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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Financial
Services Reform Amendment Bill 2003
No.
, 2003
(Treasury)
A
Bill for an Act to amend the law relating to financial services and markets, and
for other purposes
Contents
Income Tax Assessment Act
1997 35
Retirement Savings Accounts Act
1997 35
Corporations Act
2001 36
A Bill for an Act to amend the law relating to financial
services and markets, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Financial Services Reform Amendment Act
2003.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Schedule 1 |
The 28th day after this Act receives the Royal Assent |
|
|
3. Schedule 2, items 1 to 87 |
The day after this Act receives the Royal Assent |
|
|
4. Schedule 2, item 88 |
1 July 2004 |
|
|
5. Schedule 2, items 89 to 113 |
The day after this Act receives the Royal Assent |
|
|
6. Schedule 3, item 1 |
The later of: (a) the commencement of item 25 of Schedule 2 to this Act;
and (b) immediately after the commencement of item 29 of Schedule 1
to the Taxation Laws Amendment Act (No. 5) 2003 |
|
|
7. Schedule 3, item 2 |
The day after this Act receives the Royal Assent |
|
|
8. Schedule 4 |
The day after this Act receives the Royal Assent |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
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repealed as set out in the applicable items in the Schedule concerned, and any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.
1 Section 760B (table item 9, column
3)
Omit “and sale”, substitute “, sale and
purchase”.
2 Part 7.9 of Chapter 7
(heading)
Repeal the heading, substitute:
3 Subsection 1010A(1)
Omit “Division 6”, substitute “Divisions 5A and
6”.
4 Subsection 1010A(1)
Omit “that Division”, substitute “those
Divisions”.
5 Subsection 1010A(2)
Omit “Division 6”, substitute “Divisions 5A and
6”.
6 Subsection 1010B(1)
Omit “Nothing in this Part”, substitute “Apart from
Division 5A, nothing in this Part”.
7 After Division 5 of
Part 7.9
Insert:
In this Division:
date of offer has the meaning given by subsection
1019G(1).
offeree, in relation to an offer to which this Division
applies, has the meaning given by subsection 1019D(1).
offeror, in relation to an offer to which this Division
applies, has the meaning given by subsection 1019D(1).
offer to which this Division applies means an offer to which
this Division applies because of section 1019D.
(1) This Division applies to an offer in relation to which the following
paragraphs are satisfied:
(a) the offer is an unsolicited offer to purchase a financial product made
by a person (the offeror) to another person (the
offeree);
(b) the offer is made otherwise than on a licensed market;
(c) one or more of the following apply:
(i) the offer is made in the course of a business of purchasing financial
products;
(ii) the offeror was not in a personal or business relationship with the
offeree before the making of the offer;
(iii) the offer is made in circumstances specified in regulations made for
the purposes of this subparagraph;
(d) the offer is not:
(i) made to the issuer of the financial products; or
(ii) to buy back shares under a buy-back authorised by section 257A;
or
(iii) made under a compromise or arrangement approved at a meeting held as
a result of an order under subsection 411(1) or (1A); or
(iv) to acquire securities under an off-market bid; or
(v) to compulsorily acquire or buy out securities under Chapter 6A;
or
(vi) to acquire shares from a dissenting shareholder under
section 414; or
(vii) made in relation to particular financial products that are specified
in regulations made for the purposes of this subparagraph; or
(viii) made in circumstances that are specified in regulations made for
the purposes of this subparagraph;
(e) the offer is made or received in this jurisdiction.
(2) The fact that:
(a) a person has previously invited another person to make an offer to
sell a financial product; and
(b) the other person has, in response, made an offer to sell the financial
product to the first person;
does not, of itself, mean, in relation to a counter-offer subsequently made
by the first person to purchase the financial product from the other
person:
(c) that the counter offer was solicited by the other person; or
(d) that the persons were in a previous personal or business
relationship.
(3) The regulations may clarify:
(a) when an offer is, or is not, made in the course of a business of
purchasing financial products; or
(b) when an offeror was, or was not, in a previous personal or business
relationship with an offeree.
Regulations made for the purposes of this subsection have effect despite
anything else in this section.
(1) An offer to which this Division applies must not be made otherwise
than by sending an offer document in printed or electronic form to the offeree
in accordance with the following requirements:
(a) the document must be sent to an address of the offeree (which may be
an electronic address); and
(b) either the envelope or the container in which it is sent, or the
message that accompanies it, must be addressed to the offeree.
(2) The offer document must be sent to the offeree as soon as practicable
after the date of offer.
(1) An offer to which this Division applies cannot remain open more than
12 months after the date of offer.
(2) The offer may be withdrawn by the offeror at any time, but not within
1 month of the date of offer.
(3) The offer may only be withdrawn by the offeror by sending a withdrawal
document in printed or electronic form to the offeree in accordance with
paragraphs 1019E(1)(a) and (b). The withdrawal document must identify the
offeror and be dated.
(4) A purported withdrawal of the offer contrary to subsection (2) or
(3) is ineffective.
(1) The offer document by which an offer to which this Division applies is
made must identify the offeror and be dated (this date is the date of
offer).
(2) The offer document must also contain the following:
(a) the price at which the offeror wishes to purchase the financial
products;
(b) if the financial product is able to be traded on a licensed market and
there is a market value for the product as traded on that market—the
market value of the product as at the date of offer;
(c) if paragraph (b) does not apply—a fair estimate of the
value of the product as at the date of offer, and an explanation of the basis on
which that estimate was made;
(d) the period during which the offer remains open (which must be
consistent with subsection 1019F(1));
(e) a statement that the offer may be withdrawn by sending a withdrawal
document to the offeree, but not within 1 month of the date of offer;
(f) any other information specified in regulations made for the purposes
of this paragraph.
(3) The regulations may clarify:
(a) the manner in which a fair estimate of the value of a financial
product (see paragraph (2)(c)) is to be worked out; and
(b) the level of detail required in the explanation of the basis on which
the estimate was made.
Regulations made for the purposes of this subsection have effect despite
anything else in this section.
(4) The offer document must be worded and presented in a clear, concise
and effective manner.
(1) This section applies if, in relation to an offer to which this
Division applies, the offeree accepts the offer and enters into a contract for
the sale of the financial product to the offeror, and one or more of the
following paragraphs applies:
(a) section 1019E was not complied with in relation to the
offer;
(b) the offer was accepted after the period referred to in subsection
1019F(1);
(c) the offeror gave the offeree an offer document and either:
(i) the offer document did not comply with section 1019G;
or
(ii) there was a misleading or deceptive statement in the offer
document.
(2) The offeree has:
(a) the right to refuse to transfer the financial product to the offeror;
or
(b) if the offeree has already transferred the financial product to the
offeror—the right to have the financial product returned to the offeree,
if the offeree still holds the product.
The offeree’s right under paragraph (a) or (b) is conditional on
the offeree repaying any money that has been paid to the offeree for the
purchase of the financial product.
(3) The offeree’s right under subsection (2) must be exercised
by notifying the offeror in one of the following ways:
(a) in writing;
(b) electronically;
(c) in any other way specified in regulations made for the purposes of
this paragraph.
Also, if the regulations require the offeree to comply with other
requirements in order to exercise that right, those other requirements must be
complied with.
(4) The offeree’s right under subsection (2) can only be
exercised during the period of 30 days starting on the day the contract was
entered into.
(5) On the exercise of the offeree’s right under
subsection (2), the contract for the sale of the product to the offeror is,
by force of this section, terminated from that time without penalty to the
offeree.
(6) The regulations may provide for consequences and obligations (in
addition to those provided for by subsection (5)) to apply if the
offeree’s right under subsection (2) is exercised.
(7) The regulations may provide that, in specified circumstances, the
amount to be repaid as mentioned in subsection (2) is to be increased or
reduced in accordance with the regulations.
8 At the end of paragraph
1020E(1)(a)
Add:
(iii) an offer document of a kind referred to in section 1019E is
defective (see subsection (11)) or not worded and presented in a clear,
concise and effective manner (see subsection 1019G(4)); or
9 Paragraph 1020E(7)(a)
After “paragraph (b)”, insert “or
(c)”.
10 At the end of subsection
1020E(7)
Add:
; or (c) if paragraph (1)(a) applies because of
subparagraph (1)(a)(iii)—the offeror referred to in subsection
1019D(1).
11 Subsection 1020E(11) (at the end of the
definition of defective)
Add:
; and (c) in relation to an offer document of a kind referred to in
section 1019E that relates to financial products—means:
(i) there is a misleading or deceptive statement in the offer document;
or
(ii) there is an omission from the offer document of material required by
section 1019G to be included in the offer document;
being a statement, or an omission, that is or would be material from the
point of view of a reasonable person considering whether to proceed to sell any
of those financial products.
12 At the end of Subdivision A of Division 7 of
Part 7.9
Add:
Failure to comply with requirements of section 1019E relating to
how offers are made
(1) A person commits an offence if:
(a) the person makes an offer; and
(b) the offer is an offer to which Division 5A applies (see
section 1019D); and
(c) in making the offer, the person fails to comply with a requirement of
section 1019E.
Failure to comply with requirements of section 1019F relating to
duration and withdrawal of offers
(2) A person commits an offence if:
(a) the person makes an offer; and
(b) the offer is an offer to which Division 5A applies (see
section 1019D); and
(c) either:
(i) the offer remains open for longer than is permitted by subsection
1019F(1); or
(ii) in purporting to withdraw the offer, the person fails to comply with
a requirement of subsection 1019F(2) or (3).
Failure to comply with requirements of section 1019G relating to
price or value
(3) A person commits an offence if:
(a) the person makes an offer; and
(b) the offer is an offer to which Division 5A applies (see
section 1019D); and
(c) the person gives the offeree an offer document; and
(d) either:
(i) the offer document does not comply with paragraph 1019G(2)(a), (b) or
(c); or
(ii) material of a kind referred to in paragraph 1019G(2)(a), (b) or (c)
that is included in the offer document is misleading or deceptive.
Failure to comply with other requirements of
section 1019G
(4) A person commits an offence if:
(a) the person makes an offer; and
(b) the offer is an offer to which Division 5A applies (see
section 1019D); and
(c) the person gives the offeree an offer document; and
(d) either:
(i) the offer document does not comply with subsection 1019G(1), or
paragraph 1019G(2)(d), (e) or (f); or
(ii) material of a kind referred to in subsection 1019G(1), or paragraph
1019G(2)(d), (e) or (f), that is included in the offer document is misleading or
deceptive.
13 Subsection 1022A(1) (at the end of the definition
of defective)
Add:
; or (e) if it is an offer document of a kind referred to in
section 1019E—there is an omission from the document of material
required by section 1019G.
14 Subsection 1022A(1) (at the end of the definition
of disclosure document or statement)
Add:
; or (d) an offer document of a kind referred to in
section 1019E.
15 After paragraph 1022B(1)(a)
Insert:
(aa) a person makes an offer to which Division 5A applies (see
section 1019D) to another person (the client) otherwise than
by sending the client an offer document in accordance with section 1019E;
or
16 Subparagraph 1022B(1)(c)(i)
After “statement” (first occurring), insert “(other than
a document of a kind referred to in section 1019E)”.
17 After subparagraph
1022B(1)(c)(i)
Insert:
(ia) makes an offer to which Division 5A applies (see
section 1019D) by sending another person (the client) an
offer document in accordance with section 1019E, but that offer document is
defective; or
18 After paragraph 1022B(2)(a)
Insert:
(aa) if paragraph (1)(aa) applies—because the client was not
sent an offer document in accordance with section 1019E; or
19 Paragraph 1022B(2)(c)
After “given”, insert “or sent”.
20 Subsection 1022B(2)
After “paragraph (a),” insert
“(aa),”.
21 Paragraph 1022B(3)(a)
After “paragraph (1)(a)”, insert “,
(aa)”.
22 Paragraph 1022B(3)(b)
After “paragraph (1)(c)”, insert “(other than
subparagraph (1)(c)(ia))”.
23 After paragraph 1022B(3)(b)
Insert:
(ba) if subparagraph (1)(c)(ia) applies—the person who made the
offer; or
24 Paragraph 1022B(5)(a)
After “paragraph (1)(c)”, insert “(other than
subparagraph (1)(c)(ia))”.
25 After paragraph 1438(2)(e)
Insert:
(ea) Division 5A (unsolicited offers to purchase financial products
off-market);
26 Schedule 3 (after table
item 309A)
Insert:
|
309AA |
Subsection 1021P(1) |
100 penalty units or imprisonment for 2 years, or both. |
|
309AB |
Subsection 1021P(2) |
50 penalty units. |
|
309AC |
Subsection 1021P(3) |
100 penalty units or imprisonment for 2 years, or both. |
|
309AD |
Subsection 1021P(4) |
50 penalty units. |
1 Section 9 (definition of declared
professional body)
Repeal the definition.
2 Section 9 (both definitions of
dispose)
Repeal the definitions, substitute:
dispose has a meaning affected by the following
paragraphs:
(a) when used in relation to financial products in a provision outside
Chapter 7, otherwise than in a situation to which paragraph (b)
applies, dispose has the same meaning as it has in
Chapter 7;
(b) for the purposes of Chapter 6, a person who has a relevant
interest in securities disposes of the securities if, and only if,
they cease to have a relevant interest in the securities.
3 Section 9 (definition of
licence)
Repeal the definition.
4 Section 9 (definition of
licensee)
Repeal the definition.
5 Section 9 (definition of responsible
officer)
Omit “a licence”, substitute “an Australian financial
services licence”.
6 Section 761A (subparagraph (c)(ii) of
the definition of basic deposit product)
Omit “2 years”, substitute “5 years”.
7 Section 761A (paragraph (d) of the
definition of basic deposit product)
Before “funds”, insert “if subparagraph (c)(i)
applies—”.
8 Section 761A (definition of declared
professional body)
Repeal the definition.
9 Section 761A
Insert:
employer-sponsor has the same meaning as in the
Superannuation Industry (Supervision) Act 1993.
10 Section 761A
Insert:
self-managed superannuation fund has the same meaning as in
the Superannuation Industry (Supervision) Act 1993.
11 Section 761A
Insert:
superannuation entity has the same meaning as in the
Superannuation Industry (Supervision) Act 1993.
12 After paragraph 761E(3A)(a)
Insert:
(aa) an employer of the client making a further contribution, for the
benefit of the client, to a superannuation fund of which the client is already a
member;
13 After subsection 766B(1)
Insert:
(1A) The provision of a recommendation, statement of opinion or report
referred to in subsection (1) is still the provision of financial product
advice, even if it is subsequently contained in an exempt document or
statement.
14 Subsection 766C(7)
Omit “not to be”, substitute “to be, or not to
be,”.
15 At the end of subsection
766C(7)
Add “Regulations made for the purposes of this subsection have effect
despite anything else in this section.”.
16 At the end of paragraph
766E(3)(c)
Add “by the trustees of that fund or trust”.
17 After paragraph 766E(3)(c)
Insert:
(ca) the operation of a statutory fund by a life company (within the
meaning of the Life Insurance Act 1995);
18 Subsection 854B(2)
Repeal the subsection.
19 After paragraph 889J(1)(b)
Insert:
or (c) if, under regulations made for the purposes of section 888A,
claims for compensation can be made in respect of conduct by or involving
participants in particular clearing and settlement facilities, or in respect of
services provided by particular clearing and settlement facilities:
(i) the operators of some or all of those clearing and settlement
facilities; or
(ii) all, or a class of, participants in any of those clearing and
settlement facilities;
20 Subsection 889K(1)
After “financial market”, insert “, or an operator of a
clearing and settlement facility,”.
Note: The heading to section 889K is altered by
omitting “market operator” and substituting
“operator of market or clearing and settlement
facility”.
21 Subsection 889K(1)
After “the market”, insert “or facility”.
22 Subsection 889K(2)
After “the market” (wherever occurring), insert “or
facility”.
23 Subsection 889K(4)
After “financial market”, insert “, or to the operator of
a clearing and settlement facility,”.
24 Subsection 889K(6)
After “financial market”, insert “, or to the operator of
a clearing and settlement facility,”.
25 Paragraph 911A(2)(h)
Repeal the paragraph, substitute:
(h) all of the following apply:
(i) the person is regulated by an overseas regulatory authority;
(ii) the provision of the service by the person is covered by an exemption
specified by ASIC in writing under this subparagraph and published in the
Gazette; and
(iii) the service is provided only to wholesale clients;
26 Paragraph 911A(2)(j)
Omit “(within the meaning of the Superannuation Industry
(Supervision) Act 1993)”.
27 Section 911A(5)
After “or an exemption”, insert “under
subparagraph (2)(h)(ii) or”.
28 Paragraph 911A(5)(b)
After “an exemption”, insert “under
subparagraph (2)(h)(ii) or”.
29 Paragraph 911C(d)
Omit “or” (last occurring).
30 Paragraph 911C(e)
Repeal the paragraph.
31 Paragraph 911C(f)
Repeal the paragraph.
32 At the end of subsection
912C(1A)
Add:
; and (d) may require a statement containing information to be provided on
a periodic basis, or each time a particular event or circumstance occurs,
without ASIC having to give a further written notice.
33 Subsection 912C(2)
Omit “such a statement”, substitute “a statement, or each
statement in a class of statements, under subsection (1)”.
34 After section 912C
Insert:
The regulations may require a financial services licensee, or each
financial services licensee in a class of financial services licensees, to
provide ASIC with specified information about:
(a) the financial services provided by the licensee or its
representatives; or
(b) the financial services business carried on by the licensee.
35 Subsection 912D(1)
Repeal the subsection (including the note), substitute:
(1) If:
(a) a financial services licensee breaches, or is likely to
breach:
(i) any of the obligations under section 912A or 912B, other than the
obligation under paragraph 912A(1)(c); or
(ii) the obligation under paragraph 912A(1)(c), so far as it relates to
provisions of this Act or the ASIC Act referred to in paragraphs (a), (b)
and (c) of the definition of financial services law in
section 761A; or
(iii) the obligation under paragraph 912A(1)(c), so far as it relates to
Commonwealth legislation that is covered by paragraph (d) of that
definition and that is specified in regulations made for the purposes of this
subparagraph; and
(b) the breach, or likely breach, is significant, having regard to the
following:
(i) the number or frequency of similar previous breaches;
(ii) the impact of the breach or likely breach on the licensee’s
ability to provide the financial services covered by the licence;
(iii) the extent to which the breach or likely breach indicates that the
licensee’s arrangements to ensure compliance with those obligations is
inadequate;
(iv) the actual or potential financial loss to clients of the licensee, or
the licensee itself, arising from the breach or likely breach;
(v) any other matters prescribed by regulations made for the purposes of
this paragraph;
the licensee must give a written report on the matter to ASIC as soon as
practicable, and in any case within 5 business days, after becoming aware of the
breach or likely breach.
Note: Failure to comply with this subsection is an offence
(see subsection 1311(1)).
(1A) For the purposes of subsection (1), a financial services
licensee is likely to breach an obligation referred to in that
subsection if, and only if, the person is no longer able to comply with the
obligation.
36 Subsection 912F(1)
Repeal the subsection (including the note), substitute:
(1) Whenever a financial services licensee identifies itself in a document
of a kind specified in regulations made for the purposes of this subsection, the
document must include the licensee’s licence number (see
section 913C).
Note: Failure to comply with this subsection is an offence
(see subsection 1311(1)).
37 Subsection 916F(1)
Omit “10 business days”, substitute “15 business
days”.
38 After subsection 916F(1)
Insert:
(1AA) Subsection (1) does not apply to an authorisation of a
representative if:
(a) the authorisation is by a body corporate and is given as mentioned in
section 916B; and
(b) the relevant consent under subsection 916B(5) was given in respect of
a specified class of individuals of which the representative is a member;
and
(c) the representative is an employee of the body corporate; and
(d) the only financial services that the representative is authorised to
provide are either or both of the following:
(i) general advice that relates to financial products covered by
regulations made for the purposes of this paragraph;
(ii) dealing in financial products covered by regulations made for the
purposes of this paragraph.
Note 1: Regulations made for the purposes of
paragraph (d) may be expressed to cover all financial products, or only one
or more specified kinds of financial products.
Note 2: A defendant bears an evidential burden in relation
to the matters in subsection (1AA). See subsection 13.3(3) of the
Criminal Code.
39 Subsection 916F(1A)
Omit “10 business days”, substitute “15 business
days”.
40 Paragraph 916F(3)(b)
Repeal the paragraph, substitute:
(b) the person revokes an authorisation to which subsection (1)
applied.
41 Paragraph 920A(1)(d)
Repeal the paragraph.
42 At the end of Part 7.6
Add:
(1) The provisions to which this section applies are all
provisions of this Part other than Divisions 4 and 8.
(2) ASIC may:
(a) exempt a person or class of persons from all or specified provisions
to which this section applies; or
(b) exempt a financial product or class of financial products from all or
specified provisions to which this section applies; or
(c) declare that provisions to which this section applies apply in
relation to a person or financial product, or a class of persons or financial
products, as if specified provisions were omitted, modified or varied as
specified in the declaration.
(3) 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.
(4) An exemption or declaration must be in writing and ASIC must publish
notice of it in the Gazette.
(5) If conduct (including an omission) of a person would not have
constituted an offence if a particular declaration under paragraph (2)(c)
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 (4)):
(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.
(6) For the purpose of this section, the provisions to which this
section applies include:
(a) definitions in this Act, or in the regulations, as they apply to
references in those provisions; and
(b) any provisions of Part 10.2 (transitional provisions) that relate
to those provisions.
Note: Because of section 761H, a reference to the
provisions to which this section applies, or to provisions of Part 10.2,
also includes a reference to regulations or other instruments made for the
purposes of those provisions.
(1) The regulations may:
(a) exempt a person or class of persons from all or specified provisions
of this Part; or
(b) exempt a financial product or a class of financial products from all
or specified provisions of this Part; or
(c) provide that this Part applies as if specified provisions were
omitted, modified or varied as specified in the regulations.
(2) For the purpose of this section, the provisions of this
Part include:
(a) definitions in this Act, or in the regulations, as they apply to
references in this Part; and
(b) any provisions of Part 10.2 (transitional provisions) that relate
to provisions of this Part.
43 Subsection 940C(1)
Omit “, or information or a statement that section 950D or 950E
requires to be given,”.
44 Paragraph 940C(6)(c)
Repeal the paragraph.
45 Subsection 941C(6)
Omit “or otherwise relates to,” substitute “is the
provision of financial product advice (see section 766B) about, or in any
other way relates to,”.
46 After section 942D
Insert:
(1) A Financial Services Guide and a Product Disclosure Statement may be
combined in a single document (a combined FSG and PDS) in
circumstances specified in regulations made for the purposes of this
section.
(2) Those regulations may also provide that this Chapter applies in
relation to a combined FSG and PDS as if specified provisions were omitted,
modified or varied as specified in the regulations.
(3) A Financial Services Guide and a Product Disclosure Statement must not
be combined in a single document except as permitted under
subsection (1).
47 At the end of Subdivision D of Division 3 of
Part 7.7
Add:
A Statement of Advice must not be combined in a single document with a
Financial Services Guide or a Product Disclosure Statement.
48 Subsection 951B(1)
Omit “, subject to subsection (2)”.
49 Subsection 951B(2)
Repeal the subsection.
50 At the end of subsection
951B(6)
Add:
Note: Because of section 761H, a reference to this Part
or Part 10.2 also includes a reference to regulations or other instruments
made for the purposes of this Part or Part 10.2 (as the case
requires).
51 At the end of Division 6 of
Part 7.7
Add:
(1) The regulations may:
(a) exempt a person or class of persons from all or specified provisions
of this Part; or
(b) exempt a financial product or a class of financial products from all
or specified provisions of this Part; or
(c) provide that this Part applies as if specified provisions were
omitted, modified or varied as specified in the regulations.
(2) For the purpose of this section, the provisions of this
Part include:
(a) definitions in this Act, or in the regulations, as they apply to
references in this Part; and
(b) any provisions of Part 10.2 (transitional provisions) that relate
to provisions of this Part.
52 Subsection 952B(1) (paragraph (b) of the
definition of defective)
Omit “or by section 950D or 950E” (wherever
occurring).
53 Subsection 952B(1) (paragraph (d) of the
definition of disclosure document or statement)
Omit “or by section 950D or 950E”.
54 Paragraph 952I(1)(b)
After “942B(5)”, insert “or 942DA(3)”.
55 Paragraph 952I(2)(b)
After “942B(5)”, insert “or 942DA(3)”.
56 Paragraph 952J(1)(b)
After “947A”, insert “or “947E”.
57 Subsection 953A(1) (paragraph (b) of the
definition of defective)
Omit “or by section 950D or 950E” (wherever
occurring).
58 Subsection 953A(1) (paragraph (d) of the
definition of disclosure document or statement)
Omit “or by section 950D or 950E”.
59 Paragraph 953B(1)(c)
Omit “, 949B, 950B or 950C”, substitute “or
949B”.
60 Paragraph 953B(3)(a)
Omit “or a member of a declared professional body”.
61 Subparagraph 981B(1)(b)(i)
Omit “behalf or”, substitute “behalf of”.
62 Subsection 981H(1)
Omit “subsections (2) and (3)”, substitute
“subsection (3)”.
63 Subsection 981H(2)
Repeal the subsection.
64 At the end of
section 992A
Add:
(5) For the purposes of this section:
(a) a reference to offering a financial product for issue (or offering to
issue a financial product) includes a reference to inviting an application for
the issue of the financial product; and
(b) a reference to offering a financial product for sale (or offering to
sell a financial product) includes a reference to inviting an offer to purchase
the financial product.
65 At the end of
section 992AA
Add:
(3) For the purposes of this section:
(a) a reference to offering interests in a managed investment scheme for
issue includes a reference to inviting an application for the issue of interests
in the scheme; and
(b) a reference to offering interests in a managed investment scheme for
sale includes a reference to inviting an offer to purchase interests in the
scheme.
66 Subsection 992B(1)
Omit “, subject to subsection (2)”.
67 Subsection 992B(2)
Repeal the subsection.
68 At the end of subsection
992B(6)
Add:
Note: Because of section 761H, a reference to this Part
or Part 10.2 also includes a reference to regulations or other instruments
made for the purposes of this Part or Part 10.2 (as the case
requires).
69 At the end of Division 8 of
Part 7.8
Add:
(1) The regulations may:
(a) exempt a person or class of persons from all or specified provisions
of this Part; or
(b) exempt a financial product or a class of financial products from all
or specified provisions of this Part; or
(c) provide that this Part applies as if specified provisions were
omitted, modified or varied as specified in the regulations.
(2) For the purpose of this section, the provisions of this
Part include:
(a) definitions in this Act, or in the regulations, as they apply to
references in this Part; and
(b) any provisions of Part 10.2 (transitional provisions) that relate
to provisions of this Part.
70 After subsection 1012D(2)
Insert:
Recommendation or issue situation—interests in self-managed
superannuation funds
(2A) In a recommendation situation or issue situation, the regulated
person does not have to give the client a Product Disclosure Statement for the
financial product if:
(a) the financial product is an interest in a self-managed superannuation
fund; and
(b) the regulated person believes on reasonable grounds that the client
has received, or has, and knows that they have, access to, all of the
information that the Product Disclosure Statement would be required to
contain.
Recommendation, issue or sale situation—no information required to
be in Product Disclosure Statement
(2B) In a recommendation situation, issue situation or sale situation, the
regulated person does not have to give the client a Product Disclosure Statement
for the financial product if, because of section 1013F, no information
would be required to be included in the Statement.
71 At the end of subsection
1012D(10)
Add:
; and (c) a reference to information that a Product Disclosure Statement
would be required to contain includes a reference to information that would be
required to be in any statement that the Product Disclosure Statement would be
required to contain.
Note: The following heading to subsection 1012D(10) is
inserted “Interpretation”.
72 Paragraph 1012IA(3)(b)
Omit “and (2)”, substitute “, (2) and
(2A)”.
73 Subsection 1013F(1)
After “information” (first occurring), insert “, or a
statement containing information,”.
74 At the end of Subdivision C of Division 2 of
Part 7.9
Add:
For provisions about combining a Product Disclosure Statement and a
Financial Services Guide in a single document, see section 942DA and
regulations made for the purposes of that section.
75 Paragraph 1015C(3)(c)
Repeal the paragraph.
76 Paragraph 1015C(3)(f)
Omit “, (c)”.
77 Subsection 1015D(2)
After “responsible person for the Statement”, insert “,
not being a trustee of a self-managed superannuation fund,”.
78 Subsection 1016A(1) (definition of
superannuation entity)
Repeal the definition.
79 Subsection 1017B(1)
Repeal the subsection, substitute:
Issuer to notify holders of changes and events
(1) If:
(a) a person (the holder) acquired a financial product as a
retail client (whether or not it was acquired from the issuer); and
(b) either:
(i) the financial product was offered in this jurisdiction; or
(ii) the holder applied for the financial product in this jurisdiction;
and
(c) the product is not specified in regulations made for the purposes of
this paragraph; and
(d) the circumstances in which the product was acquired are not specified
in regulations made for the purposes of this paragraph;
the issuer must, in accordance with subsections (3) to (8), notify the
holder of changes and events referred to in subsection (1A).
Note: Failure to comply with this subsection is an offence
(see subsection 1311(1)).
The changes and events that must be notified
(1A) The changes and events that must be notified are:
(a) any material change to a matter, or significant event that affects a
matter, being a matter that would have been required to be specified in a
Product Disclosure Statement for the financial product prepared on the day
before the change or event occurs; and
(b) any other change, event or other matter of a kind specified in
regulations made for the purposes of this paragraph.
Note: Paragraph (a) applies whether or not a Product
Disclosure Statement for the financial product was in fact prepared (or required
to be prepared) on the day before the change or event occurs.
80 Subsections 1017B(2), (3), (5), (6) and
(8)
Omit “responsible person” (wherever occurring), substitute
“issuer”.
81 Subsection 1017C(1)
Omit “the responsible person for a Product Disclosure Statement for a
financial product”, substitute “the issuer of a financial
product”.
82 Subsections 1017C(2) and (3)
Repeal the subsections, substitute:
Information for concerned person related to a superannuation
product
(2) If the financial product is a superannuation product, then, subject to
subsection (4), the issuer must, on request by a concerned person, give the
concerned person information that the concerned person reasonably requires for
the purposes of:
(a) understanding any benefit entitlements that the concerned person may
have, has or used to have under the superannuation product; or
(b) understanding the main features of:
(i) the relevant sub-plan; or
(ii) if there is no relevant sub-plan—the superannuation entity;
or
(c) making an informed judgment about the management and financial
condition of:
(i) the superannuation entity; and
(ii) the relevant sub-plan (if any); or
(d) making an informed judgment about the investment performance
of:
(i) the relevant sub-plan; or
(ii) if there is no relevant sub-plan—the superannuation entity;
or
(e) understanding the particular investments of:
(i) the superannuation entity; and
(ii) the relevant sub-plan (if any).
The information must be given in accordance with the other requirements of
this section.
Note 1: Subsection (9) defines concerned person
and relevant sub-plan.
Note 2: Failure to comply with this subsection is an offence
(see subsection 1311(1)).
Information for concerned person related to an RSA product
(2A) If the financial product is an RSA product, then, subject to
subsection (4), the issuer must, on request by a concerned person, give the
concerned person information that the concerned person reasonably requires for
the purposes of:
(a) understanding any benefit entitlements that the concerned person may
have, has or used to have under the RSA product; or
(b) understanding the main features of the RSA product.
The information must be given in accordance with the other requirements of
this section.
Note 1: Subsection (9) defines concerned
person.
Note 2: Failure to comply with this subsection is an offence
(see subsection 1311(1)).
Information for employer-sponsor related to a superannuation
product
(3) If the financial product is a superannuation product, then, subject to
subsection (4), the issuer must, on request by an employer-sponsor, give
the employer-sponsor information that the employer-sponsor reasonably requires
for the purposes of:
(a) understanding the kinds of benefits to which the
employer-sponsor’s employees are entitled or will or may become entitled;
or
(b) understanding the main features of:
(i) the relevant sub-plan; or
(ii) if there is no relevant sub-plan—the superannuation entity;
or
(c) making an informed judgment about the management and financial
condition of:
(i) the superannuation entity; and
(ii) the relevant sub-plan (if any); or
(d) making an informed judgment about the investment performance
of:
(i) the relevant sub-plan; or
(ii) if there is no relevant sub-plan—the superannuation entity;
or
(e) a matter related to the Superannuation Guarantee (Administration)
Act 1992.
The information must be given in accordance with the other requirements of
this section.
Note 1: Subsection (9) defines relevant
sub-plan.
Note 2: Failure to comply with this subsection is an offence
(see subsection 1311(1)).
Information for employer related to an RSA product
(3A) If the financial product is an RSA product, then, subject to
subsection (4), the issuer must, on request by an employer who made an
application to acquire the RSA product on behalf of an employee, give the
employer information that the employer reasonably requires for the purposes
of:
(a) understanding the kinds of benefits to which the employer’s
employees are entitled or will or may become entitled; or
(b) understanding the main features of the RSA product; or
(c) a matter related to the Superannuation Guarantee (Administration)
Act 1992.
The information must be given in accordance with the other requirements of
this section.
Note: Failure to comply with this subsection is an offence
(see subsection 1311(1)).
83 Subsections 1017C(4) and (5)
Omit “responsible person” (wherever occurring), substitute
“issuer”.
84 Subsection 1017C(5)
Omit “concerned person or an employee-sponsor, give the concerned
person or the employer-sponsor”, substitute “person who is a
concerned person, an employer-sponsor (if the financial product is a
superannuation product) or an employer referred to in subsection (3A) (if
the financial product is an RSA product), give the person”.
85 Subsections 1017C(6), (7) and
(8)
Omit “responsible person” (wherever occurring), substitute
“issuer”.
86 Subsection 1017C(9) (definition of concerned
person)
Repeal the definition, substitute:
concerned person:
(a) in relation to a superannuation product—means a person
who:
(i) is, or was within the preceding 12 months, a member of the
superannuation entity; or
(ii) is a beneficiary of the superannuation entity; or
(b) in relation to an RSA product—means a person who:
(i) is, or was within the preceding 12 months, a holder of the RSA
product; or
(ii) has a right or a claim under the RSA product.
87 Subsection 1017C(9) (definition of relevant
sub-plan)
Omit “or an RSA product”.
88 Paragraph 1017D(5)(c)
Repeal the paragraph, substitute:
(c) details of transactions in relation to the product during the
reporting period as required by regulations made for the purposes of this
paragraph;
89 Subsection 1017E(2A)
Omit “subsections (2B) and (2C)”, substitute
“subsection (2C)”.
90 Subsection 1017E(2B)
Repeal the subsection.
91 After subparagraph
1020E(1)(a)(i)
Insert:
(ia) a disclosure document or statement, being a Product Disclosure
Statement or a Supplementary Product Disclosure Statement, is not worded and
presented in a clear, concise and effective manner (see subsection 1013C(3) and
section 1014F); or
92 Subsection 1020F(1)
Omit “, subject to subsection (3)”.
93 Subsections 1020F(2) and (3)
Repeal the subsections.
94 At the end of subsection
1020F(7)
Add:
Note: Because of section 761H, a reference to this Part
or Part 10.2 also includes a reference to regulations or other instruments
made for the purposes of this Part or Part 10.2 (as the case
requires).
95 Subsection 1020G(2)
Repeal the subsection.
96 Subparagraph 1021H(1)(b)(i)
After “1013G”, insert “or subsection
942DA(3)”.
97 At the end of Part 7.10
Add:
(1) The regulations may:
(a) exempt a person or class of persons from all or specified provisions
of this Part; or
(b) exempt a financial product or a class of financial products from all
or specified provisions of this Part; or
(c) provide that this Part applies as if specified provisions were
omitted, modified or varied as specified in the regulations.
(2) For the purpose of this section, the provisions of this
Part include:
(a) definitions in this Act, or in the regulations, as they apply to
references in this Part; and
(b) any provisions of Part 10.2 (transitional provisions) that relate
to provisions of this Part.
98 At the end of subsection
1075A(7)
Add:
Note: Because of section 761H, a reference to this Part
or Part 10.2 also includes a reference to regulations or other instruments
made for the purposes of this Part or Part 10.2 (as the case
requires).
99 Subparagraph 1101B(1)(a)(iv)
Repeal the subparagraph.
100 Subparagraph
1101B(4)(a)(iv)
Repeal the subparagraph.
101 Subparagraph 1274(2)(a)(ia)
Omit “section 675 or subsection 792C(1)”, substitute
“subsection 792C(1), section 1015B or
section 1015D”.
102 Subparagraph 1274(2)(a)(iv)
Omit “, 452”.
103 Subsection 1308(8)
Omit “, Australian market licence or an application to become a
declared professional body under section 918A”, substitute “or
Australian market licence”.
104 At the end of
section 1416
Add:
(3) Subsection (1) gives a full power to disapply, apply and modify
provisions as mentioned in that subsection, including for reasons that do not
have an express or implied connection with the transition to the relevant new
legislation.
Note: So (for example), a change to the day-to-day operation
of the relevant old legislation as continuing to apply may be achieved by a
modification under paragraph (1)(b) (whether that change is to an existing
rule, or is the addition of a new rule).
105 Paragraph 1431(2)(d)
Omit “10 business days referred to in that section”, substitute
“15 business days referred to in subsections 916F(1) and
(1A)”.
106 Subsection 1437(2)
Omit “, subject to subsection (3)”.
107 Subsection 1437(3)
Repeal the subsection, substitute:
(3) A declaration under paragraph (2)(b) 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.
108 Subsection 1442(2)
Omit “, subject to subsection (3)”.
109 Subsection 1442(3)
Repeal the subsection, substitute:
(3) A declaration under paragraph (2)(b) 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.
110 Schedule 3 (table
item 272C)
Repeal the item.
111 Schedule 3 (table
item 273A)
Repeal the item.
112 Schedule 3 (after table
item 296C)
Insert:
|
296D |
Subsection 1017C(2A) |
100 penalty units or imprisonment for 2 years, or both. |
113 Schedule 3 (after table
item 297A)
Insert:
|
297AA |
Subsection 1017C(3A) |
100 penalty units or imprisonment for 2 years, or both. |
Income Tax Assessment Act
1997
1 Subsection 995-1(1) (note 2 to paragraph (c)
of the definition of financial entity)
Repeal the note, substitute:
Note 2: Paragraph 911A(2)(h) of that Act exempts financial
services provided to wholesale clients by a person who is regulated by an
overseas regulatory authority if the provision of the service is covered by an
exemption from the Australian Securities and Investments Commission
(ASIC).
Retirement Savings Accounts
Act 1997
2 Subsection 182(1A) (subparagraph (b)(iv) of
the definition of regulatory provision)
Omit “1017C(2), (3)”, substitute “1017C(2A),
(3A)”.
1 At the end of Chapter 10
Add:
In this Part:
amending Act means the Financial Services Reform Amendment
Act 2003.
(1) Subject to subsection (2), the provisions of Division 1 of
Part 10.2 (including regulations and determinations made for the purposes
of that Division, and the powers given by that Division to deal with matters in
regulations and determinations) also apply to the provisions of Chapter 7
as amended by Schedule 2 to the amending Act.
Note: Division 1 of Part 10.2 deals with the
phasing-in of the new financial services regime.
(2) However, subsection (1) does not produce the result that a
provision of Chapter 7 as amended, added or inserted by an amendment in
Schedule 2 to the amending Act applies in relation to a person, matter or
circumstance:
(a) at a time that is before the commencement of the amendment;
or
(b) contrary to section 1451.
(3) The powers given by Division 2 of Part 10.2 to deal with
matters in regulations and determinations apply in relation to the provisions of
Chapter 7 as amended by Schedule 2 to the amending Act as if
the amendments in Schedule 2 to the amending Act were relevant
amendments for the purposes of that Division. However (in addition to
subsections 1444(2) and 1445(3)) such regulations and determinations are of no
effect to the extent that they are inconsistent with
section 1451.
Application of amendments of section 916F
(1) The amendments made by items 37, 38 and 39 of
Schedule 2 to the amending Act do not apply to authorisations made before
the commencement of the amendment, unless the relevant 10 day period for
notification has not ended by the commencement of the items.
(2) The amendment made by item 40 of Schedule 2 to the amending
Act applies to revocations made after the commencement of the item.
Application of amendments of section 981H
(3) The amendments made by items 62 and 63 of Schedule 2
to the amending Act apply, after the commencement of those items, to money paid
to a person before that commencement as mentioned in subsection 981H(1), even if
an agreement referred to in subsection 981H(2) was in force in relation to the
money immediately before that commencement.
Application of amendment of section 1017D
(4) The amendment made by item 88 of Schedule 2 to the
amending Act does not apply to statements prepared before the commencement of
the item.
Application of amendments of section 1017E
(5) The amendments made by items 89 and 90 of Schedule 2
to the amending Act apply, after the commencement of those items, to money paid
to a person before that commencement as mentioned in subsection 1017E(1), even
if an agreement referred to in subsection 1017E(2B) was in force in relation to
the money immediately before that commencement.
Application of amendment of section 1020E
(6) The amendment made by item 91 of Schedule 2 to the amending
Act does not apply to disclosure documents or statements prepared before the
commencement of the item.
(1) The amendment made by item 101 of Schedule 2 to the
amending Act applies to documents even if they were lodged before the
commencement of the item.
(2) The amendment made by item 102 of Schedule 2 to the
amending Act removes a reference to a repealed provision. However, the amendment
does not produce the result that a document that was lodged under that provision
when it was in force now becomes available for inspection under
section 1274.