Corporations Act 2001
Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .
CCH note - modifying legislative instruments: The application of Pt 7.6 is affected by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Custody Standards for Providers of Custodial and Depository Services) Instrument 2024/17 (other than Divs 4 and 8); the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669 (as amended by ASIC Corporations (Amendment) Instrument 2024/554) (other than Divs 4 and 8); and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by ASIC Corporations (Amendment) Instrument 2024/554) (other than Divs 4 and 8).
The application of Pt 7.6 is also affected by Class Order 14/1262: Relief for 31 Day Notice Term Deposits (other than Divs 4 and 8).
For other legislative instruments or class orders before 1 January 2022 that affect the application of Pt 7.6, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.
CCH Note: Division 10 is modified by the ASIC Corporations (Financial Requirements for Corporate Directors of Retail Corporate Collective Investment Vehicles) Instrument 2022/449; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by the ASIC Corporations and Credit (Amendment) Instrument 2023/589).
CCH Note: Section 923A is modified by the ASIC Corporations (Financial Requirements for Corporate Directors of Retail Corporate Collective Investment Vehicles) Instrument 2022/449; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by the ASIC Corporations and Credit (Amendment) Instrument 2023/589).
A person contravenes this subsection if: (a) either:
(i) the person carries on a financial services business or provides a financial service (whether or not on behalf of another person); or
(b) the first person assumes or uses, in this jurisdiction, a restricted word or expression in relation to that business or service.
(ii) another person (the provider ) provides a financial service on behalf of the first person; and
Note 1: For the meanings of restricted word or expression and assume or use , see subsection (5).
Note 2: A contravention of this subsection is an offence (see subsection 1311(1) ).
Note 3: A Financial Services Guide or website disclosure information may need to include a statement relating to the restriction in this subsection (see paragraphs 942B(2)(fa) and 942C(2)(ga) ).
923A(2)
However, it is not a contravention of subsection (1) for a person to assume or use a restricted word or expression if: (a) the person does not receive any of the following:
(i) commissions (apart from commissions that are rebated in full to the person's clients);
(ii) forms of remuneration calculated on the basis of the volume of business placed by the person with an issuer of a financial product;
(b) none of the following persons receives any of the things covered by paragraph (a) :
(iii) other gifts or benefits from an issuer of a financial product which may reasonably be expected to influence the person; and
(i) the person's employer (if any);
(ii) if the person provides the financial service on behalf of another person (as mentioned in subparagraph (1)(a)(i) ) - that other person;
(c) if subparagraph (1)(a)(ii) applies in relation to a financial service - the provider mentioned in that subparagraph does not receive any of the things mentioned in paragraph (a) of this subsection in respect of the provision of that service; and (d) in carrying on a financial services business, or providing financial services, the person operates free from direct or indirect restrictions relating to the financial products in respect of which they provide financial services; and (e) in carrying on that business, or providing those services, the person operates without any conflicts of interest that might:
(iii) any other person identified (whether by reference to a class of person or otherwise) in regulations made for the purposes of this subparagraph; and
(i) arise from their associations or relationships with issuers of financial products; and
(ii) reasonably be expected to influence the person in carrying on the business or providing the services.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3) of the Criminal Code .
923A(3)
The reference in paragraph (2)(d) to direct or indirect restrictions does not include a reference to restrictions imposed on a person by: (a) the conditions on an Australian financial services licence; or (b) this Chapter or regulations made for the purposes of this Chapter.
923A(4)
If a person assumes or uses a word or expression in circumstances that give rise to the person committing an offence based on subsection (1) of this section, the person is guilty of such an offence in respect of: (a) the first day on which the offence is committed; and (b) each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
923A(5)
In this section: (a) a reference to a restricted word or expression is a reference to:
(i) the word independent , impartial or unbiased ; or
(ii) any other word or expression specified in the regulations as a restricted word or expression for the purposes of this section; or
(b) a reference to a word or expression being assumed or used includes a reference to the word or expression being assumed or used:
(iii) any other word or expression (whether or not in English) that is of like import to a word or expression covered by any of the previous subparagraphs; and
(i) as part of another word or expression; or
(ii) in combination with other words, letters or other symbols.
923A(6)
To avoid doubt, for the purposes of this section a restricted word or expression is not assumed or used if the restricted word or expression is included in a statement in accordance with a requirement in paragraph 942B(2)(fa) or 942C(2)(ga) .
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