CORPORATIONS ACT 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

PART 7.1 - PRELIMINARY  

Division 3 - What is a financial product?  

Subdivision D - Specific exclusions  

SECTION 765A   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS  

765A(1)  
Despite anything in Subdivision B or Subdivision C , the following are not financial products for the purposes of this Chapter:


(a) an excluded security;


(b) an undertaking by a body corporate to pay money to a related body corporate;


(c) health insurance provided as part of a health insurance business (as defined in Division 121 of the Private Health Insurance Act 2007 );


(ca) insurance provided as part of a health-related business (as defined by section 131-15 of that Act) that is conducted through a health benefits fund (as defined by section 131-10 of that Act);


(d) insurance provided by the Commonwealth;


(e) State insurance or Northern Territory insurance, including insurance entered into by:


(i) a State or the Northern Territory; and

(ii) some other insurer;
as joint insurers;


(f) insurance entered into by the Export Finance and Insurance Corporation, other than a short-term insurance contract within the meaning of the Export Finance and Insurance Corporation Act 1991 ;


(g) reinsurance;


(h) any of the following:


(i) a credit facility within the meaning of the regulations (other than a margin lending facility);

(ii) a facility for making non-cash payments (see section 763D ), if payments made using the facility will all be debited to a credit facility covered by subparagraph (i);


(i) a facility:


(i) that is an approved RTGS system within the meaning of the Payment Systems and Netting Act 1998 ; or

(ii) for the transmission and reconciliation of non-cash payments (see section 763D ), and the establishment of final positions, for settlement through an approved RTGS system within the meaning of the Payment Systems and Netting Act 1998 ;


(j) a facility that is a designated payment system for the purposes of the Payment Systems (Regulation) Act 1998 ;


(k) a facility for the exchange and settlement of non-cash payments (see section 763D ) between providers of non-cash payment facilities;


(l) a facility that is:


(i) a financial market; or

(ii) a clearing and settlement facility; or

(iii) a payment system operated as part of a clearing and settlement facility; or

(iv) a derivative trade repository;


(m) a contract to exchange one currency (whether Australian or not) for another that is to be settled immediately;


(n) so much of an arrangement as is not a derivative because of paragraph 761D(3)(a) ;

[ CCH Note: There is no paragraph 765A(1)(o).]


(p) an arrangement that is not a derivative because of subsection 761D(4) ;


(q) an interest in a superannuation fund of a kind prescribed by regulations made for the purposes of this paragraph;


(r) any of the following:


(i) an interest in something that is not a managed investment scheme because of paragraph (c), (e), (f), (k), (l) or (m) of the definition of managed investment scheme in section 9 ;

(ii) a legal or equitable right or interest in an interest covered by subparagraph (i);

(iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii);


(s) any of the following in relation to a managed investment scheme (whether or not operated in this jurisdiction) in relation to which none of paragraphs 601ED(1)(a) , (b) and (c) are satisfied and that is not a registered scheme or a notified foreign passport fund:


(i) an interest in the scheme;

(ii) a legal or equitable right or interest in an interest covered by subparagraph (i);

(iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii);


(t) a deposit-taking facility that is, or is used for, State banking;


(u) a benefit provided by an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009 for a member of the association or a dependant of a member;


(v) either of the following:


(i) a contract of insurance; or

(ii) a life policy or a sinking fund policy, within the meaning of the Life Insurance Act 1995 , that is not a contract of insurance;
issued by an employer to an employee of the employer;


(w) a funeral benefit;


(x) physical equipment or physical infrastructure by which something else that is a financial product is provided;


(y) a facility, interest or other thing declared by regulations made for the purposes of this subsection not to be a financial product;


(z) a facility, interest or other thing declared by ASIC under subsection (2) not to be a financial product.

ASIC declarations

765A(2)  
ASIC may declare that a specified facility, interest or other thing is not a financial product for the purposes of this Chapter. The declaration must be in writing and ASIC must publish notice of it in the Gazette .

Regulations

765A(3)  


Despite anything in Subdivision B or C, the regulations may declare that a specified facility, interest or other thing is not a financial product for the purposes of specified provisions of this Chapter.

765A(4)  


A declaration under subsection (2) that is inconsistent with regulations made for the purposes of subsection (3) has no effect to the extent of the inconsistency, but a declaration is taken to be consistent with the regulations to the extent that the declaration is capable of operating concurrently with the regulations.

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