CORPORATIONS ACT 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

PART 7.8 - OTHER PROVISIONS RELATING TO CONDUCT ETC. CONNECTED WITH FINANCIAL PRODUCTS AND FINANCIAL SERVICES, OTHER THAN FINANCIAL PRODUCT DISCLOSURE  

Division 8 - Miscellaneous  

SECTION 992A   PROHIBITION ON HAWKING OF CERTAIN FINANCIAL PRODUCTS  

992A(1)  
A person must not offer financial products for issue or sale in the course of, or because of, an unsolicited meeting with another person.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

992A(2)  
Subsection (1) does not apply to offering of securities, hawking of which is prohibited by section 736 , or to offering interests in managed investment schemes, hawking of which is prohibited by section 992AA .

Note: A defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code .

992A(3)  


A person must not make an offer to issue or sell a financial product in the course of, or because of:


(aa) an unsolicited telephone call to another person; or


(ab) an unsolicited contact with another person in another way that is prescribed by the regulations for the purposes of this paragraph;

unless the other person has been:


(a) contacted only during the hours prescribed by the regulations and only if the person is not listed on the " No Contact/No Call " register in relation to the person making the contact; and


(b) given an opportunity to:


(i) register on a " No Contact/No Call " register maintained by the person making the contact at no cost to that person; and

(ii) select the time and frequency of any future contacts; and


(c) given a Product Disclosure Statement before becoming bound to acquire a financial product; and


(d) clearly informed of the importance of using the information in the Product Disclosure Statement when making a decision to acquire a financial product; and


(e) given the option of having the information in the Product Disclosure Statement read out to that person.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

992A(3A)  


Neither subsection (1) nor (3) applies to an offer of financial products if the offer is not to a retail client.

Note: A defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code .

992A(3B)  


Neither subsection (1) nor (3) applies to an offer of financial products that is made under an eligible employee share scheme.

Note: A defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code .

992A(4)  
In addition to other penalties for breaches of this section, a failure to comply with this section gives the other person a right of return and refund exercisable within 1 month after the expiry date of the relevant cooling-off period for the financial product, or one month and fourteen days in the event that no cooling-off period applies to the financial product, subject to the following provisions:


(a) on the exercise of the right to return the product:


(i) if the product is constituted by a legal relationship between the client and the issuer of the product - that relationship is, by force of this subsection, terminated with effect from that time without penalty to the client; and

(ii) any contract for the acquisition of the product by the client is, by force of this subsection, terminated with effect from that time without penalty to the client;


(b) the regulations may provide for consequences and obligations (in addition to those provided for in paragraph (a)) to apply if the right to return a financial product is exercised;


(c) the regulations may do any or all of the following:


(i) provide that a specified subclass of financial products that would otherwise be covered by this subsection is excluded from this subsection;

(ii) provide additional requirements to be satisfied before this subsection applies in relation to a class or subclass of financial products;

(iii) provide that this subsection does not apply in relation to the provision of a financial product in specified circumstances.

992A(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.


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