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CORPORATIONS ACT 2001 - SECT 921K

Power of Financial Services and Credit Panels to take action against relevant providers

             (1)  Subject to subsections (2) and (3), a Financial Services and Credit Panel may make an instrument of a kind specified in subsection 921L(1) in relation to a relevant provider if:

                     (a)  the relevant provider becomes an insolvent under administration; or

                     (b)  the relevant provider is convicted of fraud; or

                     (c)  the panel reasonably believes, having regard to the matters specified in section 921U but subject to Part VIIC of the Crimes Act 1914 , that the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products; or

                     (d)  the panel reasonably believes that the relevant provider has contravened a financial services law (including a restricted civil penalty provision); or

                     (e)  the relevant provider has been involved in the contravention of a financial services law (including a restricted civil penalty provision) by another person; or

                      (f)  the relevant provider has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA relating to a complaint that relates to:

                              (i)  a financial services business; or

                             (ii)  credit activities (within the meaning of the National Consumer Credit Protection Act 2009 ); or

                     (g)  subsection 920A(1C) (when a person has been an officer of a corporation unable to pay its debts) applies to the relevant provider in relation to 2 or more corporations.

Note 1:       Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

Note 2:       Subsection 921E(3) (relevant providers to comply with the Code of Ethics) is a financial services law.

Note 3:       To work out whether a relevant provider has been linked as described in paragraph (f), see section 910C.

Proposed action notice given in relation to relevant circumstances

             (2)  A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances (the relevant circumstances ) mentioned in that subsection unless:

                     (a)  the panel gave the relevant provider a proposed action notice in relation to a proposal to make the instrument because of the relevant circumstances and either:

                              (i)  no submission or request for a hearing was made within the response period for the notice; or

                             (ii)  a submission or request for a hearing was made within the response period for the notice and the panel has taken into account the submission or held the hearing (as the case may be); or

                     (b)  all of the following apply:

                              (i)  the panel gave the relevant provider a proposed action notice in relation to a proposal to make a different instrument in relation to the relevant circumstances or to give the relevant provider an infringement notice in relation to the relevant circumstances;

                             (ii)  a submission or request for a hearing was made within the response period for the notice;

                            (iii)  the panel has taken into account the submission or held the hearing (as the case may be).

Infringement notices, warnings and reprimands

             (3)  A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances mentioned in that subsection if the panel, or another Financial Services and Credit Panel, has given the relevant provider an infringement notice, or a warning or reprimand, in relation to those circumstances.

When a person contravenes a financial services law

             (4)  To avoid doubt, a person contravenes a financial services law if a person fails to comply with a duty imposed under that law, even if the provision imposing the duty is not an offence provision or a civil penalty provision.

Instruments not legislative

             (5)  An instrument made under subsection (1) is not a legislative instrument.

Interaction with ASIC Act

             (6)  Subsection (2) does not limit section 158 of the ASIC Act (panels to take account of evidence and submissions).



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