ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716

Administered by Department of the Treasury

Legislation au F2021L01128 Not in force Legislative Instrument

Legislation content

ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716

made under subsection 926A(2) of the Corporations Act 2001 and subsection 109(3) of the National Consumer Credit Protection Act 2009

Compilation No. 2 

Compilation date: 10 July 2024

Includes amendments up to: F2024L00864

About this compilation

This compilation

This is a compilation of the ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716 that shows the text of the law as amended and in force on 10 July 2024 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary

1 Name of legislative instrument

3 Repeal

4 Authority

5 Definitions

Part 2—Declaration

6 Reportable Situations

7 Insignificant contraventions of core obligations

8 Reporting period for additional reportable situations

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

 

 

Part 1—Preliminary

1 Name of legislative instrument

This is the ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716.

3 Repeal

This instrument is repealed on 5 October 2024.  

4 Authority

This instrument is made under subsection 926A(2) of the Corporations Act 2001 and subsection 109(3) of the National Consumer Credit Protection Act 2009.

5 Definitions

In this instrument:

Australian credit licence has the same meaning as in section 5 of the Credit Act.

Corporations Act means the Corporations Act 2001.

Credit Act means the National Consumer Credit Protection Act 2009.

credit licensee means a person who holds an Australian credit licence.

financial services licensee has the same meaning as in section 761A of the Corporations Act.

Part 2—Declaration

6 Reportable Situations

  1.           Part 7.6 of the Corporations Act (other than Divisions 4 and 8) applies in relation to financial service licensees as if section 912D were modified or varied by omitting paragraph 912D(4)(b) and substituting:

“(b) the breach is constituted by the contravention of a civil penalty provision under any law, other than:

(i) a civil penalty provision prescribed by the regulations for the purposes of this paragraph; or

(ii) subsection 912A(5A) to the extent that the contravention results from a contravention of subparagraph 912A(1)(g)(ia) as notionally inserted by ASIC Corporations, Credit and Superannuation (Internal Dispute Resolution) Instrument 2020/98; or”.

(2) The provisions to which Part 2-6 of the Credit Act applies apply in relation to credit licensees as if subsection 50A were modified or varied by omitting paragraph 50A(4)(b) and substituting:

“(b) the breach is constituted by the contravention of a civil penalty provision under any law, other than:

(i) a civil penalty provision prescribed by the regulations for the purposes of this paragraph; or

(ii) subsection 47(4) to the extent the contravention results from a contravention of subparagraph 47(1)(h)(ii) as notionally substituted by ASIC Corporations, Credit and Superannuation (Internal Dispute Resolution) Instrument 2020/98.”.

7 Insignificant contraventions of core obligations

(1)  Part 7.6 of the Corporations Act (other than Divisions 4 and 8) applies in relation to financial service licensees as if section 912D were modified or varied by:

(a) in subsection 912D(4), omitting “For the purposes” and substituting “Subject to subsection (4A), for the purposes”; and

(b) after subsection 912D(4), inserting:

“(4A) A breach constituted by a contravention of subsection 1041H(1) of this Act or subsection 12DA(1) or 12DB(1) of the ASIC Act is not taken to be significant if:

(a) but for this subsection, the underlying circumstances in relation to the breach:

(i) would only give rise, and would only be likely to give rise, to a single reportable situation as a result of the following:

(A) paragraph (4)(b) in so far as it relates to a contravention of subsection 12DB(1) of the ASIC Act;

(B) paragraph (4)(c); and

(ii) would not give rise, and would be unlikely to give rise, to a reportable situation other than as specified in subparagraph (i); and

(b) either:

(i) only one person (client) is, or is likely to be impacted by the contravention; or

(ii) if the contravention relates to a financial product that is, or that is proposed to be, held by more than one person (each a client) jointly, those clients are the only persons who are, or are likely to be, impacted by the contravention; and

(c) the contravention has not resulted in, and is unlikely to result in, any financial loss or damage to any person (for the purposes of this paragraph, financial loss or damage is to be taken into account regardless of whether it is, or will or may be, remediated).

(4B) For the purposes of subsection (4A):

(a) the circumstances in which there is a single reportable situation as a result of particular conduct include circumstances in which the conduct constitutes a single contravention of two or more of the following and does not otherwise give rise to a reportable situation:

(i) subsection 1041H(1) of this Act;

(ii)  subsection 12DA(1) of the ASIC Act;

(iii) subsection 12DB(1) of the ASIC Act; and

(b) a person is impacted by a contravention of:

(i) subsection 1041H(1) of this Act or subsection 12DA(1) of the ASIC Act if they are misled or deceived as a result of the contravention; and

(ii) subsection 12DB(1) of the ASIC Act if they are the recipient of the false or misleading representation to which the contravention relates.”.                 

(2)  The provisions in relation to which Part 2-6 of the Credit Act applies apply in relation to credit licensees as if subsection 50A were modified or varied by:

(a) in subsection 50A(4), omitting “For the purposes” and substituting “Subject to subsection (4A), for the purposes”; and

(b) after subsection 50A(4), inserting:

“(4A) A breach constituted by a contravention of subsection 12DA(1) or 12DB(1) of the ASIC Act is not taken to be significant if:

(a) but for this subsection, the underlying circumstances in relation to the breach:

(i) would only give rise, and would only be likely to give rise, to a single reportable situation as a result of the following:

(A) paragraph (4)(b) in so far as it relates to a contravention of subsection 12DB(1) of the ASIC Act;

(B) paragraph (4)(d); and

(ii) would not give rise, and would be unlikely to give rise, to a reportable situation other than as specified in subparagraph (i); and  

(b) either:

(i) only one person (affected consumer) is, or is likely to be, impacted by the contravention; or

(ii) if the contravention relates to any of the following that is, or that is proposed to be, entered into jointly by more than one credit activity client (each an affected consumer) of the licensee, those affected consumers are the only persons who are, or are likely to be, impacted by the contravention:

(A) a credit contract or proposed credit contract;

(B) a consumer lease or proposed consumer lease;

(C) a mortgage or proposed mortgage;

(D) a guarantee or proposed guarantee; and

(c) the contravention has not resulted in, and is unlikely to result in, any financial loss or damage to any consumer (for the purposes of this paragraph, financial loss or damage is to be taken into account regardless of whether it is, or will or may be, remediated).

(4B) For the purposes of subsection (4A):

(a) the circumstances in which there is a single reportable situation as a result of particular conduct include circumstances in which the conduct constitutes a single contravention of both of the following and does not otherwise give rise to a reportable situation:

(i)  subsection 12DA(1) of the ASIC Act;

(ii) subsection 12DB(1) of the ASIC Act; and

(b) a person is impacted by a contravention of:

(i) subsection 12DA(1) of the ASIC Act if they are misled or deceived as a result of the contravention; and

(ii) subsection 12DB(1) of the ASIC Act if they are the recipient of the false or misleading representation to which the contravention relates.”.   

8 Reporting period for additional reportable situations

(1) Part 7.6 of the Corporations Act (other than Divisions 4 and 8) applies in relation to financial service licensees as if section 912DAA were modified or varied by omitting subsection 912DAA(3) (other than the heading) and substituting:

“(3) The report must be lodged with ASIC:

(a) within 30 days after the financial services licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe the reportable situation has arisen; or

(b) if:

(i) there is a reportable situation (previous reportable situation) with underlying circumstances that are the same as, or substantially similar to, the underlying circumstances of the reportable situation (current reportable situation); and

(ii) the financial services licensee has lodged a report under this section in relation to the previous reportable situation with ASIC;

within 90 days after the financial services licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe the current reportable situation has arisen.”.

(2)     The provisions in relation to which Part 2-6 of the Credit Act applies apply in relation to credit licensees as if subsection 50B were modified or varied by omitting subsection 50B(4) (other than the heading) and substituting:

“(4) The report must be lodged with ASIC:

(a) within 30 days after the licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe that the reportable situation has arisen; or

(b) if:

(i) there is a reportable situation (previous reportable situation) with underlying circumstances that are the same as, or substantially similar to, the underlying circumstances relating to the reportable situation (current reportable situation); and

(ii) the licensee has lodged a report under this section in relation to the previous reportable situation with ASIC;

within 90 days after the licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe the current reportable situation has arisen.”.

 

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the Legislation Act 2003.

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.

Endnote 2—Abbreviation key

ad = added or inserted

orig = original

am = amended

par = paragraph(s)/subparagraph(s)

amdt = amendment

/sub‑subparagraph(s)

c = clause(s)

pres = present

C[x] = Compilation No. x

prev = previous

Ch = Chapter(s)

(prev…) = previously

def = definition(s)

Pt = Part(s)

Dict = Dictionary

r = regulation(s)/rule(s)

disallowed = disallowed by Parliament

reloc = relocated

Div = Division(s)

renum = renumbered

exp = expires/expired or ceases/ceased to have

rep = repealed

Effect

rs = repealed and substituted

F = Federal Register of Legislation

s = section(s)/subsection(s)

gaz = gazette

Sch = Schedule(s)

LA = Legislation Act 2003

Sdiv = Subdivision(s)

LIA = Legislative Instruments Act 2003

SLI = Select Legislative Instrument

(md not incorp) = misdescribed amendment

SR = Statutory Rules

cannot be given effect

Sub‑Ch = Sub‑Chapter(s)

mod = modified/modification

SubPt = Subpart(s)

No. = Number(s)

underlining = whole or part not

o = order(s)

commenced or to be commenced

Ord = Ordinance

 

 

Endnote 3—Legislation history

Name

Registration

Commencement

Application, saving and transitional provisions

ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716

17/8/2021 (see F2021L01128)

5/10/2021

-

ASIC Corporations and Credit (Amendment) Instrument 2023/589

19/10/2023 (see F2023L01401)

 

20/10/2023

-

ASIC Corporations (Amendment) Instrument 2024/554

5/7/2024 (see F2024L00864)

10/7/2024

-

 

Endnote 4—Amendment history

Provision affected

How affected

Section 2

rep. s48D LA (s48D of the LA repeals a provision that provides solely for commencement)

Section 7

ad. 2023/589

Section 8

ad. 2023/589

Section 9

ad. 2023/589

rep. 2024/554

 

Overview

The ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716, enacted under the Corporations Act 2001 and the National Consumer Credit Protection Act 2009, addresses the need for clearer guidelines on the reporting of breaches by financial service licensees and credit licensees. This legislative instrument aims to modify the breach reporting requirements for financial service licensees and credit licensees, specifying the circumstances under which certain breaches must be reported to the Australian Securities and Investments Commission (ASIC). The instrument introduces exceptions to the reporting requirements for breaches that are insignificant or have not resulted in financial loss or damage, thereby aiming to streamline the reporting process and reduce the administrative burden on licensees while maintaining the integrity of the financial services and credit sectors. The instrument was made by the Australian Securities and Investments Commission (ASIC) and the Australian Prudential Regulation Authority (APRA) and was designed to address gaps in the current breach reporting framework, ensuring that only significant breaches are reported. This approach aims to balance the need for oversight with the practical realities of managing and reporting on a large number of minor breaches. The policy objective is to enhance the efficiency of the reporting system while ensuring that serious breaches are still adequately addressed and monitored.

Scope and Application

The ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716 applies to financial services licensees and credit licensees as defined in the Corporations Act 2001 and the National Consumer Credit Protection Act 2009 respectively. It concerns the reporting of breaches of civil penalty provisions under any law, excluding certain specified provisions, to the Australian Securities and Investments Commission (ASIC). The instrument modifies existing sections of the Corporations Act and the Credit Act to adjust the criteria for what constitutes a reportable situation, particularly focusing on the significance of breaches that involve contraventions of civil penalty provisions. It also specifies conditions under which certain contraventions are considered insignificant, particularly if they impact a single person or a group of clients jointly and do not result in financial loss or damage. The instrument sets reporting timelines for these breaches, requiring reports to be lodged within 30 days if the licensee is first aware of the situation, or within 90 days if the situation is similar to a previously reported one. This instrument is applicable nationally and is subject to modifications and amendments through subordinate instruments.

Key Provisions

The main operative sections of the ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716 modify existing provisions in the Corporations Act 2001 and the National Consumer Credit Protection Act 2009. Section 6 modifies the definition of reportable situations for financial services licensees by specifying that a breach constituted by the contravention of a civil penalty provision under any law is a reportable situation unless it is a prescribed civil penalty provision or a specific subsection as outlined. Similarly, section 7 modifies the equivalent provisions for credit licensees under the Credit Act. Section 7 also introduces a provision for insignificant contraventions of core obligations, which clarifies conditions under which certain breaches are not considered significant. Section 8 modifies the reporting period for additional reportable situations, specifying that reports must be lodged within 30 days if it is the first occurrence or within 90 days if the situation is substantially similar to a previously reported one. The Act imposes several obligations on the parties it governs. Financial services licensees and credit licensees are required to report any reportable situations to ASIC within specified timeframes. For financial services licensees, this means reporting within 30 days if it is the first occurrence or within 90 days if similar to a previous situation. The Act also mandates that certain breaches, such as those constituting a contravention of specific civil penalty provisions, are to be considered reportable situations unless otherwise specified. Additionally, there are provisions to determine when breaches are insignificant, particularly when they only impact a single person or a joint financial product and do not result in financial loss or damage. There are specific offences and penalties for breach of this legislation, although the exact penalties are not detailed in the provided text. Generally, non-compliance with reporting requirements can lead to civil or criminal consequences, which may include fines or other penalties as prescribed by the respective Acts. The penalties would typically be severe enough to ensure compliance and deter non-compliance, reflecting the importance of reporting breaches to regulatory authorities like ASIC.

Legal classification tags

Area of Law
Corporate Law & Governance
Consumer Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
Regulatory Standards
Compliance Obligations

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.