.Australian Securities and Investments Commission
Corporations Act 2001 — Subsections 601QA(1), 741(1) and 1020F(1) — Variation
Under subsections 601QA(1), 741(1) and 1020F(1) of the Corporations Act 2001 the Australian Securities and Investments Commission varies Class Order [CO 02/296] as follows:
1. in paragraph 1:
(a) omit the definition of “accessible investments”, reinsert that definition after the definition of “accessible financial products”;
(b) omit the definition of “accessible securities”, substitute:
““accessible securities” means securities that may be held through an IDPS-like scheme.
“annual investor statement” means the report referred to in paragraph 2(m)(i) of this instrument.”;
(c) in the definition of “distribution reinvestment plan” omit:
(i) “a prospectus or”;
(ii) “the current disclosure document for an accessible security or”; and
(iii) “accessible security or”;
(d) omit the definitions of “new disclosure financial products” and “new product disclosure provisions”;
(e) in the definition of “regular savings plan”:
(i) omit paragraphs (a) to (c), substitute:
“(a) the member instructs the responsible entity to acquire specified accessible financial products by way of periodic payments of a specified amount and at specified intervals (each such acquisition is referred to below as a “regular savings acquisition”);
(b) the member acknowledges that under the regular savings plan a regular savings acquisition of an accessible financial product may occur without the member having been given a current Product Disclosure Statement or Supplementary Product Disclosure Statement (each a “missing document”) in relation to the accessible financial product;
(c) the responsible entity agrees to give to the member any missing document relating to an accessible financial product (unless this would not be required under this instrument if the acquisition were not under a regular savings plan) that may be acquired under the regular savings plan as soon as reasonably practicable and in any event by the fifth business day after the issue of the document; and”; and
(ii) omit paragraph (f) and the all the following text, substitute:
“(f) the member has been given advice quarterly in writing,
to the effect that the member may not have the current Product Disclosure Statement for an accessible financial product at the time a regular savings acquisition of the accessible financial product is made.”; and
(e) after the definition of “rights issue”, insert:
“Note: In this instrument a reference to doing an act, such as for example giving a document, includes a reference to causing or authoring it to be done: section 52 of the Act; paragraph 46(1)(a) of the Acts Interpretation Act 1901.”;
2. in paragraph 2 (introductory words), omit “each other person who causes or authorises the issue of a prospectus and”;
3. omit paragraph 2(b) and all the following text before paragraph 2(c), substitute:
“(b) sections 1013D and 1013E of the Act for a Product Disclosure Statement relating to:
(i) an interest in the scheme; and
(ii) an interest in a financial product that is held or may be held by a member because the legal title to a financial product is held for the member by a custodian as part of the IDPS-like scheme,
to the extent that those provisions may require a Product Disclosure Statement that relates to interests in the scheme or any financial product acquired by the member through the scheme because a custodian has legal title to a financial product as part of the scheme to contain information about the accessible financial products,
on the following conditions and for so long as they are met:”;
4. in paragraph 2(c) (introductory words), omit “prospectuses and”;
5. in subparagraph 2(c)(iv), omit “prospectus or”;
6. omit subparagraph 2(c)(v), substitute:
“(v) a prominent statement to the effect that:
“The total fees and charges you will pay will include the costs of this service as well as the cost of any investment you choose. It is important that you understand the fees of any investment you choose, and that those fees are in addition to the fees charged by us for the service, together with transaction and account costs incurred on your behalf. The costs of the investments you choose will generally be set out in a disclosure document or Product Disclosure Statement for the investments.”;
7. in subparagraph 2(c)(vi):
(i) omit “new disclosure” (first to fifth occurring); and
(ii) omit “products. For a prospectus issued before the commencement of Schedule 1 of the Financial Services Reform Act 2001 examples are not required to relate to new disclosure financial products; and”, substitute “products; and”;
8. in paragraph 2(d) omit “or cause to be given”;
9. omit subparagraph 2(g)(ii), substitute:
“(ii) before a regulated acquisition of a financial product is made for a member as part of the IDPS-like scheme where section 1012IA of the Act requires that the member has been given a Product Disclosure Statement, the member has been given a Product Disclosure Statement for the financial product that the responsible entity has no reason to believe is defective as defined in section 1021B of the Act as if it were prepared at the time of the acquisition.”;
10. in subparagraphs 2(i)(ii), 2(j)(i) and (ii) and paragraph 2(m) (introductory words), omit “or cause to be given”;
11. omit subparagraph 2(m)(ii), substitute:
“(ii) a copy of the annual report or reports for the relevant IDPS-like financial year prepared by a registered company auditor under paragraph (n).”;
12. omit paragraph 2(n), substitute:
“(n) The responsible entity must after the end of each financial year of the IDPS-like scheme cause a registered company auditor to provide one or more annual reports that set out each of the following opinions or statements:
(i) the auditor’s opinion as to whether internal controls and other procedures of the responsible entity, each custodian and any other relevant person acting on behalf of the responsible entity were suitably designed and operated effectively in all material respects to ensure that:
(A) the annual investor statements for the relevant IDPS-like scheme financial year, and quarterly reports for each quarter during the IDPS-like scheme financial year where the annual investor statements do not purport to include particulars of each transaction that would be required in those quarterly reports, are or have been given to clients without material misstatements; and
(B) the information that is made accessible electronically under subparagraph 2(j)(ii) in respect of the IDPS-like scheme financial year is not materially misstated;
Note: The “internal controls and other procedures” include any alternative controls and procedures employed by the responsible entity to address deficiencies in the design or operation of established internal controls or other procedures.
(ii) the auditor’s opinion as to whether the aggregates of assets (other than assets held by a client), liabilities, revenue and expenses shown in the clients’ annual investor statements for the IDPS-like scheme financial year have been properly reconciled to the corresponding amounts shown in the reports prepared by the custodian and which have been independently audited; and
(iii) the auditor’s statement as to whether or not the auditor has any reason to believe that:
(a) any annual investor statement for the IDPS-like scheme’s financial year given to any client is materially misstated and, if the annual investor statements for the IDPS-like scheme financial year do not generally purport to include particulars of each transaction that would be required in a quarterly report, whether any quarterly reports required to be given for the IDPS-like scheme financial year under these conditions are materially misstated; and
(b) any information accessible electronically under subparagraph 2(j)(ii) that relates to transactions during, the assets and liabilities held at a time during, or the revenue and expenses for, the IDPS-like scheme financial year have been given to clients without being materially misstated;
and no such report may contain any statement that has or purports to have the effect of excluding or disclaiming liability to members of the IDPS-like scheme as users of the report.”;
13. omit paragraph 2(o), substitute:
“(o) a document is taken as given to a person:
(i) when it is received in accessible form by that person or their agent, being an agent (their “eligible agent”) who is not either:
(A) the responsible entity; or
(B) an associate (within the meaning given by Division 2 of Part 1.2 of the Act as if this paragraph 2(o) were included in Chapter 7 of the Act) of the responsible entity; or
(ii) if there is no way of sending the document that may reasonably be expected to result in it being received by that person or their eligible agent — when all reasonable steps are taken to send it to that person or their eligible agent; or
(iii) one business day after an email is sent to the email address of the person or their eligible agent that the responsible entity reasonably believes is the address of the person or eligible agent where the person has agreed to receive the document by email; or
(iv) one business day after an email is sent containing a hypertext link to the document to the email address of the person or their eligible agent that the responsible entity reasonably believes is the address of the person or eligible agent where:
(A) the person has agreed to receive documents in that manner; and
(B) the responsible entity has no reason to suspect that the person is unlikely by mere scrolling or use of direct hypertext links to be able to see all of the contents of the document by using the emailed hypertext link; and
(C) the document can be downloaded free of charge (excluding any normal fees payable to the recipient’s internet service provider); and
(D) the hypertext link is accompanied by a prominent statement to the effect that the recipient is advised to access the document and download it; or
(v) when it would be delivered in the ordinary course of post, if it is posted as a letter prepaid from the responsible entity to an address of the person or their eligible agent that the responsible entity reasonably believes is the address of the person or eligible agent.
For the purposes of this paragraph an email is “sent” when the email would be taken to be dispatched under section 14 of the Electronic Transactions Act 1999 if this instrument were a law of the Commonwealth for the purposes of that section.”; and
14. in paragraph 4(e) omit “(issued on or after 1 April 2002)”.
Dated this 1st day of June 2004
Signed by Brendan Byrne
as a delegate of the Australian Securities and Investments Commission