Commonwealth Numbered Regulations Commonwealth Numbered Regulations(regulation 7.9.61AA)
Part 1 Modifications of Part 7.7 of the Act
1.1 Paragraph 949A (2) (c)
after
Part 7.9)
insert
or a Short-Form PDS (see Division 3A of Part 7.9)
Part 2 Modifications of Part 7.8 of the Act
2.1 Paragraphs 992A (3) (c), (d) and (e)
after
Statement
insert
or a Short-Form PDS
Part 3 Modifications of Part 7.9 of the Act
3.1 After Division 3 of Part 7.9
insert
Division 3A — Short-Form Product Disclosure Statements
Short-Form PDS may be given instead of a Product Disclosure Statement in most cases
(1) If a regulated person is required or obliged by this Act to give a Product Disclosure Statement for a financial product (but see subsection (4)) to another person, the regulated person may instead provide a Short-Form PDS for the product.
Product Disclosure Statement must be given in certain circumstances
(2) However, if the regulated person is requested by the other person to provide the Product Disclosure Statement the regulated person must provide the Product Disclosure Statement.
Responsible person
(3) The responsible person for a Short-Form PDS for a financial product is the person who is the responsible person for the Product Disclosure Statement for the product.
Application of subsection (1)
(4) Subsection (1) does not apply to a general insurance product.
1017I Contents of a Short-Form PDS
Contents
(1) The Short-Form PDS for a financial product must contain the following:
(a) a summary of the statements and information referred to in paragraphs 1013D (1) (a), (b), (c), (d), (e), (g) and (i) that were included in a Product Disclosure Statement for the product;
(b) a statement:
(i) notifying the retail client in relation to the product that the client may ask for the Product Disclosure Statement for the product; and
(ii) setting out the means by which the client may ask for the Product Disclosure Statement.
Extra contents for certain products
(2) If the Short-Form PDS is for a superannuation product or a managed investment product the Short-Form PDS must also set out in full the information in:
(a) any regulations made for the purposes of paragraph 1013D (4) (c) relating to the details of fees and costs; and
(b) any regulations made for the purposes of paragraph 1015C (5) (b) that relate to the presentation, structure and format of information required by paragraphs 1013D (1) (d) and (e).
Other information may be included in Short-Form PDS
(3) The Short-Form PDS may also:
(a) include other information; and
(b) refer to other information that is set out in the Product Disclosure Statement or Financial Services Guide for the product.
Reference to identify incorporated information
(4) If under paragraph (3) (b) information is referred to in the Short-Form PDS, the reference must identify the document or the part of the document that contains the information.
Incorporated document forms part of Short-Form PDS
(5) The document or part referred to in subsection (4) is taken to be included in the Short-Form PDS.
Rule as to statements in a Short-Form PDS
(6) If a Product Disclosure Statement for a financial product may include a statement made by a person (see section 1013K), the statement may also be included in the Short-Form PDS for the product.
1017J Title of Short-Form Product Disclosure Statement
(1) The title “Short-Form Product Disclosure Statement” must be used on the cover of, or at or near the front of, a Short-Form PDS.
(2) In any other part of a Short-Form PDS, “Short-Form Product Disclosure Statement” may be abbreviated to “Short-Form PDS”.
1017K References in sections to Product Disclosure Statement to include references to Short-Form PDS
The following provisions apply to a Short-Form PDS and so apply as if a reference to a Product Disclosure Statement in the provisions included a reference to a Short-Form PDS:
(a) sections 942DA, 947E, 1012F, 1012G, 1012H, 1012J, 1013A, 1013G, 1013H, 1013I, 1013L 1013M, 1016A, 1016B, 1016C, 1016D, 1016E and 1017A and subsections 1013C (3) and 1013C (4) to (7);
(b) any regulations made under those sections or subsections;
(c) any regulations that modify those sections or subsections.
Division 3B — Supplementary Short-Form Product Disclosure Statements
1017L What a Supplementary Short-Form Product Disclosure Statement is
A Supplementary Short-Form PDS is a document by which a person who has prepared a Short-Form PDS can:
(a) correct a misleading or deceptive statement in the Short‑Form PDS; or
(b) correct an omission from the Short-Form PDS of information it is required to contain; or
(c) update, or add to, the information contained in the Short‑Form PDS; or
(d) change a statement of a kind referred to in paragraph 1016E (1) (a) or (b) (as applied by section 1017K).
1017M Title of Supplementary Short-Form Product Disclosure Statement
(1) The title “Supplementary Short-Form Product Disclosure Statement” must be used on the cover of, or at or near the front of, a Supplementary Short-Form PDS.
(2) In any other part of a Supplementary Short-Form PDS, “Supplementary Short-Form Product Disclosure Statement” may be abbreviated to “Supplementary Short-Form PDS”.
1017N Form of Supplementary Short-Form Product Disclosure Statement
At the beginning of a Supplementary Short-Form PDS there must be:
(a) a statement that it is a Supplementary Short-Form PDS; and
(b) an identification of the Short-Form PDS that it supplements; and
(c) a statement that it is to be read together with that Short‑Form PDS and any other specified Supplementary Short‑Form PDS.
1017O Effect of giving person a Supplementary Short-Form Product Disclosure Statement
If:
(a) a person is given a Short-Form PDS; and
(b) at the same time, or later, they are given a Supplementary Short-Form PDS that supplements the Short-Form PDS;
the Short-Form PDS is taken, from when the Supplementary Short-Form PDS is given to the person, to include the information and statements contained in the Supplementary Short-Form PDS.
1017P Situation in which only a Supplementary Short-Form Product Disclosure Statement need be given
If:
(a) apart from this section, a person would be required to give another person (the client ) a Product Disclosure Statement (the new PDS ) relating to a financial product; and
(b) the client has, because of some previous conduct, already received a Short-Form PDS (the earlier Short-Form PDS ) relating to the financial product; and
(c) the earlier Short-Form PDS contains summaries of some, but not all, of the information that the new PDS is required to contain (see paragraph 1017I (1) (a) );
the person may, instead of giving the client the new PDS, give the client a Supplementary Short-Form PDS that contains summaries of the additional information.
1017Q Application of other provisions in relation to Supplementary Short-Form Product Disclosure Statements
The following provisions apply in relation to a Supplementary Short-Form PDS in the same way as those provisions apply to a Product Disclosure Statement:
(a) sections 1013A, 1013G, 1013H, 1013K and subsections 1013C (3) and 1013C (4) to (7);
(b) any regulations made under those sections or subsections;
(c) any regulations that modify those sections or subsections.
3.2 Section 1015A
substitute
1015A Subdivision applies to certain Disclosure Statements
(1) Subject to subsection (2):
(a) this Subdivision applies to:
(i) a Product Disclosure Statement; or
(ii) a Short-Form PDS; or
(iii) a Supplementary PDS; or
(iv) a Supplementary Short-Form PDS; and
(b) each of those kinds of documents is referred to in this Subdivision as a Statement .
(2) However:
(a) section 1015B does not apply to a Short-Form PDS or a Supplementary Short-Form PDS; and
(b) in that section, Statement does not include a Short-Form PDS or a Supplementary Short-Form PDS.
3.3 Subsection 1015B (1) (after the note)
insert
Note 2: Subsection 1015A (2) provides that Statement in this section does not include a Short-Form PDS or a Supplementary Short-Form PDS.
3.4 Paragraph 1018A (1) (e)
after
Statement
insert
or Short-Form PDS, if available,
3.5 Paragraph 1018A (2) (f)
after
Statement
insert
or Short-Form PDS, if available,
3.6 Subsection 1018A (3)
after
Statement
insert
or Short-Form PDS
3.7 Subparagraph 1018A (4) (d) (i)
after
Statement
insert
or Short-Form PDS
3.8 Paragraph 1020D (b)
omit
or Supplementary Product Disclosure Statement
insert
, Supplementary Product Disclosure Statement, Short-Form PDS or Supplementary Short-Form PDS
3.9 After paragraph 1021B (1) (b) (definition of defective )
insert
(ba) if it is a Short-Form PDS — there is an omission from the Short-Form PDS of material required by section 1017I; or
3.10 After paragraph 1021B (1) (c) (definition of defective )
insert
(ca) if it is a Supplementary Short-Form PDS that is given for the purposes of section 1017P — there is an omission from the Short-Form PDS of material required by that section; or
3.11 Subsection 1021B (1), definition of disclosure document or statement , after paragraph (b)
insert
(ba) a Short-Form PDS; or
(bb) a Supplementary Short-Form PDS; or
3.12 After subsection 1021C (5)
insert
(6) If a person does not give a Product Disclosure Statement for a financial product because the person has given a Short-Form PDS for the product, the person is taken not to contravene this section.
3.13 Paragraph 1021H (1) (a)
omit
or a Supplementary Product Disclosure Statement
insert
, a Supplementary Product Disclosure Statement, a Short‑Form PDS or a Supplementary Short-Form PDS
3.14 Subparagraph 1021H (1) (b) (i)
after
Product Disclosure Statement
insert
or Short-Form PDS
3.15 Subparagraph 1021H (1) (b) (ii)
omit
; and
insert
; or
3.16 After subparagraph 1021H (1) (b) (ii)
insert
(iii) if it is a Supplementary Short-Form PDS — section 1013G, 1017M or 1017N; and
3.17 After subparagraph 1021J (1) (c) (ii)
insert
(iia) if it is a Short-Form PDS — a direction not to distribute the Short-Form PDS unless it is accompanied by a Supplementary Short-Form PDS that corrects the deficiency;
3.18 After subparagraph 1021J (1) (c) (iii)
insert
(iiia) if it is a Short-Form PDS or a Supplementary Short‑Form PDS — a direction not to distribute the Short-Form PDS or Supplementary Short-Form PDS without first altering it in a way that is specified in the direction, being a way that corrects the deficiency and that complies with section 1015E.
3.19 Paragraph 1021K (1) (a)
omit
or a Supplementary Product Disclosure Statement
insert
, a Supplementary Product Disclosure Statement, a Short‑Form PDS or a Supplementary Short-Form PDS (the disclosure statement )
3.20 Paragraph 1021K (1) (b)
omit
Product Disclosure Statement or Supplementary Product Disclosure Statement
insert
disclosure statement
3.21 Subparagraphs 1021K (1) (d) (i), (ii) and (iii)
omit
Product Disclosure Statement or Supplementary Product Disclosure Statement
insert
disclosure statement
3.22 Paragraph 1021L (1) (a)
omit
or a Supplementary Product Disclosure Statement
insert
, a Supplementary Product Disclosure Statement, a Short‑Form PDS or a Supplementary Short-Form PDS
3.23 Paragraph 1021L (2) (a)
omit
or a Supplementary Product Disclosure Statement
insert
, a Supplementary Product Disclosure Statement, a Short‑Form PDS or a Supplementary Short-Form PDS (the disclosure statement )
3.24 Subparagraph 1021L (2) (b) (iv)
omit
Product Disclosure Statement or Supplementary Product Disclosure Statement
insert
disclosure statement
3.25 Subparagraphs 1021M (1) (a) (i), (ii), (iii) and (iv)
omit
or a Supplementary Product Disclosure Statement
insert
, a Supplementary Product Disclosure Statement, a Short‑Form PDS or a Supplementary Short-Form PDS
3.26 Subparagraphs 1021M (3) (a) (i), (ii), (iii) and (iv)
omit
or a Supplementary Product Disclosure Statement
insert
, a Supplementary Product Disclosure Statement, a Short‑Form PDS or a Supplementary Short-Form PDS
3.27 After paragraph 1022A (1) (b) (definition of defective )
insert
(ba) if it is a Short-Form PDS — there is an omission from the Short-Form PDS of material required by section 1017I; or
3.28 After paragraph 1022A (1) (c) (definition of defective )
insert
(ca) if it is a Supplementary Short-Form PDS that is given for the purposes of section 1017P— there is an omission from the Short-Form PDS of material required by that section; or
3.29 Subsection 1022A (1), definition of disclosure document or statement , after paragraph (b)
insert
(ba) a Short-Form PDS; or
(bb) a Supplementary Short-Form PDS; or
3.30 Subparagraph 1022B (1) (a) (i)
omit
or a Supplementary Product Disclosure Statement
insert
, a Supplementary Product Disclosure Statement, a Short‑Form PDS or a Supplementary Short-Form PDS
3.31 Subparagraph 1022B (1) (c) (ii)
omit
or a Supplementary Product Disclosure Statement
insert
, a Supplementary Product Disclosure Statement, a Short‑Form PDS or a Supplementary Short-Form PDS
3.32 Subparagraph 1022B (1) (d) (i)
omit
or a Supplementary Product Disclosure Statement
insert
, a Supplementary Product Disclosure Statement, a Short‑Form PDS or a Supplementary Short-Form PDS
Part 1 Proposal 4
insert
7.9.15H New section 1012G: product disclosure statement may sometimes be provided later
For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act applies as if section 1012G were omitted and the following section were substituted:
“1012G Product disclosure statement may sometimes be provided later: financial products subject to a cooling off period
Application of section
(1) The regulated person may deal with a financial product under this section only if the financial product is one for which an application form is not required under section 1016A and section 1019B (cooling off period) will apply if the client enters into a legal obligation to acquire the product pursuant to the recommendation or offer that constitutes the relevant conduct.
No need to give Product Disclosure Statement in certain circumstances
(2) In a recommendation situation or an issue situation, the regulated person need not give the client a Product Disclosure Statement for the financial product at or before the time when it would otherwise be required to be given if:
(a) the client expressly instructs the regulated person that they require:
(i) in a recommendation situation — the advice constituting the recommendation; or
(ii) in an issue situation — the financial product;
to be provided or issued immediately, or by a specified time; and
(b) it is not reasonably practicable, while complying with the client’s instructions, to give the client the Product Disclosure Statement at or before the time when it would otherwise be required to be given.
The regulated person must comply instead with subsection (3).
Requirements to be complied with to be able to give Product Disclosure statement later
(3) The regulated person must:
(a) at or before the time referred to in paragraph (2) (b), orally communicate the following information to the client:
(i) the name and contact details of the issuer of the financial product;
(ii) information about the cooling off regime that applies in respect of acquisitions of the product (whether this regime is provided for by law or otherwise);
(iii) that the client should consider the information in the Product Disclosure Statement that will be provided to the client;
(iv) the further information (if any) requested by the client in response to a question under paragraph (b); and
(b) at or before the time referred to in paragraph (2) (b), ask the client whether the client would like further information about the financial product; and
(c) give the client the Product Disclosure Statement as soon as practicable after that time, and in any event not later than:
(i) the time when the confirmation requirement (if applicable) is complied with; or
(ii) the end of the fifth business day after the day on which the financial product was issued or sold to the client.
How information to be communicated
(4) The information referred to in paragraph (3) (a) must be communicated in a clear, concise and effective manner.
How confirmation requirement to be complied with
(5) For the purposes of subparagraph (3) (c) (i) , the confirmation requirement is complied with when:
(a) the client receives confirmation, as mentioned in paragraph 1017F (5) (a), of the transaction by which they acquired the financial product; or
(b) confirmation of that transaction is available to the client by a facility as mentioned in paragraph 1017F (5) (b).”
7.9.15I Modification of section 1012IA
For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act applies as if subparagraph 1012IA (4) (b) (ii) were omitted and the following subparagraph was inserted:
“(ii) subsection 1012G (3) applies in relation to the provider, the client and the regulated acquisition as if the reference to the regulated person were instead a reference to the provider, as if subparagraph 1012G (3) (c) (i) were omitted and as if the reference in subparagraph 1012G (3) (c) (ii) to the day on which the financial product was issued or sold to the client were instead a reference to the day on which the regulated acquisition occurs.”
omit
[3] Regulations 7.9.80C and 7.9.80D
omit
Part 2 Proposal 6
omit
cheques.
insert
cheques;
[5] After paragraph 7.7.02 (1) (b)
insert
(c) a cash management trust interest.
omit
cheques.
insert
cheques;
[7] After paragraph 7.7.10 (b)
insert
(c) a cash management trust interest;
[8] After subregulation 7.9.07F
insert
7.9.07FA Product Disclosure Statement not required for certain specified products
For paragraph 1020G (1) (c) of the Act, section 1012D of the Act is modified by inserting after subsection 1012D (7):
“(7A) In a recommendation situation, an issue situation or a sale situation, the regulated person does not have to give the client a Product Disclosure Statement for the financial product if:
(a) the product is:
(i) a basic deposit product; or
(ii) a facility for making non-cash payments (see section 763D) that is related to a basic deposit product; or
(iii) a travellers’ cheque; and
(b) the regulated person has provided information about the cost of the product (if any) to the client; and
(c) the regulated person has informed the client as to whether or not any amounts will or may be payable by the holder of the product, in respect of the product, after its acquisition; and
(d) the regulated person has asked the client whether or not the client would like further information about the amounts mentioned in paragraph (c); and
(e) if the client indicates that the client would like the further information mentioned in paragraph (d) — the regulated person has provided that information.”
insert
7.8.21A Anti-hawking provisions if no Product Disclosure Statement is required
For paragraph 992C (1) (c), Part 7.8 of the Act applies as if the following subsection was inserted after subsection 992A (3):
“(3AA) Paragraphs 992A (3) (c), (d) and (e) do not apply to a person that offers a financial product mentioned in paragraph 1012D (7A) (a) if the regulated person complies with the requirements of paragraphs 1012D (7A) (b) to (e) in respect of the product.”
Part 1 Proposal 7.1
insert
7.9.15D Less information in product disclosure statement: general insurance product
For paragraph 1013 D (4) (a) of the Act, the following provisions do not apply to a Product Disclosure Statement that relates to a general insurance product:
(a) paragraph 1013D (1) (c);
(b) subparagraph 1013D (1) (d) (iii);
(c) paragraph 1013D (1) (e);
(d) paragraph 1013D (1) (h);
(e) paragraph 1013D (1) (j);
(f) paragraph 101 3 D (1) (l).
7.9.15E More detailed information in product disclosure statement: general insurance product
For paragraph 1013D (4) (c) of the Act, the more detailed statement of the information, for paragraph 1013D (1) (f), that must be included in a Product Disclosure Statement that relates to a general insurance product is:
(a) the terms and conditions of the policy document (within the meaning of the Insurance Contracts Act 1984 ) being terms and conditions that are not provided in a Schedule to the policy document ; and
(b) information that, if the issuer were seeking to rely on subsection 35 (2) and section 37 of the Insurance Contracts Act 1984 , the issuer would have had to provide to the insured before the contract of insurance was entered into.
7.9.15F Product disclosure statement: general insurance product
For paragraph 1020G (1) (b) of the Act, Part 7.9 of the Act applies to general insurance products as if subparagraph 1013C (1) (a) (ii) and section 1013E were omitted.
(1) If, on or after the commencing day, a Product Disclosure Statement for a general insurance product complies with the requirements of old sections 1013C and 1013D, then, for the transition period only, the Product Disclosure Statement is taken to be complying with the requirements of new sections 1013C and 1013D.
(2) In this item:
"commencing day" means the day item 1 of this Schedule commences.
new sections 1013C and 1013D means those sections of the Corporations Act 2001 , and any regulations made for the purposes of, or modifying those sections, as in force on and after the commencing day.
old sections 1013C and 1013D means those sections of the Corporations Act 2001 , and any regulations made for the purposes of, or modifying those sections, as in force immediately before the commencing day.
"transition period" means the period of 18 months commencing on the commencing day.
Part 2 New proposals relating to General Insurance Products
insert
7.9.07FC Product Disclosure Statement not required general insurance situation
For paragraph 1020G (1) (c) of the Act, Part 7.9 of the Act is modified by adding after section 1014E of the Act the following section:
(1) This section applies if:
(a) a person (the client ) acquires a general insurance product (the original product ) from another person (the regulated person ); and
(b) the client received a Product Disclosure Statement (the original PDS ) relating to the product as required by the Act; and
(c) the contract of insurance provides a renewable insurance cover (within the meaning of subsection 58 (1) of the Insurance Contracts Act 1984 ); and
(d) the regulated person offers to renew the client’s contract of insurance (the new product ); and
(e) the regulated person is required to give the client a Product Disclosure Statement (the new PDS ) relating to the new product; and
(f) the original PDS contains some but not all of the information that the new PDS is required to contain.
(2) The regulated person may give the client a new PDS.
(3) If the regulated person does not give the client a new PDS, the regulated person must give the client a supplementary Product Disclosure Statement that contains the additional information.
(4) If the regulated person gives the client a supplementary Product Disclosure Statement under subsection (3), for the purposes of this Act:
(a) the original PDS is taken to be the new PDS; and
(b) the new PDS is taken to have been given to the client as required by this Act.”
[4] After paragraph 7.7.10 (c)
insert
(d) a motor vehicle insurance product (see regulation 7.1.11);
(e) a home building insurance product (see regulation 7.1.12);
(f) a home contents insurance product (see regulation 7.1.13);
(g) a travel insurance product (see regulation 7.1.16);
(h) a personal and domestic property insurance product (see regulation 7.1.17);
(i) a general insurance product prescribed by regulations made for the purposes of subparagraph 761G (5)(b) (viii) (see regulation 7.1.17A).
Part 1 Proposal 8.1
insert
7.6.02AB Modification of section 761G of the Act: meaning of retail client and wholesale client
For the provisions of the Act set out in column 2 of the following table, the Parts of the Act specified in column 3 apply as if section 761G of the Act were modified by inserting after paragraph 761G (7) (c), the following paragraph:
“(ca) the financial product, or the financial service, is acquired by a company or trust controlled by a person who meets the requirements of subparagraph (c) (i) or (ii);”
| Column 1 | Column 2 |
Column 3 |
| Item | Provisions of Act |
|
| 1 | paragraph 926B (1) (c) | Part 7.6 |
| 2 | paragraph 951C (1) (c) |
Part 7.7 |
| 3 | paragraph 992C (1) (c) | Part 7.8 |
| 4 | paragraph 1020G (1) (c) | Part 7.9 |
7.6.02AC Modification of section 761G of the Act: meaning of retail client and wholesale client
For the provisions of the Act set out in column 2 of the following table, the Parts of the Act specified in column 3 apply as if section 761G of the Act were modified by inserting after subsection 761G (7), the following subsections:
“(7A) In determining the net assets of a person under subparagraph (7) (c) (i), the net assets of a company or trust controlled by the person may be included.
Note: Control is defined in section 50AA.
(7B) In determining the gross income of a person under subparagraph (7) (c) (ii), the gross income of a company or trust controlled by the person may be included.
Note: Control is defined in section 50AA.”
| Column 1 | Column 2 | Column 3 |
| Item |
Provisions of Act |
|
| 1 | paragraph 926B (1) (c) | Part 7.6 |
2 | paragraph 951C (1) (c) | Part 7.7 |
| 3 | paragraph 992C (1) (c) | Part 7.8 |
| 4 | paragraph 1020G (1) (c) |
Part 7.9 |
7.6.02AD Modification of section 761G of the Act: meaning of retail client and wholesale client
For the provisions of the Act set out in column 2 of the following table, the Parts of the Act specified in column 3 apply as if section 761G of the Act were modified by inserting after subsection 761G (4), the following subsection:
“(4A) For the purposes of this Chapter, if a financial product, or a financial service, is or would be provided to, or acquired by, a body corporate as a wholesale client, related bodies corporate of the client are taken to be wholesale clients in respect of the provision or acquisition of that financial product or financial service.”
| Column 1 |
Column 2 | Column 3 |
| Item | Provisions of Act |
|
| 1 | paragraph 926B (1) (c) | Part 7.6 |
| 2 | paragraph 951C (1) (c) |
Part 7.7 |
| 3 | paragraph 992C (1) (c) | Part 7.8 |
| 4 | paragraph 1020G (1) (c) | Part 7.9 |
Part 2 Proposal 8.2
insert
7.6.02AE Modification of section 9 of the Act: Definition of professional investor
For the provisions of the Act set out in column 2 of the following table, the Parts of the Act specified in column 3 apply as if section 9 of the Act were modified by omitting paragraph (e) of the definition of professional investor and substituting the following paragraph:
“(e) the person has or controls gross assets of at least $10 million (including any assets held by an associate or under a trust that the person manages);”
| Column 1 | Column 2 | Column 3 |
| Item |
Provisions of Act |
|
| 1 | paragraph 926B (1) (c) | Part 7.6 |
2 | paragraph 951C (1) (c) | Part 7.7 |
| 3 | paragraph 992C (1) (c) | Part 7.8 |
| 4 | paragraph 1020G (1) (c) |
Part 7.9 |
Part 3 Proposal 8.3
insert
6D.5.02 Modification of paragraph 708 (8) (c) of the Act: renewal period for accountants’ certificates
For paragraph 742 (1) (c) of the Act, section 708 of the Act applies as if paragraph 708 (8) (c) of the Act were modified by omitting “6 months” and substituting “2 years”.
insert
7.6.02AF Modification of section 761G of the Act: renewal period for accountants’ certificates
For the provisions of the Act set out in column 2 of the following table, the Parts of the Act specified in column 3 apply as if section 761G of the Act were modified by omitting from paragraph 761G (7) (c) “6 months” and substituting “2 years”.
|
Column 1 | Column 2 | Column 3 |
| Item | Provisions of Act |
|
| 1 |
paragraph 926B (1) (c) | Part 7.6 |
| 2 | paragraph 951C (1) (c) | Part 7.7 |
| 3 | paragraph 992C (1) (c) |
Part 7.8 |
| 4 | paragraph 1020G (1) (c) | Part 7.9 |
Part 1 Proposal 9.1
[1] After subregulation 7.7.02 (6)
insert
(7) If:
(a) a financial service is provided by a person (the secondary service provider ) to a client by causing or authorising another person (the intermediary ) to provide or pass on the service; and
(b) but for the operation of section 52 of the Act, the secondary service provider would not be taken to be providing the financial service to the client; and
(c) the intermediary does not act on behalf of the secondary service provider in providing or passing on the service for the secondary service provider (see section 911B of the Act); and
(d) the intermediary is a financial services licensee or an authorised representative of a financial services licensee; and
(e) the secondary service provider has a written agreement with the intermediary under which the intermediary agrees to either:
(i) give the secondary service provider’s Financial Services Guide relating to the financial service provided by the secondary service provider to the client; or
(ii) inform the client how to obtain the secondary service provider’s Financial Services Guide relating to the financial service provided by the secondary service provider;
then, for subsection 941C (8) of the Act, the secondary service provider does not have to give the client a Financial Services Guide for the financial service.
insert
7.1.33G Certain general advice that does not attract remuneration etc.
For subsection 766A (2) of the Act, a person (the advisor ) is taken not to provide a financial service if:
(a) the advisor gives advice to another person; and
(b) the advice:
(i) is not about a particular financial product or an interest in a particular financial product; and
(ii) is not personal advice; and
(c) the advice:
(i) is not intended to influence the other person in making a decision in relation to a particular financial product or an interest in a particular financial product; or
(ii) could not reasonably be regarded as being intended to have such an influence; and
(d) by giving the advice neither the advisor, nor an associate of the advisor, receives any remuneration (including commission) or other benefit that is related to the advice given apart from remuneration (including commission) or other benefit that the advisor or the associate would have received if the advice was not given.
7.1.33H Certain general advice given by a financial product issuer
For subsection 766A (2) of the Act, a financial product issuer is not taken to provide a financial service if:
(a) the issuer gives advice to another person about:
(i) a particular financial product or class of financial products issued by the issuer; or
(ii) an interest in a particular financial product or a class of financial products issued by the issuer; and
(b) the advice is not personal advice; and
(c) the advice is given to the person at the same time as the issuer:
(i) advises the person that the issuer is not licensed to provide financial product advice in relation to the product, class or interest, as the case may be; and
(ii) recommends to the person that the person obtain a Product Disclosure Statement, if appropriate, and read it before making a decision to acquire the product or a product from the class of products, as the case may be; and
(iii) if it is advice about the offer, issue or sale of a financial product — notifies the person about the availability or otherwise of a cooling-off regime that applies in respect of the acquisition of the product, a product from the class of products or an interest in a product as the case may be (whether the regime is provided for by law or otherwise).
after
911A (2)
insert
, (2A), (2B), (2C), (2D) or (2E)
omit
[3] Subparagraph 7.6.01 (1) (na) (ii)
omit
a wholesale client
insert
7.6.02AG Modification of section 911A of the Act
For paragraph 926B (1) (c) of the Act, Part 7.6 of the Act applies as if section 911A of the Act were modified by inserting after subsection 911A (2) the following subsections:
“(2A) Also, a person ( person 1 ) is exempt from the requirement to hold an Australian financial services licence for a financial service they provide to a person ( person 2 ) in the following circumstances:
(a) person 1 is not in this jurisdiction;
(b) person 2 is an Australian citizen or is resident in Australia;
(c) the service is provided from outside this jurisdiction;
(d) person 1 does not engage in conduct that is:
(i) intended to induce people in this jurisdiction to use the service; or
(ii) likely to have that effect.
(2B) Also, a person ( person 1 ) is exempt from the requirement to hold an Australian financial services licence for a financial service they provide to a person ( person 2 ) in the following circumstances:
(a) person 1 is not in this jurisdiction;
(b) person 1 believes on reasonable grounds that person 2 is not in this jurisdiction;
(c) person 1 is a participant in a financial market in this jurisdiction that is licensed under subsection 795B (2) of the Act;
(d) the service relates to a financial product traded on the licensed market.
(2C) Also, a person ( person 1 ) is exempt from the requirement to hold an Australian financial services licence for a financial service they provide to a person ( person 2 ) in the following circumstances:
(a) person 1 is not in this jurisdiction;
(b) person 2 is:
(i) the holder of an Australian financial services licence; or
(ii) exempt from the requirement to hold an Australian financial services licence under paragraph 911A (2) (h);
(c) person 2 is not, in relation to the service:
(i) acting as a trustee; or
(ii) acting as a responsible entity of a registered managed investment scheme; or
(iii) otherwise acting on someone else’s behalf.
(2D) Also, a person ( person 1 ) is exempt from the requirement to hold an Australian financial services licence for a financial service they provide to a person ( person 2 ) in the following circumstances:
(a) person 1 is not in this jurisdiction;
(b) person 2 is in this jurisdiction;
(c) the service relates to a financial product:
(i) issued by person 1 following an application by, or inquiry from, person 2; or
(ii) issued by person 1 and acquired by person 2 when person 2 was not in this jurisdiction; or
(iii) that supplements a financial product mentioned in subparagraphs (i) or (ii); or
(iv) that is of the same kind as, and is issued in substitution for, a financial product mentioned in subparagraphs (i) or (ii);
(d) person 1 does not actively solicit persons in this jurisdiction in relation to the financial products mentioned in subparagraphs (c) (i) to (iv);
(e) paragraph (d) does not preclude person 1 from contacting person 2 in relation to the financial products mentioned in subparagraphs (c) (i) to (iv) after they have been acquired by person 2.
Note 1: For subparagraph (c)(iii), an example of this kind of financial product includes a non-cash payment facility (such as a cheque facility) that is added to an existing transaction or investment account.
Note 2: For subparagraph (c)(iv), examples of this kind of financial product include:
(a) a transaction or investment account that is replaced by another transaction or investment account; or
(b) the renewal of an insurance policy.
(2E) Also, a person ( person 1 ) is exempt from the requirement to hold an Australian financial services licence for a financial service they provide to a person ( person 2 ) in the following circumstances:
(a) person 1 is not in this jurisdiction;
(b) person 2 is a professional investor;
(c) the service consists of any or all of the following:
(i) dealing in derivatives or foreign exchange contracts;
(ii) providing advice on derivatives or foreign exchange contracts;
(iii) making a market in derivatives or foreign exchange contracts.”
7.6.02AH Modification of paragraph 911B (1) (e) of the Act
For paragraph 926B (1) (c) of the Act, Part 7.6 of the Act applies as if paragraph 911B (1) (e) of the Act were modified by omitting “911A (2)” and substituting “911A (2), (2A), (2B), (2C), (2D) or (2E)”.
[5] After Division 5 of Part 7.7
insert
Division 6 Exemptions from application of Part 7.7 of the Act
7.7.21 Exemption from application of Part 7.7 of the Act
For paragraph 951C (1) (a) of the Act, Part 7.7 does not apply to a financial services licensee or an authorised representative in respect of financial services provided to retail clients who are not in this jurisdiction.
Note Regulation 7.9.98 also contains exemptions from the operation of Part 7.7 of the Act.
[6] After subregulation 7.9.07FA
insert
7.9.07FB Product Disclosure Statement not required if client not in this jurisdiction
For paragraph 1020G (1) (c) of the Act, section 1012D of the Act is modified by inserting after subsection 1012D (8):
“(8A) In a recommendation situation, an issue situation or a sale situation, the regulated person does not have to give the client a Product Disclosure Statement for the financial product if the client is not in this jurisdiction.”
[7] After Division 13 of Part 7.9
insert
Division 14 — Exemptions from Parts 7.7, 7.8 and 7.9 of the Act
7.9.98 Certain providers of financial services exempted from the requirements of Parts 7.7, 7.8 and 7.9 of the Act
For the provisions of the Act set out in column 2 of the following table, a person who is providing a financial service in the circumstances set out subsections 911A (2A) to (2E) is exempt from the operation of the Parts of the Act specified in column 3 in relation to the provision of that service.
| Column 1 | Column 2 | Column 3 |
| Item | Provisions of Act |
|
| 1 | paragraph 951C (1) (a) | Part 7.7 |
| 2 | paragraph 992C (1) (a) | Part 7.8 |
| 3 | paragraph 1020G (1) (a) |
Part 7.9 |