Financial Services Reform (Consequential Provisions) Act 2001
No. 123, 2001
Financial Services Reform (Consequential Provisions) Act 2001
No. 123, 2001
An Act to repeal or amend certain Acts as a consequence of the enactment of the Financial Services Reform Act 2001, and for other purposes
Contents
1............ Short title............................................................................................ 1
2............ Commencement.................................................................................. 1
3............ Schedule(s).......................................................................................... 6
Schedule 1—Amendments and repeals 7
Administrative Decisions (Judicial Review) Act 1977 7
Administrative Review Tribunal (Consequential and Transitional Provisions) Act 2001 7
Australian Industry Development Corporation Act 1970 7
Australian Securities and Investments Commission Act 2001 8
Bankruptcy Act 1966 33
Commonwealth Serum Laboratories Act 1961 33
Corporations Act 2001 33
Corporations (Futures Organisations Levies) Act 2001 33
Corporations (Securities Exchanges Levies) Act 2001 33
Financial Transaction Reports Act 1988 33
Fringe Benefits Tax Assessment Act 1986 33
Income Tax Assessment Act 1936 33
Insurance Act 1973 33
Insurance (Agents and Brokers) Act 1984 33
Insurance Contracts Act 1984 33
Interactive Gambling Act 2001 33
Life Insurance Act 1995 33
Marine Insurance Act 1909 33
Payment Systems and Netting Act 1998 33
Retirement Savings Accounts Act 1997 33
Superannuation Guarantee (Administration) Act 1992 33
Superannuation Industry (Supervision) Act 1993 33
Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2001 33
Superannuation (Resolution of Complaints) Act 1993 33
Telstra Corporation Act 1991 33
Trade Practices Act 1974 33
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 33
Schedule 2—Amendments related to possible delayed commencement of Parts 5 and 6 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 33
Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 33
Retirement Savings Accounts Act 1997 33
Superannuation Industry (Supervision) Act 1993 33
Financial Services Reform (Consequential Provisions) Act 2001
No. 123, 2001
An Act to repeal or amend certain Acts as a consequence of the enactment of the Financial Services Reform Act 2001, and for other purposes
[Assented to 27 September 2001]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Financial Services Reform (Consequential Provisions) Act 2001.
2 Commencement
(1) In this section:
FSR commencement means the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001.
(2) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(3) Items 223 and 224 of Schedule 1 commence on the day on which this Act receives the Royal Assent.
(4) Items 219 to 222 of Schedule 1 are taken to have commenced immediately after the commencement of the Corporations Act 2001. However, a person does not commit an offence if the person would not have committed the offence had those items commenced on the day on which this Act receives the Royal Assent (rather than commencing on the commencement of the Corporations Act 2001).
(5) Items 227 and 231 of Schedule 1 commence at the end of the period of 2 years starting on the FSR commencement.
(6) Subject to subsections (7) to (17), the other items of Schedule 1 commence on the FSR commencement.
(7) Subject to subsection (17), the commencement of items 2 to 5 of Schedule 1 is as follows:
(a) if item 325 of Schedule 1 to the Administrative Review Tribunal (Consequential and Transitional Provisions) Act 2001 does not commence before the FSR commencement—items 2 to 5 of Schedule 1 to this Act commence on the later of:
(i) the FSR commencement; and
(ii) the day on which the Administrative Review Tribunal (Consequential and Transitional Provisions) Act 2001 receives the Royal Assent;
(b) if item 325 of Schedule 1 to the Administrative Review Tribunal (Consequential and Transitional Provisions) Act 2001 does commence before the FSR commencement—items 2 to 5 of Schedule 1 to this Act do not ever commence.
(8) Subject to subsection (17), items 250 to 256 of Schedule 1 commence on the later of:
(a) the FSR commencement; and
(b) the commencement of Part 1 of the Interactive Gambling Act 2001.
(9) If item 33 of Schedule 1 to the Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2001 commences before the FSR commencement, item 268 of Schedule 1 to this Act does not ever commence.
(9A) If Parts 5 and 6 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 do not commence before the FSR commencement, items 276 to 278, and 290 to 325C, of Schedule 1 to this Act do not ever commence.
(10) If item 171 of Schedule 1 to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 commences before the FSR commencement, item 286 of Schedule 1 to this Act does not ever commence.
(11) If item 55 of Schedule 1 to the Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2001 commences before the FSR commencement, item 331 of Schedule 1 to this Act does not ever commence.
(12) If item 57 of Schedule 1 to the Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2001 commences before the FSR commencement, item 332 of Schedule 1 to this Act does not ever commence.
(13) Subject to subsection (17), the commencement of items 342, 344 and 345 of Schedule 1 is as follows:
(a) if the items to which subsection 2(2) of the Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2001 applies do not commence before the FSR commencement—items 342, 344 and 345 of Schedule 1 to this Act commence on the later of:
(i) the FSR commencement; and
(ii) the day on which the Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2001 receives the Royal Assent;
(b) if the items to which that subsection applies commence before the FSR commencement—items 342, 344 and 345 of Schedule 1 to this Act do not ever commence.
(14) Subject to subsection (17), the commencement of item 343 is as follows:
(a) if the Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2001 does not receive the Royal Assent before the FSR commencement—item 343 of Schedule 1 to this Act commences on the day on which that Act receives the Royal Assent;
(b) if the Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2001 receives the Royal Assent before the FSR commencement—item 343 of Schedule 1 to this Act does not ever commence.
(15) Subject to subsection (17), item 365 of Schedule 1 commences on the later of:
(a) the FSR commencement; and
(b) the commencement of item 257 of Schedule 1 to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001.
(16) Subject to subsection (17), the commencement of item 366 of Schedule 1 is as follows:
(a) if the day specified in subsection 2.2(2) of the Criminal Code does not occur before the FSR commencement—item 366 of Schedule 1 commences on the later of:
(i) the FSR commencement; and
(ii) the day on which the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 receives the Royal Assent;
(b) if the day so specified does occur before the FSR commencement—item 366 of Schedule 1 to this Act does not ever commence.
(17) An item of a Schedule to this Act that would otherwise commence at the same time as:
(a) an item of a Schedule to the Financial Services Reform Act 2001; or
(b) an item of a Schedule to the Corporations (Repeals, Consequentials and Transitionals) Act 2001;
is taken instead to commence immediately after the commencement of the item referred to in paragraph (a) or (b), if both the item of a Schedule to this Act and the item referred to in paragraph (a) or (b) affect the same Act.
(18) The commencement of the items of Schedule 2, other than items 1, 2, 4, 5, 9 and 10, is as follows:
(a) if Parts 5 and 6 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 do not commence before the FSR commencement, the items commence on the FSR commencement;
(b) if Parts 5 and 6 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 commence before the FSR commencement, the items do not ever commence.
(19) The commencement of items 1 and 2 of Schedule 2 is as follows:
(a) if Parts 5 and 6 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 do not commence before the FSR commencement, the items commence on the later of:
(i) the FSR commencement; and
(ii) immediately after the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 receives the Royal Assent;
(b) if Parts 5 and 6 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 commence before the FSR commencement, the items do not ever commence.
(20) The commencement of items 4 and 5 of Schedule 2 is as follows:
(a) if item 3 of Schedule 2 to this Act commences under subsection (18), the items commence on the commencement of Parts 5 and 6 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001;
(b) if item 3 of Schedule 2 to this Act does not ever commence under subsection (18), the items do not ever commence.
(21) The commencement of items 9 and 10 of Schedule 2 is as follows:
(a) if item 8 of Schedule 2 to this Act commences under subsection (18), the items commence on the commencement of Parts 5 and 6 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001;
(b) if item 8 of Schedule 2 to this Act does not ever commence under subsection (18), the items do not ever commence.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments and repeals
Administrative Decisions (Judicial Review) Act 1977
1 After paragraph (h) of Schedule 1
Insert:
(ha) decisions of the Minister under Division 1 of Part 7.4 of the Corporations Act 2001;
(hb) decisions of the SEGC under Part 7.5 of the Corporations Act 2001;
Administrative Review Tribunal (Consequential and Transitional Provisions) Act 2001
2 Before item 325 of Schedule 1 (heading)
Repeal the heading.
3 Items 325 and 326 of Schedule 1
Repeal the items.
4 Before item 186 of Schedule 2 (heading)
Repeal the heading.
5 Items 186 and 187 of Schedule 2
Repeal the items.
Australian Industry Development Corporation Act 1970
6 Paragraph 34G(1)(b)
Repeal the paragraph, substitute:
(b) if the sale scheme body is a listed disclosing entity—the listing rules of a listing market in relation to the sale scheme body.
7 Subsections 34G(2) and (3)
Repeal the subsections, substitute:
(2) In this section:
listed disclosing entity has the same meaning as it is given by section 9 of the Corporations Act 2001.
listing market, in relation to a listed disclosing entity, has the same meaning as it is given by section 9 of the Corporations Act 2001.
listing rules of a market has the same meaning as it is given by section 9 of the Corporations Act 2001.
Australian Securities and Investments Commission Act 2001
8 At the end of Division 3 of Part 1
Add:
4A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
9 Subsection 5(1)
Insert:
engage in conduct:
(a) in Division 2 of Part 2—has the meaning given by subsection 12BA(2); and
(b) in the other provisions of this Act—means do an act or omit to do an act.
11 Section 12AA
Repeal the section.
12 Subsection 12AD(2)
Repeal the subsection.
13 Subsection 12BA(1) (definition of corporation)
Repeal the definition.
14 Subsection 12BA(1) (definition of foreign corporation)
Repeal the definition.
15 Subsection 12BA(1) (definition of Territory)
Repeal the definition.
16 Subsection 12BB(1)
Omit “section 12CB and”.
17 Subsections 12BB(1) and (2)
Omit “corporation” (wherever occurring), substitute “person”.
18 Paragraph 12BC(1)(c)
Omit “acquired by a person within the meaning of subsection (2)”, substitute “acquired for use in connection with a small business (see subsection (2))”.
19 Subsection 12BC(2)
Repeal the subsection, substitute:
(2) For the purposes of subsection (1):
small business means a business employing less than:
(a) if the business is or includes the manufacture of goods—100 people; or
(b) otherwise—20 people.
20 Subsection 12CA(1)
Omit “corporation”, substitute “person”.
21 Subsection 12CB(1)
Omit “corporation”, substitute “person”.
22 Subsection 12CB(2)
Omit “corporation” (first occurring), substitute “person (the supplier)”.
23 Paragraphs 12CB(2)(a), (b), (d) and (e)
Omit “corporation” (wherever occurring), substitute “supplier”.
24 Subsection 12CB(3)
Omit “corporation” (wherever occurring), substitute “person”.
25 Subsection 12CB(3)
Omit “to a person”, substitute “to another person”.
26 Subsection 12CB(4)
Omit “corporation has”, substitute “person has”.
27 Subsection 12CB(4)
Omit “to a person”, substitute “to another person”.
28 At the end of Subdivision C of Division 2 of Part 2
Add:
12CC Unconscionable conduct in business transactions
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of financial services (see subsection (6)) to another person (other than a listed public company); or
(b) the acquisition or possible acquisition of financial services (see subsection (7)) from another person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(2) Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of financial services to another person (the service recipient), the Court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the service recipient; and
(b) whether, as a result of conduct engaged in by the supplier, the service recipient was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the service recipient was able to understand any documents relating to the supply or possible supply of the financial services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the service recipient or a person acting on behalf of the service recipient by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the financial services; and
(e) the amount for which, and the circumstances under which, the service recipient could have acquired identical or equivalent financial services from a person other than the supplier; and
(f) the extent to which the supplier’s conduct towards the service recipient was consistent with the supplier’s conduct in similar transactions between the supplier and other like service recipients; and
(g) if the person is a corporation—the requirements of any applicable industry code (see subsection (11)); and
(h) the requirements of any other industry code (see subsection (11)), if the service recipient acted on the reasonable belief that the supplier would comply with that code; and
(i) the extent to which the supplier unreasonably failed to disclose to the service recipient:
(i) any intended conduct of the supplier that might affect the interests of the service recipient; and
(ii) any risks to the service recipient arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the service recipient); and
(j) the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the financial services with the service recipient; and
(k) the extent to which the supplier and the service recipient acted in good faith.
(3) Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a person (the acquirer) has contravened subsection (1) in connection with the acquisition or possible acquisition of financial services from a person (the business supplier), the Court may have regard to:
(a) the relative strengths of the bargaining positions of the acquirer and the business supplier; and
(b) whether, as a result of conduct engaged in by the acquirer, the business supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and
(c) whether the business supplier was able to understand any documents relating to the acquisition or possible acquisition of the financial services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business supplier or a person acting on behalf of the business supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the financial services; and
(e) the amount for which, and the circumstances in which, the business supplier could have supplied identical or equivalent financial services to a person other than the acquirer; and
(f) the extent to which the acquirer’s conduct towards the business supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like business suppliers; and
(g) if the person is a corporation—the requirements of any applicable industry code (see subsection (11)); and
(h) the requirements of any other industry code (see subsection (11)), if the business supplier acted on the reasonable belief that the acquirer would comply with that code; and
(i) the extent to which the acquirer unreasonably failed to disclose to the business supplier:
(i) any intended conduct of the acquirer that might affect the interests of the business supplier; and
(ii) any risks to the business supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the business supplier); and
(j) the extent to which the acquirer was willing to negotiate the terms and conditions of any contract for the acquisition of the financial services with the business supplier; and
(k) the extent to which the acquirer and the business supplier acted in good faith.
(4) A person is not taken for the purposes of this section to engage in unconscionable conduct in connection with:
(a) the supply or possible supply of financial services to another person; or
(b) the acquisition or possible acquisition of financial services from another person;
merely because the person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition or refers a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition to arbitration.
(5) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply, possible supply, acquisition, or possible acquisition of financial products:
(a) the Court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) the Court may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.
(6) Subject to subsection (8), a reference in this section to the supply or possible supply of financial services is a reference to the supply or possible supply of financial services to a person whose acquisition or possible acquisition of the financial services is or would be for the purpose of trade or commerce.
(7) Subject to subsection (9), a reference in this section to the acquisition or possible acquisition of financial services is a reference to the acquisition or possible acquisition of financial services by a person whose acquisition or possible acquisition of the financial services is or would be for the purpose of trade or commerce.
(8) A reference in this section to the supply or possible supply of financial services does not include a reference to the supply or possible supply of financial services at a price in excess of $3,000,000, or such higher amount as is prescribed.
(9) A reference in this section to the acquisition or possible acquisition of financial services does not include a reference to the acquisition or possible acquisition of financial services at a price in excess of $3,000,000, or such higher amount as is prescribed.
(10) For the purposes of subsections (8) and (9):
(a) subject to paragraphs (b), (c), (d) and (e), the price for:
(i) the supply or possible supply of financial services to a person; or
(ii) the acquisition or possible acquisition of financial services by a person;
is taken to be the amount paid or payable by the person for the financial services; and
(b) if a person:
(i) was supplied financial services pursuant to a purchase; or
(ii) acquired financial services by way of purchase;
together with other property or services, or with both other property and services, and a specified price was not allocated to the services in the contract under which they were purchased, the price of the services is taken to have been:
(iii) the price at which, at the time of the supply or acquisition, the person could have purchased the services from the supplier without the other property or services; or
(iv) if, at the time of the purchase, the services were only available for purchase together with the other property or services but, at that time, services of the kind purchased were available for purchase from another supplier without other property or services—the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or
(v) if, at the time of the purchase, services of the kind purchased were not available for purchase from any supplier except together with other property or services—the value of the services at that time; and
(c) if a person is supplied with financial services otherwise than pursuant to a purchase, the price of the services is taken to have been:
(i) the price at which, at the time of the supply, the person could have purchased the services from the supplier; or
(ii) if, at the time of the supply, the services were not available for purchase from the supplier, or were available only together with other property or services, but, at that time, services of the kind supplied were available for purchase from another supplier—the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or
(iii) if services of the kind supplied were not available, at the time of the supply, for purchase from any supplier, or were not available except together with other property or services—the value of the services at that time; and
(d) without limiting by implication the meaning of the expression services in subsection 12BA(1):
(i) the obtaining of credit by a person in connection with the supply of financial services to the person is taken to be the acquisition by the person of a service; and
(ii) any amount by which the amount paid or payable by the person for the services is increased by reason of the person’s so obtaining credit is taken to be paid or payable by the person for that service; and
(e) the price for the supply or possible supply, or the acquisition or possible acquisition, of services comprising or including a loan or loan facility is taken to include the capital value of the loan or loan facility.
(11) In this section:
applicable industry code, in relation to a corporation, has the same meaning as it has in subsection 51ACA(1) of the Trade Practices Act 1974.
industry code has the same meaning as it has in subsection 51ACA(1) of the Trade Practices Act 1974.
listed public company has the same meaning as it has in the Income Tax Assessment Act 1997.
29 Subsection 12DA(1)
Omit “corporation”, substitute “person”.
30 Subsection 12DB(1)
Omit “corporation” (wherever occurring), substitute “person”.
31 At the end of subsection 12DB(1)
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
32 At the end of section 12DB
Add:
(3) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
33 Subsections 12DC(1) and (2)
Repeal the subsections, substitute:
(1) A person must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of a financial product that consists of, or includes, an interest in land, or in connection with the promotion by any means of a financial product that consists of, or includes, an interest in land:
(a) represent that the person has a sponsorship, approval or affiliation it does not have; or
(b) make a false or misleading representation concerning the nature of the interest in the land, the price payable for the financial product, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put or the existence or availability of facilities associated with the land.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(1A) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person contravenes this subsection if:
(a) the person offers gifts, prizes or other free items; and
(b) the person offers the gifts, prizes or other free items, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of a financial product, mentioned in subsection (1), or in connection with the promotion by any means of the sale or grant of such a financial product; and
(c) when the person so offers the gifts, prizes or other free items the person intends not to provide them, or not to provide them as offered.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2A) A person contravenes this subsection if:
(a) a person uses physical force or undue harassment or coercion; and
(b) the person uses such force, harassment or coercion in connection with the sale or grant, or the possible sale or grant, of a financial product mentioned in subsection (1), or the payment for such a financial product.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2B) For the purposes of the application of the Criminal Code in relation to an offence under subsection 12GB(1) relating to subsection (2) of this section, paragraphs (2)(b) and (c) of this section are taken to be circumstances in which the conduct described in paragraph (2)(a) of this section occurs.
(2C) For the purposes of the application of the Criminal Code in relation to an offence under subsection 12GB(1), strict liability applies to paragraphs (2)(b) and (2A)(b) of this section.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2D) Nothing in this section is to be taken as implying that other provisions in this Subdivision do not apply in relation to the supply or acquisition, or the possible supply or acquisition, of a financial product mentioned in subsection (1).
34 Subsection 12DD(1)
Omit “corporation” (wherever occurring), substitute “person”.
35 At the end of subsection 12DD(1)
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
36 At the end of section 12DD
Add:
(3) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
37 Section 12DE
Repeal the section, substitute:
12DE Offering gifts and prizes
(1) A person contravenes this subsection if:
(a) the person offers gifts, prizes or other free items; and
(b) the person offers the gifts, prizes or other free items in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services; and
(c) when the person so offers them, the person intends not to provide them, or not to provide them as offered.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2) For the purposes of the application of the Criminal Code in relation to subsection (1), paragraphs (1)(b) and (c) are taken to be circumstances in which the conduct described in paragraph (1)(a) occurs.
(3) For the purposes of the application of the Criminal Code in relation to an offence under subsection 12GB(1), strict liability applies in relation to paragraph (1)(b) of this section.
Note: For strict liability, see section 6.1 of the Criminal Code.
38 Section 12DF
Omit “corporation”, substitute “person”.
39 At the end of section 12DF
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
40 Section 12DG
Omit “corporation” (wherever occurring), substitute “person”.
41 At the end of subsection 12DG(1)
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
42 At the end of subsection 12DG(2)
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
43 After subsection 12DG(2)
Insert:
(2A) An offence under subsection 12GB(1) relating to subsection (1) or (2) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
44 Subsection 12DG(3)
Omit “another person” (wherever occurring), substitute “an alternative supplier”.
45 At the end of subsection 12DG(3)
Add:
Note: A defendant bears a legal burden in relation to the matters in subsection (3), see section 13.4 of the Criminal Code.
46 Section 12DH
Omit “corporation” (wherever occurring), substitute “person”.
47 At the end of section 12DH
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
48 Section 12DI
Repeal the section, substitute:
12DI Accepting payment without intending or being able to supply as ordered
(1) A person contravenes this subsection if:
(a) the person, in trade or commerce, accepts payment or other consideration for financial services; and
(b) at the time of acceptance, the person intends:
(i) not to supply the financial services; or
(ii) to supply financial services materially different from the financial services in respect of which the payment or other consideration is accepted.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2) For the purposes of the application of the Criminal Code in relation to an offence under subsection 12GB(1), strict liability applies to paragraph (1)(a) of this section.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A person contravenes this subsection if:
(a) the person, in trade or commerce, accepts payment or other consideration for financial services; and
(b) at the time of acceptance, there are reasonable grounds for believing that the person will not be able to supply the financial services within the period specified by the person or, if no period is specified, within a reasonable time.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(4) An offence under subsection 12GB(1) relating to subsection (3) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
49 Section 12DJ
Repeal the section, substitute:
12DJ Harassment and coercion
(1) A person contravenes this subsection if:
(a) the person uses physical force or undue harassment or coercion; and
(b) the person uses such force, harassment or coercion in connection with the supply or possible supply of financial services to a consumer, or the payment for financial services by a consumer.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
50 Subsections 12DK(1) and (2)
Omit “corporation” (wherever occurring), substitute “person”.
51 Paragraph 12DK(1)(b)
Omit “a person who”, substitute “another person (the targeted person), who”.
52 Paragraph 12DK(1)(c)
Omit “the person”, substitute “the targeted person”.
53 At the end of subsection 12DK(1)
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
54 Paragraph 12DK(2)(b)
Omit “any person”, substitute “another person (the targeted person)”.
55 Paragraph 12DK(2)(b)
Omit “himself or herself”, substitute “the targeted person”.
56 Paragraph 12DK(2)(b)
Omit “that person”, substitute “the targeted person”.
57 Subparagraphs 12DK(2)(b)(i) and (ii)
Omit “her or she”, substitute “the targeted person”.
58 At the end of subsection 12DK(2)
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
59 Subsection 12DK(3)
Omit “corporation” (first occurring), substitute “person (the promoter)”.
60 Subsection 12DK(3)
Omit “corporation promotes”, substitute “promoter promotes”.
61 Paragraph 12DK(3)(a)
Omit “by a person”, substitute “by another person (the targeted person)”.
62 Paragraph 12DK(3)(a)
Omit “corporation or another”, substitute “promoter or another”.
63 Paragraph 12DK(3)(a)
Omit “of another person”, substitute “of any person other than the targeted person”.
64 Paragraph 12DK(3)(b)
Omit “the person who makes or is to make the payment”, substitute “the targeted person”.
65 At the end of subsection 12DK(3)
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
66 After subsection 12DK(3)
Insert:
(3A) An offence under subsection 12GB(1) relating to subsection (1), (2) or (3) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
67 Subsection 12DL(1)
Repeal the subsection, substitute:
(1) A person must not send another person (the targeted person) a credit card or a debit card except in accordance with subsection (2).
Note: Failure to comply with this subsection is an offence (see section 12GB).
Note: The heading to section 12DL is altered by inserting “credit cards and” after “Unsolicited”.
70 Subsection 12DL(2)
Omit “A corporation may send the person”, substitute “A person may send the targeted person”.
71 Paragraph 12DL(2)(a)
Omit “the person who will”, substitute “the person (the liable person) who will”.
72 Paragraph 12DL(2)(a)
Omit “the person who issued”, substitute “the issuer of”.
73 Subparagraph 12DL(2)(b)(i)
Omit “first‑mentioned person”, substitute “targeted person”.
74 Subparagraph 12DL(2)(b)(i)
Omit “person who was under a liability”, substitute “liable person”.
75 Subparagraph 12DL(2)(b)(i)
Omit “person who issued the card previously so sent in respect of the use of that card”, substitute “issuer of the previous card”.
76 Subparagraph 12DL(2)(b)(ii)
Omit “first‑mentioned”, substitute “targeted”.
77 At the end of subsection 12DL(2)
Add:
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
78 Subsection 12DL(3)
Omit “the person who issued the card”, substitute “the issuer of the card”.
79 Subsection 12DL(4)
Repeal the subsection, substitute:
(4) A person must not take any action that enables:
(a) another person who has a credit card to use the card as a debit card; or
(b) another person who has a debit card to use the card as a credit card;
except in accordance with a request in writing by the other person.
Note: Failure to comply with this subsection is an offence (see section 12GB).
83 After subsection 12DL(4)
Insert:
(4A) An offence under subsection 12GB(1) relating to subsection (1) or (4) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
83A Subsection 12DL(5) (definition of credit card)
Repeal the definition, substitute:
credit card means an article that:
(a) is of a kind described in one or more of the following subparagraphs:
(i) an article of a kind commonly known as a credit card;
(ii) a similar article intended for use in obtaining cash, goods or services on credit;
(iii) an article of a kind that persons carrying on business commonly issue to their customers or prospective customers for use in obtaining goods or services from those persons on credit; and
(b) is part of, or provides access to, a credit facility that is a financial product;
or an article that may be used as an article referred to in paragraphs (a) and (b).
83B Subsection 12DL(5) (definition of debit card)
Repeal the definition, substitute:
debit card means:
(a) an article intended for use by a person in obtaining access to an account that is:
(i) held by the person for the purpose of withdrawing or depositing cash or obtaining goods or services; and
(ii) a financial product; or
(b) an article that may be used as an article referred to in paragraph (a).
84 Subsection 12DM(1)
Omit “corporation” (first occurring), substitute “person”.
85 Subsection 12DM(1)
Omit “a person for”, substitute “another person for”.
86 Subsection 12DM(1)
Omit “unless the corporation has reasonable cause to believe that there is a right to payment”.
87 At the end of subsection 12DM(1)
Add:
Note: Failure to comply with this subsection is an offence (see section 12GB).
88 After subsection 12DM(1)
Insert:
(1A) Subsection (1) does not apply if the person had reasonable cause to believe that there was a right to payment.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A), see subsection 13.3(3) of the Criminal Code.
(1B) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
89 Subsection 12DM(2)
Omit “corporation” (wherever occurring), substitute “person”.
90 Subsection 12DM(2)
Omit “from a person”, substitute “from another person”.
91 Paragraph 12DM(2)(c)
Omit “the person”, substitute “the other person”.
92 Subsections 12DM(3) and (4)
Omit “corporation”, (wherever occurring) substitute “person”.
93 Subsection 12DN(1)
Omit “securities” (wherever occurring), substitute “financial products”.
94 Section 12EA
Omit “corporation” (wherever occurring), substitute “person”.
95 Subsection 12EB(1)
Omit “corporation”, substitute “person”.
96 Subsection 12EC(1)
Omit “corporation” (first occurring), substitute “person (the supplier)”.
97 Subsection 12EC(1)
Omit “corporation” (second occurring), substitute “supplier”.
98 Subsection 12EC(2)
Omit “corporation”, substitute “supplier”.
99 Paragraph 12EC(3)(a)
Omit “corporation”, substitute “supplier”.
100 Subsections 12ED(1) and (2)
Omit “corporation” (wherever occurring), substitute “person”.
101 Subsection 12ED(2)
Omit “corporation’s”, substitute “person’s”.
102 Paragraph 12GB(1)(f)
Omit “400 penalty units”, substitute “2,000 penalty units”.
103 Paragraph 12GB(1)(g)
Omit “2,000 penalty units”, substitute “10,000 penalty units”.
104 After subsection 12GB(1)
Insert:
(1A) Subsections 11.2(2) to (5) (inclusive) of the Criminal Code apply in relation to paragraph (1)(b) of this section in the same way that they apply in relation to subsection 11.2(1) of the Criminal Code.
(1B) Subsections 11.5(2) to (5) (inclusive) of the Criminal Code apply in relation to paragraph (1)(e) of this section in the same way that they apply in relation to the offence of conspiracy under subsection 11.5(1) of the Criminal Code.
105 Paragraph 12GB(4)(b)
Omit “section 12GE”, substitute “section 12GLA (non‑punitive orders)”.
106 At the end of subsection 12GB(4)
Add:
; or (c) make an order under section 12GLB (punitive orders requiring adverse publicity) in relation to the contravention.
107 Subsection 12GB(5)
Omit “Sections 5, 7 and 7A of the Crimes Act 1914”, substitute “Sections 11.1, 11.2, 11.3, and 11.4 of the Criminal Code and section 11.6 of the Criminal Code to the extent that it applies in relation to those sections,”.
108 After section 12GC
Insert:
12GCA Preference must be given to compensation for victims
If:
(a) the Court considers that it is appropriate to impose a fine under section 12GB in respect of a contravention, or an involvement in a contravention, of this Division; and
(b) it is appropriate to order the defendant to pay compensation to a person who has suffered loss or damage in respect of the contravention or the involvement; and
(c) the defendant does not have sufficient financial resources to pay both the pecuniary penalty or fine and the compensation;
the Court must give preference to making an order for compensation.
109 Section 12GE
Repeal the section.
110 Subsection 12GF(1)
After “provision of”, insert “Subdivision C (sections 12CA to 12CC) or”.
111 Subsection 12GF(2)
Omit all the words after “within”, substitute “6 years after the day on which the cause of action that relates to the conduct accrued.”.
112 Section 12GG
Omit “or 12GE”, substitute “, 12GLA or 12GLB”.
113 At the end of section 12GH
Add:
(6) Part 2.5 of the Criminal Code does not apply in relation to an offence against a provision of this Subdivision.
114 At the end of subsection 12GI(1)
Add:
Note: A defendant bears a legal burden in relation to the matters in subsection (1) (see section 13.4 of the Criminal Code).
115 After subsection 12GI(1)
Insert:
(1A) Paragraph (1)(a) is to be interpreted as having the same effect in relation to a contravention of a provision of this Subdivision as section 9.2 of the Criminal Code has in relation to offences of strict liability.
116 At the end of subsection 12GI(4)
Add:
Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4 of the Criminal Code).
116A Subsection 12GJ(2)
Repeal the subsection, substitute:
(2) With respect to any matter:
(a) arising under this Division; or
(b) arising under Part 3 in its application in relation to an investigation of a contravention of this Division;
in respect of which a civil proceeding is instituted under this Subdivision or under Part 3 as so applying:
(c) the several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject‑matter or otherwise; and
(d) subject to the Constitution, jurisdiction is conferred on the several courts of the Territories.
116B Paragraph 12GK(1)(a)
Omit “other than the Minister or ASIC”.
116C Paragraph 12GK(1)(b)
Repeal the paragraph, substitute:
(b) a matter for determination in the proceeding arose under:
(i) this Division; or
(ii) Part 3 in its application in relation to an investigation of a contravention of this Division;
116D Paragraph 12GK(4)(b)
Repeal the paragraph, substitute:
(b) a matter for determination in the proceeding arose under:
(i) this Division; or
(ii) Part 3 in its application in relation to an investigation of a contravention of this Division;
116E Paragraph 12GK(5)(b)
Repeal the paragraph, substitute:
(b) a matter for determination in the proceeding arose under:
(i) this Division; or
(ii) Part 3 in its application in relation to an investigation of a contravention of this Division;
117 After section 12GL
Insert:
12GLA Non‑punitive orders
(1) The Court may, on application by ASIC, make one or more of the orders mentioned in subsection (2) in relation to a person who has engaged in contravening conduct.
(2) The orders that the Court may make in relation to the person are:
(a) a community service order; and
(b) a probation order for a period of no longer than 3 years; and
(c) an order requiring the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and
(d) an order requiring the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.
(3) This section does not limit the Court’s powers under any other provision of this Act.
(4) In this section:
community service order, in relation to a person who has engaged in contravening conduct, means an order directing the person to perform a service that:
(a) is specified in the order; and
(b) relates to the conduct;
for the benefit of the community or a section of the community.
Example: The following are examples of community service orders:
(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Act; and
(b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a financial product to carry out a community awareness program to address the needs of consumers when purchasing the financial product.
contravening conduct means conduct that:
(a) contravenes a provision of Subdivision C (sections 12CA to 12CC); or
(b) contravenes a provision of Subdivision D (sections 12DA to 12DN); or
(c) contravenes a provision of Subdivision E (sections 12EA to 12ED); or
(d) constitutes an involvement in a contravention of any of those provisions.
probation order, in relation to a person who has engaged in contravening conduct, means an order that is made by the Court for the purpose of ensuring that the person does not engage in the contravening conduct, similar conduct or related conduct during the period of the order, and includes:
(a) an order directing the person to establish a compliance program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and
(b) an order directing the person to establish an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and
(c) an order directing the person to revise the internal operations of the person’s business which lead to the person engaging in the contravening conduct.
12GLB Punitive orders requiring adverse publicity
(1) The Court may, on application by ASIC, make an adverse publicity order in relation to a person who is guilty of an offence under section 12GB.
(2) In this section, an adverse publicity order, in relation to a person, means an order that:
(a) requires the person to disclose, in the way and to third parties specified in the order, such information as is so specified, being information that the person has possession of or access to; and
(b) requires the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.
(3) This section does not limit the Court’s powers under any other provision of this Act.
118 Subsection 12GM(1)
Omit “section 12GE or 12GF”, substitute “section 12GF, 12GLA or 12GLB”.
119 Paragraph 12GM(2)(a)
After “engaged in”, insert “in”.
120 Subsection 12GM(3)
Repeal the subsection, substitute:
(3) ASIC may only make an application under paragraph (2)(b) on behalf of one or more persons identified in the application who:
(a) have suffered, or are likely to suffer, loss or damage by the conduct of another person that was engaged in in contravention of a provision of this Division; and
(b) have consented in writing to the application being made before it is made.
121 Subsection 12GM(5)
Repeal the subsection, substitute:
(5) An application under subsection (2) may be made at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
122 Subsection 12GM(6)
Omit “and 12CB” substitute “to 12CC”.
123 After subsection 12GN(5)
Insert:
(5A) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
124 Section 12GO
Repeal the section, substitute
12GO Intervention by ASIC
(1) ASIC may, with the leave of the Court and subject to any conditions imposed by the Court, intervene in any proceeding instituted under this Division.
(2) If ASIC intervenes in a proceeding, it is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.
125 Subsection 12HB(1)
Omit “corporation or other” (wherever occurring).
126 Paragraph 12HB(1)(a)
Omit “section 12GE”, substitute “section 12GLA or 12GLB”.
127 Subsection 12HB(2)
Omit “corporation which, or other person who,”, substitute “person who”.
128 Paragraph 12HC(3)(b)
Omit “or”.
129 Paragraph 12HC(3)(c)
Repeal the paragraph.
130 At the end of subsection 19(2)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
131 At the end of subsection 21(1)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
132 After subsection 21(1)
Insert:
(1A) An offence under subsection 63(3) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
133 At the end of subsection 21(3)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
134 At the end of section 22
Add:
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
135 At the end of subsection 23(2)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
136 At the end of section 23
Add:
(3) An offence under subsection 63(4) relating to subsection (2) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
137 At the end of subsection 24(2)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
138 At the end of section 24
Add:
(3) An offence under subsection 63(3) relating to paragraph (2)(a) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
139 After subsection 25(2)
Insert:
(2A) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
140 At the end of section 26
Add:
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
141 After subsection 29(2)
Insert:
(2A) An offence under subsection 63(3) relating to subsection (2) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
142 At the end of subsection 30(1)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
143 At the end of subsection 30(2)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
144 At the end of subsection 31(1)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
145 At the end of section 32A
Add:
Note: Failure to comply with a requirement made under this section is an offence (see section 63).
146 At the end of section 33
Add:
Note: Failure to comply with a requirement made under this section is an offence (see section 63).
147 At the end of subsection 34(1)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
148 Subsection 37(9)
Omit “to the best of his or her knowledge and belief”.
149 At the end of subsection 37(9)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
150 Section 38
Omit “, to the best of his or her knowledge and belief”.
151 At the end of section 38
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
152 Section 39
Omit “, so far as the other person can do so”.
153 At the end of section 39
Add:
Note: Failure to comply with a requirement made under this section is an offence (see section 63).
154 At the end of subsection 41(1)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
155 At the end of subsection 41(2)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
156 At the end of subsection 41(3)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
157 At the end of subsection 41(4)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
158 At the end of section 41
Add:
(6) An offence under subsection 63(2) relating to subsection (1), (2), (3) or (4) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
159 At the end of subsection 43(2)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
160 At the end of subsection 43(3)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
161 After subsection 43(3)
Insert:
(3A) An offence under subsection 63(2) relating to subsection (2) or (3) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
162 At the end of section 47
Add:
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
163 At the end of subsection 48(2)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
164 At the end of section 48
Add:
(3) An offence under subsection 63(4) relating to subsection (2) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
165 At the end of subsection 49(3)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
166 After subsection 49(3)
Insert:
(3A) An offence under subsection 63(3) relating to subsection (3) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
167 At the end of subsection 49(4)
Add:
Note: A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code.
168 At the end of section 56
Add:
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
169 At the end of subsection 58(1)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
170 At the end of subsection 58(2)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
171 At the end of subsection 58(4)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
172 After subsection 58(4)
Insert:
(4A) An offence under subsection 63(3) relating to subsection (1), (2) or (4) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
173 Subsection 63(1)
Repeal the subsection, substitute:
(1) A person must not intentionally or recklessly fail to comply with a requirement made under:
(a) section 19; or
(b) subsection 21(3); or
(c) section 30, 31, 32A, 33 or 34; or
(d) subsection 37(9); or
(e) section 38; or
(f) section 39.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
174 Subsection 63(2)
Omit “, without reasonable excuse,”.
175 Subsection 63(3)
Omit “, without reasonable excuse,”.
176 At the end of section 63
Add:
(5) Subsections (1), (1A), (2) and (3) do not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
(6) Paragraph (1)(d) does not apply to the extent that the person has explained the matter to the best of his or her knowledge or belief.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
(7) Paragraph (1)(e) does not apply to the extent that the person has stated the matter to the best of his or her knowledge or belief.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
(8) Paragraph (1)(f) does not apply to the extent that the person has, to the extent that the person is capable of doing so, performed the acts referred to in paragraphs 39(a) and (b).
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
177 At the end of subsection 64(3)
Add:
Note: A defendant bears a legal burden in relation to the matter in subsection (3), see section 13.4 of the Criminal Code.
178 Subsection 65(1)
Omit “, without reasonable excuse”.
179 Paragraph 65(1)(a)
Omit “obstruct or hinder”, substitute “engage in conduct that results in the obstruction or hindering of”.
180 Paragraph 65(1)(b)
Omit “obstruct or hinder”, substitute “engage in conduct that results in the obstruction or hindering of”.
181 After subsection 65(1)
Insert:
(1A) Subsection (1) does not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code.
182 Subsection 65(2)
After “must”, insert “not intentionally or recklessly fail to”.
183 Paragraph 66(1)(a)
Omit “obstruct or hinder”, substitute “engage in conduct that results in the obstruction or hindering of”.
184 Paragraph 66(1)(b)
Omit “disrupt”, substitute “engage in conduct that results in the disruption of”.
185 Subsection 66(2)
Omit “, without reasonable excuse,”.
186 After subsection 66(2)
Insert:
(2A) Subsection (2) does not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
(2B) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
187 Paragraph 67(1)(a)
Omit “conceal, destroy, mutilate or alter”, substitute “engage in conduct that results in the concealment, destruction, mutilation or alteration of”.
188 Paragraph 67(1)(b)
Omit “take or send”, substitute “engage in conduct that results in the taking or sending of”.
189 At the end of subsection 67(2)
Add:
Note: A defendant bears a legal burden in relation to a matter mentioned in subsection (2), see section 13.4 of the Criminal Code.
190 At the end of section 72
Add:
(2) An offence under subsection 75(5) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
191 At the end of section 73
Add:
(3) An offence under subsection 75(5) relating to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
192 After subsection 91(3)
Insert:
(3A) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
193 Subsection 125(3)
After “must”, insert “not intentionally or recklessly fail to”.
194 Subsection 127(4E)
After “must”, insert “not intentionally or recklessly fail to”.
195 Subsection 127(4F)
Omit “, without the written consent of the Chairperson”, substitute “intentionally or recklessly”.
196 Paragraph 127(4F)(b)
Repeal the paragraph, substitute:
(b) use the information.
197 After subsection 127(4F)
Insert:
(4FA) Subsection (4F) does not apply to the extent that:
(a) the person has the written consent of the Chairperson; or
(b) the information is used for the purpose of monitoring compliance with, enforcing, or performing functions or exercising powers under:
(i) the Corporations Act; or
(ii) the business law of a State that is not in this jurisdiction; or
(iii) the business law of a foreign country; or
(iv) the operating rules (if any), of the body corporate.
Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code.
198 At the end of subsection 192(1)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 198).
199 At the end of subsection 192(2)
Add:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 198).
200 After subsection 192(4)
Insert:
Note: Failure to comply with a requirement made under this subsection is an offence (see section 198).
(5) An offence under section 198 relating to subsection (1), (2) or (4) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
201 Section 198
Omit “, without reasonable excuse,”.
202 At the end of section 198
Add:
(2) Subsection (1) does not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
203 At the end of subsection 199(2)
Add:
Note: A defendant bears a legal burden in relation to the matters in subsection (2), see section 13.4 of the Criminal Code.
204 Paragraph 200(1)(a)
Omit “obstruct or hinder”, substitute “engage in conduct that results in the obstruction or hindering of”.
205 Paragraph 200(1)(b)
Omit “disrupt”, substitute “engage in conduct that results in the disruption of”.
206 Subsection 200(2)
Omit “, without reasonable excuse,”.
207 After subsection 200(2)
Insert:
(2A) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2B) Subsection (2) does not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
208 After subsection 216(7)
Insert:
(7A) Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
209 Subsection 219(1)
Omit “, without reasonable excuse”.
210 Subsection 219(2)
Omit “, without reasonable excuse”.
211 After subsection 219(2)
Insert:
(2A) Subsections (1) and (2) do not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code.
212 Paragraph 220(1)(a)
Omit “obstruct or hinder”, substitute “engage in conduct that results in the obstruction or hindering of”.
213 Paragraph 220(1)(b)
Omit “disrupt”, substitute “engage in conduct that results in the disruption of”.
214 Subsection 220(2)
Omit “, without reasonable excuse,”.
215 After subsection 220(2)
Insert:
(2A) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2B) Subsection (2) does not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code.
Bankruptcy Act 1966
216 Subsection 5(1) (paragraph (a) of the definition of private company)
Omit “securities exchange within the meaning of the Corporations Act 2001”, substitute “prescribed financial market (as defined by section 9 of the Corporations Act 2001)”.
Commonwealth Serum Laboratories Act 1961
217 Subsection 19B(1) (definition of associate)
Omit “if”, substitute “as in force on the commencement of that Act if that Division as so in force were, subject to the following modifications, still in force”.
218 Subsection 19B(1) (paragraphs (a) and (b) of the definition of associate)
After “that Act”, insert “as then in force”.
Corporations Act 2001
219 Subsection 443BA(2) (before paragraph (a) of the definition of remittance provision)
Insert:
(aa) section 220AAE, 220AAM or 220AAR;
220 Before paragraph 459E(5)(a)
Insert:
(aa) section 220AAE, 220AAM or 220AAR;
221 Subsection 588F(2) (before paragraph (a) of the definition of remittance provision)
Insert:
(aa) section 220AAE, 220AAM or 220AAR;
222 Before paragraph 588FGA(1)(a)
Insert:
(aa) section 220AAE, 220AAM or 220AAR;
223 After Part 10.1
Insert:
Part 10.2—Transitional provisions relating to the Financial Services Reform Act 2001
Division 1—Transitional provisions relating to the phasing‑in of the new financial services regime
Subdivision A—Preliminary
1410 Definitions
(1) In this Division, unless the contrary intention appears:
amended Corporations Act means this Act as in force after the FSR commencement.
associated provisions, in relation to provisions (the core provisions) of a particular Act as in force at a particular time, include (but are not limited to):
(a) any regulations or other instruments that are or were in force for the purposes of any of the core provisions at that time; and
(b) any interpretation provisions that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and
(c) any provisions relating to liability (civil or criminal) that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and
(d) any provisions that limit or limited, or that otherwise affect or affected, the operation of any of the core provisions at that time (whether or not they also limit or limited, or affect or affected, the operation of other provisions).
class, in relation to financial products, has a meaning affected by regulations made for the purposes of subsection (2).
FSR commencement means the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001.
old Corporations Act means this Act as in force immediately before the FSR commencement.
regulated activities, in relation to a regulated principal, has the meaning given by section 1430.
regulated principal has the meaning given by section 1430.
relevant old legislation, in relation to a regulated principal, has the meaning given by section 1430.
transition period:
(a) in relation to a market to which section 1414, 1418, 1420, 1421 or 1422 applies—has the meaning given by subsection (2) of that section; and
(b) in relation to a market to which section 1417 applies and the additional products referred to in that section—has the meaning given by subsection 1417(2); and
(c) in relation to a clearing and settlement facility to which section 1426 or 1429 applies—has the meaning given by subsection (2) of that section; and
(d) in relation to a clearing and settlement facility to which section 1428 applies and the additional products referred to in that section—has the meaning given by subsection 1428(2); and
(e) in relation to a regulated principal—has the meaning given by subsection 1431(1); and
(f) in relation to a financial product to which section 1438 applies—has the meaning given by subsection (3) of that section.
(1A) Other expressions used in this Part that are defined in Division 2 of Part 7.1 have the same meanings as they are given by that Division. This has effect subject to:
(a) any contrary intention in a provision of this Part; or
(b) regulations made for the purposes of this paragraph.
(2) The regulations may include provisions identifying, or providing for the identification of, what constitutes a class of financial products for the purposes of a provision or provisions of this Division.
(3) If a provision of this Division (the transitional provision) provides for a provision of this or another Act (the preserved provision), as in force immediately before the FSR commencement, to continue to apply to or in relation to a person, thing or matter:
(a) the preserved provision so continues to apply only to the extent (if any) to which it is expressed in terms that cover the person, thing or matter; and
(b) the transitional provision is not taken to extend the scope of the preserved provision (otherwise than by giving it a continued operation).
Subdivision B—Treatment of existing markets
1411 When is a market being operated immediately before the FSR commencement?
Subject to section 1412, in this Subdivision, a reference to a market being operated immediately before the FSR commencement is a reference to a market that had not permanently ceased to operate before the FSR commencement, even if trading on the market was not actually occurring immediately before the FSR commencement (for example, because of a routine temporary closure of the market).
1412 Treatment of proposed markets that have not started to operate by the FSR commencement
(1) This section applies in relation to the following proposed markets, other than any such market that starts to operate before the FSR commencement:
(a) a market proposed to be operated by Bendigo Stock Exchange Ltd, or by ASX Futures Exchange Pty Limited, that is identified in writing by the Minister as being a proposed market to which this section applies;
(b) any other proposed market identified in, or in accordance with, regulations made for the purposes of this paragraph.
For this purpose, a proposed market is a market that a person has, before the FSR commencement, indicated an intention that they propose to operate.
(2) This Subdivision applies in relation to a proposed market to which this section applies subject to the following paragraphs:
(a) subject to paragraphs (b), (c) and (d), this Subdivision applies in relation to the proposed market as if the market, as proposed to be operated, were in fact being operated immediately before the FSR commencement;
(b) if, taking account of the effect of paragraph (a), section 1413 applies in relation to the proposed market, that section applies in relation to the proposed market:
(i) as if the Minister’s obligation to grant a licence, and impose conditions, under subsection 1413(2) in relation to the market does not arise unless and until the market operator lodges with ASIC a notice in relation to the market under subsection (3) of this section, and does not arise at all if no such notice is given to ASIC by the end of 6 months after the FSR commencement; and
(ii) as if subsection 1413(3) provided for a licence so granted under subsection 1413(2) in relation to the market, and the conditions subject to which it is granted, to be taken to have had effect from the day (the start day) specified in the subsection (3) notice as the day on which the market started to operate; and
(iii) as if subsection 1413(6) were omitted; and
(iv) as if the references in subsection 1413(8) to the FSR commencement were instead references to the start day;
(c) if:
(i) taking account of the effect of paragraph (a), section 1418, 1420, 1421 or 1422 applies to the proposed market; and
(ii) the market operator does not lodge with ASIC a notice in relation to the market under subsection (3) of this section by the end of 6 months after the FSR commencement;
that section ceases to apply in relation to the proposed market at the end of that period;
(d) if a provision of this Subdivision provides for a provision of the old Corporations Act to continue to apply in relation to the proposed market, then (without limiting the generality of subsection 1410(3)), while the proposed market remains non‑operational, the provision of the old Corporations Act only applies in relation to the proposed market to the extent (if any) to which it would, disregarding the effect of paragraph (a), apply in relation to the proposed market.
(3) If a proposed market to which this section applies starts to operate on a day during the period of 6 months starting on the FSR commencement, the operator must, as soon as practicable, and in any event within 7 days, lodge with ASIC written notice of the fact that the market started to operate on that day.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4) ASIC must, within a reasonable time, give the Minister a notice it receives under subsection (3).
1413 Obligation of Minister to grant licences covering main existing markets
(1) This section applies to each market being operated immediately before the FSR commencement in relation to which any of the following paragraphs applies:
(a) the market was a stock market operated by the Australian Stock Exchange Limited;
(b) the market was a stock market operated by a body corporate covered by an approval in force under subsection 769(2) of the old Corporations Act;
(c) the market was a futures market operated by a body corporate covered by an approval in force under subsection 1126(2) of the old Corporations Act.
(2) Subject to subsections (3) and (4), the Minister must, in relation to each market to which this section applies, grant the operator of the market a licence, and impose conditions on that licence, in accordance with the following requirements:
(a) the licence must be described as an Australian market licence;
(b) the licence must be granted subject to the following conditions:
(i) a condition specifying the market as the market that the licence authorises the licensee to operate;
(ii) a condition specifying, as the classes of financial products that can be dealt with on the market, the classes that are appropriate for the market under subsection (5);
(iii) if the Minister considers that the licensee should have clearing and settlement arrangements for transactions effected through the market—a condition specifying the type of clearing and settlement arrangements that are adequate.
(3) Subject to subsection (6), a licence that subsection (2) requires to be granted must be granted on, or as soon as practicable after, the FSR commencement. If it is granted after the FSR commencement, it, and the conditions subject to which it is granted, are taken to have had effect from that commencement.
(4) Sections 795D (more than one licence in the same document) and 795E (more than one market covered by the same licence) of the amended Corporations Act apply in relation to the granting of licences, and licences granted, under this section as if the licences were, or were being, granted under section 795B of that Act. If, pursuant to section 795E, a single licence is granted under this section in respect of several separate markets, paragraph (2)(b) of this section must be complied with separately in the licence document in relation to each of those markets.
(5) For the purposes of subparagraph (2)(b)(ii), the classes of financial products that are appropriate for a market to which this section applies are as follows:
(a) for a market described in paragraph (1)(a) or (b)—securities, within the meaning of section 92 of the old Corporations Act as applying for the purposes of Part 7.2 of the old Corporations Act, and agreements of a kind to which section 92A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect);
(b) for a market described in paragraph (1)(c)—futures contracts, within the meaning of section 72 of the old Corporations Act, and agreements of a kind to which section 72A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect).
(6) Despite anything in subsection (3), the Minister may, under this section, grant a licence, and impose conditions on the licence, at any time during the period starting on the commencement of this section and ending on the FSR commencement on the basis that matters known to the Minister in relation to the market concerned will continue to be the case up to the FSR commencement. If the Minister does so:
(a) the licence and conditions come into effect on the FSR commencement, and not before; and
(b) the Minister may vary or revoke the licence, or any of the conditions, before the FSR commencement if the Minister considers it appropriate to do so having regard to the provisions of this section concerning the granting of licences and the imposition of conditions; and
(c) the licence and conditions do not come into effect on the FSR commencement if, immediately before the FSR commencement, the market is not a market to which this section applies.
(7) If the Minister grants a licence under this section, the Minister must give the operator of the market written notice of:
(a) the grant of the licence, and the conditions imposed on the licence; and
(b) any subsequent revocation or variation under subsection (6) of the licence or conditions.
(8) A notice advising of the grant of a licence under this section must contain a statement to the effect that the licence and conditions will not take effect until the FSR commencement, or will be taken to have had effect from the FSR commencement, as the case requires.
1414 Section 1413 markets—effect of licences and conditions
(1) Subject to subsections (2) to (4):
(a) a licence granted under section 1413 that authorises the operation of a market is, for the purposes of the amended Corporations Act (other than this section), taken to have been granted (and to have been properly granted) under section 795B of the amended Corporations Act; and
(b) conditions imposed under section 1413 on the licence are, for the purposes of the amended Corporations Act (other than this section), taken to have been imposed (and to have been properly imposed) under section 796A of the amended Corporations Act.
Note 1: Section 795C of the amended Corporations Act (publication of notice of licence grant) applies to the grant of the licence.
Note 2: The conditions may be varied or revoked, and additional conditions may be imposed, under section 796A of the amended Corporations Act.
(2) Subject to subsection (4), the relevant new legislation (see subsection (6)) does not apply in relation to the market during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the licensee applies, under subsection 796A(2) of the amended Corporations Act, to have the conditions on the licence varied or revoked, or to have additional conditions imposed on the licence;
(c) the licensee has lodged with ASIC notice in writing that it wants to take advantage of the compensation arrangements under Division 3 of Part 7.5 of the amended Corporations Act:
(i) from a specified date, being a date that is after the notice is given to ASIC and that is after compensation arrangements for the market have been approved under Division 3 of Part 7.5 of the amended Corporations Act (see also subsection (4)); or
(ii) from the end of a specified period, being a period that is described as starting when compensation arrangements for the market are approved under Division 3 of Part 7.5 of the amended Corporations Act (see also subsection (4)) and that ends after the notice is given to ASIC;
and that date arrives or period ends.
(3) A notice (the original notice) given for the purposes of paragraph (2)(c) may, before the date, or the end of the period, specified in the original notice as mentioned in that paragraph:
(a) be varied to specify another date or period, being a date or period that would satisfy the requirements of subparagraph (2)(c)(i) or (ii) if the reference in that subparagraph to when the notice (being the original notice) is given to ASIC were instead a reference to when the notice of variation is given to ASIC under this subsection; or
(b) be revoked.
The variation or revocation must be made by notice in writing lodged with ASIC.
(4) If the relevant new legislation in relation to a market includes Part 7.5 of the amended Corporations Act, then, despite subsection (2), Division 3 of that Part applies to the market during the transition period to the extent necessary for the operator to apply to have compensation arrangements for the market approved before the end of the transition period, and for that application to be determined. However, any approval of the arrangements under that Division does not take effect until immediately after the end of the transition period.
(5) The annual report of the licensee (see section 792F of the amended Corporations Act) for a financial year in which part of the transition period occurs, other than a financial year in which the transition period ends, must include information about:
(a) the steps taken in the year; and
(b) the steps proposed to be taken in the next year;
to ensure that the relevant new legislation will be complied with by the time the transition period ends.
(6) In this section:
relevant new legislation, in relation to a market, means:
(a) section 793A of the amended Corporations Act; and
(b) unless the market is a market to which Division 4 of Part 7.5 of the amended Corporations Act applies—Part 7.5 of the amended Corporations Act.
1415 Section 1413 markets—preservation of old Corporations Act provisions during transition period
Preservation of compensation regimes
(1) If, during the transition period in relation to a market the operation of which is authorised by a licence granted under section 1413, Part 7.5 of the amended Corporations Act does not apply in relation to the market (except as provided in subsection 1414(4)) because of subsection 1414(2), Part 7.9, or Part 8.6, as the case requires, of the old Corporations Act, and any associated provisions, continue to apply in relation to the market during the transition period.
Preservation of certain ongoing requirements
(2) During the transition period in relation to a market:
(a) the operation of which is authorised by a licence granted under section 1413; and
(b) that, immediately before the FSR commencement, was a securities exchange to which section 769A of the old Corporations Act applied;
the following provisions continue to apply in relation to the market:
(c) paragraphs 769A(1)(c) and (e) of the old Corporations Act, and any associated provisions;
(d) section 769B of the old Corporations Act (but only as applying in relation to paragraphs 769A(1)(c) and (e) of the old Corporations Act), and any associated provisions.
1416 Section 1413 markets—powers for regulations to change how the old and new Corporations Act apply during the transition period
(1) The regulations may do all or any of the following in relation to a market the operation of which is authorised by a licence granted under section 1413:
(a) provide that some or all of the provisions (the relevant old legislation) that would otherwise continue to apply in relation to the market because of section 1415 do not apply in relation to the market;
(b) provide that some or all of the relevant old legislation applies in relation to the market with specified modifications during some or all of the transition period for the market;
(c) provide that some or all of the relevant new legislation (within the meaning of section 1414) in relation to the market applies in relation to the market during some or all of the transition period for the market;
(d) provide that specified provisions of the amended Corporations Act (including relevant new legislation), and any associated provisions, apply in relation to the market during some or all of the transition period for the market with specified modifications.
(2) Regulations made for the purposes of subsection (1) have effect despite anything in sections 1414 and 1415.
1417 Section 1413 markets—additional provisions relating to previously unregulated services
(1) This section applies to a financial market in relation to which the following paragraphs are satisfied:
(a) a licence is granted under section 1413 to the operator of the market; and
(b) the conditions on the licence specify, as the classes of financial products that can be dealt with on the market, the classes of financial products specified in whichever of paragraphs 1413(5)(a) and (b) is applicable; and
(c) immediately before the commencement, other financial products (the additional products) were also dealt with on the market, and the fact that the market dealt with those products did not constitute a contravention of a provision of the old Corporations Act.
(2) Subject to subsection (3), section 791 of the amended Corporations Act does not apply in relation to the market in so far as all or any of the additional products are dealt with on the market during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the licensee applies, under subsection 796A(2) of the amended Corporations Act, to have the conditions on the licence varied or revoked, or to have additional conditions imposed on the licence.
(3) The regulations may, in relation to a market to which this section applies and the additional products, provide that specified provisions (including section 791A) of the amended Corporations Act, and any associated provisions, apply in relation to a market to which this section applies and the additional products during some or all of the transition period for the market and the products with specified modifications.
1418 Treatment of exempt stock markets and exempt futures markets (other than markets with no identifiable single operator)
(1) This section applies to the following markets:
(a) stock markets being operated immediately before the FSR commencement that were, at that time, covered by a declaration (the declaration of exemption) in force immediately before the FSR commencement under subsection 771(1) of the old Corporations Act;
(b) futures markets being operated immediately before the FSR commencement that were, at that time, covered by a declaration (the declaration of exemption) in force immediately before the FSR commencement under subsection 1127(1) of the old Corporations Act.
However it does not apply to any market to which section 1419 applies.
(2) Subject to subsection (5), section 791A of the amended Corporations Act does not apply in relation to a stock market or futures market to which this section applies during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the operator of the market is granted a licence under section 795B of the amended Corporations Act covering the operation of the market;
(c) the Minister makes an exemption under section 791C of the amended Corporations Act covering the market;
(d) the declaration of exemption is revoked.
(3) Subject to subsections (4) and (5), Part 7.2 (in the case of a stock market), or Part 8.2 (in the case of a futures market), and any associated provisions, (the relevant old legislation) of the old Corporations Act continue to apply in relation to a stock market or futures market to which this section applies during the transition period for the market.
(4) The declaration of exemption (including any conditions specified in the declaration) for a stock market or futures market to which this section applies cannot be varied during the transition period for the market so as to cover the market providing services that were not covered by the declaration as in force immediately before the FSR commencement. However, it may be varied in other ways, or revoked, by the Minister in writing.
(5) The regulations may do all or any of the following:
(a) provide that some or all of the relevant old legislation does not apply in relation to a stock market or futures market to which this section applies during some or all of the transition period for the market;
(b) provide that some or all of the relevant old legislation applies in relation to a stock market or futures market to which this section applies with specified modifications during some or all of the transition period for the market;
(c) provide that specified provisions of the amended Corporations Act (including section 791A), and any associated provisions, apply in relation to a stock market or futures market to which this section applies during some or all of the transition period for the market with specified modifications.
1419 Treatment of exempt stock markets and exempt futures markets that do not have a single identifiable operator
(1) This section applies to the following markets:
(a) stock markets being operated immediately before the FSR commencement:
(i) that were, at that time, covered by a declaration (the declaration of exemption) in force immediately before the FSR commencement under subsection 771(1) of the old Corporations Act; but
(ii) that did not have a single person who could be identified as the operator of the market;
(b) futures markets being operated immediately before the FSR commencement:
(i) that were, at that time, covered by a declaration (the declaration of exemption) in force immediately before the FSR commencement under subsection 1127(1) of the old Corporations Act; but
(ii) that did not have a single person who could be identified as the operator of the market.
(2) In this section:
exempted participant, in relation to a market to which this section applies, means a person:
(a) who is covered by the declaration of exemption (otherwise than in their capacity as a representative of another person who is covered by the declaration); and
(b) whose activities connected with the market after the FSR commencement are activities that, but for this section, would be required by section 911A of the amended Corporations Act to be covered by an Australian financial services licence.
(3) Subject to subsections (4) and (5), Part 7.2 (in the case of a stock market), or Part 8.2 (in the case of a futures market), and any associated provisions, (the relevant old legislation) of the old Corporations Act continue to apply in relation to an exempted participant and a stock market or futures market to which this section applies during any period during which section 1431 provides that the relevant new legislation (within the meaning of subsection 1431(1)) does not apply in relation to the exempted participant’s activities connected with the market.
(4) The declaration of exemption (including any conditions specified in the declaration) for a stock market or futures market to which this section applies cannot:
(a) be varied during the transition period for an exempted participant and the market so as to cover the market providing services that were not covered by the declaration as in force immediately before the FSR commencement; or
(b) be varied after the FSR commencement so as to cover a person or persons it did not cover immediately before the commencement.
However, it may be varied in other ways, or revoked, by the Minister in writing.
(5) The regulations may do either or both of the following:
(a) provide that some or all of the relevant old legislation does not apply in relation to an exempted participant and a market to which this section applies during some or all of the transition period for the exempted participant and the market;
(b) provide that some or all of the relevant old legislation applies in relation to an exempted participant and a market to which this section applies with specified modifications during some or all of the transition period for the exempted participant and the market.
1420 Treatment of stock markets of approved securities organisations
(1) This section applies to each stock market being operated immediately before the FSR commencement by a body corporate covered by an approval (the instrument of approval) in force immediately before the FSR commencement under subsection 770(2) of the old Corporations Act, other than a stock market to which section 1413 applies.
(2) Subject to subsections (3) and (5), section 791A of the amended Corporations Act does not apply in relation to a stock market to which this section applies during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the operator of the market is granted a licence under section 795B of the amended Corporations Act covering the operation of the market;
(c) the Minister makes an exemption under section 791C of the amended Corporations Act covering the market;
(d) the instrument of approval is revoked.
(3) Subject to subsections (4) and (5), Parts 7.2 and 7.9, and any associated provisions, (the relevant old legislation) of the old Corporations Act continue to apply in relation to a stock market to which this section applies during the transition period for the market.
(4) The instrument of approval (including any conditions specified in the instrument) for a stock market to which this section applies cannot be varied during the transition period for the market so as to cover the market providing services that were not covered by the instrument as in force immediately before the FSR commencement. However it may be varied in other ways, or revoked, by the Minister in writing.
(5) The regulations may do all or any of the following:
(a) provide that some or all of the relevant old legislation does not apply in relation to a stock market to which this section applies during some or all of the transition period for the market;
(b) provide that some or all of the relevant old legislation applies in relation to a stock market to which this section applies with specified modifications during some or all of the transition period for the market;
(c) provide that specified provisions of the amended Corporations Act (including section 791A), and any associated provisions, apply in relation to a stock market to which this section applies during some or all of the transition period for the market with specified modifications.
1421 Treatment of special stock markets for unquoted interests in a registered scheme
(1) This section applies to each stock market being operated before the FSR commencement by a body corporate covered by an approval (the instrument of approval) in force immediately before the FSR commencement under subsection 770A(2) of the old Corporations Act.
(2) Subject to subsection (5), section 791A of the amended Corporations Act does not apply in relation to a stock market to which this section applies during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the operator of the market is granted a licence under section 795B of the amended Corporations Act covering the operation of the market;
(c) the Minister makes an exemption under section 791C of the amended Corporations Act covering the market;
(d) the instrument of approval is revoked.
(3) Subject to subsections (4) and (5), Part 7.2, and any associated provisions, (the relevant old legislation) of the old Corporations Act continue to apply in relation to a stock market to which this section applies during the transition period for the market.
(4) The instrument of approval (including any conditions specified in the instrument) for a stock market to which this section applies cannot be varied during the transition period for the market so as to cover the market providing services that were not covered by the instrument as in force immediately before the FSR commencement. However it may be varied in other ways, or revoked, by the Minister in writing.
(5) The regulations may do all or any of the following:
(a) provide that some or all of the relevant old legislation does not apply in relation to a stock market to which this section applies during some or all of the transition period for the market;
(b) provide that some or all of the relevant old legislation applies in relation to a stock market to which this section applies during some or all of the transition period for the market with specified modifications;
(c) provide that specified provisions (including section 791A) of the amended Corporations Act, and any associated provisions, apply in relation to a stock market to which this section applies during some or all of the transition period for the market with specified modifications.
1422 Treatment of other markets that were not unauthorised
(1) This section applies to each market in relation to which the following paragraphs are satisfied:
(a) the market is a financial market within the meaning of the amended Corporations Act;
(b) the market was being operated immediately before the FSR commencement;
(c) the market is not a market to which section 1413, 1418, 1419, 1420 or 1421 applies;
(d) the market was not an unauthorised stock market or an unauthorised futures market (as defined in section 9 of the old Corporations Act) immediately before the FSR commencement.
(2) Subject to subsection (3), section 791A of the amended Corporations Act does not apply in relation to a market to which this section applies during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the operator of the market is granted a licence under section 795B of the amended Corporations Act covering the operation of the market;
(c) the Minister makes an exemption under section 791C of the amended Corporations Act covering the market;
(d) the market starts to provide services in respect of a class or classes of financial products in respect of which it did not provide services immediately before the commencement.
(3) The regulations may, in relation to a market to which this section applies, provide that specified provisions (including section 791A) of the amended Corporations Act, and any associated provisions, apply in relation to the market during some or all of the transition period for the market with specified modifications.
Subdivision C—Treatment of existing clearing and settlement facilities
1423 When is a clearing and settlement facility being operated immediately before the FSR commencement?
Subject to section 1424, in this Subdivision, a reference to a clearing and settlement facility being operated immediately before the FSR commencement is a reference to a clearing and settlement facility that had not permanently ceased to operate before the FSR commencement, even if the clearing and settlement of transactions by means of the facility was not actually occurring immediately before the FSR commencement (for example, because of a routine temporary closure of the facility).
1424 Treatment of proposed clearing and settlement facilities that have not started to operate by the FSR commencement
(1) This section applies in relation to any proposed clearing and settlement facilities identified in, or in accordance with, regulations made for the purposes of this subsection. For this purpose, a proposed clearing and settlement facility is a clearing and settlement facility that a person has, before the FSR commencement, indicated an intention that they propose to operate.
(2) This Subdivision applies in relation to a proposed clearing and settlement facility to which this section applies subject to the following paragraphs:
(a) subject to paragraphs (b), (c) and (d), this Subdivision applies in relation to the proposed facility as if the facility, as proposed to be operated, were in fact being operated immediately before the FSR commencement;
(b) if, taking account of the effect of paragraph (a), section 1425 applies in relation to the proposed facility, that section applies in relation to the proposed facility:
(i) as if the Minister’s obligation to grant a licence, and impose conditions, under subsection 1425(2) in relation to the proposed facility does not arise unless and until the facility operator lodges with ASIC a notice in relation to the facility under subsection (3) of this section, and does not arise at all if no such notice is given to ASIC by the end of 6 months after the FSR commencement; and
(ii) as if subsection 1425(3) provided for a licence so granted under subsection 1425(2) in relation to the facility, and the conditions subject to which it is granted, to be taken to have had effect from the day (the start day) specified in the subsection (3) notice as the day on which the facility started to operate; and
(iii) as if subsection 1425(6) were omitted; and
(iv) as if the references in subsection 1425(8) to the FSR commencement were instead references to the start day;
(c) if:
(i) taking account of the effect of paragraph (a), section 1429 applies to the proposed facility; and
(ii) the facility operator does not lodge with ASIC a notice in relation to the facility under subsection (3) of this section by the end of 6 months after the FSR commencement;
that section ceases to apply in relation to the proposed facility at the end of that period;
(d) if a provision of this Subdivision provides for a provision of the old Corporations Act to continue to apply in relation to the proposed facility, then (without limiting the generality of subsection 1410(3)), while the proposed facility remains non‑operational, the provision of the old Corporations Act only applies in relation to the proposed facility to the extent (if any) to which it would, disregarding the effect of paragraph (a), apply in relation to the proposed facility.
(3) If a proposed clearing and settlement facility to which this section applies starts to operate on a day during the period of 6 months starting on the FSR commencement, the operator must, as soon as practicable, and in any event within 7 days, lodge with ASIC written notice of the fact that the facility started to operate on that day.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4) ASIC must, within a reasonable time, give the Minister a notice it receives under subsection (3).
1424A Treatment of unregulated clearing and settlement facilities operated by holders of old Corporations Act approvals
(1) This section applies in relation to a clearing and settlement facility if:
(a) the facility was being operated immediately before the FSR commencement by a body corporate in relation to which an approval under section 1131 of the old Corporations Act was in force at that time; but
(b) the services provided by the facility as so operated were not such that section 1128 of the old Corporations Act required the operator to be so approved.
(2) In this section:
(a) a reference to the unregulated services is a reference to the services referred to in paragraph (1)(b); and
(b) a reference to regulated services is a reference to services that, if they had been provided by the facility immediately before the commencement, would have been services to which section 1128 of the old Corporations Act applied.
(3) For the purposes of section 1425 (as it operates of its own force, rather than because of section 1424), the facility is not to be regarded as a facility that was being operated immediately before the FSR commencement.
(4) If the operator has, before the FSR commencement, indicated an intention that they propose to extend the services provided by the facility so that they also cover regulated services:
(a) regulations made for the purposes of subsection 1424(1) may identify the facility as a proposed clearing and settlement facility, but only in relation to those regulated services; and
(b) if they do so, section 1424, and section 1425 as it applies because of section 1424, apply in relation to the facility and those regulated services as if the facility did not already provide the unregulated services.
1425 Obligation of Minister to grant licences covering main existing facilities
(1) This section applies to each clearing and settlement facility being operated immediately before the FSR commencement in relation to which either of the following paragraphs applies:
(a) the facility was being operated by the body corporate that was, for the purposes of the old Corporations Act, the securities clearing house;
(b) the facility was being operated by a body corporate in relation to which an approval (the section 1131 approval) under section 1131 of the old Corporations Act was in force at that time.
(2) Subject to subsections (3) and (4), the Minister must, in relation to each clearing and settlement facility to which this section applies, grant the operator of the facility a licence, and impose conditions on that licence, in accordance with the following requirements:
(a) the licence must be described as an Australian CS facility licence;
(b) the licence must be granted subject to the following conditions:
(i) a condition specifying the facility as the facility that the licence authorises the licensee to operate;
(ii) a condition specifying, as the classes of financial products in respect of which the facility can provide services, the classes that are appropriate for the facility under subsection (5);
(iii) in the case of a facility to which paragraph (1)(b) applies—a condition to the effect that the licence only covers the facility providing services for the market or markets that were covered by the section 1131 approval.
(3) Subject to subsection (6), a licence that subsection (2) requires to be granted must be granted on, or as soon as practicable after, the FSR commencement. If it is granted after the FSR commencement, it, and the conditions subject to which it is granted, are taken to have had effect from that commencement.
(4) Sections 824D (more than one licence in the same document) and 824E (more than one CS facility covered by the same licence) of the amended Corporations Act apply in relation to the granting of licences, and licences granted, under this section as if the licences were, or were being, granted under section 824B of that Act. If, pursuant to section 824E, a single licence is granted under this section in respect of several separate facilities, paragraph (2)(b) of this section must be complied with separately in the licence document in relation to each of those facilities.
(5) For the purposes of subparagraph (2)(b)(ii), the classes of financial products that are appropriate for a facility to which this section applies are as follows:
(a) for a facility described in paragraph (1)(a)—securities, within the meaning of section 92 of the old Corporations Act as applying for the purposes of Part 7.2 of the old Corporations Act, and agreements of a kind to which section 92A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect);
(b) for a facility described in paragraph (1)(b)—futures contracts, within the meaning of section 72 of the old Corporations Act, and agreements of a kind to which section 72A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect).
(6) Despite anything in subsection (3), the Minister may, under this section, grant a licence, and impose conditions on the licence, at any time during the period starting on the commencement of this section and ending on the FSR commencement on the basis that matters known to the Minister in relation to the clearing and settlement facility concerned will continue to be the case up to the FSR commencement. If the Minister does so:
(a) the licence and conditions come into effect on the FSR commencement, and not before; and
(b) the Minister may vary or revoke the licence, or any of the conditions, before the FSR commencement if the Minister considers it appropriate to do so having regard to the provisions of this section concerning the granting of licences and the imposition of conditions; and
(c) the licence and conditions do not come into effect on the FSR commencement if, immediately before the FSR commencement, the facility is not a clearing and settlement facility to which this section applies.
(7) If the Minister grants a licence under this section, the Minister must give the operator of the clearing and settlement facility written notice of:
(a) the grant of the licence, and the conditions imposed on the licence; and
(b) any subsequent revocation or variation under subsection (6) of the licence or conditions.
(8) A notice advising of the grant of a licence under this section must contain a statement to the effect that the licence and conditions will not take effect until the FSR commencement, or will be taken to have had effect from the FSR commencement, as the case requires.
1426 Section 1425 facilities—effect of licences and conditions
(1) Subject to subsections (2) to (4):
(a) a licence granted under section 1425 that authorises the operation of a facility is, for the purposes of the amended Corporations Act (other than this section), taken to have been granted (and to have been properly granted) under section 824B of the amended Corporations Act; and
(b) conditions imposed under section 1425 on the licence are, for the purposes of the amended Corporations Act (other than this section), taken to have been imposed (and to have been properly imposed) under section 825A of the amended Corporations Act.
Note 1: Section 824C of the amended Corporations Act (publication of notice of licence grant) applies to the grant of the licence.
Note 2: The conditions may be varied or revoked, and additional conditions may be imposed, under section 825A of the amended Corporations Act.
(2) Section 822A of the amended Corporations Act does not apply in relation to the facility during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the licensee applies, under subsection 825A(2) of the amended Corporations Act, to have the conditions on the licence varied or revoked, or to have additional conditions imposed on the licence.
(3) The annual report of the licensee (see section 821E of the amended Corporations Act) for a financial year in which part of the transition period occurs, other than a financial year in which the transition period ends, must include information about:
(a) the steps taken in the year; and
(b) the steps proposed to be taken in the next year;
to ensure that section 822A of the amended Corporations Act will be complied with by the time the transition period ends.
1427 Section 1425 facilities—powers for regulations to change how the old and new Corporations Act apply during the transition period
(1) The regulations may do either or both of the following in relation to a clearing and settlement facility the operation of which is authorised by a licence granted under section 1425:
(a) provide that section 822A of the amended Corporations Act, and any associated provisions, apply in relation to the facility during some or all the transition period for the facility;
(b) provide that specified provisions of the amended Corporations Act (including section 822A), and any associated provisions, apply in relation to the facility during some or all of the transition period for the facility with specified modifications.
(2) Regulations made for the purposes of subsection (1) have effect despite anything in section 1426.
1428 Section 1425 facilities—additional provisions relating to previously unregulated services
(1) This section applies to a clearing and settlement facility in relation to which the following paragraphs are satisfied:
(a) a licence is granted under section 1425 to the operator of the facility; and
(b) the conditions on the licence specify, as the classes of financial products in respect of which the facility can provide services, the classes of financial products specified in whichever of paragraphs 1425(5)(a) and (b) is applicable; and
(c) the facility also, immediately before the commencement, provided services in respect of one or more other classes of financial products (the additional products) and the fact that it did so did not constitute a contravention of a provision of the old Corporations Act.
(2) Subject to subsection (3), section 820A of the amended Corporations Act does not apply in relation to the facility in so far as it provides services in respect of all or any of the additional products during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the licensee applies, under subsection 825A(2) of the amended Corporations Act, to have the conditions on the licence varied or revoked, or to have additional conditions imposed on the licence.
(3) The regulations may provide that specified provisions of the amended Corporations Act (including section 820A), and any associated provisions, apply in relation to a clearing and settlement facility to which this section applies, and its provision of services in respect of all or any of the additional products, during some or all of the transition period for the facility and the products with specified modifications.
1429 Treatment of other clearing and settlement facilities
(1) This section applies to each clearing and settlement facility being operated immediately before the FSR commencement in relation to which both of the following paragraphs are satisfied:
(a) the clearing and settlement facility is not a facility to which section 1425 applies;
(b) section 1128 of the old Corporations Act did not, immediately before the FSR commencement, require the operator of the facility to be a person approved under section 1131.
(2) Subject to subsection (3), section 820A of the amended Corporations Act does not apply in relation to the facility during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the operator of the facility is granted a licence under section 824B of the amended Corporations Act covering the facility;
(c) the Minister makes an exemption under section 820C of the amended Corporations Act covering the facility;
(d) the facility starts to provide services in respect of a class or classes of financial products in respect of which it did not provide services immediately before the FSR commencement.
(3) The regulations may provide that specified provisions of the amended Corporations Act (including section 820A), and any associated provisions, apply in relation to a clearing and settlement facility to which this section applies during some or all of the transition period for the facility with specified modifications.
Subdivision D—Treatment of people who carry on financial services businesses and their representatives
1430 Meaning of regulated principal, regulated activities and relevant old legislation
(1) For the purposes of this Subdivision, a person is a regulated principal if, immediately before the FSR commencement, the person is a person described in column 2 of one of the items in the following table. The regulated activities of that person are as specified in column 3 of that item, and the relevant old legislation are as specified in column 4 of that item.
Regulated principals and regulated activities
Item
These persons are regulated principals
These are the regulated principal’s regulated activities
This is the relevant old legislation (if any)
1
A holder of a dealers licence within the meaning of the old Corporations Act.
The activities that the licence (as in force immediately before the FSR commencement) authorised the person to carry on.
Parts 7.3, 7.4 (other than Division 2), 7.5, 7.6 and 7.7 of the old Corporations Act, and any associated provisions.
2
A holder of an investment advisers licence within the meaning of the old Corporations Act.
The activities that the licence (as in force immediately before the FSR commencement) authorised the person to carry on.
Parts 7.3, 7.4 (other than Division 2) and 7.7 of the old Corporations Act, and any associated provisions.
3
A holder of a futures brokers licence within the meaning of the old Corporations Act.
The activities that the licence (as in force immediately before the FSR commencement) authorised the person to carry on.
Parts 8.3, 8.4 (other than section 1210) and 8.5 of the old Corporations Act, and any associated provisions.
4
A holder of a futures advisers licence within the meaning of the old Corporations Act.
The activities that the licence (as in force immediately before the FSR commencement) authorised the person to carry on.
Parts 8.3 and 8.4 (other than section 1210) of the old Corporations Act, and any associated provisions.
5
A registered insurance broker within the meaning of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement.
The person’s business as an insurance broker within the meaning of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement.
All the provisions of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement, and any associated provisions.
6
A body regulated by APRA carrying on activities that, if carried on after the FSR commencement, would (apart from this Subdivision) be required by the amended Corporations Act to be covered by an Australian financial services licence.
The class of activities carried on by the person immediately before the FSR commencement that, if carried on after the FSR commencement, would (apart from this Subdivision) be required by the amended Corporations Act to be covered by an Australian financial services licence.
For a body regulated by APRA that was an insurer within the meaning of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement—all the provisions of that Act as then in force, and any associated provisions.
In any other case—subject to any regulations made for the purposes of this item, there is no relevant old legislation.
7
A person who is a registered foreign insurance agent of an unauthorised foreign insurer within the meaning of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement.
The person’s business as a foreign insurance agent.
All the provisions of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement, and any associated provisions.
8
A holder of a general authority under regulation 38A of the Banking (Foreign Exchange) Regulations as in force immediately before the FSR commencement.
The activities the authority authorises its holder to carry on.
Regulations 38A and 39 of the Banking (Foreign Exchange) Regulations as in force immediately before the FSR commencement.
9
A person included in a class of persons specified in regulations made for the purposes of this item.
For a person in a class so specified, the activities identified in, or in accordance with, the regulations as being the regulated activities of a person in that class.
The provisions (if any) identified in, or in accordance with, the regulations as being the relevant old legislation for a person in that class, and any associated provisions.
10
A person who carries on any other activities (that is, activities that are not regulated activities for the purposes of any of items 1 to 9) that, if carried on after the FSR commencement, would (apart from this Subdivision) be required by the amended Corporations Act to be covered by an Australian financial services licence, except to the extent that subsection (2) excludes this item from applying.
The class of activities so carried on by the person immediately before the FSR commencement that, if carried on after the FSR commencement, would (apart from this Subdivision) be required by the amended Corporations Act to be covered by an Australian financial services licence.
There is no relevant old legislation.
(2) Item 10 of the table in subsection (1) does not apply to a person and activities they carry on to the extent that the person’s carrying on of any of those activities is in contravention of any of the provisions of the relevant old legislation for any of the other categories of regulated principals.
(3) If a person is a regulated principal of 2 or more different kinds, this Subdivision applies separately in relation to the person in their capacity as a regulated principal of each of those kinds.
Note: This may result (depending on what action the regulated principal takes) in a regulated principal having to comply with the relevant new legislation (within the meaning of subsection 1431(1)) in respect of their activities as a regulated principal of one kind, but, at the same time, having to comply with the relevant old legislation in respect of their activities as a regulated principal of another kind.
1431 Parts 7.6, 7.7 and 7.8 of the amended Corporations Act generally do not apply to a regulated principal during the transition period
(1) Subject to subsections (2) and (3), Parts 7.6 (other than Subdivisions A and B of Division 4, and Division 5), 7.7 and 7.8 (other than section 992A) of the amended Corporations Act (the relevant new legislation) do not apply to a regulated principal and their regulated activities during the period (the transition period) starting on the FSR commencement and ending when the first of the following events occurs:
(a) the period of 2 years starting on the FSR commencement ends;
(b) the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers their regulated activities;
(c) the regulated principal starts to be covered by an exemption under subsection 911A(2) of the amended Corporations Act (or would start to be so covered if that subsection applied) in respect of their regulated activities;
(d) the regulated principal ceases (for whatever reason) to have the status that made them a regulated principal.
For the purposes of paragraph (d), having a status includes holding a licence, registration, approval or other similar thing, or carrying on particular activities.
Note 1: Because of section 1441, a regulated principal whose transition period has not ended (and so who is not required to comply with the relevant new legislation) may nonetheless be required to comply with obligations under Part 7.9 of the amended Corporations Act.
Note 2: For the treatment of representatives, see section 1436.
(2) Division 5 of Part 7.6 of the amended Corporations Act has effect in relation to a regulated principal during the transition period subject to the following paragraphs:
(a) the regulated principal may give and revoke authorisations under section 916A or consents under subsection 916B(3) as if the regulated principal were a financial services licensee, however, for the purposes of the provisions of the amended Corporations Act outside that Division, such an authorisation or consent is taken not to have effect unless and until the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers the activities to which the authorisation or consent relates (whether or not it also covers other activities);
(b) a person authorised by a section 916A authorisation so made by the regulated principal may give and revoke authorisations under subsection 916B(3) as if they were an authorised representative and the regulated principal were the authorising financial services licensee, however, for the purposes of the provisions of the amended Corporations Act outside that Division, such an authorisation is taken not to have effect unless and until the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers the activities to which the authorisation relates (whether or not it also covers other activities);
(c) the regulated principal may give and revoke consents under section 916C as if they were a financial service licensee, however, any such consent does not take effect unless and until the regulated principal is granted a licence under section 913B of the amended Corporations Act;
(d) section 916F applies in relation to an authorisation so made by the regulated principal during the transition period as if the period of 10 business days referred to in that section did not start unless and until the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers the activities to which the authorisation relates (whether or not it also covers other activities), and section 916F does not apply at all in relation to revocations so made during the transition period.
(3) If, before paragraph (1)(a) or (d) occurs:
(a) the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers some only (the relevant part) of their regulated activities; or
(b) the regulated principal starts to be covered by an exemption under subsection 911A(2) of the amended Corporations Act in respect of some only (the relevant part) of their regulated activities;
the relevant new legislation starts applying, from that time, to the relevant part of the regulated principal’s regulated activities, and subsection (1) continues to apply to the person as if the regulated principal’s regulated activities did not include the relevant part.
(4) Subsection (3) has effect subject to subsection 1430(3).
1432 Continued application of relevant old legislation
(1) Subject to subsection (2), during the transition period for a regulated principal, the relevant old legislation (if any) continues to apply, despite its repeal:
(a) to, and in relation to, the regulated principal and their regulated activities; and
(b) to any other person to whom it is expressed to apply, but only in relation to matters related to the regulated principal and their regulated activities.
Note: So, for example, people may continue to be appointed as agents or representatives of the regulated principal (or to have those appointments varied or revoked) during the transition period under provisions of the relevant old legislation that deal with such matters.
(2) If, because of subsection 1431(2), the relevant new legislation (within the meaning of subsection 1431(1)) starts to apply to part of a person’s regulated activities from a particular time, the relevant old legislation (if any) stops applying, from that time, in relation to that part of those activities.
1433 Streamlined licensing procedure for certain regulated principals
(1) This section applies to the following regulated principals:
(a) a regulated principal of a kind referred to in any of items 1 to 5 of the table in subsection 1430(1), but not including anyone who is:
(i) an exempted participant for the purposes of section 1419; or
(ii) in a class of persons specified in, or identified in accordance with, regulations made for the purposes of subsection (3);
(b) a regulated principal of a kind referred to in item 9 of that table who:
(i) is in a class of persons specified in regulations made for the purposes of this subparagraph; and
(ii) is not in a class of persons specified in, or identified in accordance with, regulations made for the purposes of subsection (3).
(2) If:
(a) a regulated principal to whom this section applies, before the end of their transition period, applies (in accordance with section 913A of the amended Corporations Act) for a licence covering some or all of their regulated activities (but no other activities); and
(b) their application includes a statement (in accordance with the requirements of the application form) to the effect that they will, if granted the licence, comply with their obligations as a financial services licensee;
the following provisions apply:
(c) section 913B of the amended Corporations Act applies to their application as if paragraphs 913B(1)(b), (c), (ca) and (d), and subsections 913B(2) to (5), were omitted; and
(d) the licence condition required by subsection 914A(6) of the amended Corporations Act in relation to a licence granted pursuant to their application must specify, as the financial services that the licensee is authorised to provide, financial services that equate (as closely as possible) to the regulated activities in respect of which the application was made.
Note 1: Paragraph (c) does not limit the matters that can be taken into account under section 915C (suspension or cancellation after offering a hearing) in relation to a licence that has been granted under section 913B as it applies because of this section.
Note 2: The condition referred to in paragraph (d), as with any other conditions imposed on the licence under section 914A of the amended Corporations Act, is subject to variation or revocation in accordance with that section.
(3) The regulations may identify classes of persons, or provide for the identification of classes of persons, who are not to be covered by this section.
1434 Special licences for insurance multi‑agents during first 2 years after FSR commencement
(1) For the purposes of this section, a person is an insurance multi‑agent at a particular time if, at that time:
(a) the person is an insurance intermediary (but not an insurance broker), within the meaning of the Insurance (Agents and Brokers) Act 1984 as then in force; and
(b) the person has agreements with 2 or more different insurers under section 10 of that Act.
(2) If:
(a) a person who, immediately before the FSR commencement, is an insurance multi‑agent applies in accordance with section 913A of the amended Corporations Act for a licence, during the period of 2 years starting on the FSR commencement; and
(b) the application is lodged at a time:
(i) when the person is still carrying on activities as agent for one or more of the insurers with whom, immediately before the FSR commencement, they had agreements as mentioned in paragraph (1)(b); or
(ii) that is not more than 6 months after the person ceased to so carry on activities as agent for any of those insurers; and
(c) their application includes a statement (in accordance with the requirements of the application form) to the effect that they want this section to apply to their application;
the following provisions apply:
(d) section 913B of the amended Corporations Act applies to their application as if the reference in paragraph 913B(1)(b) to section 912A did not include the obligations under paragraphs 912A(e) and (f);
(e) the licence condition required by subsection 914A(6) of the amended Corporations Act in relation to a licence granted pursuant to their application must specify, as the financial services that the licensee is authorised to provide:
(i) providing financial product advice in relation to risk insurance products and investment life insurance products; and
(ii) dealing in risk insurance products and investment life insurance products.
(3) If the application is granted, then:
(a) while the licence remains in force:
(i) paragraphs 912A(e) and (f) of the amended Corporations Act do not apply to the licensee and the financial services covered by the licence; and
(ii) sections 942B and 942C apply in relation to any Financial Services Guide provided by the licensee or an authorised representative of the licensee as if they included a requirement to include in the Guide a statement that the licensee is not bound by the obligations in paragraphs 912A(e) and (f) and that sets out what those obligations are; and
(b) the licence conditions cannot be varied so that the licence covers the licensee providing financial services other than those referred to in paragraph (2)(e); and
(c) the licence ceases to be in force (unless earlier revoked) at the end of the period of 2 years starting on the FSR commencement.
1435 Licensing decisions made within the first 2 years of the FSR commencement—regard may be had to conduct and experience of applicant or related body corporate that currently provides same or similar services
(1) This section applies:
(a) if a person applies, during the period of 2 years starting on the FSR commencement, under section 913A of the amended Corporations Act for the grant of a licence covering the provision of particular financial services (the relevant financial services); and
(b) ASIC is aware that:
(i) the applicant; or
(ii) if the applicant is a body corporate—a related body corporate of the applicant;
is currently (as at the time the application is being considered by ASIC) providing services that are the same as, or similar to, all or any of the relevant financial services.
(2) In considering the matters it is required by section 913B of the amended Corporations Act to consider in deciding whether to grant the licence, ASIC may (but is not required to) have regard to the conduct and experience (including conduct and experience before the FSR commencement) of the applicant, or the related body corporate, in providing services that are the same as, or similar to, all or any of the relevant financial services (so far as ASIC is aware of such conduct and experience).
(3) Subsection (2) is not intended to limit, by implication, the matters that ASIC can take into account under section 913B of the amended Corporations Act when considering whether to grant a licence under that section (whether pursuant to an application to which this section applies or otherwise).
1436 Treatment of representatives—general
(1) This section applies to a person who is a representative of a regulated principal. For this purpose, a representative includes, but is not limited to:
(a) an agent (however described) of the regulated principal; and
(b) an employee or director of the regulated principal; and
(c) any other person who, in accordance with the regulated principal’s relevant old legislation as it continues to have effect in relation to the regulated principal, is authorised to carry on activities for or on behalf of the regulated principal.
(1A) However, if a person who, under subsection (1), would be the representative of another person is a financial services licensee in their own right, the licensee, when engaged in activities covered by their licence, is taken not to be acting as representative of that other person.
(2) The following provisions apply in relation to a person who is a representative of a regulated principal:
(a) during any period when, because of section 1431, the relevant new legislation (within the meaning of subsection 1431(1)) does not apply to the regulated principal and particular regulated activities, the relevant new legislation also does not apply to the representative when they are acting as a representative of the regulated principal in relation to any of those activities;
(b) during any period when, because of section 1432, relevant old legislation continues to apply to the regulated principal and particular regulated activities, that legislation also continues to apply to the representative when they are acting as a representative of the regulated principal in relation to any of those activities.
Note 1: If a person is a representative of 2 persons, this may result in the person having to comply with the relevant new legislation in respect of what they do as a representative of one of those persons but, at the same time, having to comply with relevant old legislation in respect of what they do as a representative of the other of those persons.
Note 2: If a person is a representative of another person who carries on 2 different sets of activities, being sets of activities in relation to which there are separate applications of this Subdivision because of subsection 1430(3), this may result in the person having to comply with the relevant new legislation in respect of what they do in relation to one of those sets of activities but, at the same time, having to comply with relevant old legislation in respect of what they do in relation to the other set of activities.
Note 3: Because of section 1441, a representative who is not required to comply with the relevant new legislation may nonetheless be required to comply with obligations under Part 7.9 of the amended Corporations Act.
1436A Treatment of representatives—insurance agents
(1) This section has effect despite anything else in this Subdivision, including sections 1436 and 1437.
(2) This section applies if, immediately before the FSR commencement, a person is an insurance intermediary (but not an insurance broker) within the meaning of the Insurance (Agents and Brokers) Act 1984 as then in force because of an agreement they have with an insurer under section 10 of that Act. For the purposes of this section:
(a) the person is the insurance agent; and
(b) the agreement is the authorising agreement; and
(c) the matters dealt with in the provisions included in the agreement in compliance with section 10 of that Act, and any other matters included in the agreement that are related to those matters, are the relevant matters; and
(d) the insurer is the principal.
If, immediately before the FSR commencement, the person has more than one such agreement, this section applies separately in relation to each of those agreements.
(3) For the purposes of this section, the transition period is the period starting on the FSR commencement and ending when the first of the following events occurs:
(a) the period of 2 years starting on the FSR commencement ends;
(b) the authorising agreement ceases to be in force;
(c) the insurance agent has lodged with ASIC notice in writing that the agent no longer wants to be covered by the Insurance (Agents and Brokers) Act 1984:
(i) from a specified date, being a date that is after the notice is given to ASIC; or
(ii) from the end of a specified period, being a period that ends after the notice is given to ASIC;
and that date arrives or period ends;
(d) the insurance agent is granted a licence under section 913B (including as it has effect because of section 1434) of the amended Corporations Act that covers the insurance agent engaging in (as licensee) the range of activities that they previously engaged in as agent under the authorising agreement.
(4) A notice (the original notice) given for the purposes of paragraph (3)(c) may before the date, or the end of the period, specified in the original notice as mentioned in that paragraph:
(a) be varied to specify another date or period, being a date or period that would satisfy the requirements of subparagraph (3)(c)(i) or (ii) if the reference in that subparagraph to when the notice (being the original notice) is given to ASIC were instead a reference to when the notice of variation is given to ASIC under this subsection; or
(b) be revoked.
The variation or revocation must be made by notice in writing lodged with ASIC.
(5) Subject to subsection (7), during the transition period, the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement, and any associated provisions, (the relevant old legislation) continue to apply (despite the repeal of that Act) to, and in relation to, the insurance agent, the principal and the relevant matters.
(6) Subject to subsection (7), during the transition period, the relevant new legislation (within the meaning of section 1431) does not apply to, or in relation to, the insurance agent, the principal and the relevant matters.
(7) Regulations made for the purposes of this subsection may do either or both of the following:
(a) provide that specified provisions of the relevant old legislation apply (with or without specified modifications), or do not apply, to the insurance agent, the principal and some or all of the relevant matters;
(b) provide that specified provisions of the relevant new legislation apply (with or without specified modifications), or do not apply, to the insurance agent, the principal and some or all of the relevant matters.
The regulations may provide as mentioned in paragraph (a) or (b) even after the end of the transition period.
(8) If:
(a) before the end of the transition period, or such longer period during which regulations made for the purposes of subsection (7) provide for the application of some or all of the relevant old legislation, the insurance agent engages in conduct that, under the authorising agreement as then in force, creates a right to brokerage, commission or other remuneration (which may be a present right, or a future right that is dependent on matters specified in the authorising agreement); and
(b) that right is still in existence immediately before the end of that period;
the right is not taken to be brought to an end merely because of the repeal of the relevant old legislation or the enactment of the relevant new legislation, or because under this section the relevant old legislation ceases to apply and the relevant new legislation starts to apply.
(9) Subsection (8) is not intended to affect, in any way, the determination of the question whether any other right (whether or not it is under an agreement under section 10 of the Insurance (Agents and Brokers) Act 1984) is in any way affected by the provisions of the Financial Services Reform Act 2001 or the Financial Services Reform (Consequential Provisions) Act 2001 (including the amendments made by those Acts).
1437 Exemptions and modifications by ASIC
(1) This section applies to the following provisions:
(a) the provisions of this Subdivision (other than section 1436A) and any associated provisions;
(b) the provisions of legislation that continues to apply because of subsection 1432(1) or 1436(3).
(2) ASIC may, subject to subsection (3):
(a) exempt a person or a class of persons from some or all of the provisions to which this section applies; or
(b) declare that some or all of the provisions to which this section applies apply in relation to a person or a class of persons as if the provisions were modified or varied as specified in the declaration.
(3) The following provisions apply in relation to ASIC’s power to make declarations under paragraph (2)(b):
(a) a declaration may provide for the continued application (with or without modifications, and to the exclusion of provisions of the amended Corporations Act) of provisions referred to in paragraph (1)(b), even after the end of the period of 2 years starting on the FSR commencement;
(b) ASIC cannot declare that provisions are modified so that they apply in relation to persons to whom they would not otherwise apply.
(4) An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.
(5) An exemption or declaration must be in writing and ASIC must publish notice of it in the Gazette.
(6) If conduct (including an omission) of a person would not constitute an offence if a particular declaration under paragraph (2)(b) had not been made, that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the gazettal requirement of subsection (5)):
(a) the text of the declaration was made available by ASIC on the Internet; or
(b) ASIC gave written notice setting out the text of the declaration to the person.
In a prosecution for an offence to which this subsection applies, the prosecution must prove that paragraph (a) or (b) was complied with before the conduct occurred.
Subdivision E—Product disclosure requirements
1438 New product disclosure provisions do not apply to existing products during transition period
(1) This section applies to all financial products issued by a person, other than financial products in a class of products that are first issued by the person after the FSR commencement.
(2) For the purposes of this section, the new product disclosure provisions in relation to a financial product to which this section applies are the provisions of Part 7.9 of the amended Corporations Act that, apart from this section, would apply in relation to the financial product (whether those provisions apply to the issuer of the product or to another person or persons), other than the following provisions:
(a) section 1017C (information for existing holders of superannuation products and RSA products);
(b) section 1017DA (trustees of superannuation entities—regulations may specify additional obligations to provide information), and regulations made for the purposes of that section;
(c) section 1017E (dealing with money received for financial product before the product is issued);
(d) section 1017F (confirming transactions);
(e) sections 1019A and 1019B (cooling‑off period for return of financial product);
(f) sections 1020B and 1020C (short selling of securities, managed investment products and certain other financial products);
(g) section 1020D (Part cannot be contracted out of).
(3) Subject to subsection (4), the new product disclosure provisions do not apply in relation to a financial product to which this section applies during the period (the transition period) starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years starting on the FSR commencement;
(b) the date specified in a notice lodged with ASIC by the issuer of the product that relates to the product, or a class of financial products that includes the product, and that satisfies the following requirements:
(i) the notice must indicate that the issuer of the product wants the new product disclosure provisions to apply in relation to the product from a date specified in the notice;
(ii) the date specified in the notice is the FSR commencement or a later date;
(iii) the date specified in the notice is at least 28 days after the notice is lodged with ASIC.
Note 1: A notice under paragraph (b) may be lodged during the period between the commencement of this section and the FSR commencement, or it may be lodged after the FSR commencement.
Note 2: Subject to Division 2, the provisions covered by paragraphs (2)(a) to (f) apply from the FSR commencement in relation to all financial products to which they purport to apply.
(4) If the date specified in a notice lodged with ASIC in accordance with paragraph (3)(b) is the FSR commencement, there is no transition period in relation to the financial product or products to which the notice relates.
(5) A notice (the first notice) lodged with ASIC in accordance with paragraph (3)(b):
(a) may, by a further notice lodged with ASIC, be varied to specify a different date (the new date), but only if:
(i) that further notice is lodged with ASIC at least 28 days before the date specified in the first notice; and
(ii) the new date is at least 28 days after that further notice is lodged with ASIC; and
(b) may, by a further notice lodged with ASIC, be revoked, but only if that further notice is lodged with ASIC at least 28 days before the date specified in the first notice.
A date that was specified in a notice before its variation or revocation in accordance with this subsection is to be disregarded for the purposes of the other provisions of this section.
(6) If the issuer of a financial product lodges a notice with ASIC in accordance with paragraph (3)(b) that covers the product, the issuer must comply with any applicable requirements determined in writing by ASIC for the purposes of this subsection in relation to the following matters:
(a) informing people about the notice and its significance; and
(b) informing people about any subsequent variation or revocation of the notice.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(7) A determination by ASIC for the purposes of subsection (6):
(a) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901; and
(b) may cover all financial products or one or more classes of financial products; and
(c) may make different provision in relation to different classes of financial products.
(8) Subject to the regulations, ASIC must take reasonable steps to ensure that, during the period of 2 years starting on the FSR commencement, information is available:
(a) on the Internet; and
(b) at offices of ASIC;
about notices that have been lodged in accordance with paragraph (3)(b). The information must be updated to take account of variations and revocations of such notices.
1439 Offences against new product disclosure provisions—additional element for prosecution to prove if conduct occurs after opting‑in and before the end of the first 2 years
(1) If:
(a) conduct in relation to a financial product that would (apart from this section) constitute an offence against, or based on, any of the new product disclosure provisions occurred at a time:
(i) during the period of 2 years starting on the FSR commencement; and
(ii) after the date specified in a notice lodged in relation to the product in accordance with paragraph 1438(3)(b); and
(b) the new product disclosure provisions started to apply in relation to the product from the date specified in the notice;
the conduct constitutes an offence against that provision only if (in addition to the other elements of the offence), either:
(c) the person knew that, or was reckless as to whether, the product issuer had lodged a notice under that paragraph that specified that date; or
(d) the person did not know that, and was not reckless as to whether, the product issuer had lodged a notice under that paragraph that specified that date, but the conduct would have contravened the provisions referred to in section 1440 that would have applied to and in relation to the product if those provisions had still applied when the conduct occurred.
(2) In this section:
conduct means an act, an omission to perform an act or a state of affairs.
1440 Continued application of certain provisions of old disclosure regimes during transition period
During the transition period (if any) for a financial product, the following provisions continue to apply, despite their repeal or amendment, to and in relation to the financial product:
(a) if the product is a managed investment product—all the provisions of Chapter 6D of the old Corporations Act, other than section 722 of that Act, and any associated provisions;
(b) if the product is a derivative—section 1210 of the old Corporations Act, and any associated provisions;
(c) if the product is a superannuation product—the following provisions, and any associated provisions:
(i) section 153, and all the provisions of Divisions 3 and 4 of Part 19, of the Superannuation Industry (Supervision) Act 1993 as in force immediately before the FSR commencement;
(ii) the section 153A of that Act that was provided for in Modification Declaration no. 15 as in force immediately before the FSR commencement, being a declaration of modification made under section 332 of that Act;
(d) if the product is an RSA product—section 51, and all the provisions of Divisions 4 and 5 of Part 5, of the Retirement Savings Accounts Act 1997 as in force immediately before the FSR commencement, and any associated provisions;
(e) if the product is an insurance product—sections 71A and 73 of the Insurance Contracts Act 1984 as in force immediately before the FSR commencement, and any associated provisions.
1441 Certain persons who are not yet covered by Parts 7.6, 7.7 and 7.8 of the amended Corporations Act are required to comply with Part 7.9 obligations as if they were regulated persons
From the time from which the new product disclosure provisions start to apply in relation to a particular financial product, the following persons must comply with those provisions in relation to that product, as if they were regulated persons as defined in section 1011B of the amended Corporations Act, even though they are not yet subject, or fully subject, to Parts 7.6, 7.7 and 7.8 of that Act:
(a) a regulated principal;
(b) a representative (as defined in section 1436) of a regulated principal; or
(c) an insurance agent (as defined in section 1436A).
1442 Exemptions and modifications by ASIC
(1) This section applies to the following provisions:
(a) the provisions of this Subdivision and any associated provisions;
(b) the provisions that continue to apply because of section 1440.
(2) ASIC may, subject to subsection (3):
(a) exempt a person or a class of persons, or a financial product or class of financial products, from some or all of the provisions to which this section applies; or
(b) declare that some or all of the provisions to which this section applies apply in relation to a person or a class of persons, or a financial product or class of financial products, as if the provisions were modified or varied as specified in the declaration.
(3) The following provisions apply in relation to ASIC’s power to make declarations under paragraph (2)(b):
(a) a declaration may provide for the continued application (with or without modifications, and to the exclusion of provisions of the amended Corporations Act) of provisions referred to in paragraph (1)(b) even after the end of the period of 2 years starting on the FSR commencement;
(b) ASIC cannot declare that provisions are modified so that they apply in relation to persons or financial products to which they would not otherwise apply.
(4) An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.
(5) An exemption or declaration must be in writing and ASIC must publish notice of it in the Gazette.
(6) If conduct (including an omission) of a person would not constitute an offence if a particular declaration under paragraph (2)(b) had not been made, that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the gazettal requirement of subsection (5)):
(a) the text of the declaration was made available by ASIC on the Internet; or
(b) ASIC gave written notice setting out the text of the declaration to the person.
In a prosecution for an offence to which this subsection applies, the prosecution must prove that paragraph (a) or (b) was complied with before the conduct occurred.
Subdivision F—Certain other product‑related requirements
1442A Deferred application of hawking prohibition
(1) For the purposes of this section, the transition period is the period starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the day fixed by Proclamation for the purposes of this paragraph;
(b) the end of the period of 6 months starting on the FSR commencement.
(2) Regulations made for the purposes of this section may provide for specified provisions of legislation that is repealed by the Financial Services Reform Act 2001 or the Financial Services Reform (Consequential Provisions) Act 2001, being provisions that deal with the same or a similar matter as that dealt with in section 992A of the amended Corporations Act, to continue to apply (whether with or without specified modifications) during the transition period.
(3) During the transition period, section 992A of the amended Corporations Act does not apply to any person, except to the extent (if any) provided for in regulations made for the purposes of this section.
1442B Deferred application of confirmation of transaction and cooling‑off provisions etc.
(1) This section applies to all financial products issued by a person, other than financial products in a class of products that are first issued by the person after the FSR commencement.
(2) For the purposes of this section, the transition period, in relation to a financial product to which this section applies, is the period starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the day fixed by Proclamation for the purposes of this paragraph;
(b) the end of the period of 6 months starting on the FSR commencement;
(c) the new product disclosure provisions (within the meaning of section 1438) start to apply in relation to the product.
(3) Subject to subsection (5), the following provisions (the preserved provisions), to the extent they are relevant to a financial product to which this section applies, continue to apply, despite their repeal, in relation to the financial product during the transition period:
(a) Division 6 of Part 19 of the Superannuation Industry (Supervision) Act 1993, and any associated provisions;
(b) Division 7 of Part 5 of the Retirement Savings Accounts Act 1997, and any associated provisions;
(c) sections 64 and 64A of the Insurance Contracts Act 1984, and any associated provisions;
(d) any other provisions specified in regulations made for the purposes of this paragraph, and any associated provisions in relation to provisions so specified.
(4) Subject to subsection (5), during the transition period, the following provisions (the deferred provisions) of the amended Corporations Act do not apply in relation to a financial product to which this section applies:
(a) section 1017F;
(b) sections 1019A and 1019B;
(c) any other provisions of Part 7.9 of the amended Corporations Act that are not part of the new product disclosure provisions (within the meaning of section 1438) and that are specified in regulations made for the purposes of this paragraph.
(5) Regulations made for the purposes of this subsection may do either or both of the following:
(a) provide that specified provisions of the preserved provisions apply (with or without specified modifications), or do not apply, in relation to a financial product to which this section applies;
(b) provide that specified provisions of the deferred provisions apply (with or without specified modifications), or do not apply, in relation to a financial product to which this section applies.
The regulations may provide as mentioned in paragraph (a) or (b) even after the end of the transition period.
Division 2—Other transitional provisions
1443 Definitions
(1) In this Division:
amended Corporations Act has the same meaning as in Division 1.
class, in relation to financial products, has a meaning affected by regulations made for the purposes of subsection (2).
FSR commencement has the same meaning as in Division 1.
law of the Commonwealth includes a reference to an instrument made under such a law.
new legislation means relevant legislation as in force after the FSR commencement.
old legislation means relevant legislation as in force immediately before the FSR commencement.
relevant amendments means the amendments made by:
(a) the Financial Services Reform Act 2001; and
(b) the Financial Services Reform (Consequential Provisions) Act 2001.
relevant legislation means the following legislation:
(a) this Act;
(b) the Acts that are amended by the relevant amendments;
(c) regulations or other instruments made under Acts covered by paragraph (a) or (b);
(d) any other law of the Commonwealth, or instrument made under a law of the Commonwealth, identified in regulations made for the purposes of this paragraph.
(2) The regulations may include provisions identifying, or providing for the identification of, what constitutes a class of financial products for the purposes of a provision or provisions of this Division.
1444 Regulations may deal with transitional, saving or application matters
(1) The regulations may deal with matters of a transitional, saving or application nature relating to the relevant amendments and the transition from the application of the old legislation to the application of the new legislation. Regulations made for this purpose may make such provision as is necessary to take account of the fact that, because of Division 1, different provisions of the amended Corporations Act start applying (and different provisions of the old legislation stop applying) in relation to different people, things and matters at different times.
(2) Regulations made for the purposes of this section are of no effect to the extent that they are inconsistent with:
(a) a provision of Division 1; or
(b) a regulation or determination made under a provision of Division 1, other than any such regulation or determination (the other instrument) that is expressed to have effect subject to anything in regulations made for the purposes of this section (in which case, the other instrument is of no effect, to the extent of the inconsistency).
(3) Without limiting subsection (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:
(a) by applying (with or without modifications) to the matter:
(i) provisions of a law of the Commonwealth; or
(ii) provisions of a repealed or amended law of the Commonwealth, in the form that those provisions took before the repeal or amendment; or
(iii) a combination of provisions referred to in subparagraphs (i) and (ii);
(b) by otherwise specifying rules for dealing with the matter;
(c) by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of a law of the Commonwealth.
(4) Without limiting subsections (1) and (3), the regulations may provide for the continued effect after the FSR commencement, for the purposes of the new legislation, of a thing done or instrument made, or a class of things done or instruments made, before the FSR commencement, under or for the purposes of the old legislation. In the case of an instrument, or class of instruments, the regulations may (either when providing for the continued effect of the instrument or instruments or at a later time) provide for the instrument or instruments, as continuing to have effect, to have effect subject to modifications.
(5) Without limiting subsection (4), regulations made for the purposes of that subsection may permit all or any of the following matters to be determined in writing by a specified person, or by a person included in a specified class of persons:
(a) the identification of a thing done or instrument made, or a class of things done or instruments made, that is to continue to have effect;
(b) the purpose for which a thing done or instrument made, or a class of things done or instruments made, is to continue to have effect;
(c) any modifications subject to which an instrument made, or a class of instruments made, is to continue to have effect.
(6) Despite subsection 48(2) of the Acts Interpretation Act 1901, regulations made for the purposes of this section:
(a) may be expressed to take effect from a date before the regulations are notified in the Gazette; and
(b) may provide for a determination of a kind referred to in subsection (5) to take effect from a date before the determination is made (including a date before the regulations are notified in the Gazette).
(7) If a relevant amendment does not commence on the FSR commencement, this section applies in relation to that amendment as if references in the other provisions of this section, and in the definitions in section 1443, to “the FSR commencement” were instead references to the commencement of the relevant amendment.
(8) In this section:
matters of a transitional, saving or application nature includes, but is not limited to, matters related to any of the following:
(a) how a matter that arose or existed under the old legislation is to be dealt with under the new legislation;
(b) the significance for the purposes of the new legislation of a matter that arose or existed under the old legislation;
(c) how a process started but not completed under the old legislation is to be dealt with;
(d) the preservation of concessions or exemptions (however described) that existed under the old legislation;
(e) interpreting references to matters in terms of the new legislation so as to include references to matters in terms of the old legislation (including that legislation as it continues to have effect because of provisions of Division 1), and vice versa;
(f) any other matters that are prescribed by regulations made for the purposes of this paragraph.
1445 ASIC determinations may deal with transitional, saving or application matters
(1) ASIC may, by determination in writing, deal with matters of a transitional, saving or application nature relating to the relevant amendments and the transition from the application of the old legislation to the application of the new legislation. Determinations for this purpose may make such provision as is necessary to take account of the fact that, because of Division 1, different provisions of the amended Corporations Act start applying (and different provisions of the old legislation stop applying) in relation to different people, things and matters at different times.
(2) A determination:
(a) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901; and
(b) overrides any inconsistent regulations made for the purposes of section 1444, other than any such regulations that are expressed to have effect despite anything in a determination under this section (in which case, the determination is of no effect, to the extent of the inconsistency).
(3) A determination is of no effect to the extent that it is inconsistent with:
(a) a provision of Division 1; or
(b) a regulation or determination made under a provision of Division 1, other than any such regulation or determination (the other instrument) that is expressed to have effect subject to anything in a determination under this section (in which case, the other instrument is of no effect, to the extent of the inconsistency).
(4) Without limiting subsection (1), a determination may provide for a matter to be dealt with, wholly or partly, in any of the following ways:
(a) by applying (with or without modifications) to the matter:
(i) provisions of a law of the Commonwealth; or
(ii) provisions of a repealed or amended law of the Commonwealth, in the form that those provisions took before the repeal or amendment; or
(iii) a combination of provisions referred to in subparagraphs (i) and (ii);
(b) by otherwise specifying rules for dealing with the matter;
(c) by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of a law of the Commonwealth.
(5) Without limiting subsections (1) and (4), a determination may provide for the continued effect after the FSR commencement, for the purposes of the new legislation, of a thing done or instrument made, or a class of things done or instruments made, before the FSR commencement, under or for the purposes of the old legislation. In the case of an instrument, or class of instruments, a determination may (either when providing for the continued effect of the instrument or instruments or at a later time) provide for the instrument or instruments, as continuing to have effect, to have effect subject to modifications.
(6) Without limiting subsection (5), a determination for the purposes of that subsection may permit all or any of the following matters to be determined in writing by a specified person, or by a person included in a specified class of persons:
(a) the identification of a thing done or instrument made, or a class of things done or instruments made, that is to continue to have effect;
(b) the purpose for which a thing done or instrument made, or a class of things done or instruments made, is to continue to have effect;
(c) any modifications subject to which an instrument made, or a class of instruments made, is to continue to have effect.
(7) If a relevant amendment does not commence on the FSR commencement, this section applies in relation to that amendment as if references in the other provisions of this section, and in the definitions in section 1443, to “the FSR commencement” were instead references to the commencement of the relevant amendment.
(8) In this section:
matters of a transitional, saving or application nature includes, but is not limited to, matters related to any of the following:
(a) how a matter that arose or existed under the old legislation is to be dealt with under the new legislation;
(b) the significance for the purposes of the new legislation of a matter that arose or existed under the old legislation;
(c) how a process started but not completed under the old legislation is to be dealt with;
(d) the preservation of concessions or exemptions (however described) that existed under the old legislation;
(e) interpreting references to matters in terms of the new legislation so as to include references to matters in terms of the old legislation (including that legislation as it continues to have effect because of provisions of Division 1), and vice versa;
(f) any other matters that are prescribed by regulations made for the purposes of this paragraph.
224 Schedule 3 (at the end of the table)
Add:
344
Subsection 1412(3)
100 penalty units or imprisonment for 2 years, or both.
345
Subsection 1424(3)
100 penalty units or imprisonment for 2 years, or both.
346
Subsection 1438(6)
50 penalty units.
Corporations (Futures Organisations Levies) Act 2001
225 Subsection 3(2)
Repeal the subsection, substitute:
(2) Other expressions used in this Act that were defined in a provision of the Corporations Act 2001 that, immediately before the commencement of this subsection, applied for the purposes of Part 8.6 of that Act (whether it also applied for other purposes) have the same meanings in this Act as they were given by that provision.
226 Paragraphs 4(a), (b) and (c)
After “Corporations Act 2001”, insert “, as that subsection continues to apply because of section 1415 or 1420 of the Financial Services Reform (Consequential Provisions) Act 2001,”.
227 The whole of the Act
Repeal the Act.
Corporations (Securities Exchanges Levies) Act 2001
228 Subsection 3(2)
Repeal the subsection, substitute:
(2) Other expressions used in this Act that were defined in a provision of the Corporations Act 2001 that, immediately before the commencement of this subsection, applied for the purposes of Part 7.9 of that Act (whether it also applied for other purposes) have the same meanings in this Act as they were given by that provision.
229 Paragraphs 4(a), (b) and (c)
After “Corporations Act 2001”, insert “, as that subsection continues to apply because of section 1415 or 1420 of the Financial Services Reform (Consequential Provisions) Act 2001,”.
230 Subsection 6(1) (definition of relevant person)
After “Corporations Act 2001”, insert “, as that section continues to apply because of section 1415 or 1420 of the Financial Services Reform (Consequential Provisions) Act 2001”.
231 The whole of the Act
Repeal the Act.
Financial Transaction Reports Act 1988
232 Subsection 3(1) (paragraphs (d) and (e) of the definition of cash dealer)
Repeal the paragraphs, substitute:
(d) a financial services licensee (as defined by section 761A of the Corporations Act 2001) whose licence covers either or both of the following:
(i) dealing in securities (as defined by subsection 92(1) of the Corporations Act 2001);
(ii) dealing in derivatives (as defined by section 761A of the Corporations Act 2001);
233 Subsection 3(1) (definition of futures broker)
Repeal the definition.
234 Subsection 3(1) (definition of securities dealer)
Repeal the definition.
235 Subsection 9(4)
Repeal the subsection, substitute:
(4) A significant cash transaction is also an exempt transaction if it is between:
(a) a financial services licensee (as defined by section 761A of the Corporations Act 2001) whose licence covers dealing in derivatives (as defined by that section); and
(b) a clearing and settlement facility (as defined by that section) that is associated with a financial market (as defined by that section) of which the financial services licensee is a member.
236 Subsection 24(8)
Repeal the subsection, substitute:
(8) This section does not apply in relation to a person and an account that is an RSA within the meaning of the Retirement Savings Accounts Act 1997 if:
(a) the person (the employer) is an employer, within the meaning of that Act, of another person (the employee); and
(b) the employer made the application for the account on behalf of the employee.
Fringe Benefits Tax Assessment Act 1986
237 Paragraph 136AB(2)(b)
Omit “while in breach of that Act or regulations under that Act”, substitute “in contravention of a regulatory provision, as defined in section 38A of that Act”.
Income Tax Assessment Act 1936
238 Paragraph 82AAD(3)(b)
Omit “while in breach of that Act or regulations under that Act”, substitute “in contravention of a regulatory provision, as defined in section 38A of that Act”.
239 Subparagraph 128AE(2)(e)(iii)
Repeal the subparagraph, substitute:
(iii) a financial services licensee (as defined by section 761A of the Corporations Act 2001) whose licence covers dealing in securities (as defined by subsection 92(3) of the Corporations Act 2001), providing financial advice in relation to such securities or operating a managed investment scheme (as defined by section 9 of the Corporations Act 2001); or
Insurance Act 1973
240 Subsection 3(1) (paragraph (b) of the definition of securities exchange)
Repeal the paragraph, substitute:
(b) a licensed market (as defined in section 761A of the Corporations Act 2001) whose licence covers dealing in derivatives; or
241 Subsection 8(1)
Omit “, other than section 113”.
242 Subsection 8(2)
Repeal the subsection.
243 Subsection 8(3)
Omit “or ASIC”.
244 Section 113
Repeal the section.
Insurance (Agents and Brokers) Act 1984
245 The whole of the Act
Repeal the Act.
Insurance Contracts Act 1984
246 Subsection 11(1) (definition of insurance broker)
Omit “but does not include a person who is a supplier within the meaning of section 73”.
247 Paragraph 11(10)(a)
Omit “, 68 or 71A”, substitute “or 68”.
248 Paragraph 11(10)(c)
Omit “, 68 and 71A”, substitute “and 68”.
249 Sections 64, 64A, 64B, 71A and 73
Repeal the sections.
Interactive Gambling Act 2001
250 Section 4 (definition of Chapter 8 agreement)
Repeal the definition.
251 Section 4 (definition of futures contract)
Repeal the definition.
252 Section 4 (definition of option contract)
Repeal the definition.
253 Section 4 (definition of relevant agreement)
Repeal the definition.
254 Paragraph 5(3)(b)
Repeal the paragraph, substitute:
(b) a service to the extent to which it relates to the entering into of contracts that are financial products within the meaning of Chapter 7 of the Corporations Act 2001;
255 Paragraph 6(3)(a)
Repeal the paragraph, substitute:
(a) a service to the extent to which it relates to the entering into of contracts that are financial products within the meaning of Chapter 7 of the Corporations Act 2001;
256 Section 9
Repeal the section.
Life Insurance Act 1995
257 Section 126 (paragraph (b) of the definition of officer)
Omit “Insurance (Agents and Brokers) Act 1984”, substitute “Insurance Contracts Act 1984”.
258 Schedule (definition of securities exchange)
Repeal the definition.
Marine Insurance Act 1909
259 Sections 59 and 60
Repeal the sections.
Payment Systems and Netting Act 1998
260 Section 5 (definition of approved futures clearing house)
Repeal the definition.
261 Section 5 (definition of approved special stock market)
Repeal the definition.
262 Section 5 (subparagraph (a)(i) of the definition of netting market)
Repeal the subparagraph, substitute:
(i) a licensed market or a licensed CS facility as defined in section 761A of the Corporations Act 2001; and
Retirement Savings Accounts Act 1997
263 Section 16 (paragraphs (g) and (h) of the definition of reviewable decision)
Repeal the paragraphs.
264 Section 16 (definition of stop order)
Repeal the definition.
265 Subsection 34(4) (note)
Repeal the note.
266 Section 45
Repeal the section.
267 Section 51
Repeal the section.
268 After subsection 52(1)
Insert:
(1A) For the purposes of this section, the regulations may:
(a) require that particular information is to be given to persons; and
(b) specify formal requirements (including, for example, requirements about layout and type size) that documents used to give information to persons must comply with.
269 Divisions 4, 5, 6 and 7 of Part 5
Repeal the Divisions.
270 Sections 69, 70, 71, 72 and 73
Repeal the sections.
271 Subsection 74(1)
Omit “72, 73 or”.
272 Subsection 74(2)
Repeal the subsection.
273 Sections 75, 76 and 77
Repeal the sections.
274 Section 173 (paragraph (a) of the definition of modifiable provision)
Repeal the paragraph, substitute:
(a) section 38 or 39; or
275 Section 173 (paragraph (b) of the definition of modifiable provision)
Omit “, 3, 4, 5, 6 or 7”, substitute “or 3”.
276 Before subsection 182(1)
Insert:
Definition
(1A) In this section:
regulatory provision, in relation to an RSA institution, means:
(a) a provision of this Act or the regulations; or
(b) a provision of the Financial Sector (Collection of Data) Act 2001; or
(c) any of the following provisions of the Corporations Act 2001 as applying in relation to RSA products (within the meaning of Chapter 7 of that Act) that are provided by the RSA institution:
(i) subsection 1013K(1) or (2);
(ii) subsection 1016A(2) or (3);
(iii) subsection 1017B(1);
(iv) subsection 1017C(2), (3) or (5);
(v) subsection 1017D(1);
(vi) subsection 1017DA(3);
(vii) subsection 1017E(3) or (4);
(viii) subsection 1020E(8) or (9);
(ix) subsection 1021C(1) or (3);
(x) subsection 1021D(1);
(xi) subsection 1021E(1);
(xii) subsection 1021O(1) or (3);
(xiii) section 1041E;
(xiv) subsection 1041F(1);
(xv) any other provisions that are specified in regulations made for the purposes of this subparagraph.
277 Paragraph 182(2)(a)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “any of the regulatory provisions”.
278 Subsection 182(4)
Omit all the words from and including “the provisions” to and including “applicable”, substitute “the regulatory provisions applicable”.
279 Subsection 182(6) (note)
Repeal the note.
Superannuation Guarantee (Administration) Act 1992
280 Subsection 24(4)
Omit “while in breach of that Act or regulations under that Act”, substitute “in contravention of a regulatory provision, as defined in section 38A of that Act”.
281 Paragraph 25(2)(b)
Omit “while in breach of that Act or regulations under that Act”, substitute “in contravention of a regulatory provision, as defined in section 38A of that Act”.
Superannuation Industry (Supervision) Act 1993
282 Section 4 (table item relating to Part 18)
Repeal the item.
283 Section 4 (table item relating to Part 19)
Omit “and about the disclosure of information about such entities”.
284 Section 4 (table item relating to Part 20)
Repeal the item.
285 Subparagraph 6(1)(c)(iv)
Repeal the subparagraph, substitute:
(iii) Part 19;
286 Paragraphs 9A(1)(b), (c), (d) and (e)
Repeal the paragraphs, substitute:
(b) subsections 152(2), 152(3), 202(1), 278(3) and 282(2);
287 Subsection 10(1) (paragraphs (v), (w) and (x) of the definition of reviewable decision)
Repeal the paragraphs.
288 Subsection 10(1) (definition of statement)
Repeal the definition.
289 Subsection 10(1) (definition of stop order)
Repeal the definition.
290 Before section 39
Insert in Division 2 of Part 5:
38A Meaning of regulatory provision
In this Division:
regulatory provision, in relation to a superannuation entity, means:
(a) a provision of this Act or the regulations; or
(b) a provision of the Financial Sector (Collection of Data) Act 2001; or
(c) any of the following provisions of the Corporations Act 2001 as applying in relation to financial products (within the meaning of Chapter 7 of that Act) that are interests in the superannuation entity:
(i) subsection 1013K(1) or (2);
(ii) subsection 1016A(2) or (3);
(iii) subsection 1017B(1);
(iv) subsection 1017C(2), (3) or (5);
(v) subsection 1017D(1);
(vi) subsection 1017DA(3);
(vii) subsection 1017E(3) or (4);
(viii) subsection 1020E(8) or (9);
(ix) subsection 1021C(1) or (3);
(x) subsection 1021D(1);
(xi) subsection 1021E(1);
(xii) subsection 1021O(1) or (3);
(xiii) section 1041E;
(xiv) subsection 1041F(1);
(xv) subsection 1043A(1) or (2);
(xvi) any other provisions that are specified in regulations made for the purposes of this subparagraph.
291 Subsection 39(1)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “a regulatory provision”.
292 After subsection 39(1)
Insert:
(1A) In relation to a regulatory provision that states that a person commits an offence if they engage, or fail to engage, in specified conduct, a person is, for the purposes of this Division, taken to contravene the provision if the person engages, or fails to engage, in that conduct.
293 Subparagraph 42(1)(b)(i)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “any of the regulatory provisions”.
294 Sub‑subparagraph 42(1)(b)(ii)(A)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
295 Subparagraph 42(1AA)(c)(i)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “any of the regulatory provisions”.
296 Subparagraph 42(1AA)(c)(ii)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
297 Subparagraph 42(1AA)(c)(ii)
Omit “this Act and the regulations and the Financial Sector (Collection of Data) Act 2001”, substitute “the regulatory provisions”.
298 Subsection 42(1AB)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 was”, substitute “any of the regulatory provisions were”.
299 Subsection 42(1AB)
Omit “this Act and the regulations and the Financial Sector (Collection of Data) Act 2001”, substitute “the regulatory provisions”.
300 Subparagraph 42(1AC)(d)(i)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “any of the regulatory provisions”.
301 Subparagraph 42(1AC)(d)(ii)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
302 Subparagraph 42(1AC)(d)(ii)
Omit “this Act and the regulations and the Financial Sector (Collection of Data) Act 2001”, substitute “the regulatory provisions”.
303 Subsection 42(1AD)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 was”, substitute “any of the regulatory provisions were”.
304 Subsection 42(1AD)
Omit “this Act and the regulations and the Financial Sector (Collection of Data) Act 2001”, substitute “the regulatory provisions”.
305 Subsection 42(1A)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “a regulatory provision”.
306 Subparagraph 42A(2)(b)(ii)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
307 Subparagraph 42A(3)(d)(i)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “any of the regulatory provisions”.
308 Subparagraph 42A(3)(d)(ii)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
309 Subparagraph 42A(3)(d)(ii)
Omit “this Act and the regulations and the Financial Sector (Collection of Data) Act 2001”, substitute “the regulatory provisions”.
310 Paragraph 42A(3)(g)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
311 Subparagraph 42A(4)(c)(i)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “any of the regulatory provisions”.
312 Subparagraph 42A(4)(c)(ii)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
313 Subparagraph 42A(4)(c)(ii)
Omit “this Act and the regulations and the Financial Sector (Collection of Data) Act 2001”, substitute “the regulatory provisions”.
314 Subparagraph 42A(4)(f)(ii)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
315 Paragraph 42A(5)(a)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “any of the regulatory provisions”.
316 Paragraph 42A(5)(b)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
317 Subparagraph 42A(5)(b)(ii)
After “contravention”, insert “or contraventions”.
318 Subsection 42A(6)
Omit “the Act or the regulations or the Financial Sector (Collection of Data) Act 2001 was”, substitute “any of the regulatory provisions were”.
319 Subsection 42A(6)
Omit “this Act and the regulations and the Financial Sector (Collection of Data) Act 2001”, substitute “the regulatory provisions”.
320 Subparagraph 43(b)(i)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “any of the regulatory provisions”.
321 Sub‑subparagraph 43(b)(ii)(A)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
322 Sub‑subparagraph 43(b)(iii)(A)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
323 Subparagraph 44(b)(i)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “any of the regulatory provisions”.
324 Sub‑subparagraph 44(b)(ii)(A)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
325 Sub‑subparagraph 44(b)(iii)(A)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions”.
325A Paragraph 63(3)(a)
Omit “this Act or the regulations or the Financial Sector (Collection of Data) Act 2001”, substitute “one or more of the regulatory provisions (as defined in section 38A)”.
325B Subsection 63(5)
Omit all the words from and including “the provisions of”, substitute “the regulatory provisions (as defined in section 38A) applicable to the fund”.
325C Subsection 63(6)
Omit “this Act”, substitute “the applicable provisions of that Part”.
326 Subsection 66(5) (definition of listed security)
Repeal the definition, substitute:
listed security means a security listed for quotation in the official list of any of the following:
(a) a licensed market within the meaning of section 761A of the Corporations Act 2001; or
(b) an approved stock exchange within the meaning of section 470 of the Income Tax Assessment Act 1936; or
(c) a market exempted under section 791C of the Corporations Act 2001.
327 Part 18
Repeal the Part.
328 Part 19 (heading)
Repeal the heading, substitute:
Part 19—Public offer entities: provisions relating to superannuation interests
329 Section 150
Repeal the section.
330 Section 153
Repeal the section.
331 Division 3 of Part 19
Repeal the Division.
332 Division 4 of Part 19
Repeal the Division.
333 Divisions 5 and 6 of Part 19
Repeal the Divisions.
334 Part 20
Repeal the Part.
335 Subsection 314(1)
Omit “Part 18, 19 or 20”, substitute “Part 19”.
336 Paragraph 323(1)(b)
Repeal the paragraph, substitute:
(b) proceedings under subsection 55(3).
337 Subsection 326(2)
Repeal the subsection.
338 Section 327 (definition of temporarily modifiable provision)
Repeal the definition.
339 Sections 329 and 333
Repeal the sections.
340 Section 375
Repeal the section.
341 Subsection 376(2)
Repeal the subsection, substitute:
(2) A modification under subsection (1) must not change the penalty for an offence.
Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2001
342 Subsection 2(2)
Omit all the words from and including “Items” to and including “commence”, substitute “Item 33 of Schedule 1 commences”.
343 Items 38 to 40, 43 to 50, 53, 54, 57, 58, 59, 61 and 65 of Schedule 1
Repeal the items.
344 Items 34 to 36, 41, 42, 51, 52, 55, 56, 60, 62, 63, 64 and 66 of Schedule 1
Repeal the items.
345 Item 67 of Schedule 1
Repeal the item, substitute:
67 Application
The amendments made by this Part apply to acts and omissions on or after the commencement of this item.
Superannuation (Resolution of Complaints) Act 1993
346 Subsection 3(2) (definition of life insurance broker)
Repeal the definition, substitute:
life insurance broker means:
(a) a financial services licensee (as defined in section 761A of the Corporations Act 2001) who carries on the business of arranging contracts of life insurance, whether in Australia or elsewhere, as an agent for intending insureds; or
(b) a representative of such a licensee.
Telstra Corporation Act 1991
347 Paragraph 8AQ(5)(ab)
Repeal the paragraph, substitute:
(ab) if Telstra is a listed disclosing entity—the listing rules of a listing market in relation to Telstra; or
348 Subsection 8AQ(7)
Repeal the subsection, substitute:
(7) In this section:
listed disclosing entity has the same meaning as it is given by section 9 of the Corporations Act 2001.
listing market, in relation to a listed disclosing entity, has the same meaning as it is given by section 9 of the Corporations Act 2001.
listing rules of a market has the same meaning as it is given by section 9 of the Corporations Act 2001.
349 Subsection 8AT(1)
Omit “Chapters 6D and 7”, substitute “Despite subsection 5A(4) of the Corporations Act 2001 (but subject to subsection 5A(5) of that Act), Chapters 6CA, 6D and 7”.
Note: The heading to section 8AT is altered by omitting “Chapter 7” and substituting “Chapters 6CA, 6D and 7”.
350 Subsection 8AT(1)
Omit “binds”, substitute “bind”.
351 Subsection 8AT(1)
Omit “that Chapter deals”, substitute “those Chapters deal”.
352 Subsection 8AT(3)
Repeal the subsection.
353 Subsection 8AT(4)
Omit “Chapter 6D or 7” (first occurring), substitute “Chapter 6CA, 6D or 7”.
354 Subsection 8AT(4)
Omit “to Chapter 6D or 7” (second occurring), substitute “to that Chapter”.
355 Paragraph 8AUA(4)(b)
Repeal the paragraph, substitute:
(b) if Telstra is a listed disclosing entity—the listing rules of a listing market in relation to Telstra; or
356 Subsection 8AUA(6)
Repeal the subsection, substitute:
(6) In this section:
listed disclosing entity has the same meaning as it is given by section 9 of the Corporations Act 2001.
listing market, in relation to a listed disclosing entity, has the same meaning as it is given by section 9 of the Corporations Act 2001.
listing rules of a market has the same meaning as it is given by section 9 of the Corporations Act 2001.
357 Paragraph 8AW(5)(ab)
Repeal the paragraph, substitute:
(ab) if Telstra is a listed disclosing entity—the listing rules of a listing market in relation to Telstra; or
358 Subsection 8AW(6)
Insert:
listed disclosing entity has the same meaning as it is given by section 9 of the Corporations Act 2001.
359 Subsection 8AW(6)
Insert:
listing market, in relation to a listed disclosing entity, has the same meaning as it is given by section 9 of the Corporations Act 2001.
360 Subsection 8AW(6) (definition of listing rules)
Repeal the definition, substitute:
listing rules of a market has the same meaning as it is given by section 9 of the Corporations Act 2001.
361 Subsection 8AW(6) (definition of securities exchange)
Repeal the definition.
362 Paragraph 8AY(1)(b)
Repeal the paragraph, substitute:
(b) if Telstra is a listed disclosing entity—the listing rules of a listing market in relation to Telstra.
363 Subsections 8AY(2) and (3)
Repeal the subsections, substitute:
(2) In this section:
listed disclosing entity has the same meaning as it is given by section 9 of the Corporations Act 2001.
listing market, in relation to a listed disclosing entity, has the same meaning as it is given by section 9 of the Corporations Act 2001.
listing rules of a market has the same meaning as it is given by section 9 of the Corporations Act 2001.
Trade Practices Act 1974
364 Paragraph 51AF(2)(b)
Omit “security (within the meaning of the Corporations Act 2001)”, substitute “financial product”.
364A Paragraph 51AF(2)(c)
Repeal the paragraph, substitute:
(c) section 63A does not apply to:
(i) a credit card that is part of, or that provides access to, a credit facility that is a financial product; or
(ii) a debit card that allows access to an account that is a financial product.
364B Subsection 51AF(3)
Insert:
credit card has the same meaning as in section 63A.
364C Subsection 63A(3) (definition of credit card)
Repeal the definition, substitute:
credit card means an article that is of a kind described in one or more of the following paragraphs:
(a) an article of a kind commonly known as a credit card;
(b) a similar article intended for use in obtaining cash, goods or services on credit;
(c) an article of a kind that persons carrying on business commonly issue to their customers or prospective customers for use in obtaining goods or services from those persons on credit;
or an article that may be used as an article referred to in paragraph (a), (b) or (c).
364D Subsection 63A(3) (definition of debit card)
Repeal the definition, substitute:
debit card means:
(a) an article intended for use by a person in obtaining access to an account that is held by the person for the purpose of withdrawing or depositing cash or obtaining goods or services; or
(b) an article that may be used as an article referred to in paragraph (a).
365 Paragraph 75AZA(2)(b)
Repeal the paragraph, substitute:
(b) if a financial product consists of or includes an interest in land, section 75AZD does not apply to that interest; and
365A Paragraph 75AZA(2)(c)
Repeal the paragraph, substitute:
(c) section 75AZP does not apply to:
(i) a credit card that is part of, or that provides access to, a credit facility that is a financial product; or
(ii) a debit card that allows access to an account that is a financial product.
365B Subsection 75AZA(3)
Insert:
credit card has the same meaning as in section 75AZP.
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001
366 Items 25, 105, 106, 112 to 124, 135 to 139 and 194 to 212 of Schedule 1
Repeal the items.
Schedule 2—Amendments related to possible delayed commencement of Parts 5 and 6 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001
Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001
1 Items 92 and 92A of Schedule 2
Repeal the items.
2 Items 101 to 130AA of Schedule 2
Repeal the items.
Retirement Savings Accounts Act 1997
3 Before subsection 182(1)
Insert:
Definition
(1A) In this section:
regulatory provision, in relation to an RSA institution, means:
(a) a provision of this Act or the regulations; or
(b) any of the following provisions of the Corporations Act 2001 as applying in relation to RSA products (within the meaning of Chapter 7 of that Act) that are provided by the RSA institution:
(i) subsection 1013K(1) or (2);
(ii) subsection 1016A(2) or (3);
(iii) subsection 1017B(1);
(iv) subsection 1017C(2), (3) or (5);
(v) subsection 1017D(1);
(vi) subsection 1017DA(3);
(vii) subsection 1017E(3) or (4);
(viii) subsection 1020E(8) or (9);
(ix) subsection 1021C(1) or (3);
(x) subsection 1021D(1);
(xi) subsection 1021E(1);
(xii) subsection 1021O(1) or (3);
(xiii) section 1041E;
(xiv) subsection 1041F(1);
(xv) any other provisions that are specified in regulations made for the purposes of this subparagraph.
4 Subsection 182(1A) (after paragraph (a) of the definition of regulatory provision)
Insert:
(aa) a provision of the Financial Sector (Collection of Data) Act 2001; or
5 Application of amendment made by item 4
The amendment made by item 4 applies only on and after the day on which the reporting standards determined under section 13 of the Financial Sector (Collection of Data) Act 2001 begin to apply under section 15 of that Act to financial sector entities (within the meaning of that Act) that are RSA providers (within the meaning of the Retirement Savings Accounts Act 1997).
6 Paragraph 182(2)(a)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
7 Subsection 182(4)
Omit “the provisions of this Act and the regulations”, substitute “the regulatory provisions”.
Superannuation Industry (Supervision) Act 1993
8 Before section 39
Insert in Division 2 of Part 5:
38A Meaning of regulatory provision
In this Division:
regulatory provision, in relation to a superannuation entity, means:
(a) a provision of this Act or the regulations; or
(b) any of the following provisions of the Corporations Act 2001 as applying in relation to financial products (within the meaning of Chapter 7 of that Act) that are interests in the superannuation entity:
(i) subsection 1013K(1) or (2);
(ii) subsection 1016A(2) or (3);
(iii) subsection 1017B(1);
(iv) subsection 1017C(2), (3) or (5);
(v) subsection 1017D(1);
(vi) subsection 1017DA(3);
(vii) subsection 1017E(3) or (4);
(viii) subsection 1020E(8) or (9);
(ix) subsection 1021C(1) or (3);
(x) subsection 1021D(1);
(xi) subsection 1021E(1);
(xii) subsection 1021O(1) or (3);
(xiii) section 1041E;
(xiv) subsection 1041F(1);
(xv) subsection 1043A(1) or (2);
(xvi) any other provisions that are specified in regulations made for the purposes of this subparagraph.
9 Section 38A (after paragraph (a) of the definition of regulatory provision)
Insert:
(aa) a provision of the Financial Sector (Collection of Data) Act 2001; or
10 Application of amendment made by item 9
The amendment made by item 9 applies only on and after the day on which the reporting standards determined under section 13 of the Financial Sector (Collection of Data) Act 2001 begin to apply under section 15 of that Act to financial sector entities (within the meaning of that Act) that are trustees of superannuation entities (within the meaning of the Superannuation Industry (Supervision) Act 1993).
11 Subsection 39(1)
Omit “this Act or the regulations”, substitute “a regulatory provision”.
12 After subsection 39(1)
Insert:
(1A) In relation to a regulatory provision that states that a person commits an offence if they engage, or fail to engage, in specified conduct, a person is, for the purposes of this Division, taken to contravene the provision if the person engages, or fails to engage, in that conduct.
13 Subparagraph 42(1)(b)(i)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
14 Sub‑subparagraph 42(1)(b)(ii)(A)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
15 Subparagraph 42(1AA)(c)(i)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
16 Subparagraph 42(1AA)(c)(ii)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
17 Subparagraph 42(1AA)(c)(ii)
Omit “this Act and the regulations”, substitute “the regulatory provisions”.
18 Subsection 42(1AB)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
19 Subsection 42(1AB)
Omit “this Act and the regulations”, substitute “the regulatory provisions”.
20 Subparagraph 42(1AC)(d)(i)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
21 Subparagraph 42(1AC)(d)(ii)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
22 Subparagraph 42(1AC)(d)(ii)
Omit “this Act and the regulations”, substitute “the regulatory provisions”.
23 Subsection 42(1AD)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
24 Subsection 42(1AD)
Omit “this Act and the regulations”, substitute “the regulatory provisions”.
25 Subsection 42(1A)
Omit “this Act or the regulations”, substitute “a regulatory provision”.
26 Subparagraph 42A(2)(b)(ii)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
27 Subparagraph 42A(3)(d)(i)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
28 Subparagraph 42A(3)(d)(ii)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
29 Subparagraph 42A(3)(d)(ii)
Omit “this Act and the regulations”, substitute “the regulatory provisions”.
30 Paragraph 42A(3)(g)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
31 Subparagraph 42A(4)(c)(i)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
32 Subparagraph 42A(4)(c)(ii)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
33 Subparagraph 42A(4)(c)(ii)
Omit “this Act and the regulations”, substitute “the regulatory provisions”.
34 Subparagraph 42A(4)(f)(ii)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
35 Paragraph 42A(5)(a)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
36 Paragraph 42A(5)(b)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
37 Subparagraph 42A(5)(b)(ii)
After “contravention”, insert “or contraventions”.
38 Subsection 42A(6)
Omit “the Act or the regulations”, substitute “any of the regulatory provisions”.
39 Subsection 42A(6)
Omit “this Act and the regulations”, substitute “the regulatory provisions”.
40 Subparagraph 43(b)(i)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
41 Sub‑subparagraph 43(b)(ii)(A)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
42 Sub‑subparagraph 43(b)(iii)(A)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
43 Subparagraph 44(b)(i)
Omit “this Act or the regulations”, substitute “any of the regulatory provisions”.
44 Sub‑subparagraph 44(b)(ii)(A)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
45 Sub‑subparagraph 44(b)(iii)(A)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions”.
46 Paragraph 63(3)(a)
Omit “this Act or the regulations”, substitute “one or more of the regulatory provisions (as defined in section 38A)”.
47 Subsection 63(5)
Omit all the words from and including “the provisions of”, substitute “the regulatory provisions (as defined in section 38A) applicable to the fund”.
48 Subsection 63(6)
Omit “this Act”, substitute “the applicable provisions of that Part”.
[Minister’s second reading speech made in—
House of Representatives on 7 June 2001
Senate on 9 August 2001]
(102/01)
