Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

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; 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.

  (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;

  (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 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).


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback