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CORPORATIONS AMENDMENT REGULATIONS 2003 (NO. 3) 2003 NO. 85 - SCHEDULE 1
Amendments
(regulation 3)
[1] Regulation 2A.1.01, table
omit
Acturies,
insert
Actuaries,
[2] Regulation 7.1.29
substitute
7.1.29 Circumstances in which a
person is taken not to provide a financial service
(1) For paragraph 766A (2) (b) of the Act, a person who provides an
eligible service is taken not to provide a financial service if:
- (a)
- the
person provides the eligible service in the course of conducting an exempt
service; and
- (b)
- it is reasonably necessary to provide the eligible service in order to
conduct the exempt service; and
- (c)
- the eligible service is provided as an integral part of the exempt
service.
- (2)
- For this regulation, a person provides an eligible service if the person
engages in conduct mentioned in paragraphs
766A (1) (a) to (f) of the Act.
(3) For this regulation,
a person who does any of the following provides an "exempt service":
- (a)
- provides advice in relation to the preparation or auditing of financial
reports or audit reports;
- (b)
- provides advice on the risk associated with carrying on a business and
identifies generic financial products or generic classes of financial product
that will mitigate that risk, other than advice for inclusion in an exempt
document or statement;
(c) provides advice on the acquisition or disposal, administration, due
diligence, establishment, structuring or valuation of an incorporated or
unincorporated entity, if the advice:
- (i)
- is given to a person who is, or is
likely to become, an interested party in the entity; and
(ii) to the extent that it is financial product advice is confined
to advice on a decision about:
(A) securities of a body corporate, or related
body corporate, that carries on or may carry on the business of the entity; or
(B) interests in a trust (other than a superannuation fund or
a managed investment scheme that is registered or
required to be registered), the trustee of which carries
on or may carry on the business of the entity in the
capacity of trustee; and
- (iii)
- does not relate to other
financial products that the body corporate or the trustee
of the trust may acquire or dispose of; and
- (iv)
- is not advice for inclusion in an exempt document or statement;
(d) provides advice on financial products that are:
- (i)
- securities in a
company (other than securities that are to be offered under a disclosure
document under Chapter 6D of the Act); or
(ii) interests in a trust (other than a superannuation fund or a managed
investment scheme that is registered or required to be registered);
if the company or trust is not carrying on a business and has not, at any
time, carried on a business;
- (e)
- provides advice in relation to the transfer of financial products between
related bodies corporate;
- (f)
- arranges for another person to engage in conduct referred to in subsection
766C (1) in relation to interests in a self managed superannuation fund
in the circumstances in paragraphs (5) (b) and (c);
- (g)
- arranges for another person to engage in conduct referred to in subsection
766C (1), by preparing a document of registration or transfer in order to
complete administrative tasks on instructions from the person;
- (h)
- provides advice about the provision of financial products as security,
other than where the security is provided for the acquisition of other
financial products.
- (4)
- For this regulation, a person also provides an exempt service if:
- (a)
- the person provides advice to another person on taxation issues including
advice in relation to the taxation implications of financial products; and
- (b)
- the person will not receive a benefit (other than from the person advised
or an associate of the person advised) as a result of the person advised
acquiring a financial product mentioned in the advice, or a financial product
that falls within a class of financial products mentioned in the advice; and
(c) either:
- (i)
- the advice does not constitute financial product advice to a
retail client; or
(ii) the advice constitutes financial product advice to a retail client and it
includes, or is accompanied by, a written statement that:
(A) the person
providing the advice is not licensed to provide financial product advice under
the Act; and
(B) taxation is only one of the matters that must be
considered when making a decision on a financial product;
and
(C) the client should consider taking advice from the holder
of an Australian Financial Services Licence before making
a decision on a financial product.
(5) For this
regulation, a person also provides an exempt service if:
- (a)
- the person provides advice in relation to the
establishment, operation, structuring or valuation of a
superannuation fund, other than advice for inclusion in
an exempt document or statement; and
(b) the person advised is, or is likely to become:
- (i)
- a trustee; or
- (ii)
- a director of a trustee; or
- (iii)
- an employer sponsor; or
- (iv)
- a person who controls the management;
of the superannuation fund; and
(c) except for advice that is given for the sole purpose, and only to the
extent reasonably necessary for the purpose, of ensuring compliance by the
person advised with the SIS Act (other than
paragraph 52 (2) (f)), the SIS Regulations (other than
regulation 4.09) or the Superannuation Guarantee (Administration) Act 1992
the advice:
- (i)
- does not relate to the acquisition or disposal
by the superannuation fund of specific financial products or classes of
financial products; and
- (ii)
- does not include a recommendation that a person acquire or dispose of a
superannuation product; and
- (iii)
- does not include a recommendation in relation to a person's existing
holding in a superannuation product to modify an investment strategy or a
contribution level; and
(d) if the advice constitutes financial product advice provided to a retail
client the advice includes, or is accompanied by, a written
statement that:
- (i)
- the person providing the advice is not licensed to
provide financial product advice under the Act; and
- (ii)
- the client should consider taking advice from the holder of an Australian
Financial Services Licence before making a decision on a financial product.
(6) In this regulation:
"employer sponsor" has the meaning given by
subsection 16 (1) of the SIS Act.
"exempt document or statement "has the meaning given by subsection
766B (9) of the Act.
"generic" means without reference to a particular brand or product issuer.
interested party means:
- (a)
- an associate within the meaning of Division 2 of
Part 1.2 of the Act; or
- (b)
- a manager; or
- (c)
- an officer; or
- (d)
- a trustee or director of a trustee.
"self managed superannuation fund" has the meaning given by section 17A of the
SIS Act.
[3] After regulation 7.1.33C
insert
7.1.33D Investment-linked life insurance
products
For paragraph 766A (2) (b) of the Act, a person is taken not to
provide a financial service if:
- (a)
- the person makes a market for a
financial product (within the meaning of section 766D of the Act); and
- (b)
- the person is the issuer of the product; and
- (c)
- the product is an investment-linked life insurance policy under an
investment-linked contract (within the meaning of subsection 14 (4) of
the Life Insurance Act 1995 ).
[4] After paragraph 7.6.01 (1) (l)
insert
(la) a financial service
provided by a person ( person 1 ) to another person ( person 2 ),
if:
- (i)
- the financial service is provided in the ordinary course of
person 1's business; and
(ii) person 1:
(A) holds an Australian financial services licence
authorising the provision of financial services other than the financial
service mentioned in subparagraph (i); or
(B) does not hold an Australian financial services licence;
and
(iii) the financial service consists of either or
both of the following:
(A) advising person 2 in
relation to a non-cash payments facility that
person 2 may use, or has used, to pay person 1
for a financial product or a financial service;
(B) arranging to deal in a non-cash payments facility that
person 2 will use to pay person 1 for a
financial product or a financial service.
[5] After
subregulation 7.7.02 (3)
insert
- (3A)
- For
subsection 941C (8) of the Act, a Financial Services
Guide does not have to be given to a client for a
financial service provided in the circumstances specified
in paragraph 7.6.01 (1) (la).
[6] Regulation
7.7.05A
omit
For
insert
- (1)
- For
[7] Regulation
7.7.05A
insert
- (2)
- Subregulation (1) does not apply to
a Financial Services Guide to which regulation 7.7.05B
applies.
[8] After regulation 7.7.05A
insert
7.7.05B
Personalised Financial Services Guide
(1) This regulation applies if a body corporate:
- (a)
- is a financial services
licensee; and
- (b)
- distributes a financial product of another financial services licensee (
the original licensee ); and
- (c)
- authorises an individual to provide financial services on behalf of the
original licensee.
- (2)
- This regulation also applies if a body corporate:
- (a)
- is an authorised
representative of a financial services licensee ( the original licensee ); and
- (b)
- authorises an individual to provide financial services on behalf of the
original licensee.
Note
The individual is the providing entity in relation to any financial
service provided.
(3) For paragraph 942C (4) (b) of the Act, the
Financial Services Guide in relation to a financial service does not have to
include the information in paragraph 942C (2) (a) of the Act, in
respect of the individual, if:
- (a)
- the individual provides the financial
service in accordance with the authorisation; and
- (b)
- the financial service is dealing in a financial product or the provision
of general advice, or both; and
- (c)
- a Financial Services Guide for the financial service was prepared by the
body corporate; and
(d) the Financial Services Guide includes a statement setting out:
- (i)
- the
contact details of the licensee and the body corporate; and
- (ii)
- the individual's role and capacity; and
- (e)
- the body corporate has reasonable grounds to believe that the identity or
remuneration of the individual would not be material to a decision whether a
retail client should obtain the financial service.
Note
The Financial Services Guide will contain all information otherwise
required by section 942C of the Act.
[9] Part 10.2, after Division 49
insert
Division 50 Warrants or options to acquire issued securities
10.2.213
Warrants or options to acquire issued securities
For section 1444 of the Act, if a warrant or option to acquire issued
securities by way of transfer is a financial product:
- (a)
- to which the
definition of securities in subsection 92 (3) of the old Corporations Act
applied; and
- (b)
- to which Chapter 6D of that Act applied;
Chapter 6D is taken to apply during the transition period for those products.
[10] After regulation 12.7.05
insert
12.7.06 Certain provisions of the
Friendly Societies Code cease to apply to FSR licensee
(1) For clause 39 of Schedule 4 to the Act, the provisions of subclause
36 (1) of Schedule 4 cease to apply to a body to which Schedule 4 to the
Act applies on the earlier of:
- (a)
- 2 years after the FSR commencement;
and
- (b)
- the body giving notice under paragraph 1438 (3) (b) of the Act
that the body wants the new product disclosure provisions to apply in relation
to specified products issued by the body.
- (2)
- Subregulation (1) takes effect from the date specified in the notice as
the date from which the new product disclosure provisions will apply.
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