorder must notify the holder that the call is being recorded for the purposes of this Act.
Note: The recorder will commit an offence under the
Telecommunications (Interception) Act 1979 if the recorder fails to notify the holder.
The recorder must mark the medium in which the recording is stored so as to identify:
(a) the parties to the conversation; and
(b) the date and time it was made.
Note: Failure to comply with this section is an offence (see subsection 1311(1)).
(1) The recorder must create an index (in electronic form or otherwise) of all recordings made by the recorder in relation to the takeover bid.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The index must state in relation to each recording:
(a) the parties to the conversation; and
(b) the time and date the recording was made; and
(c) the exact place where the recording is being stored; and
(d) any other matter required by the regulations to be stated in the index.
(3) The following (the
recording custodian ) must maintain the index:
(a) if paragraph (b) or (c) does not apply—the recorder;
(b) if the recorder has been wound up—each person who was a director of the recorder immediately before it was wound up;
(c) any other person who is required by the regulations to do so.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Index
(1) If the recording custodian has a registered office, the custodian must keep the index at that office.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The recording custodian must securely keep the index in a manner that protects it from:
(a) misuse and loss; and
(b) unauthorised access, modification and disclosure.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(3) The recording custodian must keep the index in the way prescribed by regulations made for the purposes of this subsection.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Recording
(4) The recording custodian must store the recording at the place specified in the index.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(5) To avoid doubt, the recording custodian may change the place where the recording is stored.
Note: If the recording custodian changes the place where the recording is stored, the custodian must update the index under section 648M to state the new storage place of the recording.
(6) The recording custodian must securely store the recording in a manner that protects it from:
(a) misuse, loss and modification; and
(b) unauthorised access and disclosure.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(7) The recording custodian must store the recording in the way prescribed by regulations made for the purposes of this subsection.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(1) The recording custodian must keep the index and recording for 12 months after the end of the bid period or such longer period as is determined by ASIC in writing.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) ASIC must notify the recording custodian in writing of a determination it makes under subsection (1).
(3) The recording custodian must destroy the index and recording on the day after the last day they are required to be kept under subsection (1).
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Index
(1) The recording custodian must not use, or disclose the contents of, the entries in the index if it is not necessary to do so for the purpose of ensuring compliance with the Corporations legislation.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The recording custodian must not allow another person to look at the entries in the index if subsection (3) does not require the custodian to do so.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(3) The recording custodian must, for the purpose of ensuring compliance with the Corporations legislation, allow:
(a) if the recording custodian is not the recorder—the recorder, or a person authorised in writing by the recorder, to look at the entries in the index; and
(b) the holder who was party to the telephone call, or a person authorised in writing by the holder, to look at the entry in the index that relates to the recording of the call; and
(c) if Division 3 of Part 3 of the
Australian Securities and Investments Commission Act 2001 requires the custodian to allow ASIC to see the entries in the index—ASIC; and(d) if the court has made an order (including an order to produce the index in court) requiring the custodian to allow a person or persons to see the entries in the index, or a specific entry in the index—that person or those persons to look at the entries or the specific entry.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4) A person who has looked at an entry in the index must not use, or disclose the contents of, the entry if it is not necessary to do so for the purpose of ensuring compliance with the Corporations legislation.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(5) The recording custodian must not give possession of the index to another person if:
(a) the court does not order the custodian to do so; and
(b) Division 3 of Part 3 of the
Australian Securities and Investments Commission Act 2001 does not require the custodian to do so.Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Recording
(6) The recording custodian must not use, or disclose the contents of, the recording if it is not necessary to do so for the purpose of ensuring compliance with the Corporations legislation.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(7) The recording custodian must not allow another person to listen to the recording if subsection (8) does not require the custodian to do so.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(8) The recording custodian must, for the purpose of ensuring compliance with the Corporations legislation, allow the following persons to listen to the recording:
(a) if the recording custodian is not the recorder—the recorder, or a person authorised in writing by the recorder;
(b) the holder who was party to the telephone call, or a person authorised in writing by the holder;
(c) if Division 3 of Part 3 of the
Australian Securities and Investments Commission Act 2001 requires the custodian to allow ASIC to listen to the recording—ASIC;(d) if the court has made an order (including an order to produce the recording in court) requiring the custodian to allow a person or persons to listen to the recording—that person or those persons.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(9) A person who has listened to the recording must not use, or disclose the contents of, the recording if it is not necessary to do so for the purpose of ensuring compliance with the Corporations legislation.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(10) The recording custodian must not give possession of the recording to another person if:
(a) the court does not order the custodian to do so; and
(b) Division 3 of Part 3 of the
Australian Securities and Investments Commission Act 2001 does notrequire the custodian to do so.Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Regulations
(11) The regulations may prescribe the way in which the recording custodian is to allow a person to access the index or recording under this section, and may allow the custodian to require a person to pay a reasonable fee for such access.
Court powers
(12) The court may make an order requiring the recording custodian:
(a) to allow a person to look at the entries, or a specific entry, in the index; or
(b) to allow a person to listen to the recording; or
(c) to require the custodian to produce the index or recording in court; or
(d) to require the custodian to give possession of the index or recording to another person.
(1) A person must not make a copy of an entry in the index or the recording if the person is not authorised to do so under Division 3 of Part 3 of the
Australian Securities and Investments Commission Act 2001 .Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The recording custodian must not allow a person to make a copy of an entry in the index or the recording if the person is not authorised to do so under Division 3 of Part 3 of the
Australian Securities and Investments Commission Act 2001 .Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Index
(1) A person must not alter or interfere with the index other than for the purpose of maintaining it under section 648M.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The recording custodian must not allow a person to alter or interfere with the index other than for the purpose of maintaining it under section 648M.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Recording
(3) A person must not alter or interfere with the recording.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4) The recording custodian must not allow a person to alter or interfere with the recording.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
The index and recording is a
book for the purposes of Division 3 of Part 3, and section 67, of theAustralian Securities and Investments Commission Act 2001 .
The
Criminal Code applies to all offences based on the provisions of this Subdivision.Note 1: Chapter 2 of the
Criminal Code sets out the general principles of criminal responsibility.Note 2: For the meaning of
offence based on a provision, see the definition in section 9.
Insert:
201A | Subsections 648J(1), (1A) and (2) | 50 penalty units or imprisonment for 6 months, or both. |
201B | Section 648L | 50 penalty units. |
201C | Subsections 648M(1) and (3) | 50 penalty units. |
201D | Subsection 648N(1) | 50 penalty units. |
201E | Subsection 648N(2) | 50 penalty units or imprisonment for 6 months, or both. |
201F | Subsections 648N(3) and (4) | 50 penalty units. |
201G | Subsection 648N(6) | 50 penalty units or imprisonment for 6 months, or both. |
201H | Subsection 648N(7) | 50 penalty units. |
201J | Subsections 648P(1) and (3) | 50 penalty units. |
201K | Subsections 648Q(1), (2), (3), (4), (5), (6), (7), (8), (9) and (10) | 50 penalty units. |
201L | Subsections 648R(1) and (2) | 50 penalty units or imprisonment for 6 months, or both. |
201M | Subsections 648S(1), (2), (3) and (4) | 100 penalty units or imprisonment for 2 years, or both. |
Act No. 122, 2001; assented to 27 September 2001.
Commencement: Sections 1, 2 and Schedule 3 (items 1–27): Royal Assent
Remainder: 11 March 2002 (
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