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CORPORATIONS AMENDMENT REGULATIONS 2002 (NO. 3) 2002 NO. 41 - SCHEDULE 1
Amendments commencing at 12.02 am (in the Australian Capital Territory) on 11 March 2002
(regulation 3)
[1] Subregulation 1.0.02 (1), definition of warrant
substitute
warrant means a financial product:
(a) that is:
- (i)
- a derivative under section 761D of the Act; or
- (ii)
- a financial product to which the definition of derivative in subsection
761D (1) of the Act applies that is a security because of the effect of
paragraph 761D (3) (c) of the Act, paragraph 764A (1) (a)
of the Act and paragraph (c) of the definition of security in section 761A of
the Act; and
- (b)
- that is transferable.
[2] Subregulation 1.0.05A (1)
omit
and Part 10.2
[3] Paragraph
1.0.05A (2) (e)
omit
prescribed form.
insert
prescribed form;
and
[4] After paragraph 1.0.05A (2) (e)
insert
- (f)
- a document
that is to be lodged with ASIC for Part 10.2 of the Act must be lodged in the
prescribed form.
[5] Paragraph 6.5.01 (3) (b)
omit
shares
insert
securities
[6]
Regulation 6CA.1.01
substitute
6CA.1.01 Continuous disclosure: other
disclosing entities
For paragraph 675 (2) (d) of the Act, the disclosure of information
under section 675 of the Act is not required if:
- (a)
- a reasonable person
would not expect the information to be disclosed; and
- (b)
- the information is confidential; and
(c) at least 1 of the following applies:
- (i)
- the disclosure of the
information would contravene a law;
- (ii)
- the information is about a matter of supposition;
- (iii)
- the information is not definite enough to make disclosure appropriate;
- (iv)
- the information relates to an incomplete proposal or a matter that is in
the course of negotiation;
- (v)
- the information was prepared or created for the internal management
purposes of the entity;
- (vi)
- the information is a trade secret.
[7] After regulation 7.1.03A
insert
7.1.03B Self managed superannuation
funds
In this Chapter:
"self managed superannuation fund" has the same meaning as
in the SIS Act.
[8] Regulation 7.1.04A, heading
substitute
7.1.04A Meaning of kind of
financial products (section 1012IA of the Act)
[9] After regulation 7.1.04A
insert
7.1.04B Meaning of class of financial products (managed investment
schemes)
- (1)
- For section 761CA of the Act, this regulation applies in
relation to paragraph 1017F (4) (d) of the Act.
- (2)
- An interest
in a managed investment scheme is in the same class as another interest in a
managed investment scheme if they are both interests in the same managed
investment scheme.
7.1.04C Meaning of class of financial products
(superannuation products)
- (1)
- For section 761CA of the Act, this regulation
applies in relation to paragraph 1017F (4) (d) of the Act.
- (2)
- A
superannuation product is in the same class as another superannuation product
if they are both issued by the same superannuation entity.
7.1.04D Meaning
of issuer for certain derivatives
(1) This regulation applies in relation to a financial product that:
- (a)
- is
a derivative; and
(b) is entered into, or acquired through a facility conducted in accordance
with:
- (i)
- the Corporations (Exempt Futures Market National
Wholesale Electricity) Declaration 1999 ; or
- (ii)
- the Corporations (Exempt Futures Market) Declaration 2001 .
- (2)
- For paragraph 761E (7) (a) of the Act, each person who is a
party to the financial product is taken to be an issuer of the financial
product.
- (3)
- For paragraph 761E (7) (a) of the Act, subsections 761E (5)
and (6) of the Act do not apply to the financial product.
[10] Subparagraph
7.1.06 (1) (a) (iii)
substitute
- (iii)
- whether or not both
credit and debit facilities are available; and
- (iv)
- that is not a financial product mentioned in paragraph
764A (1) (a), (b), (ba), (f), (g), (h), (i) or (j) of the Act; and
- (v)
- that is not a financial product mentioned in paragraph
763A (1) (a) of the Act;
[11] After regulation 7.1.06
insert
7.1.06A Arrangements for certain
financial products that are not credit facilities
- (1)
- This regulation
applies in relation to a financial product that would be a credit facility in
accordance with regulation 7.1.06 if subparagraphs
7.1.06 (1) (a) (iv) and (v) did not apply.
(2) For paragraph
761E (7) (a) of the Act, and in relation to the financial product:
- (a)
- the credit provider is not taken to be the issuer of the financial
product; and
- (b)
- the debtor is taken to be the issuer of the financial product.
(3) For paragraph 766A (2) (b) of the Act, and in relation to the
financial product:
- (a)
- the provision of financial product advice to the
debtor, or the debtor's representative, is taken not to be the provision of a
financial service; and
- (b)
- a dealing in the credit facility by the credit provider, or the credit
provider's representative, is taken not to be the provision of a financial
service.
(4) In this regulation:
credit , credit provider and debtor have the same
meanings as in subregulation 7.1.06 (3).
[12] Paragraph
7.1.08A (1) (a)
substitute
(a) a Product Disclosure Statement:
- (i)
- that contains personal advice; or
- (ii)
- that contains general advice about a financial product other than a
financial product to which the Statement relates;
[13] After subregulation 7.1.08A (1)
insert
(1A) For subregulation (1),
if a person:
- (a)
- acquires a financial product ( product 1 ); and
- (b)
- will be able, by acquiring product 1, to give the product issuer an
instruction to acquire a particular financial product or a financial product
of a particular kind (within the meaning of section 1012IA of the Act) under a
custodial arrangement (within the meaning of section 1012IA of the Act);
the Product Disclosure Statement for product 1 is taken to relate to the other
financial product.
[14] Paragraph 7.1.08A (2) (a)
after
document
insert
that does not contain personal advice
[15] Paragraph
7.1.08A (2) (b)
after
statement
insert
that does not contain
personal advice
[16] Paragraph 7.1.08A (2) (c)
after
statement
insert
that does not contain personal advice
[17] Subregulation
7.1.29 (1)
omit
the following circumstances are circumstances in which
a qualified accountant
insert
each of the following is a circumstance in
which a recognised accountant
[18] Subregulation 7.1.29 (2)
omit
qualified accountant
insert
recognised accountant
[19] After subregulation
7.1.29 (2)
insert
(2A) ASIC may, in writing published in the Gazette ,
declare that:
- (a)
- a specified person is a recognised accountant for this
regulation; or
- (b)
- a person in a specified class is a recognised accountant for this
regulation.
[20] Subregulation 7.1.29 (3), definition of qualified accountant
substitute
"recognised accountant" means a person to whom a declaration
under subregulation (2A) applies.
[21] After regulation 7.1.32
insert
7.1.33 Handling insurance claims
(1) For paragraph 766A (2) (b) of the Act, a circumstance in which a
person is taken not to provide a financial service within the meaning of
paragraph 766A (1) (a) of the Act is the giving of advice that
consists only of a recommendation or statement of opinion provided in the
course of, and as a necessary or incidental part of, either or both of:
- (a)
- the handling of claims or potential claims in relation to an insurance
product; and
- (b)
- the settlement of claims or potential claims in relation to an insurance
product.
(2) For paragraph 766A (2) (b) of the Act, a circumstance in which a
person is taken not to provide a financial service within the meaning of
paragraph 766A (1) (b) of the Act is a dealing in an insurance
product that is a necessary or incidental part of either or both of:
- (a)
- the
handling of claims or potential claims in relation to that product; and
- (b)
- the settlement of claims or potential claims in relation to that product.
Examples of services
1
Negotiations on settlement amounts.
2
Interpretation
of relevant policy provisions.
3
Estimates of loss or damage.
4
Estimate of
value or appropriate repair.
5
Recommendations on mitigation of loss.
6
Recommendations, in the course of handling a claim as described in
subregulations (1) and (2), on increases in limits or different cover options
to protect against the same loss in the future.
7
Claims strategy such as the
making of claims under alternate policies.
(3) In this regulation:
"insurance product" includes a self-insurance
arrangement through which a person manages financial risk.
7.1.33A Allocation of funds available for investment
For paragraph 766A (2) (b) of the Act, a circumstance in which a
person is taken not to provide a financial service within the meaning of
paragraph 766A (1) (a) of the Act is the provision of a service that
consists only of a recommendation or statement of opinion provided to a person
about the allocation of the person's funds that are available for investment
among 1 or more of the following:
- (a)
- shares;
- (b)
- debentures;
- (c)
- debentures, stocks or bonds issued, or proposed to be issued, by a
government;
- (d)
- deposit products;
- (e)
- managed investment products;
- (f)
- investment life insurance products;
- (g)
- superannuation products;
- (h)
- other types of asset.
Note
This regulation does not apply to a recommendation or statement of
opinion that relates to specific financial products or classes of financial
products.
7.1.33B General advice
(1) For paragraph 766A (2) (b) of the Act, this regulation applies
in relation to the provision of a service by a person to another person in the
following circumstances:
- (a)
- the service consists only of general advice in
relation to a financial product or class of financial products;
- (b)
- the advice is prepared by a product issuer of the financial product or
class of financial products;
- (c)
- the advice is given by a financial services licensee whose financial
services licence covers the provision of the advice.
- (2)
- The product issuer is taken not to provide a financial service within the
meaning of paragraph 766A (1) (a) of the Act.
- (3)
- The financial services licensee is taken to provide a financial service
within the meaning of paragraph 766A (1) (a) of the Act.
[22] Part
7.2, after Division 5
insert
Division 6 The Australian market licence: other
matters
7.2.16 Potential conflict situations
(1) For subsection 798E (1) of the Act, this regulation applies in
relation to specific and significant conflicts, or potential conflicts that
would be specific and significant, between:
(a) the commercial interests of Australian Stock Exchange Limited ( ASX )
in dealing with a body (the competitor ) that operates a business with
which:
- (i)
- ASX is in competition; or
- (ii)
- a subsidiary of ASX is in competition; or
- (iii)
- a joint venture (however described) to which ASX is a party is in
competition; or
- (iv)
- a joint venture (however described) to which a subsidiary of ASX is a
party is in competition; and
- (b)
- the need for ASX to ensure that the market operated by it operates in the
way mentioned in paragraph 792A (a) of the Act.
(2) The competitor may lodge with ASIC in the prescribed form, an application
for ASIC to decide that ASIC, instead of ASX, will make decisions and take
action (or require ASX to take action on ASIC's behalf) in relation to:
- (a)
- if the competitor is seeking to be listed the compliance by the
competitor with the applicable listing rules of the market operated by ASX; or
- (b)
- if the competitor is listed on the market operated by ASX the
compliance by the competitor with the applicable listing rules of the market
operated by ASX.
(3) As soon as practicable after receiving an application under subregulation
(2), ASIC must:
- (a)
- consider whether a conflict, or potential conflict,
exists as described in subregulation (1); and
- (b)
- if it considers that a conflict, or potential conflict, exists
consider whether, having regard to ASX's obligations under subparagraph
792A (c) (i) of the Act, the conflict, or potential conflict, would
be dealt with more appropriately and efficiently by a means other than taking
the action mentioned in subregulation (2); and
(c) decide whether (and to what extent):
- (i)
- to make decisions and take
action; or
- (ii)
- to require ASX to take action on ASIC's behalf;
in relation to the matters mentioned in paragraphs (2) (a) and (b).
(4) If ASIC decides to make decisions and take action (or to require ASX to
take action on ASIC's behalf) as mentioned in subregulation (2), ASIC:
- (a)
- may consult with ASX and the competitor to identify the listing rules of the
market operated by ASX for which ASIC needs to make the decisions and take the
action; and
(b) must, as soon as practicable, decide the extent of ASIC's role, having
regard to:
- (i)
- the rationale for the listing rules of the market operated by
ASX; and
- (ii)
- the desirability of treating the competitor consistently with other
entities listed, or seeking to be listed, on that market; and
- (iii)
- the extent to which action taken by ASIC is severable from the wider
supervision of the competitor's compliance with the listing rules; and
- (iv)
- its consultations (if any) with the competitor and ASX.
- (5)
- ASIC must, as soon as practicable, advise ASX and the competitor, in
writing, of decisions under paragraphs (3) (c) and (4) (b).
(6) If
ASIC decides to make decisions and take action (or to require ASX to take
action on ASIC's behalf) as mentioned in subregulation (2):
- (a)
- the
decisions made and actions taken have effect despite anything in the listing
rules of the market operated by ASX; and
- (b)
- decisions made and actions taken by ASIC (or action taken by ASX on ASIC's
behalf) have effect as if they were decisions made and actions taken under the
listing rules.
Note 1
It is expected that the listing rules of the market will support
ASIC's power to take a supervisory role in relation to compliance with some or
all of the listing rules.
Note 2
Under section 246 of the Australian
Securities and Investments Commission Act 2001 , ASIC is not liable to an
action or other proceeding for damages for or in relation to an act done or
omitted in good faith in performance or purported performance of any function,
or in exercise or purported exercise of any power, conferred or expressed to
be conferred by or under the corporations legislation.
Note 3
The powers
available to ASIC include the power:
(a) to grant, or not to grant, waivers
of the listing rules; and
(b) to impose conditions on which the grant of a
waiver is made.
(7) If ASIC believes, on reasonable grounds, that:
- (a)
- the period during
which decisions will be made and action will be taken in a particular case is
likely to be more than 3 months; and
- (b)
- the decisions and actions likely to be required are not adequately
reflected in the listing rules of the market operated by ASX;
ASIC must notify ASX, in writing, of its belief.
- (8)
- ASX must, as soon as
practicable after being notified under subregulation (7), amend the listing
rules of the market operated by ASX to the extent necessary to meet ASIC's
concerns.
Note
Amendments of the listing rules are subject to procedural
requirements, including possible disallowance, mentioned in sections 793D and
793E of the Act.
- (9)
- If ASIC decides that it is no longer necessary for
decisions to be made and action to be taken in relation to the particular
conflict or potential conflict, ASIC must notify ASX and the competitor of its
decision as soon as practicable.
(10) ASX may repeal any listing rule or
amendment made for subregulation (8) only if:
- (a)
- the repeal or amendment is
necessary or convenient to meet ASIC's concerns more effectively; or
- (b)
- ASIC has notified ASX under subregulation (9).
(11) Paragraph (10) (b) does not prevent ASIC from:
- (a)
- reviewing a
particular conflict or potential conflict; and
- (b)
- deciding, at any time (with or without complying with paragraph
(4) (a)), that it has again become necessary for ASIC to make decisions
and take action (or for ASIC to require ASX to take action on ASIC's behalf)
in relation to the conflict or potential conflict.
- (12)
- If ASIC makes the decision mentioned in paragraph (11) (b), ASIC
must notify ASX and the competitor of its decision as soon as practicable.
(13) For this regulation, ASX must:
- (a)
- give ASIC the information and
documentation that ASIC reasonably needs to make decisions and take action
under this regulation; and
- (b)
- establish administrative and procedural arrangements for that purpose.
- (14)
- A competitor may notify ASIC that the competitor no longer wishes ASIC to
make decisions and take action (or for ASIC to require ASX to take action on
ASIC's behalf) in relation to the conflict or potential conflict.
(15) If
subregulation (14) applies, ASIC must, as soon as practicable:
- (a)
- notify
ASX that the competitor no longer wishes ASIC to make decisions and take
action (or for ASIC to require ASX to take action on ASIC's behalf) in
relation to the conflict or potential conflict; and
- (b)
- cease to make the decisions and take the action (or cease to require ASX
to take action on ASIC's behalf).
[23] Paragraph 7.3.04 (b)
omit
subparagraph 792A (c) (i)
insert
subparagraph 821A (c) (i)
[24] Paragraph
7.6.01 (1) (c)
substitute
(c) dealing in a financial product by a
person in the capacity of the trustee of a pooled superannuation trust in the
following circumstances:
- (i)
- the pooled superannuation trust is used for
investment of the assets of a regulated superannuation fund;
- (ii)
- the regulated superannuation fund has net assets of at least $5 million,
but less than $10 million, on the date that it first invests in the pooled
superannuation trust (whether that date is before or after the FSR
commencement);
- (iii)
- the trustee has a reasonable expectation that the net assets of the
regulated superannuation fund will equal or exceed $10 million not later than
3 months of the date on which it first invests in the pooled superannuation
trust (whether that date is before or after the FSR commencement);
[25] Paragraph 7.6.01 (1) (h)
substitute
- (h)
- a dealing in a
financial product that consists only of an employer sponsor paying
contributions on behalf of an employee into a superannuation product or RSA
product;
- (ha)
- a dealing in a financial product that consists only of a trustee of a
superannuation fund paying the benefits of a member into a superannuation
product or RSA product;
- (hb)
- a dealing in a financial product that consists only of an RSA provider
paying the benefits of an RSA product holder into a superannuation product or
RSA product;
- (hc)
- a dealing in a financial product that consists only of an
employer-sponsor arranging for the issue of a superannuation product to an
employee;
[26] Paragraph 7.6.01 (1) (j)
omit
[27] After paragraph
7.6.01 (1) (j)
insert
(k) a financial service provided in the
following circumstances:
- (i)
- the financial service is provided in respect of
a financial product by a person (who may be described as a `sub-custodian')
under an arrangement with a financial services licensee (the master-custodian
);
- (ii)
- the master-custodian is authorised by its Australian financial services
licence to provide a custodial or depository service;
- (iii)
- a beneficial interest in the financial product is held by the
master-custodian on trust for or on behalf of a client as part of providing a
custodial or depository service authorised by its Australian financial
services licence;
(l) a financial service provided by a person ( person 1 ) in the
following circumstances:
- (i)
- the financial service is provided to another
person ( person 2 ) in the ordinary course of person 1's business;
- (ii)
- person 1 does not provide financial services as a significant part of
person 1's business;
(iii) the financial service consists only of either or both of:
(A) advising
person 2 in relation to a non-cash payments facility that person 2 may use or
has used to pay person 1 for goods or services; and
(B) arranging to deal in a non-cash payments facility that
person 2 will use to pay person 1 for goods or services;
- (iv)
- the goods and services do not include any financial
products or financial services;
Example
A retailer might offer its customers a variety of payment methods for
payment for goods and services, such as a credit card, Bpay, or direct debit.
A recommendation of a particular payment method, or the expression of an
opinion about the payment methods available to the customer, should not
require an Australian financial services licence.
(m) a financial service provided by a person in the following
circumstances:
(i) the service consists only of either or both of:
(A) dealing in
derivatives; and
(B) dealing in foreign exchange contracts;
- (ii)
- the service
does not involve the making of a market for derivatives
or foreign exchange contracts;
- (iii)
- the dealing is entered into for the purpose of managing a financial risk
that arises in the ordinary course of a business;
- (iv)
- the person does not deal in derivatives or foreign exchange contracts as
a significant part of the person's business;
- (v)
- the dealing is entered into on the person's own behalf;
Example of financial service to which paragraph (m) applies
A series of
forward foreign exchange contracts entered into by a gold mining company to
hedge against the risk of a fall in the price of gold.
Example of financial
service to which paragraph (m) does not apply
The issue and disposal of
derivatives relating to the wholesale price of electricity are not
transactions to which this paragraph applies.
(n) a financial service provided by a person ( person 1 ) to another
person ( person 2 ) in the following circumstances:
- (i)
- person 1 is
not in this jurisdiction;
- (ii)
- person 2 is in this jurisdiction;
- (iii)
- the service consists only of dealing in a financial product or class of
financial products;
- (iv)
- a financial services licensee whose financial services licence covers the
provision of the service arranges for person 1 to provide the service to
person 2;
(o) a financial service that is the provision of financial product advice in
the following circumstances:
- (i)
- the advice is only general advice in
relation to a financial product or class of financial products;
- (ii)
- the advice is provided by the product issuer of the financial product or
class of financial products;
- (iii)
- the advice is provided in the media;
(iv) the product issuer provides the following information:
(A) the advice
has been prepared without taking account of the client's objectives, financial
situation or needs;
(B) for that reason, the client should, before acting on the
advice, consider the appropriateness of the advice,
having regard to the client's objectives, financial
situation and needs;
(C) if the advice relates to the acquisition, or possible
acquisition, of a particular financial product, the
client should obtain a Product Disclosure Statement
relating to the product and consider the Statement before
making any decision about whether to acquire the product;
(p) a financial service provided by a person in the
following circumstances:
- (i)
- the financial service
relates to insurance entered into, or proposed to be
entered into, for the purposes of a law (including a law
of a State or Territory) that relates to workers
compensation;
- (ii)
- the person is licensed to provide the service under the law of the State
or Territory in which the service is provided;
Example
The activities of a licensed insurer under the
Workers Compensation Act 1987 of New South Wales.
Note
A licensed insurer
would require an Australian financial services licence to the extent that the
licensed insurer provides a financial service in respect of a non-workers
compensation product or a non-workers compensation component of a product.
(q) a financial service provided by a person in the following circumstances:
- (i)
- the financial service consists only of the variation or disposal of a
financial product by the person;
- (ii)
- the person also issued the original product;
- (iii)
- the person provides the financial service under the terms of the
financial product;
(r) a financial service that is a dealing (or arranging for a dealing) in:
- (i)
- a debenture; or
- (ii)
- a legal or equitable right or interest in a debenture; or
- (iii)
- an option to acquire, by way of issue or transfer, a debenture or a
legal or equitable right or interest in a debenture;
by the issuer of the debenture, the legal or equitable right or interest or
the option.
[28] After subregulation 7.6.01 (4)
insert
(5) For paragraphs
(1) (b) and (c), if a pooled superannuation trust is used for investment
of the assets of more than 1 regulated superannuation fund:
- (a)
- each of the
regulated superannuation funds must comply with paragraph (1) (b) or (c);
and
- (b)
- it is not necessary for each of the regulated superannuation funds to
comply with the same paragraph in relation to a particular pooled
superannuation trust.
- (6)
- Paragraph (1) (r) ceases to have effect at the end of 2 years
after the FSR commencement.
(7) In this regulation:
"media" means any of
the following:
- (a)
- a newspaper, magazine, journal or other periodical;
- (b)
- a radio or television broadcasting service;
(c) an electronic service (including a service provided by the Internet) that
is:
- (i)
- operated on a commercial basis; and
- (ii)
- similar to a newspaper, a magazine, a radio broadcast or a television
broadcast.
[29] After regulation 7.6.01A
insert
7.6.01B Need for Australian financial
services licence: financial product advice provided by the media
(1) For paragraph 911A (5) (a) of the Act, the exemptions from the
requirement to hold an Australian financial services licence provided for in
paragraphs 911A (2) (ea), (eb) and (ec) apply subject to the
condition that a person mentioned in any of those paragraphs, or a
representative of a person mentioned in any of those paragraphs, who provides
financial product advice states the following matters, to the extent to which
they would reasonably be expected to influence, or be capable of influencing,
the provision of the financial product advice:
- (a)
- any remuneration the
person or the person's representative is to receive for providing the advice;
- (b)
- any pecuniary or other interest that the provider of the advice, or an
associate of the provider, has in relation to the advice, if the provider of
the advice, or an associate of the provider, would be likely to obtain a
material financial benefit, or avoid a material financial loss, if the advice
were acted upon.
(2) The statement mentioned in subregulation (1) must be presented in a way
that:
- (a)
- will adequately bring it to the attention of a reasonable person
who may read or hear the financial product advice to which the statement
relates; and
- (b)
- is easy for a reasonable person to understand.
(3) Subregulation (1) does not apply if:
(a) a person mentioned in paragraph 911A (2) (ea), (eb) or (ec)
of the Act, and the person's representatives:
- (i)
- comply with an
industry code of practice; or
- (ii)
- comply with the Statement of Principles laid down by the Australian Press
Council; or
- (iii)
- are subject to an internal policy that is approved by the board or
governing body of the person; and
(b) the code, Statement of Principles or policy contains requirements relating
to:
- (i)
- the manner in which financial conflicts of interest are dealt with;
or
- (ii)
- the prevention of financial conflicts of interest.
(4) Subregulation (1) does not apply in relation to:
- (a)
- a newspaper or
periodical, a transmission made by means of an information service, or a sound
recording, video recording or data recording, the principal purpose of which
is to report and provide comment on news, and not to provide financial product
advice; and
- (b)
- paid advertising in relation to which a reasonable person is able to
distinguish the advertising from other material in the newspaper, periodical,
transmission, sound recording, video recording or data recording.
- (5)
- A reference in subparagraph 911A (2) (eb) (ii) of the Act
to transmissions that are generally available to the public includes
transmissions provided as part of a subscription broadcasting service within
the meaning of the Broadcasting Services Act 1992 .
(6) For paragraph
911A (6) (d) of the Act, each of the following services is an
information service:
- (a)
- a broadcasting service within the meaning of the
Broadcasting Services Act 1992 ;
- (b)
- a datacasting service within the meaning of the Broadcasting Services Act
1992 ;
- (c)
- a service provided by the Internet.
(7) In this regulation:
"associate" means:
(a) in relation to a body
corporate a related body corporate; and
- (b)
- in relation to an individual a spouse (including a defacto
partner), child, step-child, parent, step-parent, brother, half-brother,
sister or half-sister of the individual.
"internal policy" includes a code of ethics or editorial guidelines.
"material financial benefit" means a financial benefit exceeding $10 000
in value.
"material financial loss" means a financial loss exceeding $10 000 in
value.
[30] Paragraph 7.6.04 (1) (a)
omit
not later than the end of the
first business day after the day on which the financial services licensee
becomes aware of the event;
insert
as soon as practicable, and in any case
not later than 3 business days, after the financial services licensee
becomes aware of the event;
[31] Paragraph 7.7.01 (1) (a)
omit
or
946B (3)
[32] Paragraph 7.7.01 (1) (b)
omit
or 946B (3)
[33] Paragraph 7.7.01 (1) (c)
omit
or 946B (3)
[34]
Paragraph 7.7.01 (1) (d)
omit
or 946B (3)
[35] Subregulation
7.7.01 (2)
omit
[36] Regulation 7.7.02
omit
For paragraph
941C (6) (c)
insert
- (1)
- For paragraph 941C (6) (c)
[37] Regulation 7.7.02
insert
(2) For subsection 941C (4A) of the Act,
an event or broadcast is a public forum if:
- (a)
- any person is permitted to
attend the event or view or hear the broadcast; and
(b) for an event that can be attended, the event is attended by:
- (i)
- more
than 10 retail clients; or
- (ii)
- retail clients the number of which could not reasonably be ascertained
before the event commenced.
Examples
1
Television broadcasts.
2
Radio broadcasts.
3
Internet webcasts.
4
Public lectures or seminars.
5
Flyers and other promotional material
displayed in a public place.
Note
If general advice is given in a public
forum, the requirements of subsection 941C (5) of the Act must be
complied with. Additionally, if general advice is provided to one or more
retail clients, the providing entity must comply with section 949A of the Act.
[38] After subregulation 7.8.01 (4)
insert
- (4A)
- For subparagraph
981B (1) (b) (iv) of the Act, if a financial services licensee
is required by the operating rules of a licensed financial market to pay an
amount into an account to which section 981B relates, the amount is money
which may be paid into that account.
[39] Paragraph 7.8.01 (5) (c)
after
all moneys paid into the account
insert
(other than moneys paid to
the financial services licensee under the financial services licensee's
obligation to call margins from clients under the rules of a licensed
financial market)
[40] After subregulation 7.8.01 (5)
insert
(6) For
subparagraph 981B (1) (b) (iv) of the Act, money received under
section 1017E of the Act is money which may be paid into:
- (a)
- an account to
which section 981B relates; or
- (b)
- an insurance broking account maintained under section 26 of the
Insurance (Agents and Brokers) Act 1984 .
- (7)
- For paragraph 981B (1) (c) of the Act, if money received under
section 1017E of the Act is paid into an account under subregulation (6), Part
7.8 of the Act applies to the money.
Note
See also subregulation
7.9.08 (3).
(8) For paragraph 981B (1) (c) of the Act, if a
financial services licensee is required to call margins from a client under
the operating rules of a licensed financial services market:
(a) the financial services licensee may operate an account to which that
paragraph applies as:
- (i)
- a clients' segregated account; or
- (ii)
- a trust account;
in accordance with the operating rules of the licensed financial market; and
(b) if:
- (i)
- the account is operated outside Australia; and
- (ii)
- the law in force in the jurisdiction where it is maintained requires the
account to be designated in a particular way;
the financial services licensee must designate the account in that way.
Note
The operating rules of a licensed financial market may require client
monies including moneys used for margining to be held either in a trust
account or in a client segregated account.
Subregulation (5) will not apply
to financial services licensees that are not direct participants of a
financial services market.
- (9)
- For subparagraph
981B (1) (b) (iv) of the Act, if an account is operated in
accordance with subregulation (8), all money received by the financial
services licensee under Subdivision A of Division 2 of Part 7.8 of the Act is
money that may be paid into that account.
- (10)
- Subregulation (8) does not affect the operation of section 981E of the
Act.
[41] Paragraph 7.8.02 (1) (e)
omit
by law.
insert
by law;
[42] After paragraph 7.8.02 (1) (e)
insert
- (f)
- paying to the
financial services licensee money to which the financial services licensee is
entitled pursuant to the operating rules of a licensed financial market.
[43] After subregulation 7.8.02 (1)
insert
(1A) For paragraph
981C (a) and subparagraph 981B (1) (b) (iv) of the Act,
if, under paragraph (1) (a), a financial services licensee (the paying
licensee ) withdraws money from an account maintained for section 981B of the
Act and pays it to another financial services licensee (the receiving licensee
):
(a) the paying licensee must ensure that the receiving licensee is
notified, at the same time as the payment is made or as soon as
practicable, that the money:
- (i)
- has been withdrawn from an account
of the paying licensee maintained for section 981B of the Act; and
- (ii)
- should be paid into an account of the receiving licensee maintained for
section 981B of the Act; and
- (b)
- not later than the day after the receiving licensee receives the payment,
the receiving licensee must pay the money into an account of the receiving
licensee maintained for section 981B of the Act.
[44] Subregulation 7.8.02 (4)
substitute
- (4)
- For paragraph
981A (4) (a) of the Act, subregulation (3) does not apply to money
to which subregulation 7.8.01 (4) applies.
[45] Subregulation
7.8.02 (7)
substitute
(7) For paragraph 981C (c) of the Act, if
money is held in an account maintained for section 981B of the Act:
- (a)
- the
financial services licensee is entitled to the interest on the account; and
- (b)
- the interest on the account is not required to be paid into the account;
only if the financial services licensee discloses to the client that the
financial services licensee is keeping the interest (if any) earned on the
account.
[46] After subregulation 7.8.05 (3)
insert
(4) For paragraph
981C (c) of the Act, if money to which this regulation applies is held in
an account maintained for section 981B of the Act:
- (a)
- the financial
services licensee is entitled to the interest on the account; and
- (b)
- the interest on the account is not required to be paid into the account.
[47] Subregulation 7.8.08 (18), penalty
substitute
Penalty:
10 penalty
units.
[48] Regulations 7.8.09 and 7.8.10
omit
[49] After subregulation
7.8.21 (1)
insert
(1A) For subsection 991F (2) of the Act, that
subsection does not have effect in relation to a financial services licensee
that gives credit in good faith to a person employed by:
- (a)
- the financial
services licensee; or
- (b)
- a person related to the financial services licensee;
to enable the person to acquire an insurance product in relation to a credit
facility provided by the financial services licensee to the person.
Example
Mortgage insurance is an insurance product in relation to a credit facility.
[50] After regulation 7.8.21
insert
7.8.22 Hours for hawking certain
financial products
For paragraph 992A (3) (a) of the Act, the prescribed hours are from
8 am to 9 pm on a day in the State or Territory in which the person
to whom the offer is made is located, excluding:
- (a)
- Christmas Day; and
- (b)
- Good Friday; and
- (c)
- Easter Sunday.
7.8.23 Return of financial product: transfer between superannuation entities
or RSAs
- (1)
- For paragraph 992A (4) (b) of the Act, this regulation
applies in relation to a superannuation product or an RSA product that has
been issued to the holder of the product as a result of a transfer between
superannuation entities or RSAs.
(2) It is a requirement of the exercise of
the right to return the superannuation product or RSA product that, if the
money to be repaid includes:
- (a)
- restricted non-preserved benefits; or
- (b)
- preserved benefits;
the holder of the superannuation product, or the RSA holder, must nominate a
superannuation fund, approved deposit fund or RSA into which the money
representing restricted non-preserved benefits or preserved benefits is to be
repaid.
- (3)
- For paragraph 992A (4) (b) of the Act, if the right of
return is exercised, the responsible person must return the money as directed.
7.8.24 Right of return not to apply
For subparagraph 992A (4) (c) (i) of the Act, the following
subclasses of financial products are excluded from subsection 992A (4) of
the Act:
- (a)
- a financial product offered or issued under a distribution
reinvestment plan or switching facility;
- (b)
- a financial product the acquisition of which is an additional contribution
required by an existing agreement or contract;
- (c)
- a financial product issued as consideration for an offer made under a
takeover bid under Chapter 6 of the Act;
- (d)
- an interim contract of insurance within the meaning of subsection 11
(2) of the Insurance Contracts Act 1984 ;
(e) a superannuation product that is issued in relation to:
- (i)
- a non-public
offer superannuation entity; or
- (ii)
- a public offer superannuation entity mentioned in paragraph 7.6.01 (1)
(b), (c) or (d);
(f) a risk insurance product that is:
- (i)
- of less than 12 months duration;
and
- (ii)
- a renewal of an existing product on the terms and conditions to which the
product is currently subject.
7.8.25 Variation of amount to be repaid
For paragraph 992A (4) (b) of the Act, if a financial product is
subject to a distribution, the amount that would otherwise be repaid on the
exercise of the right to return the financial product may be reduced by the
amount of that distribution.
[51] Regulation 7.9.06
omit
[52] Regulation
7.9.07
omit
Part 4
insert
Part 3
[53] Regulation 7.9.07C
omit
the rules
of a licensed market
insert
the operating rules of a licensed financial
market
[54] After subregulation 7.9.08 (2)
insert
- (3)
- For paragraph
1020G (1) (c) of the Act, if money received under section 1017E of
the Act is paid into an account under subregulation 7.8.01 (6), Part 7.8
of the Act applies to the money.
Note
See also subregulation
7.8.01 (7).
(4) For paragraph 1020G (1) (c) of the Act, Part
7.9 of the Act applies as if section 1017E of the Act were modified by
omitting paragraph 1017E (2) (b) and inserting the following
paragraph:
`(b) any money may be paid into the account, provided that:
- (i)
- money to
which this section applies; and
- (ii)
- interest on the amount from time to time standing to the credit of the
account;
is identified and held in accordance with all other provisions of this
section; and'.
[55] After regulation 7.9.08
insert
7.9.08A Dealing with interest
For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act applies
as if section 1017E of the Act were modified by adding after subsection
1017E (2C):
`(2D) In relation to money to which this section applies:
- (a)
- the product
provider is entitled to the interest on the account; and
- (b)
- the interest on the account is not required to be paid into the account;
only if the product provider discloses to the person who paid the money that
the product provider is keeping the interest (if any) earned on the account.'.
7.9.08B Crediting of payments before money is received
(1) For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act
applies as if section 1017E of the Act were modified by adding after
subsection 1017E (1):
`(1A) This section also applies to money paid by a product provider in the
following circumstances:
- (a)
- the product provider knows, or believes on
reasonable grounds, that money (the client's money ) will be paid to the
product provider to acquire, or acquire an increased interest in, one or more
of the financial products mentioned in paragraph (1) (a) or (b) from the
product provider (whether or not the acquisition would be by a person as a
retail client);
- (b)
- either:
(i) the financial product or increased interest was offered in this
jurisdiction; or
(ii) the application for the financial product or increased interest was
made in this jurisdiction; or
(iii) the money will be received in this jurisdiction;
- (c)
- before
receiving the client's money, the product provider pays an equivalent
amount of money (the product provider's money ) into an account
described in subsection (2).'.
(2) For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act
applies as if section 1017E of the Act were modified by adding after
subsection 1017E (5):
`(5A) If subsection (1A) applies:
- (a)
- the product provider is not required
to comply with this section in relation to the client's money; and
- (b)
- subsections (2A), (2B), (2C), (2D), (3), (4), (5) and (6) apply to the
product provider's money as if the money had been paid by the person who paid,
or is expected to pay, the client's money.'.
(3) For paragraph 1017E (3) (d) of the Act, money may be taken out
of an account if:
- (a)
- the circumstances described in the modified subsection
1017E (1A) of the Act exist; and
- (b)
- after paying the product provider's money, the product provider becomes
aware, or has reasonable grounds to believe, that the client's money will not
be paid.
[56] Paragraph 7.9.14 (2) (a)
omit
superannuation fund, approved
deposit fund or
insert
superannuation entity or
[57] After subregulation
7.9.14 (2)
insert
- (2A)
- The right of return is taken to have been
exercised only on receipt by the responsible person of the nomination.
[58]
After regulation 7.9.16
insert
7.9.16A Small scale offerings of managed
investment and other prescribed financial products (20 issues or sales in
12 months)
For paragraph 1012E (1) (b) of the Act, interests in unregistered
managed investment schemes are prescribed.
[59] Subparagraph
7.9.61D (1) (e) (ii)
omit
regulation 7.9.06A.
insert
regulation 7.9.06B.
[60] After subregulation 7.9.62 (1)
insert
- (1A)
- For paragraph 1017F (4) (e) of the Act, a transaction is not
required to be confirmed by the trustee of a superannuation fund if the
transaction relates to a superannuation product provided by a self managed
superannuation fund.
[61] Paragraph 7.9.62 (2) (a)
omit
RSA;
insert
RSA; and
[62] Paragraph 7.9.62 (2) (b)
omit
RSA; and
insert
RSA.
[63] Paragraph 7.9.62 (3) (a)
after
fees
insert
,
taxes
[64] Subregulation 7.9.63B (7)
omit
in the ordinary course of
business of a licensed market,
insert
on-market,
[65] After regulation
7.9.63E
insert
7.9.63F Confirmation of transaction acquisition
of financial product
- (1)
- For subparagraph 1017F (8) (c) (iii)
of the Act, this regulation applies in relation to the confirmation of a
transaction that is the acquisition of a financial product.
- (2)
- The details
of the transaction relating to the amount paid or payable by the holder in
relation to the transaction need include only the amount the holder is
required to pay to acquire the product.
7.9.63G Confirmation of
transaction disposal of financial product
- (1)
- For paragraph
1017F (8) (d) of the Act, this regulation applies in relation to the
confirmation of a transaction that is the disposal of a financial product.
- (2)
- The confirmation must include the amount paid or payable to the holder as
a result of the disposal.
7.9.63H Certain product issuers and regulated
persons must meet appropriate dispute resolution requirements self
managed superannuation funds
For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act applies
in relation to a self managed superannuation fund as if section 1017G of the
Act were omitted.
[66] Paragraph 7.9.64 (1) (h)
omit
1016D (2)
insert
1016D (1)
[67] Paragraph
7.9.64 (1) (h)
omit
applies.
insert
applies;
[68] After
paragraph 7.9.64 (1) (h)
insert
(i) a managed investment product:
- (i)
- to which Chapter 6D of the old Corporations Act applied; and
- (ii)
- that was listed before the FSR commencement.
[69] After regulation 7.9.64
insert
7.9.64A Notification of exercise
of right of return risk insurance products
For paragraph 1019B (2) (c) of the Act, a right of return may be
exercised in relation to a risk insurance product by notifying the responsible
person in a way permitted by the responsible person.
[70] Paragraph
7.9.65 (1) (a)
substitute
- (a)
- the 14-day period mentioned in
subsection 1019B (3) of the Act; and
[71] Subregulation 7.9.66 (3)
omit
provider
insert
responsible person
[72] Subregulation 7.9.66 (4)
omit
product issuer
insert
responsible
person
[73] Subregulation 7.9.66 (5)
omit
product issuer
insert
responsible person
[74] Subregulation 7.9.66 (6)
omit
product issuer
insert
responsible person
[75] After subregulation 7.9.66 (6)
insert
- (7)
- For subsection 1019B (7) of the Act, if the right of return is
exercised, the responsible person must return the money as directed.
[76]
Paragraph 7.9.67 (2) (b)
omit
product issuer
insert
responsible
person
[77] Paragraph 7.9.67 (3) (b)
omit
product issuer
insert
responsible person
[78] Paragraph 7.9.67 (4) (b)
omit
product
issuer
insert
responsible person
[79] Subregulation 7.9.67 (5)
omit
product issuer
insert
responsible person
[80] Paragraph
7.9.67 (6) (a)
omit
product issuer
insert
responsible person
[81] Subparagraph 7.9.67 (6) (b) (i)
omit
issuer
insert
responsible person
[82] Subregulation 7.9.67 (7)
after
otherwise be
repaid
insert
in relation to the return of a financial product (other than
an RSA product)
[83] Subregulation 7.9.67 (7)
omit
incurred by the
issuer of a financial product (other than an RSA product)
insert
incurred by
the responsible person
[84] Subregulation 7.9.68 (3)
omit
mandated
employer contributions,
insert
employer contributions (whether or not they
are mandated employer contributions),
[85] Subregulation 7.9.68 (3)
omit
the mandated employer contributions are to be repaid.
insert
the
employer contributions are to be repaid.
[86] Subregulation 7.9.68 (4)
omit
provider
insert
responsible person
[87] Subregulation 7.9.68 (5)
omit
product issuer
insert
responsible person
[88] Subregulation
7.9.68 (6)
omit
product issuer
insert
responsible person
[89]
Subregulation 7.9.68 (7)
omit
product issuer
insert
responsible
person
[90] Subregulation 7.9.68 (8)
omit
monies paid for the
superannuation product by the standard employer-sponsored member
insert
monies paid in relation to the superannuation product by the standard
employer-sponsored member (including monies rolled over or transferred from
another superannuation entity or RSA)
[91] Subregulation 7.9.68 (8)
omit
product issuer:
insert
responsible person:
[92] Subregulation
7.9.68 (9)
omit
product issuer
insert
responsible person
[93]
Regulation 9.12.01, heading
substitute
9.12.01 Exemptions from Chapter 7
[94] After regulation 9.12.01
insert
9.12.02 Exemptions from Chapter
7 insider trading (natural person)
For section 1368 of the Act, if a natural person ( person 1 ) would
contravene subsection 1043A (1) of the Act by entering into a transaction
or agreement (the new transaction or agreement ) in relation to financial
products issued by another person ( person 2 ) merely because
person 1 is aware that he or she proposes to enter into, or has
previously entered into, one or more transactions or agreements in relation to
financial products issued by a person other than person 2, subsection
1043A (1) does not have effect in relation to person 1 in relation
to the new transaction or agreement.
9.12.03 Exemptions from Chapter
7 insider trading (body corporate)
- (1)
- For section 1368 of the
Act, if a body corporate would contravene subsection 1043A (1) of the Act
by entering into a transaction or agreement (the new transaction or agreement
) in relation to financial products issued by another person ( person 2 )
merely because the body corporate is aware that it proposes to enter into, or
has previously entered into, one or more transactions or agreements in
relation to financial products issued by a person other than person 2,
subsection 1043A (1) does not have effect in relation to the body
corporate in relation to the new transaction or agreement.
- (2)
- Subject to
subregulation (3), if a body corporate would contravene subsection
1043A (1) by entering into a transaction or agreement (the new
transaction or agreement ) in relation to financial products issued by another
person ( person 2 ) merely because an officer of the body corporate is
aware that the body corporate proposes to enter into, or has previously
entered into, one or more transactions or agreements in relation to financial
products issued by a person other than person 2, subsection
1043A (1) does not have effect in relation to the body corporate in
relation to the new transaction or agreement.
- (3)
- Subregulation (2) does not apply unless the officer of the body corporate
becomes aware of the matters referred to in that subregulation in the course
of the performance of duties as an officer of the body corporate.
9.12.04
Exemptions from Chapter 7 insider trading (officers or agents of
body corporate)
- (1)
- For section 1368 of the Act, if a person ( person 1
) would contravene subsection 1043A (1) of the Act by entering into a
transaction or agreement (the new transaction or agreement ) on behalf of a
person ( person 2 ) in relation to financial products issued by another
person ( person 3 ) merely because person 1 is aware that
person 2 proposes to enter into, or has previously entered into, one or
more transactions or agreements in relation to financial products issued by a
person other than person 3, subsection 1043A (1) does not have
effect in relation to person 1 in relation to the new transaction or
agreement.
(2) Subregulation (1) does not apply unless person 1 became
aware of the matters referred to in that subregulation in the course of:
- (a)
- the performance of duties as an officer of person 2; or
- (b)
- acting as an agent of person 2.
[95] After regulation 10.2.02
insert
10.2.02A References to transition
periods
In these Regulations, unless the contrary intention appears, a reference to a
transition period includes a transition period that has been extended under
section 1437 of the Act.
10.2.02B References to the application of
Division 2 of Part 7.9 of the Act
In these Regulations, unless the contrary intention appears:
- (a)
- a reference
to Division 2 of Part 7.9 of the Act not applying to or in relation to a
financial product is taken to refer only to circumstances in which that
Division does not apply because of the effect of a provision of Part 10.2 of
the Act; and
- (b)
- a reference to a financial product to which, or in relation to which,
Division 2 of Part 7.9 of the Act applies is taken to include any financial
product except a financial product to which that Division does not apply
because of the effect of a provision of Part 10.2 of the Act.
Division 1A Treatment of proposed markets that have not started to operate by
the FSR commencement
10.2.02C Proposed markets
For paragraph 1412 (1) (b) of the Act, the following markets are
identified:
(a) a market in futures contracts proposed to be operated by Atriax
Limited;
- (b)
- a market in futures contracts proposed to be operated
by Hong Kong Futures Exchange Limited;
- (c)
- a market in securities proposed to be operated by Bloomberg L.P;
- (d)
- a market in futures contracts proposed to be operated by The London Metal
Exchange;
- (e)
- a market in futures contracts proposed to be operated by Credit Suisse
First Boston (Europe) Limited.
[96] Regulation 10.2.38, table, after item 6
insert
7
| A person whose
licence is suspended under subsection 827 (1) of the old Corporations Act
(whether the suspension occurred before, on or after the FSR commencement)
|
(a) While the suspension is in force no activities (b) If the
suspension ceases to be in force on or before 10 March 2004, and from the time
the suspension ceases to be in force the activities that the
licence (as in force immediately before it was suspended) authorised the
person to carry on
| All relevant old legislation in relation to the kind of
licence
|
8
| A person whose licence is suspended under subsection 1192 (1) of
the old Corporations Act (whether the suspension occurred before, on or after
11 March 2002)
| (a) While the suspension is in force no
activities (b) If the suspension ceases to be in force on or before 10 March
2004, and from the time the suspension ceases to be in force the
activities that the licence (as in force immediately before it was suspended)
authorised the person to carry on
| All relevant old legislation in relation
to the kind of licence
|
9
| A person whose registration is suspended under
section 25 of the Insurance (Agents and Brokers) Act 1984
| (a) While the
suspension is in force no activities (b) If the suspension ceases
to be in force on or before 10 March 2004, and from the time the suspension
ceases to be in force the activities that the licence (as in force
immediately before it was suspended) authorised the person to carry on
| All
of the provisions of the Insurance (Agents and Brokers) Act 1984 as in force
immediately before the FSR commencement, and any associated provisions
|
10
|
A person whose registration is suspended under section 25 of the Insurance
(Agents and Brokers) Act 1984 who is covered by a specification in writing by
ASIC under subsection 25 (3) of that Act
| (a) While the specification is
in force such of the person's activities as ASIC specifies in
writing under subsection 25 (3) of the Insurance (Agents and Brokers)
Act 1984
| All of the provisions of the
Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR
commencement, and any associated provisions
|
|
| (b) If the suspension ceases
to be in force on or before 10 March 2004, and from the time the suspension
ceases to be in force the activities that the registration
(immediately before it was suspended) authorised the person to carry on
|
|
11
| A person whose registration is suspended under section 31H of the Insurance
(Agents and Brokers) Act 1984
| (a) While the suspension is in
force no activities (b) If the suspension ceases to be in force
on or before 10 March 2004, and from the time the suspension ceases to be in
force the activities that the registration (immediately before it
was suspended) authorised the person to carry on
| All of the provisions of
the Insurance (Agents and Brokers) Act 1984 as in force immediately before the
FSR commencement, and any associated provisions
|
12
| A person whose
registration is suspended under section 31H of the Insurance (Agents and
Brokers) Act 1984 who is covered by a specification in writing by ASIC under
subsection 31H (3) of that Act
| (a) While the specification is in
force such of the person's activities as ASIC specifies in writing
under subsection 31H (3) of the Insurance (Agents and Brokers) Act 1984
| All of the provisions of the Insurance (Agents and Brokers) Act 1984 as in
force immediately before the FSR commencement, and any associated provisions
|
|
| (b) If the suspension ceases to be in force on or before 10 March 2004, from
the time the suspension ceases to be in force the activities that
the registration (immediately before it was suspended) authorised the person
to carry on
|
|
[97] After regulation 10.2.44
insert
10.2.44A Obligation to
cite licence number in documents
(1) For section 1444 of the Act, this regulation applies if:
- (a)
- a person
who has not been granted a financial services licence prepares copies of a
Product Disclosure Statement; and
- (b)
- the copies of the Product Disclosure Statement do not include a licence
number for the person; and
- (c)
- the person is granted a financial services licence after preparing the
copies of the Product Disclosure Statement.
- (2)
- Section 912F of the Act does not apply to the financial services licensee
in relation to the copies of the Product Disclosure Statement.
- (3)
- Subregulation (2) ceases to apply at the end of 2 years after the FSR
commencement.
[98] After regulation 10.2.47
insert
10.2.47A Modification
of pre-FSR authority
(1) For section 1444 of the Act, this regulation applies if a person:
- (a)
- is
a regulated principal in relation to 2 or more regulated activities; and
- (b)
- holds an authority under the relevant old legislation in relation to those
regulated activities; and
(c) either:
- (i)
- becomes a financial services licensee in relation to 1 or
more of those regulated activities; or
- (ii)
- is exempt from the requirement to hold a financial services licence in
relation to 1 or more of those regulated activities.
- (2)
- ASIC may vary the authority to take account of the fact that the person
has become a financial services licensee, or is exempt from the requirement to
hold a financial services licence.
(3) ASIC must not vary the authority
unless ASIC has given the person an opportunity:
- (a)
- to appear at a hearing
before ASIC that takes place in private; and
- (b)
- to make submissions and give evidence to ASIC in relation to the matter.
- (4)
- ASIC must give written notice of the variation to the person.
- (5)
- The variation takes effect when the written notice of the variation is
given to the person.
[99] After regulation 10.2.50
insert
10.2.50A
Treatment of arrangements under which a person can instruct another person to
acquire a financial product
- (1)
- For section 1444 of the Act, this regulation
applies in relation to a custodial arrangement (within the meaning of section
1012IA of the Act) in which the client is the holder of a superannuation
product issued to the client by the provider.
- (2)
- Section 1012IA of the Act
does not apply to a regulated acquisition (within the meaning of that section)
that occurs under the custodial arrangement.
- (3)
- Subregulation (2) ceases to apply at the end of 2 years after the FSR
commencement.
[100] Subregulation 10.2.52A (1)
omit
applies in
relation to a financial product
insert
applies in relation to an offer of a
financial product
[101] Subregulation 10.2.52A (2)
substitute
- (2)
- The
offer is taken to comply with the condition set out in paragraph
1012E (9) (c) of the Act.
[102] Subregulation 10.2.71 (2)
omit
securities
insert
derivatives
[103] After regulation 10.2.73
insert
10.2.73A Advertising for financial products
(1) For section 1444 of the Act, this regulation applies in relation to:
- (a)
- a financial product; or
- (b)
- a class of financial products that includes the financial product;
for which a notice has been lodged with ASIC in accordance with paragraph
1438 (3) (b) of the Act.
- (2)
- At any time in the period of 3 months
ending immediately before the date specified in the notice in accordance with
paragraph 1438 (3) (b) of the Act, the issuer of the financial
product may decide to comply with Division 4 of Part 7.9 of the Act in
relation to the financial product.
(3) If the product issuer makes the
decision mentioned in subregulation (2):
- (a)
- Division 4 of Part 7.9 of the
Act applies in relation to the financial product until the date specified in
the notice; and
- (b)
- section 734 of the old Corporations Act does not apply in relation to the
financial product.
Note
Under subsection 1438 (5) of the Act, it is possible for the date
specified in accordance with paragraph 1438 (3) (b) of the Act to be
changed.
(4) If the notice is lodged with ASIC less than 3 months before the
date specified in the notice in accordance with paragraph
1438 (3) (b) of the Act, subregulation (2) applies only during the
period:
- (a)
- starting when the notice is lodged; and
- (b)
- ending immediately before the date specified in the notice.
10.2.73B Freezing accounts
(1) For section 1444 of the Act, this regulation applies if a person:
- (a)
- holds or held a licence under Chapter 7 or 8 of the old Corporations Act in
relation to an activity; and
- (b)
- the licence is revoked or suspended at any time before or after the FSR
commencement.
- (2)
- Subsection 983A (3) of the Act applies to the person as if the person
were a person who holds, or has at any time held, an Australian financial
services licence that has been revoked or suspended.
[104] Subregulation
10.2.74 (2)
omit
A managed investment product
insert
Subject to
subregulation (2A), a managed investment product
[105] After subregulation
10.2.74 (2)
insert
- (2A)
- A financial product that is an interest in a
registered scheme is in the same class as another financial product if the
other financial product is an interest in the same registered scheme.
[106]
After subregulation 10.2.74 (10)
insert
- (11)
- A warrant is in the same
class as another financial product only if the other financial product is a
warrant.
[107] Subregulation 10.2.75 (3)
substitute
- (3)
- A reference
in paragraph 761E (6) (d) of the Act to an authorised representative
includes a representative of a regulated principal.
- (4)
- A reference in paragraph (d) of the definition of regulated person in
section 1011B of the Act to an authorised representative includes a
representative of a regulated principal.
- (5)
- A reference in paragraph 1015C (3) (b) of the Act to an
authorised representative includes a representative of a regulated principal.
- (6)
- A reference in paragraph 1017A (1) (c) of the Act to an authorised
representative includes a representative of a regulated principal.
- (7)
- Subregulations (1) to (6) cease to apply in relation to the regulated
principal and the authorised representative at the end of the transition
period in relation to the regulated principal.
[108] Regulation 10.2.77
substitute
10.2.77 References to issue of product
For section 1444 of the Act, a reference in subsection 1438 (1) of the
Act to financial products in a class of products that are first issued by a
person after the FSR commencement does not include financial products in a
class of products if the person who is, or will be, the product issuer first
made an offer to issue a financial product in that class of products before
the FSR commencement.
[109] Paragraph 10.2.79 (b)
omit
(c).
insert
(c);
[110] After paragraph 10.2.79 (b)
insert
- (c)
- subparagraph
1012D (2) (b) (ii).
[111] After regulation 10.2.94
insert
10.2.94A Prohibitions under
paragraphs 827 (1) (d) and 1192 (1) (d) of the old
Corporations Act made before FSR commencement
(1) For section 1444 of the Act, on and after the FSR commencement, a
prohibition under paragraph 827 (1) (d) or 1192 (1) (d) of
the old Corporations Act made before the FSR commencement:
(a) continues in force to the extent practicable to allow it to apply to
conduct or another matter:
- (i)
- as it is described on and after the
FSR commencement; or
- (ii)
- as it is regulated on and after the FSR commencement; and
- (b)
- is taken to be a prohibition made under paragraph 827 (1) (d) or
1192 (1) (d) of the old Corporations Act.
- (2)
- On and after the FSR commencement, paragraph 827 (1) (d) or
1192 (1) (d) of the old Corporations Act, and associated provisions,
continue to apply to the extent necessary to allow the prohibition to continue
in force.
- (3)
- For subregulation (2), nothing in the relevant old legislation (including
the Australian Securities and Investments Commission Act 2001 ) prevents ASIC
from drafting or amending the terms of a prohibition for the purpose of
ensuring that the prohibition has the same effect under the amended
Corporations Act as it had under the old Corporations Act, or an effect
equivalent to the effect it had under the old Corporations Act.
10.2.94B
Prohibitions under paragraphs 827 (1) (d) and 1192 (1) (d)
of the old Corporations Act made after FSR commencement
(1) For section 1444 of the Act, on and after the FSR commencement, paragraphs
827 (1) (d) and 1192 (1) (d) of the old Corporations Act,
and associated provisions, continue to apply to the extent necessary to allow
a prohibition to be made or enforced against a person in relation to:
- (a)
- conduct or another matter that occurred before the FSR commencement; or
- (b)
- conduct or another matter that:
- (i)
- occurred after the FSR commencement; and
- (ii)
- is regulated in accordance with section 1432 or 1436A of the Act.
- (2)
- A prohibition made in relation to conduct or another matter mentioned in
subregulation (1) is taken to be a prohibition made under paragraph
827 (1) (d) or 1192 (1) (d) of the old Corporations Act.
- (3)
- For subregulation (2), nothing in the relevant old legislation (including
the Australian Securities and Investments Commission Act 2001 ) prevents ASIC
from drafting or amending the terms of a prohibition for the purpose of
ensuring that the prohibition has the same effect under the amended
Corporations Act as it had under the old Corporations Act, or an effect
equivalent to the effect it had under the old Corporations Act.
[112]
Subregulation 10.2.102 (1), note
substitute
Note
A number of
representatives in the financial services industry currently act:
(a) on
behalf of more than one principal; or
(b) as a principal in some
circumstances but as a representative in others; or
(c) in both capacities.
On this basis, it is possible that different liability regimes simultaneously
apply to the representative, depending on the kind of conduct. These regimes
include:
(a) the Corporations Act as in force before the FSR commencement;
and
(b) the Corporations Act as in force after the FSR commencement; and
(c)
the Australian Securities and Investments Commission Act 2001 ; and
(d) the
Insurance (Agents and Brokers) Act 1984 ; and
(e) the common law.
[113]
Subregulations 10.2.102 (4) and (5)
substitute
(4) If, as a result of
the conduct of the representative, 1 or more of the principals issues,
transfers, varies, or disposes of a financial product:
- (a)
- each of those
principals is jointly and severally liable for the conduct of the
representative; and
- (b)
- the nature of the liability is to be determined in accordance with the
relevant law that applies to the conduct under the relevant legal regime under
which the particular principal is operating.
(5) If subregulation (4) does not apply:
- (a)
- the liability for the conduct
is to be determined in accordance with the relevant law that applies to the
conduct; and
- (b)
- section 917B and subsection 917C (4) of the Act apply in relation to
the liability of an FSR principal only if the conduct is in a class of
financial services that the FSR principal has authorised the representative to
provide.
[114] After regulation 10.2.119A
insert
10.2.119B Disqualifications made
before FSR commencement
(1) For section 1444 of the Act, on and after the FSR commencement, a
disqualification under subsection 25 (5) or 31H (5) of the Insurance
(Agents and Brokers) Act 1984 made before the FSR commencement:
(a) continues in force to the extent practicable to allow it to apply to
conduct or another matter:
- (i)
- as it is described on and after the
FSR commencement; or
- (ii)
- as it is regulated on and after the FSR commencement; and
- (b)
- is taken to be a disqualification made under subsection 25 (5) or
31H (5) of the Insurance (Agents and Brokers) Act 1984 .
- (2)
- For section 1444 of the Act, on and after the FSR commencement,
subsections 25 (5) and 31H (5) of the Insurance (Agents and
Brokers) Act 1984 , and associated provisions, continue to apply to the extent
necessary to allow the disqualification to continue in force.
- (3)
- For subregulation (2), nothing in the relevant old legislation (including
the Australian Securities and Investments Commission Act 2001 ) prevents ASIC
from drafting or amending the terms of a prohibition for the purpose of
ensuring that the prohibition has the same effect under the Act as it had
under the relevant old legislation, or an effect equivalent to the effect it
had under the relevant old legislation.
10.2.119C Disqualifications made
after FSR commencement
(1) For section 1444 of the Act, on and after the FSR commencement,
subsections 25 (5) and 31H (5) of the Insurance (Agents and
Brokers) Act 1984 , and associated provisions, continue to apply to the extent
necessary to allow a disqualification to be made or enforced against a person
in relation to:
- (a)
- conduct or another matter that occurred before the FSR
commencement; or
- (b)
- conduct or another matter that:
- (i)
- occurred after the FSR commencement; and
- (ii)
- is regulated in accordance with section 1432 or 1436A of the Act.
- (2)
- A disqualification made in relation to conduct or another matter mentioned
in subregulation (1) is taken to be a disqualification made under subsection
25 (5) or 31H (5) of the Insurance (Agents and Brokers) Act 1984 .
- (3)
- For subregulation (2), nothing in the relevant old legislation (including
the Australian Securities and Investments Commission Act 2001 ) prevents ASIC
from drafting or amending the terms of a prohibition for the purpose of
ensuring that the prohibition has the same effect under the amended
Corporations Act as it had under the old legislation, or an effect equivalent
to the effect it had under the old legislation.
[115] After paragraph
10.2.120B (2) (d)
insert
- (da)
- regulation 3.10;
[116] Before regulation 10.2.123
insert
10.2.122 Solvency and insolvency
For section 1444 of the Act, a reference in the Act to solvency or insolvency
is to be read as if subsections 95A (1) and (2) of the old Corporations
Act had not been repealed on the FSR commencement.
[117] Subparagraph
10.2.124 (b) (i)
after
Corporations Act
insert
if the scheme
were registered
[118] Part 10.2, after Division 27
insert
Division 27A
Transitional matters under other legislation
10.2.135A References to
authorised foreign exchange dealers
(1) For section 1444 of the Act, this regulation applies to a reference, in a
law of the Commonwealth (within the meaning of Division 2 of Part 10.2 of the
Act), to:
- (a)
- an authorised foreign exchange dealer; or
- (b)
- a person authorised to carry on business as a dealer in foreign exchange.
- (2)
- On and after the FSR commencement, the reference is taken to include a
holder of an Australian financial services licence that authorises the holder
to buy and sell foreign currency.
[119] Paragraph 10.2.138 (3) (a)
omit
the transition period
insert
the end of the transition period
[120]
Paragraph 10.2.138 (3) (b)
omit
ceases to be a person mentioned in
subregulation (1).
insert
ceases to have the status that made the person a
regulated person.
[121] Subregulation 10.2.146 (2)
after
licensed
market
insert
for securities
[122] Subregulation 10.2.146 (3)
omit
each mention of
or listing rules
[123] Subregulation 10.2.146 (3)
after
licensed market
insert
for securities
[124] Regulation 10.2.148,
heading
substitute
10.2.148 Conditions of dealers licence
[125]
Subregulation 10.2.151 (2)
after
licensed market
insert
for
securities
[126] Subregulation 10.2.156 (3)
after
licensed market
insert
for securities
[127] Subregulation 10.2.156 (4)
omit
a market
licensee.
insert
an operator of a licensed market for securities.
[128]
Subregulation 10.2.169 (2)
omit
financial market.
insert
licensed
market for derivatives.
[129] Subregulation 10.2.197 (3)
omit
managed
investment product,
insert
managed investment scheme,
[130] Regulation
10.2.198, heading
substitute
10.2.198 Hawking financial product
other arrangements
[131] Paragraph 10.2.200 (1) (b)
omit
in
relation to the financial product.
insert
in relation to the financial
product; and
[132] After paragraph 10.2.200 (1) (b)
insert
(c)
the particular document:
- (i)
- was publicly available; or
- (ii)
- had been distributed to users; or
- (iii)
- had been lodged with ASIC; or
- (iv)
- was otherwise in existence and in use, or available for use;
before the FSR commencement.
[133] Subregulation 10.2.200 (2)
omit
The document is not taken to be
misleading or deceptive in relation to information about any cooling-off
regime if:
insert
The issuer of the financial product is not civilly or
criminally liable in relation to information about the cooling off regime
applying after the FSR commencement if:
[134] Subregulation 10.2.206 (2)
substitute
- (2)
- The fund reporting period for the financial product, worked
out in accordance with Subdivision 2.4.1, is taken to be a fund reporting
period for Subdivision 5.5 of Part 7.9 of these Regulations.
[135]
Regulation 10.2.207
substitute
10.2.207 Periodic statements for retail
clients for financial products that have an investment component
(1) For section 1444 of the Act, this regulation applies if:
- (a)
- a person
acquired a financial product, as described in subsection 1017D (1) of the
Act; and
- (b)
- the issuer of the financial product was a regulated principal in relation
to the financial product.
- (2)
- The reporting period for the financial product, worked out in accordance
with the old Corporations Act, is taken to be a reporting period for the Act.
[136] Part 10.2, after Division 46
insert
Division 47 Agreements with
unlicensed persons relating to the provision of financial services
10.2.210
Agreements
(1) For section 1444 of the Act, this regulation applies if:
- (a)
- a person (
person 1 ) enters into an agreement with another person ( person 2 )
in the course of an activity conducted by person 2; and
- (b)
- at that time, Part 7.6 of the Act does not apply to person 2 in relation
to the activity; and
- (c)
- the activity would constitute carrying on a financial services business if
Part 7.6 of the Act applied to person 2 in relation to the activity; and
- (d)
- the agreement is not completed when Part 7.6 of the Act first applies to
person 2 in relation to the activity; and
(e) when Part 7.6 of the Act first applies to person 2 in relation to the
activity, person 2:
- (i)
- does not hold an Australian financial services
licence covering the activity; and
- (ii)
- is not exempt from the requirement to hold that licence.
- (2)
- Division 11 of Part 7.6 of the Act applies in relation to the agreement to
the extent that that Division is not inconsistent with Division 2 of Part 7.3
of the old Corporations Act.
Division 48 Arrangements for Lloyd's
10.2.211
Lloyd's
(1) For section 1444 of the Act, subsection 911A (1) of the Act does not
apply in relation to a financial service:
(a) that is provided by:
- (i)
- a Lloyd's underwriting member; or
- (ii)
- a listed Lloyd's syndicate of underwriting members; and
(b) to which subregulation (2) applies.
- (2)
- The financial service must be a
service in relation to which the Lloyd's underwriting member, or the
syndicate, is regulated by APRA at any time within 2 years after the FSR
commencement.
(3) In this regulation:
"Lloyd's" means the society
incorporated by the Act of the United Kingdom known as the Lloyd's Act 1871.
Division 49 Hawking of certain financial products
10.2.212 Hawking of managed
investment products
- (1)
- For section 1444 of the Act, a reference in
subsection 992AA (2) of the Act to a financial services licensee includes
a regulated principal.
- (2)
- Subregulation (1) ceases to apply in relation to
a regulated principal at the end of the transition period in relation to the
regulated principal.
[137] Schedule 10A, items 6.1 and 6.2
substitute
6.1
After subsection 1016A (2)
insert
(2A) Subsection (2) does not apply in relation to a member who:
- (a)
- held an
interest in a superannuation fund as a standard employer-sponsored member; and
- (b)
- is issued with an interest in relation to another sub-plan of the
superannuation fund as a result of a transfer related to the cessation of the
member's employment with the employer-sponsor.
6.2 After subsection 1016A (3)
insert
(3A) Subsection (3) does not apply in relation to a superannuation
product if:
- (a)
- the issuer is a public offer entity that is a successor
fund; and
(b) an employer became a standard employer-sponsor of a fund in the following
way:
- (i)
- the employer was a standard employer-sponsor of a fund (
fund 1 );
- (ii)
- the benefits of members in fund 1 were transferred to a successor
fund;
- (iii)
- the employer was a standard employer-sponsor of fund 1 immediately
before those benefits were so transferred;
- (iv)
- the employer was a standard employer-sponsor of the successor fund
immediately after those benefits were so transferred.
[138] Schedule 10A, item 12.2
omit
[139] Schedule 10A, item 15.1
substitute
15.1 After subsection 1017F (5A)
insert
(5B) Despite subsection (5), if:
- (a)
- the cost of a transaction (including
taxes and charges) is not known at the time at which confirmation of the
transaction would be required to be given; and
- (b)
- all of the other information required under subsection (7) in relation to
confirmation of the transaction is known at that time;
the confirmation of the transaction is to be provided in accordance with
subsection (5C).
(5C) Confirmation is to be provided as follows:
- (a)
- all of
the information required, except for the cost of the transaction, is to be
provided as soon as practicable in accordance with subsection (5);
(b) the cost of the transaction may be provided in whichever of the following
can be done first:
- (i)
- a secondary confirmation notice provided as soon as
practicable after the cost is known;
- (ii)
- a standing facility mentioned in paragraph 1017F (5) (b);
- (iii)
- the first periodic report under section 1017D after the cost is known.
[140] Schedule 10A, item 17.1, new subparagraph
1012B (4B) (b) (ii)
omit
regulation 7.9.06A
insert
regulation 7.9.06B
[141] Schedule 10A, item 17.2, new paragraph
1012I (2C) (a)
omit
regulation 7.9.06A
insert
regulation 7.9.06B
[142] Schedule 10B, item 1.2
after
issuer
insert
or fund
[143] Schedule
10C, item 1.2
after
issuer
insert
or fund
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