Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this section:
"defective" , in relation to a Product Disclosure Statement as at a particular time, means that the Product Disclosure Statement, if it had been given to a person at that time, would have been defective as defined in Subdivision A of Division 7.
Note: Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section 1014D).
"eligible application" , in relation to a restricted issue or restricted sale of a relevant financial product, means an application that satisfies the following requirements:
(a) the application is made using an application form; and
(b) the application form used to apply for the product:
(i) was included in, or accompanied, a Product Disclosure Statement (relating to the product) that was given to the applicant and that was not defective as at the time when the application was made; or
(ii) was copied, or directly derived, by the applicant from a form referred to in subparagraph (i); and
(c) all other applicable requirements (if any) in regulations made for the purposes of this paragraph are satisfied in relation to the application.
Note: Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section 1014D).
"relevant financial product" means:
(a) a managed investment product; or
(aa) a foreign passport fund product; or
(b) a superannuation product; or
(c) an investment life insurance product; or
(d) an RSA; or
(db) a margin lending facility; or
(e) a financial product of a kind specified in regulations made for the purposes of this paragraph.
"relevant superannuation entity" means a superannuation entity of a kind specified in regulations made for the purposes of this definition.
"restricted issue" means an issue of a relevant financial product to a person as a retail client, other than an issue covered by either of the following paragraphs:
(a) an issue in a situation, or pursuant to an offer made in a situation, to which a subsection, other than subsection (1), of section 1012D applies; or
(b) an issue in a situation, or pursuant to an offer made in a situation, to which section 1012E or 1012F applies.
"restricted sale" means a sale of a relevant financial product pursuant to an offer that:
(a) is of a kind described in subsection 1012C(3) or (4); and
(b) is not made in a situation to which a subsection, other than subsection (1), of section 1012D applies.
(2) A person (the issuer or seller ) must only make a restricted issue or a restricted sale of a relevant financial product to a person (the recipient ) if:
(a) the issue or sale is made pursuant to an eligible application made to the issuer or seller by the recipient; or
(b) it is a restricted issue in relation to which the following conditions are satisfied:
(i) the financial product is an interest in a relevant superannuation entity;
(ii) the interest is issued pursuant to an application made to the issuer by a standard employer - sponsor of the entity on the recipient's behalf;
(iii) if the application is the first application for the issue of a superannuation interest made to the issuer by the standard employer - sponsor on behalf of any person--the application is an eligible application; or
(c) it is a restricted issue in relation to which the following conditions are satisfied:
(i) the financial product is an interest in a relevant superannuation entity;
(ii) the interest is issued pursuant to an application made to the issuer by another trustee under Part 24 of the Superannuation Industry (Supervision) Act 1993 on the recipient's behalf;
(iii) if the application is the first application under Part 24 of that Act made to the issuer by the other trustee on behalf of any person--the application is an eligible application; or
(d) it is a restricted issue in relation to which the following conditions are satisfied:
(i) the financial product is an interest in a relevant superannuation entity;
(ii) the interest is issued pursuant to an application made to the issuer by an RSA provider under Part 9 of the Retirement Savings Accounts Act 1997 on the recipient's behalf;
(iii) if the application is the first application under Part 9 of that Act made to the issuer by the RSA provider on behalf of any person--the application is an eligible application; or
(e) it is a restricted issue in relation to which the following conditions are satisfied:
(i) the financial product is an RSA;
(ii) the interest is issued pursuant to an application made to the issuer by an employer (within the meaning of the Retirement Savings Accounts Act 1997 ) of the recipient;
(iii) if the application is the first application for the issue of an RSA of that kind made to the issuer by the employer on behalf of any person--the application is an eligible application;
(iv) all other applicable requirements (if any) in regulations made for the purposes of this subparagraph are satisfied in relation to the application; or
(f) the issue or sale occurs in a situation covered by regulations made for the purposes of this paragraph.
Note 1: This subsection does not apply to an issue or sale pursuant to paragraph 1016E(2)(c) (see subsection 1016E(2C)).
Note 2: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(3) The trustee of a relevant superannuation entity must only permit a person to become a standard employer - sponsor of the entity if:
(a) the person applied to become a standard employer - sponsor of the entity using an application form; and
(b) the application form used to apply to become a standard employer - sponsor:
(i) was included in, or accompanied, a Product Disclosure Statement (relating to an interest in the entity) that was given to the person and that was not defective as at the time when the application was made; or
(ii) was copied, or directly derived, by the person from a form referred to in subparagraph (i).
Note 1: Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section 1014D).
Note 2: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4) The regulations may:
(a) provide for defences to offences based on subsection (2) or (3); and
(b) provide for additional offences relating to the receipt or non - receipt of applications or application forms.
Note 1: A defendant bears an evidential burden in relation to a defence. See subsection 13.3(3) of the Criminal Code .
Note 2: For the limit on penalties for offences against the regulations, see paragraph 1364(2)(w).