Financial Services Reform Act 2001 (122 of 2001)

Schedule 1   Financial Services and Markets

Part 1   Main amendments

Corporations Act 2001

1   Chapter 7 - Part 7.7 - Division 1

Part 7.7 - Financial services disclosure

Division 1 - Preliminary

940A How Part applies if a financial services licensee is acting as authorised representative

If a financial services licensee is, in providing a financial service, acting as the authorised representative of another financial services licensee (see section 916E), this Part applies to the first-mentioned licensee, in relation to the service, in the capacity of authorised representative (rather than the capacity of licensee).

940B What if there is no reasonable opportunity to give a document, information or statement required by this Part?

(1) If:

(a) apart from this section, a person (the providing entity ) would be required by a provision of this Part to give another person (the client ) a particular document (for example, a Financial Services Guide or a Statement of Advice), or particular information or a particular statement; and

(b) the providing entity has not had a reasonable opportunity to give (in accordance with section 940C) the client the document, information or statement by the time they are required by this Part to give it to the client;

the fact that the providing entity has not given the document, information or statement to the client as required by the provision is not a contravention of the provision.

Note: In a prosecution for an offence, a defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3) of theCriminal Code).

(2) For the purposes of subsection (1), the providing entity is not taken not to have had a reasonable opportunity to provide the document, information or statement if:

(a) section 940C (or regulations made for the purposes of that section) permit the document, information or statement to be sent to an address (including an electronic address) or fax number nominated by the client; and

(b) the client has not given the providing entity an address (including an electronic address) or fax number to which the document, information or statement can be sent; but

(c) the providing entity has had a reasonable opportunity to make, but has not made, reasonable enquiries of the client to obtain such an address or fax number.

940C How documents, information and statements are to be given

(1) For the purposes of this Part (unless a contrary intention appears), a Financial Services Guide, a Supplementary Financial Services Guide or a Statement of Advice, or information or a statement that section 950D or 950E requires to be given, is given by a person (the providing entity ) to another person (the client ) if (and only if):

(a) it is:

(i) given to the client, or to the client’s agent, personally; or

(ii) sent to the client, or the client’s agent, at an address (including an electronic address) or fax number nominated by the client or the client’s agent; or

(iii) otherwise made available to the client, or the client’s agent, as agreed between the client, or the client’s agent, and the providing entity; and

(b) it is in printed or electronic form.

(2) For the purposes of this Part (unless a contrary intention appears), information that subsection 941C(7) or 946B(6)requires to be given by a person (the providing entity ) to another person (the client ) is given by the providing entity to the client if (and only if):

(a) it is given to the client, or the client’s agent, orally; or

(b) it is in printed or electronic form and is:

(i) given to the client, or the client’s agent, personally; or

(ii) sent to the client, or the client’s agent, at an address (including an electronic address) or fax number nominated by the client or the client’s agent; or

(iii) otherwise made available to the client, or the client’s agent, as agreed between the client or the client’s agent and the providing entity; or

(c) it is given by some other method permitted by regulations made for the purposes of this paragraph.

(3) For the purposes of this Part (unless a contrary intention appears), information that subsection 941C(5) or 946B(3) requires to be given by a person (the providing entity ) to another person (the client ) is given by the providing entity to the client if (and only if) it is given to the client, or the client’s agent, in accordance with the applicable requirements of regulations made for the purposes of this subsection.

(4) For the purposes of this Part (unless a contrary intention appears), a statement that subsection 941D(2) or 946C(2) requires to be given by a person (the providing entity ) to another person (the client ) is given by the providing entity to the client if (and only if) it is given orally to the client or the client’s agent.

(5) For the purposes of this section, a document, information or statement to which this section applies is sent to a person at an address if, and only if:

(a) the document, information or statement is sent to the address; and

(b) either:

(i) the envelope or other container in which it is sent; or

(ii) the message that accompanies it;

is addressed to the person.

(6) A document, information or statement to which this section applies may be given or sent to a person’s agent only if the agent is not acting as the person’s agent in one of the following capacities:

(a) a financial services licensee;

(b) an authorised representative of a financial services licensee;

(c) a person who is a member of a declared professional body;

(d) a person who is not required to hold an Australian financial services licence because the person is covered by:

(i) paragraph 911A(2)(j); or

(ii) an exemption in regulations made for the purposes of paragraph 911A(2)(k); or

(iii) an exemption specified by ASIC for the purposes of paragraph 911A(2)(l);

(e) a person who is required to hold an Australian financial services licence but who does not hold such a licence;

(f) an employee, director or other representative of a person referred to in paragraph (a), (b), (c), (d) or (e).

(7) The regulations may specify requirements as to:

(a) the manner in which a document, information or statement may be given to a person; and

(b) the presentation, structure and format for a document, information or statement that is to be given in electronic form.

The giving of the document, information or statement is not effective unless those requirements are satisfied.

940D General approach to offence provisions

Subdivision A of Division 7 contains provisions creating offences by reference to various rules contained in Divisions of this Part. However, it does not create all the offences relating to those rules, as some offences are created by subsection 1311(1). Where offences are created by subsection 1311(1) in relation to a rule, this is indicated by a note at the end of the provision containing the rule.