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CORPORATIONS ACT 2001 - SECT 1016A

Provisions relating to use of application forms

             (1)  In this section:

"defective , in relation to a Product Disclosure Statement as at a particular time, means that the Product Disclosure Statement, if it had been given to a person at that time, would have been defective" as defined in Subdivision A of Division 7.

Note:          Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section 1014D).

"eligible application" , in relation to a restricted issue or restricted sale of a relevant financial product, means an application that satisfies the following requirements:

                     (a)  the application is made using an application form; and

                     (b)  the application form used to apply for the product:

                              (i)  was included in, or accompanied, a Product Disclosure Statement (relating to the product) that was given to the applicant and that was not defective as at the time when the application was made; or

                             (ii)  was copied, or directly derived, by the applicant from a form referred to in subparagraph (i); and

                     (c)  all other applicable requirements (if any) in regulations made for the purposes of this paragraph are satisfied in relation to the application.

Note:          Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section 1014D).

"relevant financial product" means:

                     (a)  a managed investment product; or

                    (aa)  a foreign passport fund product; or

                     (b)  a superannuation product; or

                     (c)  an investment life insurance product; or

                     (d)  an RSA product; or

                   (db)  a margin lending facility; or

                     (e)  a financial product of a kind specified in regulations made for the purposes of this paragraph.

"relevant superannuation entity" means a superannuation entity of a kind specified in regulations made for the purposes of this definition.

"restricted issue" means an issue of a relevant financial product to a person as a retail client, other than an issue covered by either of the following paragraphs:

                     (a)  an issue in a situation, or pursuant to an offer made in a situation, to which a subsection, other than subsection (1), of section 1012D applies; or

                     (b)  an issue in a situation, or pursuant to an offer made in a situation, to which section 1012E or 1012F applies.

"restricted sale" means a sale of a relevant financial product pursuant to an offer that:

                     (a)  is of a kind described in subsection 1012C(3) or (4); and

                     (b)  is not made in a situation to which a subsection, other than subsection (1), of section 1012D applies.

"RSA provider" has the same meaning as in the Retirement Savings Accounts Act 1997 .

"standard employer-sponsor" has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

"standard employer-sponsored fund" has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

"standard employer-sponsored member" has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

             (2)  A person (the issuer or seller ) must only make a restricted issue or a restricted sale of a relevant financial product to a person (the recipient ) if:

                     (a)  the issue or sale is made pursuant to an eligible application made to the issuer or seller by the recipient; or

                     (b)  it is a restricted issue in relation to which the following conditions are satisfied:

                              (i)  the financial product is an interest in a relevant superannuation entity;

                             (ii)  the interest is issued pursuant to an application made to the issuer by a standard employer-sponsor of the entity on the recipient's behalf;

                            (iii)  if the application is the first application for the issue of a superannuation interest made to the issuer by the standard employer-sponsor on behalf of any person--the application is an eligible application; or

                     (c)  it is a restricted issue in relation to which the following conditions are satisfied:

                              (i)  the financial product is an interest in a relevant superannuation entity;

                             (ii)  the interest is issued pursuant to an application made to the issuer by another trustee under Part 24 of the Superannuation Industry (Supervision) Act 1993 on the recipient's behalf;

                            (iii)  if the application is the first application under Part 24 of that Act made to the issuer by the other trustee on behalf of any person--the application is an eligible application; or

                     (d)  it is a restricted issue in relation to which the following conditions are satisfied:

                              (i)  the financial product is an interest in a relevant superannuation entity;

                             (ii)  the interest is issued pursuant to an application made to the issuer by an RSA provider under Part 9 of the Retirement Savings Accounts Act 1997 on the recipient's behalf;

                            (iii)  if the application is the first application under Part 9 of that Act made to the issuer by the RSA provider on behalf of any person--the application is an eligible application; or

                     (e)  it is a restricted issue in relation to which the following conditions are satisfied:

                              (i)  the financial product is an RSA product;

                             (ii)  the interest is issued pursuant to an application made to the issuer by an employer (within the meaning of the Retirement Savings Accounts Act 1997 ) of the recipient;

                            (iii)  if the application is the first application for the issue of an RSA product of that kind made to the issuer by the employer on behalf of any person--the application is an eligible application;

                            (iv)  all other applicable requirements (if any) in regulations made for the purposes of this subparagraph are satisfied in relation to the application; or

                      (f)  the issue or sale occurs in a situation covered by regulations made for the purposes of this paragraph.

Note 1:       This subsection does not apply to an issue or sale pursuant to paragraph 1016E(2)(c) (see subsection 1016E(2C)).

Note 2:       Failure to comply with this subsection is an offence (see subsection 1311(1)).

             (3)  The trustee of a relevant superannuation entity must only permit a person to become a standard employer-sponsor of the entity if:

                     (a)  the person applied to become a standard employer-sponsor of the entity using an application form; and

                     (b)  the application form used to apply to become a standard employer-sponsor:

                              (i)  was included in, or accompanied, a Product Disclosure Statement (relating to an interest in the entity) that was given to the person and that was not defective as at the time when the application was made; or

                             (ii)  was copied, or directly derived, by the person from a form referred to in subparagraph (i).

Note 1:       Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section 1014D).

Note 2:       Failure to comply with this subsection is an offence (see subsection 1311(1)).

             (4)  The regulations may:

                     (a)  provide for defences to offences based on subsection (2) or (3); and

                     (b)  provide for additional offences relating to the receipt or non-receipt of applications or application forms.

Note 1:       A defendant bears an evidential burden in relation to a defence. See subsection 13.3(3) of the Criminal Code .

Note 2:       For the limit on penalties for offences against the regulations, see paragraph 1364(2)(w).



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