CHAPTER 7
-
FINANCIAL SERVICES AND MARKETS
Note: This Chapter applies to a CCIV in a modified form: see Division
4
of Part
8B.7
.
History
Ch 7 amended by No 8 of 2022, s 3, Sch 2[165] (effective 1 July 2022).
Ch 7 inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
As Act No 122 of 2001 repealed Ch 7 and 8 the history notes for Ch 7 use
"
inserted
"
and references to the former provisions have been removed.
PART 7.9
-
FINANCIAL PRODUCT DISCLOSURE AND OTHER PROVISIONS RELATING TO ISSUE, SALE AND PURCHASE OF FINANCIAL PRODUCTS
History
Pt 7.9 heading amended by No 141 of 2003, s 3, Sch 1
[
2] (effective 14 January 2004).
Division 1
-
Preliminary
CCH Note:
Division 1 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1010A
PART GENERALLY DOES NOT APPLY TO SECURITIES
CCH Note:
Section 1010A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1010A(1)
Apart from section
1017F
and Divisions
5A
,
5B
,
5C
and
6
(and provisions of Division
7
that apply in relation to that section or provisions of those Divisions), nothing in this Part applies in relation to securities.
Note 1: Chapters
6CA
and
6D
provide for disclosure in relation to securities.
Note 2: Division
1A
of Part
7.12
(Employee share schemes) contains a separate regime for the making of offers in connection with employee share schemes. The provisions of this Part do not apply in relation to offers that are eligible to be made under that Division: see subsection
1100ZC(3)
and section
1100ZD
.
History
S 1010A(1) amended by No 14 of 2022, s 3, Sch 4[27] and
[
28] (effective 1 October 2022).
S 1010A(1) amended by No 155 of 2012, s 3, Sch 1
[
13].
S 1010A(1) amended by No 146 of 2008, s 3, Sch 3
[
1].
S 1010A(1) amended by No 141 of 2003, s 3, Sch 1
[
3-4].
S 1010A(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1010A(2)
Apart from section
1017F
and Divisions
5A
,
5B
and
6
, nothing in this Part applies in relation to debentures, stocks or bonds issued or proposed to be issued by a government.
Note: These financial products are not
securities
as defined in subsection
92(5)
.
History
S 1010A(2) amended by No 76 of 2023, s 3, Sch 2[84] (effective 20 October 2023).
S 1010A(2) amended by No 146 of 2008, s 3, Sch 3
[
2].
S 1010A(2) amended by No 141 of 2003, s 3, Sch 1
[
5].
S 1010A(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1010B
PART DOES NOT APPLY TO FINANCIAL PRODUCTS NOT ISSUED IN THE COURSE OF A BUSINESS
CCH Note:
Section 1010B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1010B(1)
Apart from Division
5A
, nothing in this Part applies in relation to a financial product that is not or was not issued, or that will not be issued, in the course of a business of issuing financial products.
History
S 1010B(1) amended by No 141 of 2003, s 3, Sch 1
[
6].
S 1010B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1010B(2)
For this purpose, the issue of:
(a)
any managed investment product; or
(aa)
any foreign passport fund product; or
(b)
any superannuation product;
is taken to occur in the course of a business of issuing financial products.
History
S 1010B(2) amended by No 61 of 2018, s 3, Sch 2[253] (effective 18 September 2018).
S 1010B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1010BA
1010BA
PART DOES NOT APPLY TO CONTRIBUTION PLANS AND ESS CONTRIBUTION PLANS
CCH Note:
Section 1010BA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Apart from section
1017F
and Divisions
5A
and
6
(and provisions of Division
7
that apply in relation to that section or provisions of those Divisions), nothing in this Part applies in relation to contribution plans or ESS contribution plans for offers of ESS interests that are eligible to be made under Division
1A
of Part
7.12
.
History
S 1010BA amended by No 14 of 2022, s 3, Sch 4[30] (effective 1 October 2022).
S 1010BA inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
133].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
227] contained the following application provision (which was effective 28 June 2007):
Application of items 3, 6 and 133
The amendments made by items 3, 6 and 133 of this Schedule apply to contribution plans offered on or after the day on which those items commence.
]
SECTION 1010C
MEANING OF OFFER, PURCHASE AND SALE
-
PART 7.9
CCH Note:
Section 1010C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1010C(1)
For the purposes of this Part, a reference to a
sale
or
purchase
of a financial product is a reference to a sale of the product by, or a purchase of the product from, a person who has (whether by issue or otherwise) acquired the product. The issue of a financial product is not a sale of the financial product.
1010C(2)
For the purposes of this Part:
(a)
a reference to
offer
to issue a financial product includes a reference to
invite
an application for the issue of the financial product; and
(b)
a reference to
offer
to sell a financial product includes a reference to
invite
an offer to purchase the financial product.
History
S 1010C(2) amended by No 76 of 2023, s 3, Sch 2
[
499]
-
[
502] (effective 20 October 2023).
History
S 1010C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1010D
1010D
GENERAL APPROACH TO OFFENCE PROVISIONS
CCH Note:
Section 1010D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
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.
History
S 1010D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 2
-
Product Disclosure Statements
CCH Note:
Division 2 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Subdivision A
-
Preliminary
CCH Note:
Subdivision A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1011A
JURISDICTIONAL SCOPE OF DIVISION
CCH Note:
Section 1011A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1011A(1)
Subject to subsection (2), sections
1012A
,
1012B
and
1012C
only apply in relation to offers and recommendations referred to in those sections that are received in this jurisdiction.
1011A(2)
Section 1012B
also applies in relation to issues referred to in subparagraph
1012B(3)
(a)(iii) that are made in this jurisdiction.
1011A(3)
The regulations may make provision dealing with the jurisdictional scope of some or all of the other provisions of this Division. The other provisions of this Division have effect subject to any such regulations.
History
S 1011A inserted by No 122 of 2001, s3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 1011B
1011B
MEANING OF REGULATED PERSON
CCH Note:
Section 1011B is modified by the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
In this Division, a
regulated person
, in relation to a financial product, is:
(a)
an issuer of the financial product; or
(b)
a seller of the financial product if the sale takes place in circumstances described in subsection
1012C(5)
,
(6)
or
(8)
(secondary sales that require a Product Disclosure Statement); or
(c)
any financial services licensee; or
(d)
any authorised representative of a financial services licensee; or
(e)
any 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)
; or
(f)
any person who is required to hold an Australian financial services licence but who does not hold such a licence.
History
S 1011B substituted by No 76 of 2023, s 3, Sch 2
[
503] (effective 20 October 2023).
SECTION 1011C
1011C
TREATMENT OF OFFERS OF OPTIONS OVER FINANCIAL PRODUCTS
CCH Note:
Section 1011C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
For the purposes of this Division:
(a)
an offer of an option over a financial product is not to be taken to be an offer of the underlying financial product; and
(b)
the grant of an option without an offer of the option is taken to be an offer of the option; and
(c)
an offer to grant an option is taken to be an offer to issue the financial product constituted by the option.
History
S 1011C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision B
-
Requirement for a Product Disclosure Statement to be given
CCH Note:
Subdivision B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1012A
OBLIGATION TO GIVE PRODUCT DISCLOSURE STATEMENT
-
PERSONAL ADVICE RECOMMENDING PARTICULAR FINANCIAL PRODUCT
CCH Note:
Section 1012A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Top-up Product Disclosure Statements Relief) Instrument 2016/1054; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693; and the ASIC Corporations (On-Sale Disclosure Relief for Scrip Bids and Schemes of Arrangement) Instrument 2023/686.
Section sets out recommendation situation in which Product Disclosure Statement required
1012A(1)
This section sets out the situations in which giving financial product advice that consists of, or includes, a recommendation to acquire a financial product gives rise to an obligation on a regulated person to give another person a Product Disclosure Statement for the product.
History
S 1012A(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1012A(2)
For the purposes of this Act:
(a)
each of the situations is a
recommendation situation
; and
(b)
the
relevant conduct
for that situation is the making of the recommendation; and
(c)
the
client
for that situation is the person to whom the advice is provided.
History
S 1012A(2) amended by No 76 of 2023, s 3, Sch 2
[
504] (effective 20 October 2023).
S 1012A(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Personal advice recommending a particular financial product
1012A(3)
A regulated person must give a person a Product Disclosure Statement for a financial product if:
(a)
the regulated person provides financial product advice to the person that consists of, or includes, a recommendation that the person acquire the financial product; and
(b)
the person would acquire the financial product by way of:
(i)
the issue of the product to the person (rather than the transfer of the product to the person); or
(ii)
the transfer of the product to the person in circumstances described in subsection
1012C(5)
,
(6)
or
(8)
(secondary sales that require a Product Disclosure Statement); and
(c)
the financial product advice is provided to the client as a retail client; and
(d)
the financial product advice is personal advice to the client.
The Product Disclosure Statement must be given at or before the time when the regulated person provides the advice and must be given in accordance with this Division.
History
S 1012A(3) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
135].
S 1012A(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
This section has effect subject to other provisions
1012A(4)
This section does not apply to a regulated person for a recommendation situation if:
(a)
one or more of sections
1012D
,
1012DA
,
1012E
,
1012F
,
1012G
or
1014E
apply to a regulated person for that recommendation situation; and
(b)
for each of those sections that so applies
-
the regulated person complies with the requirements (if any) in that section for that recommendation situation.
History
S 1012A(4) substituted by No 69 of 2023, s 3, Sch 3[27] (effective 15 September 2023).
Civil liability
1012A(5)
A person contravenes this subsection if the person contravenes this section.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 1012A(5) inserted by No 17 of 2019, s 3, Sch 1
[
95] (effective 13 March 2019).
SECTION 1012B
OBLIGATION TO GIVE PRODUCT DISCLOSURE STATEMENT
-
SITUATIONS RELATED TO ISSUE OF FINANCIAL PRODUCTS
CCH Note:
Section 1012B is modified by the ASIC Corporations (PDS Requirements for General Insurance Quotes) Instrument 2022/66; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Top-up Product Disclosure Statements Relief) Instrument 2016/1054; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Section sets out issue situations in which Product Disclosure Statement required
1012B(1)
This section sets out situations in which:
(a)
an offer relating to the issue of a financial product; or
(b)
the issue of a financial product;
gives rise to an obligation on a regulated person to give another person a Product Disclosure Statement for the product.
1012B(2)
For the purposes of this Act:
(a)
each of the situations is an
issue situation
; and
(b)
the
relevant conduct
for that situation is the conduct by the regulated person that gives rise to the obligation to give the Product Disclosure Statement; and
(c)
the
client
for that situation is the person to whom the financial product is to be or is issued.
History
S 1012B(2) amended by No 76 of 2023, s 3, Sch 2
[
505] (effective 20 October 2023).
The main issue situations
1012B(3)
A regulated person must give a person a Product Disclosure Statement for a financial product if:
(a)
the regulated person:
(i)
offers to issue the financial product to the person; or
(ii)
offers to arrange for the issue of the financial product to the person; or
(iii)
issues the financial product to the person in circumstances in which there are reasonable grounds to believe that the person has not been given a Product Disclosure Statement for the product; and
(b)
the financial product is, or is to be, issued to the person as a retail client.
The Product Disclosure Statement must be given at or before the time when the regulated person makes the offer, or issues the financial product, to the person and must be given in accordance with this Division.
Note: If a Product Disclosure Statement is given when the offer is made, it will not need to be given again when the product is issued to the person (see subsection
1012D(1)
) unless the Product Disclosure Statement that was given is no longer up to date.
Receiving offer to acquire financial product
1012B(4)
A regulated person must give a person a Product Disclosure Statement for a financial product if:
(a)
the person makes an offer to the regulated person to acquire the financial product; and
(b)
the person would acquire the financial product by way of the issue of the product to the person (rather than the transfer of the product to the person); and
(c)
the financial product is to be issued to the person as a retail client.
The Product Disclosure Statement must be given to the person before the person becomes bound by a legal obligation to acquire the financial product pursuant to the offer and must be given in accordance with this Division.
[
CCH Note:
For s 1012B(4A) and (4B), see Corporations Regulations Schedule 10A, Part 17
-
Modifications relating to application forms for specified superannuation products, item 17.1]
This section has effect subject to other provisions
1012B(5)
This section does not apply to a regulated person for an issue situation if:
(a)
one or more of sections
1012D
,
1012DAA
,
1012E
,
1012F
,
1012G
,
1012GA
or
1014E
apply to a regulated person for that issue situation; and
(b)
for each of those sections that so applies
-
the regulated person complies with the requirements (if any) in that section for that issue situation.
History
S 1012B(5) substituted by No 69 of 2023, s 3, Sch 3[28] (effective 15 September 2023).
Civil liability
1012B(6)
A person contravenes this subsection if the person contravenes this section.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 1012B(6) inserted by No 17 of 2019, s 3, Sch 1[96] (effective 13 March 2019).
History
S 1012B amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
136].
S 1012B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1012C
OBLIGATION TO GIVE PRODUCT DISCLOSURE STATEMENT
-
OFFERS RELATED TO SALE OF FINANCIAL PRODUCTS
CCH Note:
Section 1012C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Top-up Product Disclosure Statements Relief) Instrument 2016/1054; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693; and the ASIC Corporations (On-Sale Disclosure Relief for Scrip Bids and Schemes of Arrangement) Instrument 2023/686.
Section sets out sale situations in which Product Disclosure Statement required
1012C(1)
This section sets out situations in which an offer relating to the sale of a financial product gives rise to an obligation on a regulated person to give another person a Product Disclosure Statement for the product.
History
S 1012C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1012C(2)
For the purposes of this Act:
(a)
each of the situations is a
sale situation
; and
(b)
the
relevant conduct
for that situation is the offer; and
(c)
the
client
for that situation is the person to whom the product is to be sold.
History
S 1012C(2) amended by No 76 of 2023, s 3, Sch 2
[
506] (effective 20 October 2023).
S 1012C(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Sale offers that require a Product Disclosure Statement
1012C(3)
A regulated person must give a person a Product Disclosure Statement for a financial product if:
(a)
the regulated person offers to sell the financial product to the person; and
(b)
a sale of the product to the person pursuant to the offer would take place in circumstances covered by subsection
(5)
,
(6)
or
(8)
; and
(c)
the financial product is to be sold to the person as a retail client.
The Product Disclosure Statement must be given at or before the time when the regulated person makes the offer and must be given in accordance with this Division.
History
S 1012C(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1012C(4)
A regulated person must give a person a Product Disclosure Statement for a financial product if:
(a)
the person makes an offer to the regulated person to acquire the financial product; and
(b)
the person would acquire the financial product by way of the transfer of the product to the person; and
(c)
a sale of the product to the person pursuant to the offer would take place in the circumstances described in subsection
(5)
,
(6)
or
(8)
; and
(d)
the financial product is to be sold to the person as a retail client.
The Product Disclosure Statement must be given to the person before the person becomes bound by a legal obligation to acquire the financial product pursuant to the offer and must be given in accordance with this Division.
History
S 1012C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Off-market sale by controller
1012C(5)
This subsection covers the circumstances in which:
(a)
the seller controls the issuer of the financial product; and
(b)
either:
(i)
the product is not able to be traded on any licensed market; or
(ii)
although the product is able to be traded on a licensed market, the offer is not made in the ordinary course of trading on a licensed market.
Note: See section
50AA
for when a person controls a body.
History
S 1012C(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Sale amounting to indirect issue
1012C(6)
This subsection covers the circumstances in which:
(a)
the offer is made within 12 months after the issue of the financial product; and
(b)
the product was issued without a Product Disclosure Statement for the product being prepared; and
(c)
either:
(i)
the issuer issued the product with the purpose of the person to whom it was issued selling or transferring the product, or granting, issuing or transferring interests in, or options or warrants over, the product; or
(ii)
the person to whom the product was issued acquired it with the purpose of selling or transferring the product, or granting, issuing or transferring interests in, or options or warrants over, the product.
History
S 1012C(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
The purpose test in subsection (6)
1012C(7)
For the purposes of subsection (6):
(a)
a financial product is taken to be:
(i)
issued with the purpose referred to in subparagraph (6)(c)(i); or
(ii)
acquired with the purpose referred to in subparagraph (6)(c)(ii);
if there are reasonable grounds for concluding that the product was issued or acquired with that purpose (whether or not there were or may have been other purposes for the issue or acquisition); and
(b)
without limiting paragraph (a), a financial product is taken to be:
(i)
issued with the purpose referred to in subparagraph (6)(c)(i); or
(ii)
acquired with the purpose referred to in subparagraph (6)(c)(ii);
if the financial product, or any financial product of the same kind that was issued at the same time, is subsequently sold, or offered for sale, within 12 months after issue, unless it is proved that the circumstances of the issue and the subsequent sale or offer are not such as to give rise to reasonable grounds for concluding that the product was issued or acquired with that purpose.
History
S 1012C(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Sale amounting to indirect off-market sale by controller
1012C(8)
This subsection covers the circumstances in which:
(a)
the offer is made within 12 months after the sale of the financial product by a person (the
controller
) who controlled the issuer of the product at the time of the sale; and
(b)
either:
(i)
at the time of the sale by the controller, the product was not able to be traded on any licensed market; or
(ii)
although the product was able to be traded on a licensed market at that time, the sale by the controller did not occur in the ordinary course of trading on a licensed market; and
(c)
a Product Disclosure Statement was not prepared by, or on behalf of, the controller before the sale of the product by the controller; and
(d)
either:
(i)
the controller sold the product with the purpose of the person to whom it was sold selling or transferring the product, or granting, issuing or transferring interests in, or options or warrants over, the product; or
(ii)
the person to whom the controller sold the product acquired it with the purpose of selling or transferring the product, or granting, issuing or transferring interests in, or options or warrants over, the product.
Note: See section
50AA
for when a person controls a body.
History
S 1012C(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
The purpose test in subsection (8)
1012C(9)
For the purposes of subsection (8):
(a)
a financial product is taken to be:
(i)
sold with the purpose referred to in subparagraph (8)(d)(i); or
(ii)
acquired with the purpose referred to in subparagraph (8)(d)(ii);
if there are reasonable grounds for concluding that the product was sold or acquired with that purpose (whether or not there were or may have been other purposes for the sale or acquisition); and
(b)
without limiting paragraph (a), a financial product is taken to be:
(i)
sold with the purpose referred to in subparagraph (8)(d)(i); or
(ii)
acquired with the purpose referred to in subparagraph (8)(d)(ii);
if the financial product, or any financial product of the same kind that was sold by the controller at the same time, is subsequently sold, or offered for sale, within 12 months after issue, unless it is proved that the circumstances of the initial sale and the subsequent sale or offer are not such as to give rise to reasonable grounds for concluding that the product was sold or acquired (in the initial sale) with that purpose.
History
S 1012C(9) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
This section has effect subject to other provisions
1012C(10)
This section does not apply to a regulated person for a sale situation if:
(a)
one or more of sections
1012D
,
1012DA
,
1012E
or
1014E
apply to a regulated person for that sale situation; and
(b)
for each of those sections that so applies
-
the regulated person complies with the requirements (if any) in that section for that sale situation.
History
S 1012C(10) substituted by No 69 of 2023, s 3, Sch 3[29] (effective 15 September 2023).
Civil liability
1012C(11)
A person contravenes this subsection if the person contravenes this section.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 1012C(11) inserted by No 17 of 2019, s 3, Sch 1
[
97] (effective 13 March 2019).
SECTION 1012D
SITUATIONS IN WHICH PRODUCT DISCLOSURE STATEMENT IS NOT REQUIRED
CCH Note:
Section 1012D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Recommendation, issue or sale situation
-
client has already received an up to date Product Disclosure Statement
1012D(1)
In a recommendation situation, issue situation or sale situation, the regulated person does not have to give the client a Product Disclosure Statement if:
(a)
the client has already received a Product Disclosure Statement that contains all of the information that the first-mentioned Product Disclosure Statement would be required to contain; or
(b)
the regulated person believes on reasonable grounds that paragraph (a) applies.
[
CCH Note:
For substituted s 1012D(1), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.1]
History
S 1012D(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Recommendation, issue or sale situation
-
client has or has access to up to date information
1012D(2)
In a recommendation situation, issue situation or sale situation, the regulated person does not have to give the client a Product Disclosure Statement for the financial product if:
(a)
the client already holds a financial product of the same kind; and
(b)
the regulated person believes on reasonable grounds that the client has received, or has, and knows that they have, access to, all of the information that the first-mentioned Product Disclosure Statement would be required to contain through:
(i)
a Product Disclosure Statement; and
(ii)
information provided to the client under section
1017B
,
1017C
or
1017D
or through continuous disclosure under Chapter
6CA
.
Note: Paragraph (a)
-
see subsection
(10)
.
[
CCH Note:
For substituted s 1012D(2), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.1]
History
S 1012D(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Recommendation or issue situation
-
interests in self managed superannuation funds
1012D(2A)
In a recommendation situation or issue situation, the regulated person does not have to give the client a Product Disclosure Statement for the financial product if:
(a)
the financial product is an interest in a self managed superannuation fund; and
(b)
the regulated person believes on reasonable grounds that the client has received, or has, and knows that they have, access to, all of the information that the Product Disclosure Statement would be required to contain.
[
CCH Note:
S 1012D(2A) omitted by Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.1]
History
S 1012D(2A) amended by No 49 of 2019, s 3, Sch 4
[
38] and
[
39] (effective 6 April 2019).
S 1012D(2A) inserted by No 141 of 2003, s 3, Sch 2
[
70].
Recommendation, issue or sale situation
-
no information required to be in Product Disclosure Statement
1012D(2B)
In a recommendation situation, issue situation or sale situation, the regulated person does not have to give the client a Product Disclosure Statement for the financial product if, because of section
1013F
, no information would be required to be included in the Statement.
[
CCH Note:
S 1012D(2B) omitted by Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.1]
History
S 1012D(2B) inserted by No 141 of 2003, s 3, Sch 2
[
70].
Recommendation or issue situation
-
certain offers to present holders
1012D(3)
In a recommendation situation or issue situation, the regulated person does not have to give the client a Product Disclosure Statement for the financial product if:
(a)
the client already holds a financial product of the same kind; and
(b)
either:
(i)
in a recommendation situation
-
the advice that constitutes the relevant conduct relates to an offer made under a distribution reinvestment plan or switching facility; or
(ii)
in an issue situation
-
the offer or issue that constitutes the relevant conduct is made under a distribution reinvestment plan or switching facility.
Note: Paragraph (a)
-
see subsection
(10)
.
[
CCH Note:
For s 1012D(3)
-
(3F), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.1]
History
S 1012D(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
The next subsection is s 1012D(5).]
Recommendation, issue or sale situation
-
no consideration to be provided
1012D(5)
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 if:
(a)
no consideration is to be provided for the issue or sale of the financial product; and
(b)
the financial product is not an option and is:
(i)
a managed investment product; or
(ia)
a foreign passport fund product; or
(ii)
a financial product of a kind prescribed by regulations made for the purposes of this subparagraph.
[
CCH Note:
For modified s 1012D(5), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.2]
History
S 1012D(5) amended by No 61 of 2018, s 3, Sch 2[254] (effective 18 September 2018).
S 1012D(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1012D(6)
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 if:
(a)
the financial product is an option; and
(b)
no consideration is to be provided for the issue or sale of the financial product; and
(c)
no consideration is to be provided for the underlying financial product on the exercise of the option.
[
CCH Note:
For modified s 1012D(6), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.3]
History
S 1012D(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Issue or sale situation
-
takeovers
1012D(7)
In an issue situation or a sale situation, the regulated person does not have to give the client a Product Disclosure Statement if:
(a)
the financial product is:
(i)
a managed investment product; or
(ia)
a foreign passport fund product; or
(ii)
an option to acquire, by way of transfer, a share in a body, a debenture of a body or a legal or equitable right or interest in a share in a body or a debenture of a body; and
(b)
the offer that constitutes the relevant conduct is made as consideration for an offer made under a takeover bid under Chapter
6
; and
(c)
the offer is accompanied by a bidder
'
s statement.
Note: Although a Product Disclosure Statement is not needed, disclosures must be made in the bidder
'
s document under
section 636
.
[
CCH Note:
S 1012D(7) omitted by Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.4]
History
S 1012D(7) amended by No 61 of 2018, s 3, Sch 2[255] (effective 18 September 2018).
S 1012D(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Recommendation, issue or sale situation
-
responsible entity an exempt body corporate
1012D(8)
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 if:
(a)
the financial product is a financial product described in paragraph
764A(1)(ba)
(which relates to certain managed investment schemes that are not registered schemes); and
(b)
the holder of the office (by whatever name it is known), in relation to the managed investment scheme, that corresponds most closely to the office of responsible entity of a registered scheme is an exempt body corporate of a State or Territory; and
(c)
in the case of a recommendation situation or an issue situation
-
either:
(i)
the recommendation that constitutes the relevant conduct relates to an offer made by the office holder referred to in paragraph (b); or
(ii)
the offer that constitutes the relevant conduct is made by or to the office holder referred to in paragraph (b).
Note 1:
Section 66A
defines
exempt body corporate
of a State or Territory.
Note 2: In the case of a sale situation, there is no additional requirement equivalent to paragraph (c).
[
CCH Note:
S 1012D(8) omitted by Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.4]
History
S 1012D(8) amended by No 69 of 2023, s 3, Sch 2[153] and
[
154] (effective 15 September 2023).
S 1012D(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Recommendation or issue situation
-
interim contracts of insurance
1012D(9)
In a recommendation situation or an issue situation, the regulated person does not have to give the client a Product Disclosure Statement if the financial product is an interim contract of insurance (as defined in subsection
11(2)
of the
Insurance Contracts Act 1984
).
Note: This does not detract from the obligation to give a Product Disclosure Statement relating to any contract of insurance that replaces or supersedes the interim contract.
[
CCH Note:
S 1012D(9) omitted by Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.4]
History
S 1012D(9) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1012D(9A), see Corporations Regulations Schedule 10A, Part 6
-
Modifications relating to application forms and Product Disclosure Statements for standard employer-sponsor arrangements and successor funds, item 6.3]
Recommendation, issue or sale situation
-
client is associated with registered scheme
1012D(9A)
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 if:
(a)
the financial product is a managed investment product; and
(b)
the client is associated (within the meaning of subsection
(9B)
) with the scheme
'
s responsible entity.
[
CCH Note:
S 1012D(9A) omitted by Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.4]
History
S 1012D(9A) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1012D(9B)
For the purposes of subsection
(9A)
, the client is associated with the scheme
'
s responsible entity if the client is:
(a)
a senior manager of the responsible entity or of a related body corporate; or
(b)
a spouse, parent, child, brother or sister of a person who is a senior manager of the responsible entity or a related body corporate; or
(c)
a body corporate controlled by a person referred to in paragraph (a) or (b).
[
CCH Note:
S 1012D(9B) omitted by Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.4]
History
S 1012D(9B) amended by No 103 of 2004, s 3, Sch 9
[
68].
S 1012D(9B) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1012D(9C) and (9D), see Corporations Regulations Schedule 10A, Part 2
-
Modifications relating to Product Disclosure Statements for RSA products, item 2.1 and Part 3
-
Modifications relating to insurance options under contract associated with superannuation interest, item 3.1. For s 1012D(9E)
-
(9G), see Corporations Regulations Schedule 10A, Part 18
-
Modification of Part 7.9 of the Act
-
New Zealand offer documents replace Product Disclosure Statementswhere an offer relates to interests in a New Zealand managed investment scheme, item 18.1]
Recommendation, issue or sale situation
-
client is associated with a notified foreign passport fund
1012D(9C)
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 if:
(a)
the financial product is a foreign passport fund product; and
(b)
the client is associated (within the meaning of subsection
(9D)
) with the fund
'
s operator.
History
S 1012D(9C) inserted by No 61 of 2018, s 3, Sch 2[256] (effective 18 September 2018).
1012D(9D)
For the purposes of subsection
(9C)
, the client is associated with the fund
'
s operator if the client is:
(a)
a senior manager of the operator or of a related body corporate; or
(b)
a spouse, parent, child, brother or sister of a person who is a senior manager of the operator or a related body corporate; or
(c)
a body corporate controlled by a person referred to in paragraph (a) or (b).
History
S 1012D(9D) inserted by No 61 of 2018, s 3, Sch 2[256] (effective 18 September 2018).
Interpretation
1012D(10)
For the purposes of this section:
(a)
a financial product (other than a managed investment product, a foreign passport fund product or a superannuation product) is of the same kind as another financial product only if they are both issued:
(i)
by the same issuer; and
(ii)
on the same terms and conditions (other than price); and
(b)
a managed investment product, a foreign passport fund product or a superannuation product is of the same kind as another product only if the other product is an interest in the same scheme or fund; and
(c)
a referenceto information that a Product Disclosure Statement would be required to contain includes a reference to information that would be required to be in any statement that the Product Disclosure Statement would be required to contain.
[
CCH Note:
For substituted s 1012D(10)(b), see Corporations Regulations Schedule 10A, Part 1
-
Modifications relating to sub-plans, item 1.1]
[
CCH Note:
S 1012D(10) omitted by Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.4]
History
S 1012D(10) amended by No 61 of 2018, s 3, Sch 2[257] and
[
258] (effective 18 September 2018).
S 1012D(10) amended by No 141 of 2003, s 3, Sch 2
[
71].
S 1012D(10) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1012DAA
RIGHTS ISSUES FOR WHICH PRODUCT DISCLOSURE STATEMENT IS NOT REQUIRED
CCH Note:
Section 1012DAA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1012DAA(1)
In a recommendation situation or issue situation, the regulated person does not have to give the client a Product Disclosure Statement if:
(a)
but for subsection
(2)
, the regulated person would be required by section
1012B
to give a Product Disclosure Statement for the transfer or issue of a financial product (the
relevant product
); and
(b)
a determination under subsection
(3)
was not in force in relation to the issuer of the relevant product at the time when the relevant product was issued.
Conditions required for rights issue
1012DAA(2)
The regulated person does not have to give the client a Product Disclosure Statement if:
(a)
the relevant product is being offered under a rights issue; and
(b)
the class of the relevant product are quoted securities at the time at which the offer is made; and
(c)
trading in that class of the relevant product on a prescribed financial market on which they are quoted was not suspended for more than a total of 5 days during the shorter of the following periods:
(i)
the period during which the class of the relevant product is quoted;
(ii)
the period of 12 months before the day on which the offer is made; and
(d)
no exemption under section
111AS
or
111AT
covered the issuer of the relevant product, or any person as director or auditor of the issuer, at any time during the relevant period referred to in paragraph
(c)
; and
(e)
no order under section
340
,
340A
,
341
or
341A
covered the issuer of the relevant product, or any person as director or auditor of the issuer, at any time during the relevant period referred to in paragraph
(c)
; and
(f)
the issuer of the relevant product gives the relevant market operator for the issuer a written notice that complies with subsection
(7)
within the 24 hour period before the relevant conduct occurs.
History
S 1012DAA(2) amended by No 61 of 2018, s 3, Sch 2[259] (effective 18 September 2018).
Determination by ASIC
1012DAA(3)
ASIC may make a determination under this subsection if ASIC is satisfied that in the previous 12 months the issuer of the relevant product contravened any of the following provisions:
(a)
the provisions of Chapter
2M
as they apply to the registered scheme in which the relevant product is an interest;
(aa)
the provisions of Chapter
2M
as they apply to the notified foreign passport fund in which the relevant product is an interest;
(b)
section
674
,
674A
,
675
or
675A
as it applies to the registered scheme in which the relevant product is an interest;
(ba)
section
674
,
674A
,
675
or
675A
as it applies to the notified foreign passport fund in which the relevant product is an interest;
(c)
section
1016E
,
1021D
,
1021E
or
1021J
;
(d)
subsection
(10)
of this section;
(e)
section
1308
as it applies to a notice under subsection
(2)
of this section.
History
S 1012DAA(3) amended by No 82 of 2021, s 3, Sch 2[35] and
[
36] (effective 14 August 2021).
S 1012DAA(3) amended by No 61 of 2018, s 3, Sch 2[260] and
[
261] (effective 18 September 2018).
1012DAA(4)
The determination must be made in writing and a copy must be published in the
Gazette
as soon as practicable after the determination is made.
1012DAA(5)
The determination made under subsection
(3)
is not a legislative instrument.
1012DAA(6)
A failure to publish a copy of the determination does not affect the validity of the determination.
Requirements for notice
1012DAA(7)
A notice complies with this subsection if the notice:
(a)
states that the relevant product was issued without a Product Disclosure Statement for the relevant product being prepared; and
(b)
states that the notice is being given under paragraph
(2)(f)
; and
(c)
states that, as a disclosing entity, the issuer of the relevant product is subject to regular reporting and disclosure obligations; and
(d)
if the relevant product is a managed investment product
-
states that, as at the date of the notice, the issuer of the relevant product has complied with:
(i)
the provisions of Chapter
2M
as they apply to the registered scheme in which the relevant product is an interest; and
(ii)
sections
674
and
674A
as they applies to that registered scheme; and
(da)
if the relevant product is a foreign passport fund product
-
states that, as at the date of the notice, the issuer of the relevant product has complied with:
(i)
the provisions of Chapter
2M
as they apply to the fund in which the relevant product is an interest; and
(ii)
sections
674
and
674A
as they apply to that fund; and
(e)
sets out any information that is excluded information as at the date of the notice (see subsections
(8)
and
(9)
); and
(f)
states:
(i)
the potential effect the issue of the relevant product will have on the control of the body; and
(ii)
the consequences of that effect.
Note 1: A person is taken not to contravene section
1021C
if a notice purports to comply with this subsection but does not actually comply with this subsection: see subsection
1021C(5)
.
Note 2: A notice must not be false or misleading in a material particular, or omit anything that would render it misleading in a material respect: see sections
1308
and
1309
. The issuer has an obligation to correct a defective notice: see subsection
(10)
of this section.
History
S 1012DAA(7) amended by No 82 of 2021, s 3, Sch 2[37] and
[
38] (effective 14 August 2021).
S 1012DAA(7) amended by No 61 of 2018, s 3, Sch 2[262] and
[
263] (effective 18 September 2018).
1012DAA(8)
For the purposes of subsection
(7)
, excluded information is information:
(a)
that has been excluded from a continuous disclosure notice in accordance with the listing rules of the relevant market operator to whom that notice is required to be given; and
(b)
that a person would reasonably require for the purpose of making a decision, as a retail client, whether to acquire the relevant product.
1012DAA(9)
The notice given under subsection
(2)
must contain any excluded information only to the extent to which it is reasonable for a person considering, as a retail client, whether to acquire the relevant product to expect to find the information in a Product Disclosure Statement.
Obligation to correct defective notice
1012DAA(10)
The issuer of the relevant product contravenes this subsection if:
(a)
the notice given under subsection
(2)
is defective; and
(b)
the issuer becomes aware of the defect in the notice within 12 months after the relevant product is issued; and
(c)
the issuer does not, within a reasonable time after becoming aware of the defect, give the relevant market operator a notice that sets out the information necessary to correct the defect.
1012DAA(11)
For the purposes of subsection
(10)
, the notice under subsection
(2)
is
defective
if the notice:
(a)
does not comply with paragraph
(2)(f)
; or
(b)
is false or misleading in a material particular; or
(c)
has omitted from it a matter or thing, the omission of which renders the notice misleading in a material respect.
History
S 1012DAA inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
137].
SECTION 1012DA
PRODUCT DISCLOSURE STATEMENT NOT REQUIRED FOR SALE AMOUNTING TO INDIRECT ISSUE
CCH Note:
Section 1012DA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Product Disclosure Statement not required
1012DA(1)
In a recommendation situation or sale situation, the regulated person does not have to give the client a Product Disclosure Statement if:
(a)
but for subsection
(5)
,
(11)
or
(12)
, the regulated person would be required by section
1012A
or
1012C
to give a Product Disclosure Statement for the relevant product; and
(b)
the transfer or sale of the financial product (the
relevant product
) to the client would take place in circumstances covered by subsection
1012C(6)
; and
(c)
the relevant product was not issued by the issuer with the purpose referred to in subparagraph
1012C(6)(c)(i)
; and
(d)
a determination under subsection
(2)
was not in force in relation to the issuer of the relevant product at the time when the relevant product was issued.
History
S 1012DA(1) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
1012DA(1A)
In a recommendation situation or sale situation, the regulated person does not have to give the client a Product Disclosure Statement if:
(a)
but for subsection
(5)
, the regulated person would be required by section
1012C
to give a Product Disclosure Statement for the transfer or sale of the financial product (the
relevant product
); and
(b)
the transfer or sale of the relevant product to the client would take place in circumstances covered by subsection
1012C(8)
; and
(c)
the relevant product was not sold by the controller with the purpose referred to in subparagraph
1012C(8)(d)(i)
; and
(d)
a determination under subsection
(2)
was not in force in relation to the issuer of the relevant product at the time when the relevant product was issued.
History
S 1012DA(1A) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
138].
Determination by ASIC
1012DA(2)
ASIC may make a determination under this subsection if ASIC is satisfied that in the previous 12 months the issuer of the relevant product contravened any of the following provisions:
(a)
the provisions of Chapter
2M
as they apply to:
(i)
the issuer; or
(ii)
if the relevant product is an interest in a registered scheme
-
the scheme; or
(iii)
if the relevant product is an interest in a notified foreign passport fund
-
the fund;
(b)
section
674
,
674A
,
675
or
675A
as it applies to:
(i)
the issuer; or
(ii)
if the relevant product is an interest in a registered scheme
-
the scheme; or
(iii)
if the relevant product is an interest in a notified foreign passport fund
-
the fund;
(c)
section
1016E
,
1021D
,
1021E
or
1021J
;
(d)
subsection
(9)
of this section;
(e)
section
1308
as it applies to a notice under subsection
(5)
of this section.
History
S 1012DA(2) amended by No 82 of 2021, s 3, Sch 2[39] (effective 14 August 2021).
S 1012DA(2) amended by No 61 of 2018, s 3, Sch 2[264] and
[
265] (effective 18 September 2018).
S 1012DA(2) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
1012DA(3)
The determination must be made in writing and a copy must be published in the
Gazette
as soon as practicable after the determination is made.
History
S 1012DA(3) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
1012DA(4)
A failure to publish a copy of the determination does not affect the validity of the determination.
History
S 1012DA(4) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
Transfer or sale of quoted securities
-
case 1
1012DA(5)
The regulated person does not have to give the client a Product Disclosure Statement if:
(a)
the relevant product is in a class of financial products that were quoted securities at all times in the 3 months before the day on which the relevant product was issued; and
(b)
trading in that class of financial products on a prescribed financial market on which they were quoted was not suspended for more than a total of 5 days during the shorter of the period during which the class of financial product was quoted, and the period of 12 months before the day on which the relevant product was issued; and
(c)
no exemption under section
111AS
or
111AT
covered the issue of the relevant product, or any person as director or auditor of the issuer, at any time during the relevant period referred to in paragraph
(b)
; and
(d)
no order under section
340
,
340A
,
341
or
341A
covered the issuer of the relevant product, or any person as director or auditor of the issuer, at any time during the relevant period referred to in paragraph
(b)
; and
(e)
either:
(i)
if the regulated person is not required under subsection
(1)
to give a Product Disclosure Statement
-
the issuer of the relevant product gives the relevant market operator for the issuer a written notice that complies with subsection
(6)
before the relevant conduct occurs; or
(ii)
if the regulated person is not required under subsection
(1A)
to give a Product Disclosure Statement
-
both the issuer of the relevant product, and the controller, give the relevant market operator for the issuer a written notice that complies with subsection
(6)
before the relevant conduct occurs.
History
S 1012DA(5) amended by No 61 of 2018, s 3, Sch 2[266] (effective 18 September 2018).
S 1012DA(5) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
139
-
142].
S 1012DA(5) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
1012DA(6)
A notice complies with this subsection if the notice:
(a)
is given within 5 business days after the day on which the relevant product was issued; and
(b)
states that the relevant product was issued without a Product Disclosure Statement for the relevant product being prepared; and
(c)
states that the notice is being given under paragraph
(5)(e)
; and
(d)
states that, as a disclosing entity, the issuer of the relevant product is subject to regular reporting and disclosure obligations; and
(e)
states that, as at the date of the notice, the issuer of the relevant product has complied with the provisions of Chapter
2M
, and of sections
674
and
674A
, as those provisions apply to:
(i)
the issuer; or
(ii)
if the relevant product is an interest in a registered scheme
-
the scheme; or
(iii)
if the relevant product is an interest is a notified foreign passport fund
-
the fund; and
(f)
sets out any information that is excluded information as at the date of the notice (see subsections
(7)
and
(8)
).
Note 1: A person is taken not to contravene section
1021C
if a notice purports to comply with this subsection but does not actually comply with this subsection: see subsection
1021C(5)
.
Note 2: A notice must not be false or misleading in a material particular, or omit anything that would render it misleading in a material respect: see sections
1308
and
1309
. The issuer has an obligation to correct a defective notice: see subsection
(9)
of this section.
History
S 1012DA(6) amended by No 82 of 2021, s 3, Sch 2[40] (effective 14 August 2021).
S 1012DA(6) amended by No 61 of 2018, s 3, Sch 2[267] (effective 18 September 2018).
S 1012DA(6) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
1012DA(7)
For the purposes of subsection
(6)
, excluded information is information:
(a)
that has been excluded from a continuous disclosure notice in accordance with the listing rules of the relevant market operator to whom that notice is required to be given; and
(b)
that a person would reasonably require for the purpose of making a decision, as a retail client, whether to acquire the relevant product.
History
S 1012DA(7) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
1012DA(8)
The notice given under subsection
(5)
must contain any excluded information only to the extent to which it is reasonable for a person considering, as a retail client, whether to acquire the relevant product to expect to find the information in a Product Disclosure Statement.
History
S 1012DA(8) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
Obligation to correct defective notice
1012DA(9)
The issuer of the relevant product contravenes this subsection if:
(a)
the notice given under subsection
(5)
is defective; and
(b)
the issuer becomes aware of the defect in the notice within 12 months after the relevant product is issued; and
(c)
the issuer does not, within a reasonable time after becoming aware of the defect, give the relevant market operator a notice that sets out the information necessary to correct the defect.
History
S 1012DA(9) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
1012DA(10)
For the purposes of subsection
(9)
, the notice under subsection
(5)
is
defective
if the notice:
(a)
does not comply with paragraph
(6)(f)
; or
(b)
is false or misleading in a material particular; or
(c)
has omitted from it a matter or thing the omission of which renders the notice misleading in a material respect.
History
S 1012DA(10) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
Transfer or sale of quoted securities
-
case 2
1012DA(11)
The regulated person does not have to give the client a Product Disclosure Statement if:
(a)
the relevant product is in a class of financial products that are quoted securities of the issuer; and
(b)
either:
(i)
a Product Disclosure Statement required to be given by section
1012B
is lodged with ASIC on or after the day on which the relevant product is issued but before the day on which the relevant conduct occurs; or
(ii)
a Product Disclosure Statement required to be given by section
1012B
is lodged with ASIC before the day on which the relevant product is issued and, on the day on which the relevant product is issued, the Product Disclosure Statement is still being used by the issuer of the relevant product for offers of financial products in the same class of financial products as the relevant product; and
(c)
the Product Disclosure Statement is for a financial product of the issuer of the relevant product that is in the same class of financial products as the relevant product.
[
CCH Note:
S 1012DA(11) will be amended by No 69 of 2020, s 3, Sch 1[1167], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b)(i) and (ii) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1012DA(11) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
Transfer or sale of quoted securities
-
case 3
1012DA(12)
The regulated person does not have to give the client a Product Disclosure Statement if:
(a)
a Product Disclosure Statement for a financial product was given under section
1012B
; and
(b)
the relevant product was issued to:
(i)
a person (the
underwriter
) named in that Product Disclosure Statement as an underwriter of the issue of the financial product; or
(ii)
a person nominated by the underwriter; and
(c)
the relevant product was issued to the underwriter, or the person nominated by the underwriter, at or about the time that persons who applied for the financial product under that Product Disclosure Statement were issued with that product; and
(d)
the relevant product is in a class of financial products that were quoted securities of the issuer.
History
S 1012DA(12) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
22].
SECTION 1012E
SMALL SCALE OFFERINGS OF MANAGED INVESTMENT AND OTHER PRESCRIBED FINANCIAL PRODUCTS (20 ISSUES OR SALES IN 12 MONTHS)
CCH Note:
Section 1012E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1012E(1)
This section applies only to financial products that are:
(a)
managed investment products; or
(b)
financial products of a kind prescribed by regulations made for the purposes of this paragraph.
1012E(2)
Personal offers of financial products do not need a Product Disclosure Statement under this Part if:
(a)
all of the financial products are issued by the same person (the
issuer
); and
(b)
none of the offers results in a breach of the 20 purchasers ceiling (see subsections (6) and (7)); and
(c)
none of the offers results in a breach of the $2 million ceiling (see subsections (6) and (7)).
1012E(3)
Subsection (2) does not apply to an offer to which
subsection 1012C(6)
(sale amounting to indirect issue) or
(8)
(sale amounting to indirect sale by controller) applies.
Note: Under
section 1012K
, ASIC may make a determination aggregating the transactions of bodies that ASIC considers to be closely related.
1012E(4)
If subsection (2) applies to an offer of a financial product, a recommendation to a person to acquire a financial product in response to a personal offer of that kind does not need a Product Disclosure Statement under this Part.
1012E(5)
For the purposes of subsections (2) and (4), a
personal offer
is one that:
(a)
may only be accepted by the person to whom it is made; and
(b)
is made to a person who is likely to be interested in the offer, having regard to:
(i)
previous contact between the person making the offer and that person; or
(ii)
some professional or other connection between the person making the offer and that person; or
(iii)
statements or actions by that person that indicate that they are interested in offers of that kind.
1012E(6)
An offer to issue, or arrange for the issue of, a financial product:
(a)
results in a breach of the 20 purchasers ceiling if it results in the number of people to whom the issuer has issued financial products exceeding 20 in any 12 month period; and
(b)
results in a breach of the $2 million ceiling if it results in the amount raised by the issuer from issuing financial products exceeding $2 million in any 12 month period.
1012E(7)
An offer by a person to sell a financial product:
(a)
results in a breach of the 20 purchasers ceiling if it results in the number of people to whom the person sells financial products issued by the issuer of that financial product exceeding 20 in any 12 month period; and
(b)
results in a breach of the $2 million ceiling if it results in the amount raised by the person from selling financial products issued by the issuer of that financial product exceeding $2 million in any 12 month period.
1012E(8)
In counting issues and sales of the financial products issued by the issuer, and the amount raised from issues and sales, for the purposes of subsection (2), disregard issues and sales that result from offers that:
(a)
do not need a Product Disclosure Statement (otherwise than because of this section); or
(b)
are made under a Product Disclosure Statement.
Note 1: Also see provisions on restrictions on advertising (
section 1018A
) and the anti-hawking provisions in
section 992A
.
Note 2: Issues and sales that result from offers that are eligible to bemade under Division
1A
of Part
7.12
(Employee share schemes) are also disregarded for the purposes of subsection
(2)
: see subsection
1100ZC(4)
.
History
S 1012E(8) amended by No 14 of 2022, s 3, Sch 4[31] and
[
32] (effective 1 October 2022).
1012E(9)
In counting issues and sales of the financial products issued by the issuer, and the amount raised from issues and sales, for the purposes of subsection (2), disregard any issues and sales made by a body if:
(a)
the body was a managed investment scheme (but not a registered scheme) at the time that the offer of interests in the scheme that resulted in the issues or sales was made; and
(b)
the body became a registered scheme within 12 months after that offer was made; and
(c)
the offer would not have required a Product Disclosure Statement (otherwise than because of this section) if the managed investment scheme had been a registered scheme at the time that the offer was made.
1012E(10)
In working out the amount of money raised by the issuer from issuing financial products, include the following:
(a)
the amount payable for the financial products at the time when they are issued;
(b)
if the financial product is an option
-
any amount payable on the exercise of the option;
(c)
if the financial products carry a right to convert the financial product into other financial products
-
any amount payable on the exercise of that right.
1012E(11)
If a person relies on subsection (2) to make offers of financial products without a Product Disclosure Statement under this Part, the person must not issue, arrange for the issue of, or transfer, financial products without a Product Disclosure Statement under this Part if the issue or transfer would result in a breach of the 20 purchasers ceiling or the $2 million ceiling (see subsections (6), (7), (8), (9) and (10)).
1012E(12)
For the purposes of this section, an
offer of a financial product
is an offer to:
(a)
issue the financial product; or
(b)
arrange for the issue of the financial product; or
(c)
sell the financial product.
History
S 1012E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1012F
1012F
PRODUCT DISCLOSURE STATEMENT FOR CERTAIN SUPERANNUATION PRODUCTS MAY BE PROVIDED LATER
CCH Note:
Section 1012F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
In a recommendation situation or an issue situation in which the financial product is a superannuation product of a kind specified in regulations made for the purposes of this section, the regulated person:
(a)
need not give the client the Product Disclosure Statement at or before the time when it would otherwise be required to be given; and
(b)
must give the client the Product Disclosure Statement as soon as is reasonably practicable and in any event within 3 months after the product is issued to the client; and
(c)
need not give the client the Product Disclosure Statement at all if the client ceases to be a member of the superannuation fund concerned before the regulated person is required to give the Product Disclosure Statement under paragraph (b).
History
S 1012F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1012G
PRODUCT DISCLOSURE STATEMENT MAY SOMETIMES BE PROVIDED LATER
CCH Note:
Section 1012G is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1012G(1)
The regulated person may deal with a financial product under this section only if:
(a)
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; or
(b)
the financial product is:
(i)
a basic deposit product; or
(ii)
a facility for making non-cash payments that is related to a basic deposit product; or
(iii)
a financial product of a kind prescribed by regulations made for the purposes of this subparagraph.
History
S 1012G(1) amended by No 76 of 2023, s 3, Sch 2
[
507] (effective 20 October 2023).
S 1012G(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1012G(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 with subsection (3) instead.
History
S 1012G(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1012G(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; and
(ii)
information about the essential features of the financial product; and
(iii)
the information that would be required to be in a Product Disclosure Statement for the financial product by paragraphs
1013D(1)
(c), (d), (g) and (i); and
(b)
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 day after the day on which the financial product was issued or sold to the client.
History
S 1012G(3) amended by No 141 of 2003, s 3, Sch 2
[
71A].
S 1012G(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1012G(3A)
The information referred to in paragraph (3)(a) must be communicated in a clear, concise and effective manner.
History
S 1012G(3A) inserted by No 141 of 2003, s 3, Sch 2
[
71B].
1012G(4)
For the purposes of paragraph (3)(b), 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)
.
History
S 1012G(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1012GA
PRODUCT DISCLOSURE STATEMENT FOR CERTAIN GENERAL INSURANCE PRODUCT QUOTES MAY BE PROVIDED LATER, OR IS NOT REQUIRED
CCH Note:
Section 1012GA is modified by the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1012GA(1)
A regulated person, in making an offer to issue, or an offer to arrange for the issue of, a general insurance product to a client, may deal with the product under this section only if:
(a)
the offer is made by or at the same time as giving a quote to the client in the course of, or because of, a telephone call with the client that is not unsolicited contact; and
(b)
in the course of the phone call, but before the offer is made, the regulated person orally communicates the following information to the client in a clear, concise and effective manner:
(i)
if the insurance cover under the product is subject to exclusions or limitations
-
that fact, and the fact that information about those exclusions and limitations is contained in the Product Disclosure Statement for the product;
(ii)
that the level of insurance cover under the product may be different from the level of insurance cover under other general insurance products; and
(c)
the regulated person asks the client whether the client wants to be given a Product Disclosure Statement for the product, but does not influence the client
'
s decision to elect to be given the Product Disclosure Statement.
History
S 1012GA(1) amended by No 76 of 2023, s 3, Sch 3[30] (effective 20 October 2023).
1012GA(2)
In the course of the telephone call:
(a)
if the client informs the regulated person that the client wants to be given the Product Disclosure Statement
-
the regulated person must give the Product Disclosure Statement to the client as soon as practicable after the time the offer is made; or
(b)
if the client informs the regulated person that the client does not want to be given the Product Disclosure Statement
-
the regulated person does not have to give the client the Product Disclosure Statement in relation to the making of the offer.
Note: The regulated person may need to give a Product Disclosure Statement to the client at or before the time specified in section
1012B
if, in the course of the telephone call or later, the client applies for, or otherwise offers to acquire, the product, or the product is issued to the client.
1012GA(3)
In this section:
quote
means, in relation to a general insurance product, a statement of the cost (and not merely an estimate of the likely cost) of the product if the cost is calculated by a regulated person having regard to information given to them by a client.
History
S 1012GA inserted by No 69 of 2023, s 3, Sch 3[30] (effective 15 September 2023).
SECTION 1012H
OBLIGATION TO TAKE REASONABLE STEPS TO ENSURE THAT PRODUCT DISCLOSURE STATEMENT IS GIVEN TO PERSON ELECTING TO BE COVERED BY GROUP FINANCIAL PRODUCT
CCH Note:
Section 1012H is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1012H(1)
This section covers the situation in which a financial product:
(a)
is issued to a person; and
(b)
covers, or is designed to cover, a group of people; and
(c)
may cover a particular person (the
new group member
) if the person elects to be covered by the financial product.
1012H(2)
The issuer must take reasonable steps to ensure that the new group member is given a Product Disclosure Statement for the financial product in accordance with this Division before the new group member makes an election to be covered by the financial product.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
1012H(3)
For the purposes of this section, a person is covered by a financial product if benefits are, or may be, provided under the financial product directly to:
(a)
the person; or
(b)
a relative of the person; or
(c)
a person nominated by the person.
History
S 1012H inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1012I
OBLIGATION TO GIVE EMPLOYER A PRODUCT DISCLOSURE STATEMENT IN RELATION TO CERTAIN SUPERANNUATION PRODUCTS AND RSAs
CCH Note:
Section 1012I is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1012I(1)
At or before the time when a person (the
applicant
) becomes a standard employer-sponsor of a superannuation entity, the person (the
issuer
) who is to provide the superannuation products to the applicant
'
s employees must give the applicant a Product Disclosure Statement in accordance with this Division for each of those superannuation products.
1012I(2)
If:
(a)
a person (the
applicant
) applies for the issue of an RSA to the employee; and
(b)
the applicant has not previously applied to the RSA provider for the issue to any employee of an RSA of the same kind;
the person (the
issuer
) who is to issue the RSA to the employee must, at or before the time when the RSA is issued to the employee, give the applicant a Product Disclosure Statement in accordance with this Division for the RSA.
History
S 1012I(2) amended by No 76 of 2023, s 3, Sch 2
[
509] (effective 20 October 2023).
1012I(2A)
If:
(a)
a trustee (the
applicant
), under
Part 24
of the
Superannuation Industry (Supervision) Act 1993
, applies on behalf of a person for the issue of an interest in a relevant superannuation entity; and
(b)
the applicant has not previously applied under that Part for the issue of an interest in that entity on behalf of any person;
the person (the
issuer
) who is to issue the interest to the person must, at or before the time when the interest is issued to the person, give the applicant a Product Disclosure Statement in accordance with this Division for the interest.
1012I(2B)
If:
(a)
a trustee (the
applicant
), under
Part 9
of the
Retirement Savings Accounts Act 1997
, applies on behalf of a person for the issue of an interest in a relevant superannuation entity; and
(b)
the applicant has not previously applied under that Part for the issue of an interest in that entity on behalf of any person;
the person (the
issuer
) who is to issue the interest to the person must, at or before the time when the interest is issued to the person, give the applicant a Product Disclosure Statement in accordance with this Division for the interest.
[
CCH Note:
For s 1012I(2C), see Corporations Regulations Schedule 10A, Part 17
-
Modifications relating to application forms for specified superannuation products, item 17.2]
1012I(3)
The issuer does not have to give the applicant a Product Disclosure Statement under subsection
(1)
,
(2)
,
(2A)
or
(2B)
for a financial product if:
(a)
the applicant has already received a Product Disclosure Statement for that financial product that contains all of the information that the first-mentioned Product Disclosure Statement would be required to contain; or
(b)
the issuer believes on reasonable grounds that paragraph (a) applies.
Note: Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section
1014D
).
1012I(4)
The issuer need not give the applicant a Product Disclosure Statement under subsection
(1)
,
(2)
,
(2A)
or
(2B)
in the circumstances specified in the regulations.
1012I(5)
In this section:
(a)
terms used in subsection
(1)
that are defined for the purposes of the
Superannuation Industry (Supervision) Act 1993
have the same meanings as in that Act; and
(b)
terms used in subsection
(2)
that are defined for the purposes of the
Retirement Savings Accounts Act 1997
have the same meanings as in that Act; and
(c)
relevant superannuation entity
has the same meaning as in section
1016A
of this Act.
History
S 1012I inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1012IA
TREATMENT OF ARRANGEMENTS UNDER WHICH A PERSON CAN INSTRUCT ANOTHER PERSON TO ACQUIRE A FINANCIAL PRODUCT
CCH Note:
Section 1012IA is modified by the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed PortfolioServices) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Definitions
1012IA(1)
In this section:
acquirer
, in relation to a custodial arrangement, has the meaning given by the definition of
custodial arrangement
.
client
, in relation to a custodial arrangement, has the meaning given by the definition of
custodial arrangement
.
custodial arrangement
means an arrangement between a person (the
provider
) and another person (the
client
) (whether or not there are also other parties to the arrangement) under which:
(a)
the client is, or is entitled, to give an instruction that a particular financial product, or a financial product of a particular kind, is to be acquired; and
(b)
if the client gives such an instruction, a person (the
acquirer
), being the provider or a person with whom the provider has or will have an arrangement, must (subject to any discretion they have to refuse) acquire the financial product, or a financial product of that kind; and
(c)
if the acquirer acquires the financial product, or a financial product of that kind, pursuant to an instruction given by the client, either:
(i)
the product is to be held on trust for the client or another person nominated by the client; or
(ii)
the client, or another person nominated by the client, is to have rights or benefits in relation to the product or a beneficial interest in the product, or in relation to, or calculated by reference to, dividends or other benefits derived from the product.
instruction
includes a direction or request.
provider
, in relation to a custodial arrangement, has the meaning given by the definition of
custodial arrangement
.
regulated acquisition
means an acquisition of a financial product pursuant to an instruction by the client under a custodial arrangement, being an acquisition:
(a)
by way of issue by the issuer (the
regulated person
); or
(b)
pursuant to a sale by a person (the
regulated person
) in circumstances described in
subsection 1012C(5)
,
(6)
or
(8)
.
[
CCH Note:
For s 1012IA(1) (substituted definition of
regulated acquisition
), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.5]
regulated person
, in relation to a regulated acquisition of a financial product, has the meaning given by paragraph (a) or (b) (as the case requires) of the definition of
regulated acquisition
.
History
S 1012IA(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Obligation on provider to give client a PDS
1012IA(2)
Before a regulated acquisition of a financial product occurs pursuant to an instruction given by the client under a custodial arrangement, the provider must give the client a Product Disclosure Statement for the product if a Product Disclosure Statement for the product would, if there were an equivalent direct acquisition by the client, be required by
subsection 1012B(3)
or
1012C(3)
(see subsection (3) of this section) to be given to the client by the regulated person before that acquisition occurred. For this purpose, an
equivalent direct acquisition
is an acquisition that would occur if:
(a)
the product were instead being offered for issue or sale direct to the client by the regulated person for the same price (or for the appropriate proportion of that price, if the transaction for the regulated acquisition also covers other products); and
(b)
the circumstances of that issue or sale to the client were otherwise the same as those in which the regulated acquisition will occur.
[
CCH Note:
For modified s 1012IA(2), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, items 19.6 and 19.7]
History
S 1012IA(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Determining whether a PDS would have to be given for an equivalent direct acquisition
1012IA(3)
The following provisions apply for the purpose of determining whether the regulated person would be required by
subsection 1012B(3)
or
1012C(3)
to give the client a Product Disclosure Statement for the financial product:
(a)
the effect of the provisions referred to in
subsection 1012B(5)
or
1012C(10)
, as the case requires, as they have effect subject to the following paragraphs, must be taken into account;
(b)
subsections
1012D(1)
,
(2)
and
(2A)
apply as if references in those subsections to the regulated person
'
s belief in relation to a matter were instead references to the provider
'
s belief in relation to that matter;
(c)
subsections
1012D(2)
and
(3)
apply as if references to the client already holding a financial product of the same kind also included a reference to a person already holding a financial product of the same kind as a result of an instruction given by the client under a custodial arrangement;
(d)
sections
1012E
and
1012F
are to be disregarded;
(e)
section 1012G
has effect in accordance with subsection (4).
[
CCH Note:
For modified s 1012IA(3), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, items 19.8 and 19.9]
History
S 1012IA(3) amended by No 141 of 2003, s 3, Sch 2
[
72].
S 1012IA(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Modification of section 1012G
1012IA(4)
The following provisions apply in relation to
section 1012G
:
(a)
in determining for the purposes of subsection (2) whether the regulated person would be required by
subsection 1012B(3)
or
1012C(3)
to give the client a Product Disclosure Statement for the financial product,
subsection 1012G(2)
applies as if the reference to the client instructing the regulated person (in an issue situation) that they require the financial product to be provided or issued immediately, or by a specified time, were instead a reference to the client instructing the provider that they require the financial product to be acquired immediately, or by a specified time;
(b)
if, because of
subsection 1012G(2)
as it applies because of paragraph (a) of this subsection, the provider does not have to give the client a Product Disclosure Statement for a financial product before a regulated acquisition of the financial product occurs pursuant to an instruction given by the client under a custodial arrangement:
(i)
subsection
1012G(2)
applies in relation to the provider, the client and the regulated acquisition as if the obligation it imposes to comply with subsection
1012G(3)
were imposed on the provider; and
(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)(b)(i)
were omitted and as if the reference in subparagraph
1012G(3)(b)(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.
History
S 1012IA(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Modification of section 1013A
1012IA(5)
Section 1013A
applies in relation to a regulated acquisition as if:
(a)
paragraph
1013A(1)(b)
also covered a Product Disclosure Statement that is required to be given by subsection (2) of this section in relation to an acquisition covered by paragraph (a) of the definition of
regulated acquisition
in subsection (1) of this section; and
(b)
paragraph
1013A(2)(b)
also covered a Product Disclosure Statement that is required to be given by subsection (2) of this section in relation to an acquisition covered by paragraph (b) of the definition of
regulated acquisition
in subsection (1) of this section.
History
S 1012IA(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Provider is not an agent for the purposes of section 1015C
1012IA(6)
For the purposes of the application of
section 1015C
in relation to a regulated acquisition, the provider in relation to the relevant custodial arrangement istaken not to be an agent of the client.
History
S 1012IA(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Provider is covered by sections 1015E, 1021F and 1021I
1012IA(7)
Sections
1015E
,
1021F
and
1021I
apply in relation to a regulated acquisition as if the references to a regulated person were instead references to the provider in relation to the relevant custodial arrangement.
History
S 1012IA(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Regulations may provide for other modifications
1012IA(8)
The regulations may provide for other modifications of provisions of this Part that are to have effect in relation to regulated acquisitions.
History
S 1012IA(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1012J
1012J
INFORMATION MUST BE UP TO DATE
CCH Note:
Section 1012J is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
The information in a Product Disclosure Statement must be up to date as at the time when it is given.
Note: A Supplementary Product Disclosure Statement containing updated information may be given with a Product Disclosure Statement that has become out of date. The updated information is taken to be included in the Product Disclosure Statement (see section
1014D
).
History
S 1012J inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1012K
ANTI-AVOIDANCE DETERMINATIONS
CCH Note:
Section 1012K is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1012K(1)
ASIC may determine in writing that a number of different bodies are closely related and that their transactions should be aggregated for the purposes of this Subdivision. If ASIC does so:
(a)
an issue, sale or transfer of financial products of any other bodies is taken to also be an issue, sale or transfer of the financial products of each of the other bodies by those bodies; and
(b)
any money received from an issue, sale or transfer of financial products of any of the bodies is taken to also be received by each of the other bodies from an issue, sale or transfer of its own financial products.
ASIC must give written notice of the determination to each of the bodies.
1012K(2)
ASIC may determine in writing that the transactions of a body and of a person who controls the body should be aggregated for the purposes of this Subdivision. If ASIC does so:
(a)
an issue of financial products of the body is taken to also be the transfer of the financial products by the controller; and
(b)
any money received from an issue of financial products of the body is taken to also be received by the controller from a transfer of the financial products; and
(c)
a sale or transfer of financial products of the body by the controller is taken to also be the issue of the financial products by the body; and
(d)
any money received from a sale or transfer of financial products of the body by the controller is taken to also be received by the body from an issue of the financial products.
ASIC must give written notice of the determination to the body and the controller.
History
S 1012K inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision C
-
Preparation and content of Product Disclosure Statements
CCH Note:
Subdivision C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1013A
WHO MUST PREPARE PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 1013A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013A(1)
A Product Disclosure Statement that:
(a)
is required to be given by section
1012A
(otherwise than in a situation in which the recommendation concerned relates to an offer described in subsection
1012C(3)
or
(4)
); or
(b)
is required to be given by section
1012B
; or
(c)
section
1012H
requires an issuer to take reasonable steps to ensure is given to a new group member; or
(d)
is required to be given by section
1012I
;
must be a document that has been prepared by the issuer of the financial product. A Product Disclosure Statement of this kind is an
issue Statement
.
History
S 1013A(1) amended by No 76 of 2023, s 3, Sch 2
[
510] (effective 20 October 2023).
1013A(2)
A Product Disclosure Statement that:
(a)
is required to be given by section
1012A
in a situation in which the recommendation concerned relates to an offer described in subsection
1012C(3)
or
(4)
); or
(b)
is required to be given by section
1012C
;
must be a document that has been prepared by the person making the offer to sell the financial product. A Product Disclosure Statement of this kind is a
sale Statement
.
History
S 1013A(2) amended by No 76 of 2023, s 3, Sch 2
[
510] (effective 20 October 2023).
1013A(3)
The person by whom, or on whose behalf, a Product Disclosure Statement for a financial product is required to be prepared is the
responsible person
for the financial product.
History
S 1013A(3) amended by No 76 of 2023, s 3, Sch 2
[
511] (effective 20 October 2023).
S 1013A(3) amended by No 61 of 2018, s 3, Sch 2[268] (effective 18 September 2018).
1013A(4)
For the purposes of this Part, a Product Disclosure Statement prepared on behalf of a person is taken to be prepared by the person.
History
S 1013A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013B
TITLE OF PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 1013B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013B(1)
The title
"
Product Disclosure Statement
"
must be used on the cover of, or at or near the front of, a Product Disclosure Statement.
1013B(2)
In any other part of a Product Disclosure Statement,
"
Product Disclosure Statement
"
may be abbreviated to
"
PDS
"
.
History
S 1013B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013C
PRODUCT DISCLOSURE STATEMENT CONTENT REQUIREMENTS
CCH Note:
Section 1013C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013C(1)
A Product Disclosure Statement:
(a)
must include the following statements and information required by this Subdivision:
(i)
the statements and information required by section
1013D
; and
(ii)
the information required by section
1013E
; and
(iii)
the information required by the other provisions of this Subdivision; and
(b)
may also:
(i)
include other information; or
(ii)
refer to other information that is set out in another document.
Note: A Supplementary Product Disclosure Statement containing additional information may be given with a Product Disclosure Statement that does not contain all the required information. The additional information is taken to be included in the Product Disclosure Statement (see section
1014D
).
[
CCH Note:
For modified s 1013C(1), see Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, items 5.4 and 5.5]
[
CCH Note:
For s 1013C(1)
-
(1F), see Corporations Regulations Schedule 10A, Part 5A
-
Modifications for margin loan, item 5A.2; Part 5B
-
Modifications for superannuation products to which Subdivision 4.2B of Division 4 of Part 7.9 applies, item 5B.2; Part 5C
-
Modifications for simple managed investment scheme, item 5C.2]
1013C(2)
The information required by sections
1013D
and
1013E
need only be included in the Product Disclosure Statement to the extent to which it is actually known to:
(a)
the responsible person; and
(b)
in the case of a sale Statement
-
the issuer of the financial product; and
(c)
any person named in the Statement as an underwriter of the issue or sale of the financial product; and
(d)
any person:
(i)
named in the Statement as a financial services licensee providing services in relation to the issue or sale of the financial product; and
(ii)
who participated in any way in the preparation of the Statement; and
(e)
any person who has given a consent referred to in section
1013K
in relation to a statement included in the Statement; and
(f)
any person named in the Statement with their consent as having performed a particular professional or advisory function; and
(g)
if any of the above persons is a body corporate
-
any director of that body corporate.
[
CCH Note:
For modified s 1013C(2), see Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.6]
1013C(3)
The information included in the Product Disclosure Statement must be worded and presented in a clear, concise and effective manner.
1013C(4)
The responsible person may include in the Product Disclosure Statement a statement about the association between the financial product and another person.
1013C(5)
The responsible person must not include a statement about the association between the financial product and a person if:
(a)
the statement creates the impression that the financial product is issued or sold by that other person; and
(b)
the person has not issued or sold the product.
1013C(6)
The responsible person must not include a statement about the association between the financial product and a person if:
(a)
the statement creates the impression that the financial product is guaranteed or underwritten by that other person; and
(b)
the person has not guaranteed or underwritten the product.
1013C(7)
If the Product Disclosure Statement states that a person provides, or is to provide, services in relation to the financial product, the Product Disclosure Statement must clearly distinguish between the respective roles of that person and the issuer or seller of the financial product.
History
S 1013C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1013C(8), see Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.7]
SECTION 1013D
PRODUCT DISCLOSURE STATEMENT CONTENT
-
MAIN REQUIREMENTS
CCH Note:
Section 1013D is modified by the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013D(1)
Subject to this section, subsection
1013C(2)
and sections
1013F
and
1013FA
, a Product Disclosure Statement must include the following statements, and such of the following information as a person would reasonably require for the purpose of making a decision, as a retail client, whether to acquire the financial product:
(a)
a statement setting out the name and contact details of:
(i)
the issuer of the financial product; and
(ii)
if the Statement is a sale Statement
-
the seller; and
(b)
information about any significant benefits to which a holder of the product will or may become entitled, the circumstances in which and times at which those benefits will or may be provided, and the way in which those benefits will or may be provided; and
(c)
information about any significant risks associated with holding the product; and
(d)
information about:
(i)
the cost of the product; and
(ii)
any amounts that will or may be payable by a holder of the product in respect of the product after its acquisition, and the times at which those amounts will or may be payable; and
(iii)
if the amounts paid in respect of the financial product and the amounts paid in respect of other financial products are paid into a common fund
-
any amounts that will or may be deducted from the fund by way of fees, expenses or charges; and
(e)
if the product will or may generate a return to a holder of the product
-
information about any commission, or other similar payments, that will or may impact on the amount of such a return; and
(f)
information about any other significant characteristics or features of the product or of the rights, terms, conditions and obligations attaching to the product; and
(g)
information about the dispute resolution system that covers complaints by holders of the product and about how that system may be accessed; and
(h)
general information about any significant taxation implications of financial products of that kind; and
(i)
information about any cooling-off regime that applies in respect of acquisitions of the product (whether the regime is provided for by a law or otherwise); and
(j)
if the product issuer (in the case of an issue Statement) or the seller (in the case of a sale Statement) makes other information relating to the product available to holders or prospective holders of the product, or to people more generally
-
a statement of how that information may be accessed; and
(k)
any other statements or information required by the regulations; and
(l)
if the product has an investment component
-
the extent to which labour standards or environmental, social or ethical considerations are taken into account in the selection, retention or realisation of the investment; and
(m)
unless in accordance with the regulations, for information to be disclosed in accordance with paragraphs (b), (d) and (e), any amounts are to be stated in dollars.
History
S 1013D(1) amended by No 103 of 2004, s 3, Sch 7, Pt 2
[
5].
S 1013D(1) amended by No 141 of 2003, s 3, Sch 2
[
72A].
S 1013D(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1013D(2)
For the purposes of paragraph (1)(d), an amount will or may be payable in respect of a financial product by the holder of the financial product if:
(a)
the holder will or may have to pay an amount in respect of the product; or
(b)
an amount will or may be deducted from:
(i)
a payment to be made by the holder; or
(ii)
a payment to be made to the holder; or
(iii)
an amount held on the holder's behalf under the financial product; or
(c)
an account representing the holder's interest in the financial product will or may be debited with an amount.
It includes an amount that the holder will or may have to pay, or that will or may be deducted or debited, as a fee, expense or charge in relation to a particular transaction in relation to the financial product.
History
S 1013D(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1013D(2A)
For the purposes of paragraph (1)(l), products which have an investment component include superannuation products, managed investment products, foreign passport fund products and investment life insurance products.
History
S 1013D(2A) amended by No 61 of 2018, s 3, Sch 2[269] (effective 18 September 2018).
S 1013D(2A) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1013D(3)
Subsection (1) requires information to be included in the Product Disclosure Statement only to the extent to which the requirement is applicable to the financial product. The Product Disclosure Statement does not need to indicate that a particular requirement is not applicable to the financial product.
History
S 1013D(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1013D(4)
The regulations may:
(a)
provide that a provision of subsection (1) does not apply in a particular situation; or
(b)
provide that particular information is not required by a provision of subsection (1), either in a particular situation or generally; or
(c)
provide a more detailed statement of the information that is required by a provision of subsection (1), either in a particular situation or generally.
History
S 1013D(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
S 1013D omitted by Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.8; Part 5A
-
Modifications for margin loan, item 5A.3; Part 5B
-
Modifications for superannuation products to which Subdivision 4.2B of Division 4 of Part 7.9 applies, item 5B.3 and Part 5C
-
Modifications for simple managed investment scheme, item 5C.2]
SECTION 1013DA
1013DA
INFORMATION ABOUT ETHICAL CONSIDERATIONS ETC.
CCH Note:
Section 1013DA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interestsin Managed Investment Schemes) Instrument 2023/693.
ASIC may develop guidelines that must be complied with where a Product Disclosure Statement makes any claim that labour standards or environmental, social or ethical considerations are taken into account in the selection, retention or realisation of the investment.
History
S 1013DA inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013E
1013E
GENERAL OBLIGATION TO INCLUDE OTHER INFORMATION THAT MIGHT INFLUENCE A DECISION TO ACQUIRE
CCH Note:
Section 1013E is modified by the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Subject to subsection
1013C(2)
and sections
1013F
and
1013FA
, a Product Disclosure Statement must also contain any other information that might reasonably be expected to have a material influence on the decision of a reasonable person, as a retail client, whether to acquire the product.
[
CCH Note:
S 1013E omitted by Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.8; Part 5A
-
Modifications for margin loan, item 5A.4; Part 5B
-
Modifications for superannuation products to which Subdivision 4.2B of Division 4 of Part 7.9 applies, item 5B.4 and Part 5C
-
Modifications for simple managed investment scheme, item 5C.3]
History
S 1013E amended by No 103 of 2004, s 3, Sch 7, Pt 2
[
6].
S 1013E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013F
GENERAL LIMITATIONS ON EXTENT TO WHICH INFORMATION IS REQUIRED TO BE INCLUDED
CCH Note:
Section 1013F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013F(1)
Despite anything in section
1013D
or
1013E
, information, or a statement containing information, is not required to be included in a ProductDisclosure Statement if it would not be reasonable for a person considering, as a retail client, whether to acquire the product to expect to find the information in the Statement.
History
S 1013F(1) amended by No 141 of 2003, s 3, Sch 2
[
73].
S 1013F(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1013F(2)
In considering whether it would not be reasonable for a person considering, as a retail client, whether to acquire the product to expect to find particular information in the Statement, the matters that may be taken into account include, but are not limited to:
(a)
the nature of the product (including its risk profile); and
(b)
the extent to which the product is well understood by the kinds of person who commonly acquire products of that kind as retail clients; and
(c)
the kinds of things such persons may reasonably be expected to know; and
(d)
if the product is an ED security that is not a continuously quoted security
-
the effect of the following provisions:
(i)
Chapter
2M
as it applies to disclosing entities;
(ii)
sections
674
,
674A
,
675
and
675A
; and
(e)
the way in which the product is promoted, sold or distributed; and
(f)
any other matters specified in the regulations.
History
S 1013F(2) amended by No 82 of 2021, s 3, Sch 2[41] (effective 14 August 2021).
S 1013F(2) amended by No 103 of 2004, s 3, Sch 7, Pt 2
[
7].
S 1013F(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013FA
INFORMATION NOT REQUIRED TO BE INCLUDED IN PDS FOR CONTINUOUSLY QUOTED SECURITIES
CCH Note:
Section 1013FA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013FA(1)
This section applies to a Product Disclosure Statement that relates to a continuously quoted security.
History
S 1013FA(1) inserted by No 103 of 2004, s 3, Sch 7, Pt 2
[
8].
1013FA(2)
Despite anything in section
1013D
,
1013E
or
1013F
, information is not required to be included in the Product Disclosure Statement if:
(a)
for a continuously quoted security that is not a security of a notified foreign passport fund
-
the information is included in any of the following documents:
(i)
the annual financial report most recently lodged with ASIC by the issuer of the product;
(ii)
any half-year financial report lodged with ASIC by the issuer of the product after the lodgment of that annual financial report and before the date of the Product Disclosure Statement;
(iii)
any continuous disclosure notices given by the issuer of the product after the lodgment of that annual financial report and before the date of the Product Disclosure Statement; and
(aa)
for a continuously quoted security of a notified foreign passport fund
-
the information is included in any of the following documents:
(i)
a copy of a report for the fund for the most recent financial year for the fund, prepared in accordance with the financial reporting requirements applying to the fund under the Passport Rules for the home economy for the fund;
(ii)
a copy of an auditor
'
s report that relates to the report mentioned in subparagraph
(i)
;
(iii)
any continuous disclosure notices given by the issuer of the product after the lodgment of the report mentioned in subparagraph
(i)
and before the date of the Product Disclosure Statement; and
(b)
the Product Disclosure Statement:
(i)
states that as a disclosing entity, the issuer of the product is subject to regular reporting and disclosure obligations; and
(ii)
informs people of their right to obtain a copy of any of the documents referred to in paragraph
(a)
or
(aa)
(as the case requires).
If the Product Disclosure Statement informs people of their right to obtain a copy of the document, the issuer of the product must give a copy of the document free of charge to anyone who asks for it.
[
CCH Note:
S 1013FA(2) will be amended by No 69 of 2020, s 3, Sch 1[1168], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (a)(i) and (ii) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1013FA(2) amended by No 61 of 2018, s 3, Sch 2[270]
-
[
272] (effective 18 September 2018).
S 1013FA(2) inserted by No 103 of 2004, s 3, Sch 7, Pt 2
[
8].
1013FA(3)
ASIC may determine that this section does not apply to Product Disclosure Statements for continuously quoted securities if ASIC is satisfied that in the previous 12 months:
(a)
the issuer of the continuously quoted securities contravened:
(i)
the provisions of Chapter
2M
; or
(ii)
subsection
674(2)
,
674A(2)
,
675(2)
or
675A(2)
; or
(iii)
subsection
1012DAA(10)
or
1012DA(9)
; or
(iv)
section
1308
as it applies to a notice under subsection
1012DAA(2)
or
1012DA(5)
; or
(b)
the responsible person for the Product Disclosure Statement contravened section
1016E
,
1021D
,
1021E
or
1021J
.
History
S 1013FA(3) amended by No 82 of 2021, s 3, Sch 2[42] (effective 14 August 2021).
S 1013FA(3) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
143]
-
[
144].
S 1013FA(3) inserted by No 103 of 2004, s 3, Sch 7, Pt 2
[
8].
1013FA(4)
The determination must be made in writing and ASIC must publish a copy of the determination in the
Gazette
.
History
S 1013FA(4) inserted by No 103 of 2004, s 3, Sch 7, Pt 2
[
8].
SECTION 1013G
1013G
PRODUCT DISCLOSURE STATEMENT MUST BE DATED
CCH Note:
Section 1013G is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
A Product Disclosure Statement must be dated. The date must be:
(a)
if a copy of the Product Disclosure Statement has been lodged with ASIC (see section
1015B
)
-
the date on which it was so lodged; or
(b)
in any other case
-
the date on which the Product Disclosure Statement was prepared or its preparation was completed.
[
CCH Note:
S 1013G will be amended by No 69 of 2020, s 3, Sch 1[1169], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1013G inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013GA
EXTRA REQUIREMENTS IF PRODUCT DISCLOSURE STATEMENT RELATES TO FOREIGN PASSPORT FUND PRODUCTS
CCH Note:
Section 1013GA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013GA(1)
This section applies to a Product Disclosure Statement that relates to foreign passport fund products.
1013GA(2)
The Product Disclosure Statement must:
(a)
identify the home economy for the notified foreign passport fund to which the foreign passport fund products relate; and
(b)
include a statement that:
(i)
the operation of the fund is regulated by the law of the home economy for the fund; and
(ii)
the operator of the fund and the custodian of the assets of the fund are regulated under the law of the home economy for the fund; and
(iii)
the rights and remedies available to a person who acquires the foreign passport fund product may differ from the rights and remedies available in relation to a registered scheme; and
(iv)
information made available to members of the fund in the home economy will from time to time be made available to Australian members of the fund by posting the information on the fund
'
s website; and
(c)
include an outline of the main rights and remedies available under the law of the home economy for the fund to persons who acquire the foreign passport fund product in this jurisdiction; and
(d)
include an outline of how information mentioned in subparagraph (b)(iv) may be accessed by Australian members of the fund; and
(e)
include a statement that the rights of a member of the fund on the fund being wound up are mainly determined under the constitution for the fund and the law of the home economy for the fund.
History
S 1013GA inserted by No 61 of 2018, s 3, Sch 2[273] (effective 18 September 2018).
SECTION 1013H
1013H
REQUIREMENTS IF PRODUCT DISCLOSURE STATEMENT STATES OR IMPLIES THAT FINANCIAL PRODUCT WILL BE ABLE TO BE TRADED
CCH Note:
Section 1013H is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
If a Product Disclosure Statement states or implies that the financial product will be able to be traded on a financial market (whether in Australia or elsewhere), the Statement must state that:
(a)
the product is able to be traded on that market; or
(b)
an application has been made to the operator of that market for the taking of such action as is necessary to enable the product to be traded on that market; or
(c)
an application of a kind referred to in paragraph (b) will be made to the operator of that market within 7 days after the date of the Statement.
History
S 1013H inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013I
EXTRA REQUIREMENTS IF PRODUCT DISCLOSURE STATEMENT RELATES TO MANAGED INVESTMENT PRODUCTS THAT ARE ED SECURITIES
CCH Note:
Section 1013I is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013I(1)
This section applies to a Product Disclosure Statement that relates to managed investment products that are ED securities.
1013I(2)
The Product Disclosure Statement must include a statement that:
(a)
as a disclosing entity, the scheme is subject to regular reporting and disclosure obligations; and
(b)
copies of documents lodged with ASIC in relation to the scheme may be obtained from, or inspected at, an ASIC office.
[
CCH Note:
S 1013I(2) will be amended by No 69 of 2020, s 3, Sch 1[1170], by substituting para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (b) will read:
(b)
the Registrar provides access to copies of documents lodged with the Registrar in relation to the scheme.]
1013I(3)
The Product Disclosure Statement must either:
(a)
inform people of their right to obtain a copy of the following documents:
(i)
the annual financial report most recently lodged with ASIC by the scheme;
(ii)
any half-year financial report lodged with ASIC by the scheme after the lodgment of that annual financial report and before the date of the Product Disclosure Statement;
(iii)
any continuous disclosure notices given by the scheme after the lodgment of that annual report and before the date of the Product Disclosure Statement; or
(b)
include, or be accompanied by, a copy of the relevant document or documents.
[
CCH Note:
S 1013I(3) will be amended by No 69 of 2020, s 3, Sch 1[1171], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (a)(i) and (ii) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
1013I(4)
If:
(a)
the Product Disclosure Statement informs people of their right to obtain a copy of a document referred to in subsection (3); and
(b)
a person asks the issuer (in the case of an issue Statement) or the seller (in the case of a sale Statement) for a copy of the document;
the issuer or seller must give (see subsection
(5)
) the person a copy of the document free of charge as soon as practicable, and in any event within 5 days, after receiving the person's request.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
1013I(5)
In subsection
(4)
,
give
means give in a way that would satisfy the requirements of section
1015C
if the copy of the document were a Statement to which that section applied.
History
S 1013I inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013IA
EXTRA REQUIREMENTS IF PRODUCT DISCLOSURE STATEMENT RELATES TO FOREIGN PASSPORT FUND PRODUCTS THAT ARE ED SECURITIES
CCH Note:
Section 1013IA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013IA(1)
This section applies to a Product Disclosure Statement that relates to foreign passport fund products that are ED securities.
1013IA(2)
The Product Disclosure Statement must include a statement that:
(a)
as a disclosing entity, the fund is subject to regular reporting and disclosure obligations; and
(b)
copies of documents lodged with ASIC in relation to the fund may be obtained from, or inspected at, an ASIC office.
1013IA(3)
The Product Disclosure Statement must either:
(a)
inform people of their right to obtain a copy of the following documents:
(i)
a copy of a report for the most recent financial year for the fund, prepared in accordance with the financial reporting requirements applying to the fund under the Passport Rules for the home economy for the fund;
(ii)
a copy of each auditor
'
s report that relates to the report mentioned in subparagraph (i); or
(b)
include, or be accompanied by, a copy of that document or those documents.
1013IA(4)
Subsections (5) and (6) apply if:
(a)
the Product Disclosure Statement informs people of their right to obtain a copy of a document referred to in subsection (3); and
(b)
a person asks the issuer (in the case of an issue Statement) or the seller (in the case of a sale Statement) for a copy of the document.
1013IA(5)
The issuer or seller must give (see subsection (6)) the person a copy of the document:
(a)
free of charge; and
(b)
as soon as practicable, and in any event within 5 days, after receiving the person
'
s request; and
(c)
if the person asks the issuer or seller for a copy of the document in English
-
in English.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
1013IA(6)
In subsection (5),
give
means give in a way that would satisfy requirements of section
1015C
if the copy of the document were a Statement to which that section applied.
History
S 1013IA inserted by No 61 of 2018, s 3, Sch 2[274] (effective 18 September 2018).
SECTION 1013J
1013J
REQUIREMENTS IF STATEMENT HAS BEEN LODGED WITH ASIC
CCH Note:
Section 1013J is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
[
CCH Note:
S 1013J heading will be amended by No 69 of 2020, s 3, Sch 1[1172], by substituting
"
THE REGISTRAR
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
A Product Disclosure Statement, a copy of which has been lodged with ASIC (see section
1015B
), must include a statement that:
(a)
a copy of the document has been lodged with ASIC; and
(b)
ASIC takes no responsibility for the content of the document.
[
CCH Note:
S 1013J will be amended by No 69 of 2020, s 3, Sch 1[1173] and
[
1174], by substituting
"
with the Registrar
"
for
"
with ASIC
"
(wherever occurring) and
"
neither ASIC nor the Registrar takes
"
for
"
ASIC takes no
"
in para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1013J inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013K
REQUIREMENTS RELATING TO CONSENTS TO CERTAIN STATEMENTS
CCH Note:
Section 1013K is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013K(1)
A Product Disclosure Statement must only include a statement made by a person, or a statement said in the Product Disclosure Statement to be based on a statement made by a person, if:
(a)
the person has consented to the statement being included in the Product Disclosure Statement in the form and context in which it is included; and
(b)
the Product Disclosure Statement states that the person has given this consent; and
(c)
the person has not withdrawn this consent before the date of the Product Disclosure Statement.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
1013K(2)
The person who prepared the Product Disclosure Statement must not, without reasonable excuse, fail to keep the consent, or a copy of it, for the period, and in the manner, required by the regulations.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1013K inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013L
PRODUCT DISCLOSURE STATEMENT MAY CONSIST OF 2 OR MORE SEPARATE DOCUMENTS GIVEN AT SAME TIME
CCH Note:
Section 1013L is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1013L(1)
Subject to this section, a Product Disclosure Statement may be made up of 2 or more separate documents that are given at the same time.
1013L(2)
Each of the documents must have on the cover of the document, or at or near the front of the document, a statement:
(a)
to the effect that the document is part of a Product Disclosure Statement; and
(b)
that (subject to subsection (3)) identifies the other documents that make up the Product Disclosure Statement.
1013L(3)
If there are or may be different versions of a document referred to in paragraph (2)(b), the statement required by subsection (2) does not have to identify any particular one of those versions and may instead identify the document generically.
Note: For example, if a Product Disclosure Statement is made up of a core document that is not updated very frequently, and a separate document providing information about remuneration that is updated more frequently:
(a) the statement in the core document need only refer to the fact that it, and a separate document about remuneration, make up the Product Disclosure Statement; and
(b) the statement in the document about remuneration need only refer to the fact that it, and a separate document about all other required matters, make up the Product Disclosure Statement.
1013L(4)
The requirement of section
1013B
(title of Product Disclosure Statement) is taken to be satisfied if the title
"
Product Disclosure Statement
"
is used on the cover of, or at or near the front of, at least one of the documents that make up the Product Disclosure Statement.
1013L(5)
The requirement of section
1013G
(dating of Product Disclosure Statement) must be separately complied with in relation to each of the documents. If, for any purpose, a single date needs to be determined as the date of the Product Disclosure Statement as a whole, that date is the most recent of the dates of those documents.
1013L(6)
Section
1015E
applies to an alteration to one of the documents as though the reference in that section to the date specified in the Product Disclosure Statement were a reference to the date specified in the document.
1013L(7)
The regulations may impose additional requirements to be complied with if a Product Disclosure Statement is made up of 2 or more documents.
[
CCH Note:
For substituted s 1013L(7), see Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.9]
[
CCH Note:
For substituted s 1013L, see Corporations Regulations Schedule 10A, Part 5A
-
Modifications for margin loan, item 5A.5; Part 5B
-
Modifications for superannuation products to which Subdivision 4.2B of Division 4 of Part 7.9 applies, item 5B.5 and Part 5C
-
Modifications for simple managed investment scheme, item 5C.4]
History
S 1013L inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1013M
1013M
COMBINING A PRODUCT DISCLOSURE STATEMENT AND A FINANCIAL SERVICES GUIDE IN A SINGLE DOCUMENT
CCH Note:
Section 1013M is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
For provisions about combining a Product Disclosure Statement and a Financial Services Guide in a single document, see section
942DA
and regulations made for the purposes of that section.
[
CCH Note:
For modified s 1013M, see Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.10]
History
S 1013M inserted by No 141 of 2003, s 3, Sch 2
[
74].
[
CCH Note:
For s 1013N, see Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.11]
Subdivision D
-
Supplementary Product Disclosure Statements
CCH Note:
Subdivision D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
[
CCH Note:
Pt 7.9 Div 2 Subdiv D omitted by Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.12 and Part 5A
-
Modifications for margin loan, item 5A.6]
SECTION 1014A
1014A
MEANING OF SUPPLEMENTARY PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 1014A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
A
Supplementary Product Disclosure Statement
is a document by which a person who has prepared a Product Disclosure Statement (the
PDS
) can:
(a)
correct a misleading or deceptive statement in the PDS; or
(b)
correct an omission from the PDS of information it is required to contain; or
(c)
update, or add to, the information contained in the PDS; or
(d)
change a statement of a kind referred to in paragraph
1016E(1)(a)
or
(b)
.
Note: In certain circumstances a Replacement Product Disclosure Statement may be prepared instead of a Supplementary Product Disclosure Statement (see Subdivision
DA
).
History
S 1014A (Note) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
145].
S 1014A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1014B
TITLE OF SUPPLEMENTARY PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 1014B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1014B(1)
The title
"
Supplementary Product Disclosure Statement
"
must be used on the cover of, or at or near the front of, a Supplementary Product Disclosure Statement.
1014B(2)
In any other part of a Supplementary Product Disclosure Statement,
"
Supplementary Product Disclosure Statement
"
may be abbreviated to
"
SPDS
"
.
History
S 1014B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1014C
1014C
FORM OF SUPPLEMENTARY PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 1014C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
At the beginning of a Supplementary Product Disclosure Statement there must be:
(a)
a statement that it is a Supplementary Product Disclosure Statement; and
(b)
an identification of the Product Disclosure Statement that it supplements; and
(c)
a statement that it is to be read together with that Product Disclosure Statement and any other specified Supplementary
[
sic
] Disclosure Statements.
History
S 1014C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1014D
1014D
EFFECT OF GIVING PERSON A SUPPLEMENTARY PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 1014D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
If:
(a)
a person is given a Product Disclosure Statement (the
PDS
); and
(b)
at the same time, or later, they are given a Supplementary Product Disclosure Statement (the
SPDS
) that supplements the PDS;
the PDS is taken, from when the SPDS is given to the person, to include the information and statements contained in the SPDS.
History
S 1014D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1014E
1014E
SITUATION IN WHICH ONLY A SUPPLEMENTARY PRODUCT DISCLOSURE STATEMENT NEED BE GIVEN
CCH Note:
Section 1014E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
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 Product Disclosure Statement (the
earlier PDS
) relating to the financial product; and
(c)
the earlier PDS contains some, but not all, of the information that the new PDS is required to contain;
the person may, instead of giving the client the new PDS, give the client a Supplementary Product Disclosure Statement that contains the additional information.
History
S 1014E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1014F
1014F
APPLICATION OF OTHER PROVISIONS IN RELATION TO SUPPLEMENTARY PRODUCT DISCLOSURE STATEMENTS
CCH Note:
Section 1014F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Sections
1013A
,
1013G
,
1013H
,
1013J
and
1013K
, and subsections
1013C(3)
to
(7)
, apply in relation to a Supplementary Product Disclosure Statement in the same way as they apply to a Product Disclosure Statement.
History
S 1014F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision DA
-
Replacement Product Disclosure Statements
CCH Note:
Subdivision DA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
History
Subdiv DA inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
146].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
SECTION 1014G
1014G
APPLICATION OF THIS SUBDIVISION
-
STAPLED SECURITIES
CCH Note:
Section 1014G is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
This Subdivision applies if:
(a)
a Product Disclosure Statement has been lodged in relation to an offer for the issue or sale of an interest in a managed investment scheme; and
(b)
the interest can only be transferred together with one or more securities; and
(c)
a disclosure document has been lodged in relation to an offer for the issue or sale of the security (or securities).
History
S 1014G inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
146].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
SECTION 1014H
1014H
MEANING OF REPLACEMENT PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 1014H is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
A
Replacement Product Disclosure Statement
is a document that replaces the Product Disclosure Statement (the
earlier PDS
) mentioned in paragraph
1014G(a)
in order to:
(a)
correct a misleading or deceptive statement in the earlier PDS; or
(b)
correct an omission from the earlier PDS of information it is required to contain; or
(c)
update, or add to, the information contained in the earlier PDS; or
(d)
change a statement of a kind referred to in paragraph
1016E(1)(a)
or
(b)
.
History
S 1014H inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
146].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
[
CCH Note:
There is no s 1014I.]
SECTION 1014J
1014J
CONSEQUENCES OF LODGING A REPLACEMENT PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 1014J is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
If a Replacement Product Disclosure Statement is prepared in accordance with section
1014K
and lodged with ASIC as provided by Subdivision
E
(in its application under section
1014L
), a reference to a Product Disclosure Statement is taken to be a reference to the Replacement Product Disclosure Statement for the purposes of the application of this Act to events that occur after the lodgment.
Note: This section means, for example, that offers made after lodgment of the Replacement Product Disclosure Statement must be accompanied by copies of the Replacement Product Disclosure Statement and not the earlier PDS.
[
CCH Note:
S 1014J will be amended by No 69 of 2020, s 3, Sch 1[1175], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1014J inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
146].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
SECTION 1014K
FORM, CONTENT AND PREPARATION OF REPLACEMENT PRODUCT DISCLOSURE STATEMENTS
CCH Note:
Section 1014K is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1014K(1)
At the beginning of a Replacement Product Disclosure Statement, there must be:
(a)
a statement that it is a Replacement Product Disclosure Statement; and
(b)
an identification of the Product Disclosure Statement it replaces.
1014K(2)
The title
"
Replacement Product Disclosure Statement
"
must be used on the cover of, or at or near the front of, a Replacement Product Disclosure Statement.
1014K(3)
In any other part of a Replacement Product Disclosure Statement,
"
Replacement Product Disclosure Statement
"
may be abbreviated to
"
RPDS
"
.
1014K(4)
Otherwise, section
1012J
and Subdivision
C
(apart from section
1013B
) apply in relation to a Replacement Product Disclosure Statement in the same way as they apply to a Product Disclosure Statement.
Note: Section
1012J
provides that the information in a Product Disclosure Statement must be up to date at the time it is given. Subdivision
C
deals with the preparation and content of Product Disclosure Statements.
History
S 1014K inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
146].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
SECTION 1014L
1014L
GIVING, LODGMENT AND NOTICE OF REPLACEMENT PRODUCT DISCLOSURE STATEMENTS
CCH Note:
Section 1014L is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Subdivision
E
applies in relation to a Replacement Product Disclosure Statement in the same way as it applies to a Product Disclosure Statement that is required to be lodged with ASIC under section
1015B
.
[
CCH Note:
S 1014L will be amended by No 69 of 2020, s 3, Sch 1[1175], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1014L inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
146].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
Subdivision E
-
Other requirements relating to Product Disclosure Statements and Supplementary Product Disclosure Statements
CCH Note:
Subdivision E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1015A
1015A
SUBDIVISION APPLIES TO PRODUCT DISCLOSURE STATEMENTS AND SUPPLEMENTARY PRODUCT DISCLOSURE STATEMENTS
CCH Note:
Section 1015A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
This Subdivision applies to Product Disclosure Statements and to Supplementary Product Disclosure Statements. Both kinds of document are referred to in this Subdivision as a
Statement
.
[
CCH Note:
For substituted s 1015A, see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.2]
History
S 1015A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1015B
SOME STATEMENTS MUST BE LODGED WITH ASIC
CCH Note:
Section 1015B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
[
CCH Note:
S 1015B heading will be amended by No 69 of 2020, s 3, Sch 1[1176], by substituting
"
THE REGISTRAR
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
1015B(1)
A copy of a Statement must have been lodged with ASIC in a prescribed form (in accordance with the requirements of subsection
(2)
for consents) before the Statement is given to a person for the purposes of a provision of this Part if:
(a)
the following subparagraphs apply:
(i)
the financial product is a managed investment product; and
(ii)
the Statement states or implies that the product will be able to be traded on a financial market; and
(iii)
the Statement meets the requirements set out in section
1013H
; or
(b)
the financial product is a managed investment product that can be traded on a financial market; or
(ba)
the financial product is:
(i)
a managed investment product of an Australian passport fund; or
(ii)
a foreign passport fund product; or
(c)
the financial product is a financial product of a kind specified in regulations made for the purposes of this paragraph.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
[
CCH Note:
For modified s 1015B(1), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.3]
[
CCH Note:
S 1015B(1) will be amended by No 69 of 2020, s 3, Sch 1[1177], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1015B(1) amended by No 76 of 2023, s 3, Sch 2
[
512] (effective 20 October 2023).
S 1015B(1) amended by No 61 of 2018, s 3, Sch 2[275] (effective 18 September 2018).
1015B(2)
The lodgment of a Statement in relation to a managed investment product with ASIC requires the consent of:
(a)
whether it is an issue Statement or a sale Statement:
(i)
if the responsible person is a body corporate
-
every director of the responsible person; or
(ii)
otherwise
-
the responsible person; and
(b)
if it is a sale Statement:
(i)
if the issuer of the financial product concerned is a body corporate
-
every director of the issuer; or
(ii)
otherwise
-
the issuer of the financial product concerned.
[
CCH Note:
S 1015B(2) will be amended by No 69 of 2020, s 3, Sch 1[1177], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1015B(2) amended by No 61 of 2018, s 3, Sch 2[276] (effective 18 September 2018).
S 1015B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1015B(3)
The lodgment of a Statement in relation to a foreign passport fund product with ASIC requires the consent of:
(a)
if the operator of the fund is a body corporate
-
every director of the operator; or
(b)
otherwise
-
the responsible person.
History
S 1015B(3) inserted by No 61 of 2018, s 3, Sch 2[277] (effective 18 September 2018).
SECTION 1015C
HOW A STATEMENT IS TO BE GIVEN
CCH Note:
Section 1015C is modified by the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1015C(1)
A Statement:
(a)
must be:
(i)
given to a person, or the person's agent, personally; or
(ii)
sent to the person, or the person's agent, at an address (including an electronic address) or fax number nominated by the person or the agent; and
(b)
may be printed or be in electronic form.
History
S 1015C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1015C(2)
For the purposes of this section, the Statement is sent to a person at an address if, and only if:
(a)
the Statement is sent to the address; and
(b)
either:
(i)
the envelope or other container in which the Statement is sent; or
(ii)
the message that accompanies the Statement;
is addressed to the person.
History
S 1015C(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1015C(3)
The Statement may be given or sent to the 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)
(Repealed)
(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), (d) or (e).
History
S 1015C(3) amended by No 141 of 2003, s 3, Sch 2
[
75] and
[
76].
S 1015C(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1015C(4)
The regulations may provide for alternative ways of giving a Statement to a person.
History
S 1015C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1015C(5)
The regulations may specify requirements as to:
(a)
the manner in which a Statement may be given to a person; and
(b)
the presentation, structure and format for a Statement that is to be given in electronic form.
The giving of the Statement is not effective unless those requirements are satisfied.
History
S 1015C(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1015D
NOTICE, RETENTION AND ACCESS REQUIREMENTS FOR STATEMENT THAT DOES NOT NEED TO BE LODGED
CCH Note:
Section 1015D is modified by the ASIC Corporations (In-use Notices for Employer-sponsored Superannuation and Superannuation Dashboards) Instrument 2022/496; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1015D(1)
This section applies to a Statement if section
1015B
does not require a copy of the Statement to be lodged with ASIC.
[
CCH Note:
S 1015D(1) will be amended by No 69 of 2020, s 3, Sch 1[1177], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1015D(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1015D(2)
The responsible person for the Statement (other than the trustee of a self managed superannuation fund) must lodge a notice with ASIC, in electronic form, advising of the occurrence of any of the following events as soon as practicable, and in any event within 5 business days, after the occurrence of the event:
(a)
except in the case of a Supplementary Product Disclosure Statement
-
a copy of the Statement is first given to someone in a recommendation, issue or sale situation;
(b)
a change is made to fees and charges set out in the Statement;
(c)
the financial product to which the Statement relates ceases to be available to be recommended or offered to new clients in a recommendation, issue or sale situation.
Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Note 2: The fees and charges set out in a Product Disclosure Statement may be changed by a Supplementary Product Disclosure Statement (see section 1014A).
[
CCH Note:
S 1015D(2) will be amended by No 69 of 2020, s 3, Sch 1[1178], by substituting
"
the Registrar
"
for
"
ASIC, in electronic form,
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1015D(2) amended by No 49 of 2019, s 3, Sch 4
[
40] (effective 6 April 2019).
S 1015D(2) amended and (Note 3) repealed by No 101 of 2007, s 3, Sch 1, Pt 5
[
225] and
[
226].
S 1015D(2) substituted by No 101 of 2007, s 3, Sch 1, Pt 4
[
223].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
245] contained the following application provision (which was effective 28 June 2007):
Application of item 233
The amendment made by item 223 of this Schedule applies in relation to events occurring on or after the day on which that item commences.]
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
246] contained the following application provision (which was effective 28 June 2007):
Application of items 224 to 226
The amendments made by items 224 to 226 of this Schedule apply in relation to events occurring on or after the day on which those items commence.]
[
CCH Note:
S 1015D(2A) will be inserted by No 69 of 2020, s 3, Sch 1[1179] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 1015D(2A) will read:
1015D(2A)
The notice must meet any requirements of the data standards.]
1015D(3)
The responsible person for the Statement must keep a copy of the Statement for the period of 7 years after the date of the Statement.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
[
CCH Note:
S 1015D(3) omitted by Corporations Regulations Schedule 10A, Part 5A
-
Modifications for margin loan, item 5A.7; Part 5B
-
Modifications for superannuation products to which Subdivision 4.2B of Division 4 of Part 7.9 applies, item 5B.6 and Part 5C
-
Modifications for simple managed investment scheme, item 5C.5]
History
S 1015D(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1015D(4)
During that period the responsible person:
(a)
must make a copy of the Statement available to ASIC if asked to do so by ASIC; and
(b)
must comply with any reasonable request from any other person for a copy of the Statement.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1015D(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1015E
ALTERING A STATEMENT AFTER ITS PREPARATION AND BEFORE GIVING IT TO A PERSON
CCH Note:
Section 1015E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1015E(1)
A regulated person must not, in purported compliance with a provision of this Part, give a person a Statement that has been altered (otherwise than pursuant to paragraph (b)) after the date of the Statement if either or both of the following paragraphs applies:
(a)
the alteration was not made by, or with the authority of, the issuer or seller, as the case requires, of the financial products;
(b)
the alteration is a material alteration and the date of the Statement has not been changed to:
(i)
if a copy of the altered Statement has been lodged with ASIC (see subsection (2))
-
the date on which it was so lodged; or
(ii)
in any other case
-
the date on which the alteration was made.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
[
CCH Note:
S 1015E(1) will be amended by No 69 of 2020, s 3, Sch 1[1180], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b)(i) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
1015E(2)
If the alteration is a material alteration to a Statement that has been lodged with ASIC under section
1015B
, that section applies to the altered Statement as if it were a new Statement.
[
CCH Note:
S 1015E(2) will be amended by No 69 of 2020, s 3, Sch 1[1181], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1015E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision F
-
Other rights and obligations related to Product Disclosure Statements
CCH Note:
Subdivision F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1016A
PROVISIONS RELATING TO USE OF APPLICATION FORMS
CCH Note:
Section 1016A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Application Form Requirements) Instrument 2017/241; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1016A(1)
In this section:
defective
, in relation to a Product Disclosure Statement as at a particular time, means that the Product Disclosure Statement, if it had been given to a person at that time, would have been
defective
as defined in Subdivision
A
of Division
7
.
Note: Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section
1014D
).
History
Definition of
defective
inserted by No 141 of 2003, s 3, Sch 2
[
77A].
eligible application
, in relation to a restricted issue or restricted sale of a relevant financial product,means an application that satisfies the following requirements:
(a)
the application is made using an application form; and
(b)
the application form used to apply for the product:
(i)
was included in, or accompanied, a Product Disclosure Statement (relating to the product) that was given to the applicant and that was not defective as at the time when the application was made; or
(ii)
was copied, or directly derived, by the applicant from a form referred to in subparagraph (i); and
(c)
all other applicable requirements (if any) in regulations made for the purposes of this paragraph are satisfied in relation to the application.
Note: Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see
section 1014D
).
History
Definition of
eligible application
amended by No 141 of 2003, s 3, Sch 2
[
77B].
relevant financial product
means:
(a)
a managed investment product; or
(aa)
a foreign passport fund product; or
(b)
a superannuation product; or
(c)
an investment life insurance product; or
(d)
an RSA; or
(da)
(Repealed)
(db)
a margin lending facility; or
(e)
a financial product of a kind specified in regulations made for the purposes of this paragraph.
History
Definition of
relevant financial product
amended by No 76 of 2023, s 3, Sch 2
[
513] (effective 20 October 2023).
Definition of
relevant financial product
amended by No 61 of 2018, s 3, Sch 2[278] (effective 18 September 2018).
Definition of
relevant financial product
amended by No 70 of 2015, s 3, Sch 1
[
37] (effective 1 July 2015).
Definition of
relevant financial product
amended by No 108 of 2009, s 3, Sch 1
[
13].
Definition of
relevant financial product
amended by No 45 of 2008, s 3, Sch 2
[
12].
relevant superannuation entity
means a superannuation entity of a kind specified in regulations made for the purposes of this definition.
restricted issue
means an issue of a relevant financial product to a person as a retail client, other than an issue covered by either of the following paragraphs:
(a)
an issue in a situation, or pursuant to an offer made in a situation, to which a subsection, other than subsection (1), of section
1012D
applies; or
(b)
an issue in a situation, or pursuant to an offer made in a situation, to which section
1012E
or
1012F
applies.
restricted sale
means a sale of a relevant financial product pursuant to an offer that:
(a)
is of a kind described in subsection
1012C(3)
or
(4)
; and
(b)
is not made in a situation to which a subsection, other than subsection
(1)
, of section
1012D
applies.
RSA provider
(Repealed by No 76 of 2023, s 3, Sch 2[514] (effective 20 October 2023).)
standard employer-sponsor
(Repealed by No 76 of 2023, s 3, Sch 2[514] (effective 20 October 2023).)
standard employer-sponsored fund
(Repealed by No 76 of 2023, s 3, Sch 2[514] (effective 20 October 2023).)
standard employer-sponsored member
(Repealed by No 76 of 2023, s 3, Sch 2[514] (effective 20 October 2023).)
superannuation entity
(Repealed by No 141 of 2003, s 3, Sch 2
[
78].)
1016A(2)
A person (the
issuer
or
seller
) must only make a restricted issue or a restricted sale of a relevant financial product to a person (the
recipient
) if:
(a)
the issue or sale is made pursuant to an eligible application made to the issuer or seller by the recipient; or
(b)
it is a restricted issue in relation to which the following conditions are satisfied:
(i)
the financial product is an interest in a relevant superannuation entity;
(ii)
the interest is issued pursuant to an application made to the issuer by a standard employer-sponsor of the entity on the recipient
'
s behalf;
(iii)
if the application is the first application for the issue of a superannuation interest made to the issuer by the standard employer-sponsor on behalf of any person
-
the application is an eligible application; or
(c)
it is a restricted issue in relation to which the following conditions are satisfied:
(i)
the financial product is an interest in a relevant superannuation entity;
(ii)
the interest is issued pursuant to an application made to the issuer by another trustee under Part
24
of the
Superannuation Industry (Supervision) Act 1993
on the recipient
'
s behalf;
(iii)
if the application is the first application under Part
24
of that Act made to the issuer by the other trustee on behalf of any person
-
the application is an eligible application; or
(d)
it is a restricted issue in relation to which the following conditions are satisfied:
(i)
the financial product is an interest in a relevant superannuation entity;
(ii)
the interest is issued pursuant to an application made to the issuer by an RSA provider under Part
9
of the
Retirement Savings Accounts Act 1997
on the recipient
'
s behalf;
(iii)
if the application is the first application under Part
9
of that Act made to the issuer by the RSA provider on behalf of any person
-
the application is an eligible application; or
(e)
it is a restricted issue in relation to which the following conditions are satisfied:
(i)
the financial product is an RSA;
(ii)
the interest is issued pursuant to an application made to the issuer by an employer (within the meaning of the
Retirement Savings Accounts Act 1997
) of the recipient;
(iii)
if the application is the first application for the issue of an RSA of that kind made to the issuer by the employer on behalf of any person
-
the application is an eligible application;
(iv)
all other applicable requirements (if any) in regulations made for the purposes of this subparagraph are satisfied in relation to the application; or
(f)
the issue or sale occurs in a situation covered by regulations made for the purposes of this paragraph.
Note 1: This subsection does not apply to an issue or sale pursuant to paragraph
1016E(2)(c)
(see subsection
1016E(2C)
).
Note 2: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1016A(2) amended by No 76 of 2023, s 3, Sch 2
[
515] (effective 20 October 2023).
S 1016A(2) amended by No 141 of 2003, s 3, Sch 2
[
78A].
S 1016A(2) (Notes) substituted by No 141 of 2003, s 3, Sch 2
[
78B].
S 1016A(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1016A(2A), see Corporations Regulations Schedule 10A, Part 6
-
Modifications relating to application forms and Product Disclosure Statements for standard employer-sponsor arrangements and successor funds, item 6.1]
1016A(3)
The trustee of a relevant superannuation entity must only permit a person to become a standard employer-sponsor of the entity if:
(a)
the person applied to become a standard employer-sponsor of the entity using an application form; and
(b)
the application form used to apply to become a standard employer-sponsor:
(i)
was included in, or accompanied, a Product Disclosure Statement (relating to an interest in the entity) that was given to the person and that was not defective as at the time when the application was made; or
(ii)
was copied, or directly derived, by the person from a form referred to in subparagraph (i).
Note 1: Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section
1014D
).
Note 2: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1016A(3) amended by No 141 of 2003, s 3, Sch 2
[
78C].
S 1016A(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1016A(3A), see Corporations Regulations Schedule 10A, Part 6
-
Modifications relating to application forms and Product Disclosure Statements for standard employer-sponsor arrangements and successor funds, item 6.2]
1016A(4)
The regulations may:
(a)
provide for defences to offences based on subsection
(2)
or
(3)
; and
(b)
provide for additional offences relating to the receipt or non-receipt of applications or application forms.
Note 1: A defendant bears an evidential burden in relation to a defence. See subsection 13.3(3) of the
Criminal Code
.
Note 2: For the limit on penalties for offences against the regulations, see paragraph
1364(2)(w)
.
History
S 1016A(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1016B
IF STATEMENT LODGED WITH ASIC, FINANCIAL PRODUCT IS NOT TO BE ISSUED OR SOLD BEFORE SPECIFIED PERIOD
CCH Note:
Section 1016B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Exposure Period) Instrument 2016/74; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
[
CCH Note:
S 1016B heading will be amended by No 69 of 2020, s 3, Sch 1[1182], by substituting
"
THE REGISTRAR
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
1016B(1)
If:
(a)
a copy of a Product Disclosure Statement has been lodged with ASIC; and
(b)
the financial product to which the Statement relates is not able to be traded on any financial market (whether in Australia or elsewhere);
the responsible person must not issue or sell a financial product, pursuant to an application made in response to the Statement, until the period of 7 days (or that period as extended under subsection (2)) after lodgment of the Statement has ended.
Note 1: This subsection does not apply to an issue or sale pursuant to paragraph
1016E(2)(c)
(see subsection
1016E(2C)
).
Note 2: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
[
CCH Note:
S 1016B(1) will be amended by No 69 of 2020, s 3, Sch 1[1183], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1016B(1) amended by No 141 of 2003, s 3, Sch 2
[
78D].
S 1016B(1) (Notes) substituted by No 141 of 2003, s 3, Sch 2
[
78E].
S 1016B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1016B(2)
ASIC may extend the period by notice in writing to the responsible person. The period as extended must end no more than 14 days after lodgment.
History
S 1016B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1016B(3)
This section does not apply if the financial product to which the Product Disclosure Statement relates is:
(a)
a managed investment product of an Australian passport fund; or
(b)
a foreign passport fund product.
History
S 1016B(3) inserted by No 61 of 2018, s 3, Sch 2[279] (effective 18 September 2018).
SECTION 1016C
1016C
MINIMUM SUBSCRIPTION CONDITION MUST BE FULFILLED BEFORE ISSUE OR SALE
CCH Note:
Section 1016C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
If a Product Disclosure Statement for a financial product states that a financial product to which the Statement relates will not be issued or sold unless:
(a)
applications for a minimum number of financial products of that kind are received; or
(b)
a minimum amount is raised;
the responsible person must not issue or sell a financial product of that kind, pursuant to an application made in response to the Statement, if that condition has not been satisfied. For the purpose of working out whether the condition has been satisfied, a person who has agreed to take a financial product as underwriter is taken to have applied for that product.
Note 1: Statements in a Supplementary Product Disclosure Statement are taken to be contained in the Product Disclosure Statement it supplements (see
section 1014D
).
Note 1A: This subsection does not apply to an issue or sale pursuant to paragraph
1016E(2)
(c) (see subsection
1016E(2C)
).
Note 2: Failure to comply with this section is an offence (see
subsection 1311(1)
).
History
S 1016C amended by No 141 of 2003, s 3, Sch 2
[
78F].
S 1016C (Note 1A) inserted by No 141 of 2003, s 3, Sch 2
[
78G].
S 1016C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1016D
CONDITION ABOUT ABILITY TO TRADE ON A MARKET MUST BE FULFILLED BEFORE ISSUE OR SALE
CCH Note:
Section 1016D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1016D(1)
If a Product Disclosure Statement for a financial product states or implies that a financial product to which the Statement relates will be able to be traded on a financial market (whether in Australia or elsewhere), the responsible person must only issue or sell a financial product of that kind, pursuant to an application made in response to the Statement, if:
(a)
the product is able to be traded on that market; or
(b)
an application has, within 7 days after the relevant date (see subsection (3)), been made to the operator of that market for the taking of such action as is necessary to enable financial products of that kind to be traded on that market.
Paragraph (b) ceases to apply to the financial product at the end of the period of 3 months starting on the relevant date.
Note 1: Statements in a Supplementary Product Disclosure Statement are taken to be contained in the Product Disclosure Statement it supplements (see section
1014D
).
Note 1A: This subsection does not apply to an issue or sale pursuant to paragraph
1016E(2)(c)
(see subsection
1016E(2C)
).
Note 2: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1016D(1) amended by No 141 of 2003, s 3, Sch 2
[
78H].
S 1016D(1) (Note 1A) inserted by No 141 of 2003, s 3, Sch 2
[
78I].
S 1016D(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Issue or transfer void if quotation condition not fulfilled
1016D(2)
If a Product Disclosure Statement for a financial product states or implies that the financial product is to be quoted on a financial market (whether in Australia or elsewhere) and:
(a)
an application has not, within 7 days after the relevant date (see subsection (3)), been made to the operator of that market for the taking of such action as is necessary to enable financial products of that kind to be traded on that market; or
(b)
the product is not able to be traded on that market at the end of 3 months after the relevant date;
then:
(c)
an issue or transfer to a person of a financial product of that kind is void if:
(i)
the issue or transfer is pursuant to an application made in response to the Statement; or
(ii)
the person should have been given the Statement; and
(d)
if:
(i)
an issue or transfer of a financial product to a person is void because of paragraph (c); and
(ii)
the responsible person received money from that person on account of the issue or transfer
-
the responsible person must, as soon as practicable, return the money to that person.
Note 1: Paragraphs (c) and (d) do not apply to an issue or sale pursuant to paragraph
1016E(2)(c)
(see subsection
1016E(2C)
).
Note 2: Failure to comply with paragraph (d) is an offence (see subsection
1311(1)
).
History
S 1016D(2) amended by No 141 of 2003, s 3, Sch 2
[
78J].
S 1016D(2) (Notes) substituted by No 141 of 2003, s 3, Sch 2
[
78K].
S 1016D(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
The relevant date
1016D(3)
For the purposes of this section, the
relevant date
in relation to an express or implied statement is:
(a)
if the statement is express or implied in a Product Disclosure Statement, disregarding the effect of section
1014D
-
the date of the Product Disclosure Statement; or
(b)
if the statement is express or implied in a Supplementary Product Disclosure Statement
-
the date of the Supplementary Product Disclosure Statement; or
(c)
if the statement is express or implied in a Replacement Product Disclosure Statement (whether or not it is express or implied in the earlier Product Disclosure Statement it replaces)
-
the date of the Replacement Product Disclosure Statement.
History
S 1016D(3) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
147-148].
S 1016D(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
SECTION 1016E
CHOICES OPEN TO PERSON MAKING THE OFFER IF DISCLOSURE CONDITION NOT MET OR PRODUCT DISCLOSURE STATEMENT DEFECTIVE
CCH Note:
Section 1016E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators andSuperannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1016E(1)
This section applies if:
(a)
a Product Disclosure Statement for a financial product states that a financial product to which the Statement relates will not be issued or sold unless:
(i)
applications for a minimum number of financial products of that kind are received; or
(ii)
a minimum amount is raised;
and that condition is not satisfied within 4 months after the relevant date (see subsections (3) and (4)); or
(b)
a Product Disclosure Statement for a financial product states or implies that a financial product to which the Statement relates will be able to be traded on a financial market (whether in Australia or elsewhere) and:
(i)
an application has not, within 7 days after the relevant date (see subsection (4)), been made to the operator of that market for the taking of such action as is necessary to enable financial products of that kind to be traded on that market; or
(ii)
at the end of the period of 3 months starting on the relevant date, financial products of that kind are not able to be traded on that market; or
(c)
in relation to a Product Disclosure Statement for a financial product, the responsible person becomes aware that the Product Disclosure Statement was defective as at the time when it was prepared, or that it became or has become defective as at some later time.
(d)
(Repealed)
Note: Information and statements in a Supplementary Product Disclosure Statement are taken to be contained in the Product Disclosure Statement it supplements (see
section 1014D
).
History
S 1016E(1) amended by No 141 of 2003, s 3, Sch 2
[
78L].
S 1016E(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1016E(2)
If this section applies, the responsible person must, in relation to any application for financial products of the relevant kind that is made in response to the Product Disclosure Statement (the
first Product Disclosure Statement
) and that has not resulted in an issue or sale of financial products of that kind, comply with one of the following paragraphs:
(a)
the responsible person must repay the money they received from the applicant; or
(aa)
the responsible person must give the applicant:
(i)
a new Product Disclosure Statement for the financial products, and an additional statement that identifies the respects in which the new Product Disclosure Statement is materially different from the first Product Disclosure Statement; and
(ii)
1 month to withdraw their application and be repaid; or
(b)
the responsible person must give the applicant:
(i)
a Supplementary Product Disclosure Statement that changes the statement referred to in paragraph (1)(a) or (b), or that corrects the deficiency referred to in paragraph (1)(c); and
(ii)
1 month to withdraw their applications and be repaid; or
(ba)
the responsible person must issue or sell the financial products to the applicant and give them:
(i)
a new Product Disclosure Statement for the financial products, and an additional statement that identifies the respects in which the new Product Disclosure Statement is materially different from the first Product Disclosure Statement; and
(ii)
1 month to return the financial products and be repaid; or
(c)
the responsible person must issue or sell the financial products to the applicant and give them:
(i)
a Supplementary Product Disclosure Statement that changes the statement referred to in paragraph (1)(a) or (b), or that corrects the deficiency referred to in paragraph (1)(c); and
(ii)
1 month to return the financial products and be repaid.
Note 1: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
Note 2: If the responsible person chooses the option given by paragraph (aa) or (b), that option does not require the responsible person to wait until the end of the month referred to in subparagraph (aa)(ii) or (b)(ii) before going ahead and issuing or selling the financial products to the applicant if the applicant indicates before then that they still wish to proceed with the application.
Note 3: However, if the responsible person chooses the option given by paragraph (aa) or (b), whether the responsible person may go ahead and issue or sell the financial products to the applicant at the end of the month referred to in subparagraph (aa)(ii) or (b)(ii) (or earlier, as mentioned in note 2) is affected by this subsection and sections
1016A
to
1016E
(including as those provisions are affected by subsections (2A) and (2B) of this section).
Note 4: If the responsible person chooses the option given by paragraph (c), sections
1016A
to
1016D
do not prohibit the issue or sale of the financial products under that paragraph (see subsection (2C) of this section).
History
S 1016E(2) amended by No 141 of 2003, s 3, Sch 2
[
78M]
-
[
78Q].
S 1016E(2) (Notes) substituted by No 141 of 2003, s 3, Sch 2
[
78R].
S 1016E(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1016E(2A)
If, in accordance with paragraph (2)(aa), the responsible person gives the applicant a new Product Disclosure Statement for the financial products and the additional statement referred to in subparagraph (2)(aa)(i):
(a)
subsection (2), and sections
1016B
,
1016C
,
1016D
and
1016E
, apply in relation to the application, from the time when the applicant is given the new Product Disclosure Statement (the
correction time
), as if the application had been made in response to the new Product Disclosure Statement; and
(b)
if:
(i)
the reason for giving the new Product Disclosure Statement was that the responsible person became aware that the first Product Disclosure Statement was defective as at the time when it was prepared, or had become defective by the time the application was made; and
(ii)
the financial products are
relevant financial products
as defined in section
1016A
;
section
1016A
applies in relation to the application, from the correction time, as if the first Product Disclosure Statement had instead contained the content of the new Product Disclosure Statement.
Note 1: Because of paragraph (a):
(a) if this section applies to the new Product Disclosure Statement, the responsible person's ability to proceed to issue or sell the financial products pursuant to the application will be affected by subsection (2), and by sections
1016B
,
1016C
and
1016D
, as those provisions apply in relation to the new Product Disclosure Statement (even though the application was actually made in response to the first Product Disclosure Statement); and
(b) sections 1016B, 1016C and 1016D, as they relate to the first Product Disclosure Statement, cease to apply in relation to the application.
Note 2: Because of paragraph (b), the application may be an
eligible application
as defined in section
1016A
, even though the first Product Disclosure Statement was actually defective as at the time when the application was made.
History
S 1016E(2A) inserted by No 141 of 2003, s 3, Sch 2
[
78S].
1016E(2B)
If:
(a)
in accordance with paragraph (2)(b), the responsible person gives the applicant a Supplementary Product Disclosure Statement that relates to the financial products; and
(b)
the reason for giving the Supplementary Product Disclosure Statement was that the responsible person became aware that the first Product Disclosure Statement was defective as at the time when it was prepared, or had become defective by the time the application was made; and
(c)
the financial products are
relevant financial products
as defined in section
1016A
;
section
1016A
applies in relation to the application, from the time when the applicant is given the Supplementary Product Disclosure Statement, as if the Supplementary Product Disclosure Statement had been given to the applicant before the application was made.
Note 1: Because of this subsection and section
1014D
(information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements), the application may be an
eligible application
as defined in section
1016A
, even though the Supplementary Product Disclosure Statement was not actually given until after the time when the application was made.
Note 2: The responsible person's ability to proceed to issue or sell the financial products pursuant to the application will be affected by subsection (2), and by sections
1016B
,
1016C
and
1016D
, as those provisions apply in relation to the first Product Disclosure Statement as affected by the Supplementary Product Disclosure Statement and any other Supplementary Product Disclosure Statements.
History
S 1016E(2B) inserted by No 141 of 2003, s 3, Sch 2
[
78S].
1016E(2BA)
If Subdivision
DA
applies:
(a)
for the purposes of subsection (2), instead of giving the applicant a Supplementary Product Disclosure Statement, the responsible person may give the applicant a Replacement Product Disclosure Statement; and
(b)
if the responsible person gives the applicant a Replacement Product Disclosure Statement, subsection (2B) applies as if references in that subsection to a Supplementary Product Disclosure Statement were references to the Replacement Product Disclosure Statement.
History
S 1016E(2BA) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
149].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
1016E(2C)
If the responsible person chooses to comply with paragraph (2)(c), nothing in sections
1016A
to
1016D
applies to the issue or sale of the financial products under that paragraph.
Note: This subsection affects the elements of the offences under sections
1016A
to
1016D
, and so it is not an exception in relation to which a defendant bears an evidential burden under subsection 13.3(3) of the
Criminal Code
.
History
S 1016E(2C) inserted by No 141 of 2003, s 3, Sch 2
[
78S].
1016E(3)
For the purpose of working out whether the condition referred to in paragraph (1)(a) has been satisfied, a person who has agreed to take a financial product as an underwriter is taken to have applied for that financial product.
History
S 1016E(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1016E(4)
For the purposes of paragraphs (1)(a) and (b), the
relevant date
in relation to an express or implied statement is:
(a)
if the statement is express or implied in a Product Disclosure Statement, disregarding the effect of
section 1014D
-
the date of the Product Disclosure Statement; or
(b)
if the statement is express or implied in a Supplementary Product Disclosure Statement
-
the date of the Supplementary Product Disclosure Statement; or
(c)
if the statement is express or implied in a Replacement Product Disclosure Statement (whether or not it is express or implied in the earlier Product Disclosure Statement it replaces)
-
the date of the Replacement Product Disclosure Statement.
History
S 1016E(4) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
150].
S 1016E(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
1016E(5)
For the purposes of this section,
defective
, when used in relation to a Product Disclosure Statement at a particular time, means that the Product Disclosure Statement, if it had been given to a person at that time, would have been
defective
as defined in Subdivision
A
of Division
7
.
Note: Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see section
1014D
).
History
S 1016E(5) inserted by No 141 of 2003, s 3, Sch 2
[
78T].
SECTION 1016F
REMEDIES FOR PERSON ACQUIRING FINANCIAL PRODUCT UNDER DEFECTIVE PRODUCT DISCLOSURE DOCUMENT
CCH Note:
Section 1016F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1016F(1)
Subject to this section, if a financial product is issued or sold to a person (the
client
) in contravention of
section 1016E
, the client has the right to return the product and to have the money they paid to acquire the product repaid. This is so even if the responsible person is being wound up.
1016F(2)
If the responsible person:
(a)
is a body corporate; and
(b)
does not repay the money as required by subsection (1);
the directors of the responsible person are personally liable to repay the money.
1016F(3)
The right to return the product must be exercised by notifying the responsible person in one of the following ways:
(a)
in writing; or
(b)
electronically; or
(c)
in any other way specified in the regulations.
Also, if the regulations require the client to comply with other requirements in order to exercise the right to return the product, those other requirements must be complied with.
1016F(4)
The right to return the product can only be exercised during the period of 1 month starting on the date of the issue or sale of the product to the client.
1016F(5)
On the exercise of the right to return the product:
(a)
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 section, terminated with effect from that time without penalty to the client; and
(b)
any contract for the acquisition of the product by the client is, by force of this section, terminated with effect from that time without penalty to the client.
1016F(6)
The regulations may provide for consequences and obligations (in addition to those provided for by subsection (5)) to apply if the right to return a financial product is exercised.
1016F(7)
The regulations may do any or all of the following:
(a)
provide that a specified subclass of financial products that would otherwise be covered by this section is excluded from this section;
(b)
provide additional requirements to be satisfied before this section applies in relation to a class or subclass of financial products;
(c)
provide that this section does not apply in relation to the provision of a financial product in specified circumstances.
History
S 1016F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 3
-
Other disclosure obligations of the issuer of a financial product
CCH Note:
Division 3 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1017A
OBLIGATION TO GIVE ADDITIONAL INFORMATION ON REQUEST
CCH Note:
Section 1017A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Obligation to give information
1017A(1)
The following people may request the person who is the responsible person for a Product Disclosure Statement for a financial product under
Division 2
to provide further information about the product:
(a)
a person who:
(i)
has been or should have been given, or who has obtained, the Product Disclosure Statement for the financial product; and
(ii)
is not a holder of the financial product;
(b)
a financial services licensee;
(c)
an authorised representative of a financial services licensee;
[
CCH Note:
There is no paragraph 1017A(1)(d).]
(e)
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).
1017A(2)
The responsible person must give the person the information if:
(a)
the financial product is offered in this jurisdiction or the Product Disclosure Statement is given or obtained in this jurisdiction; and
(b)
the responsible person has previously made the information generally available to the public; and
(c)
the information might reasonably influence a person's decision, as a retail client, whether to acquire a financial product to which the Statement relates; and
(d)
it is reasonably practicable for the responsible person to give the person the information; and
(e)
the person pays any charge payable under subsection (5).
The responsible person does not need to give information that is contained in the Product Disclosure Statement.
Note 1: Paragraph (b)
-
This requirement means that the responsible person does not have to disclose material that is confidential because it is:
(a) an internal working document; or
(b) personal information about another person; or
(c) a trade secret or other information that has a commercial value that would be reduced or destroyed by the disclosure; or
(d) material that the responsible person owes another a
[
sic
] person a duty not to disclose.
Note 2: Information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements (see
section 1014D
).
1017A(3)
The responsible person must take reasonable steps to ensure that, as soon as practicable after receiving the request, and in any event within one month, subsection (2) is complied with.
Manner of giving information
1017A(4)
The responsible person may give the person making the request the information:
(a)
by making a document containing the information available for inspection by the person:
(i)
at a suitable place in this jurisdiction (having adequate facilities for the person to inspect and photocopy the document); and
(ii)
during normal business hours; or
(b)
in some other way that is agreed between the responsible person and the person making the request.
History
S 1017A(4) amended by No 61 of 2018, s 3, Sch 2[280] (effective 18 September 2018).
Issuer or seller may charge for giving information
1017A(5)
The responsible person may require the person making the request to pay a charge for obtaining the information.
1017A(6)
The amount of the charge must not exceed the reasonable costs that the responsible person incurs that are reasonably related to giving the information (including any costs incurred in photocopying the document containing the information).
Note: This would include the costs of searching for, obtaining and collating the information.
History
S 1017A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1017B
ONGOING DISCLOSURE OF MATERIAL CHANGES AND SIGNIFICANT EVENTS
CCH Note:
Section 1017B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Class Order CO 13/721 Relief to Facilitate Quotation of Exchange Traded Funds on the Aqua Market; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Issuer to notify holders of changes and events
1017B(1)
If:
(a)
a person (the
holder
) acquired a financial product as a retail client (whether or not it was acquired from the issuer); and
(b)
either:
(i)
the financial product was offered in this jurisdiction; or
(ii)
the holder applied for the financial product in this jurisdiction; and
(c)
the product is not specified in regulations made for the purposes of this paragraph; and
(d)
the circumstances in which the product was acquired are not specified in regulations made for the purposes of this paragraph;
the issuer must, in accordance with subsections
(3)
to
(8)
, notify the holder of changes and events referred to in subsection
(1A)
.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1017B(1) substituted by No 141 of 2003, s 3, Sch 2
[
79].
The changes and events that must be notified
1017B(1A)
The changes and events that must be notified are:
(a)
any material change to a matter, or significant event that affects a matter, being a matter that would have been required to be specified in a Product Disclosure Statement for the financial product prepared on the day before the change or event occurs; and
(b)
any other change, event or other matter of a kind specified in regulations made for the purposes of this paragraph; and
(c)
without limiting paragraph
(a)
or
(b)
-
any replacement of a kind specified in regulations made for the purposes of this paragraph of a beneficial interest of a class that is a MySuper product with a beneficial interest of another class in a superannuation entity.
Note: Paragraph
(a)
applies whether or not a Product Disclosure Statement for the financial product was in fact prepared (or required to be prepared) on the day before the change or event occurs.
History
S 1017B(1A) amended by No 162 of 2012, s 3, Sch 1, Pt 1
[
1A].
S 1017B(1A) inserted by No 141 of 2003, s 3, Sch 2
[
79].
1017B(2)
The issuer does not need to give the notice if the financial product is a managed investment product or foreign passport fund product that is an ED security.
Note 1: The continuous disclosure provisions in Chapter
6CA
apply to managed investment products and foreign passport fund products that are ED securities.
Note 2: A defendant bears an evidential burden in relation to the matters in this subsection.
History
S 1017B(2) amended by No 82 of 2021, s 3, Sch 2[43] (effective 14 August 2021).
S 1017B(2) amended by No 61 of 2018, s 3, Sch 2[281] and
[
282] (effective 18 September 2018).
S 1017B(2) amended by No 141 of 2003, s 3, Sch 2
[
80].
S 1017B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017B(3)
The issuer must notify the holder in one of the following ways:
(a)
in writing; or
(b)
electronically; or
(c)
in a way specified in the regulations.
History
S 1017B(3) amended by No 141 of 2003, s 3, Sch 2
[
80].
S 1017B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017B(4)
The notice must give the holder the information that is reasonably necessary for the holder to understand the nature and effect of the change or event.
History
S 1017B(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Time for notifying holders
1017B(5)
The time within which the issuer must give the notice is set out in the following table:
Time for giving notice of change or event
|
|
Nature of change or event
|
Time for giving notice
|
1 |
Change or event is not an increase in fees or charges |
Subject to subsection
(6)
, before the change or event occurs or as soon as practicable after, but not more than 3 months after, the change or event occurs |
2 |
Change is an increase in fees or charges |
30 days before the change takes effect |
History
S 1017B(5) amended by No 141 of 2003, s 3, Sch 2
[
80].
S 1017B(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1017B(5A)
-
(5E), see Corporations Regulations Schedule 10A, Part 10
-
Modifications relating to ongoing disclosure of material changes and significant events in relation to superannuation products and RSAs, item 10.1]
1017B(6)
If the change or event is not an increase in fees or charges, the notice may be given more than 3 months after the change or event occurs if:
(a)
the issuer reasonably believes that the event is not adverse to the holder
'
s interests and accordingly the holder would not be expected to be concerned about the delay in receiving the information; and
(b)
the notice is given no later than 12 months after the change or event occurs.
History
S 1017B(6) amended by No 141 of 2003, s 3, Sch 2
[
80].
S 1017B(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017B(7)
If the change or event might result in an increase in fees or charges, this section applies to the change or event as if it would result in an increase in fees or charges.
History
S 1017B(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1017B(7A)
-
(7C), see Corporations Regulations Schedule 10A, Part 14
-
Modifications relating to obligation to give information about financial products, item 14.1]
1017B(8)
In any proceedings against the issuer for an offence based on subsection
(1)
, it is a defence if the issuer took reasonable steps to ensure that the other person would be notified of the matters required by subsection
(1)
in accordance with subsections
(3)
to
(8)
.
Note: A defendant bears an evidential burden in relation to the matters in subsection
(8)
. See subsection
13.3(3)
of the
Criminal Code
.
History
S 1017B(8) amended by No 141 of 2003, s 3, Sch 2
[
80].
S 1017B(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017B(9)
In this section:
fees or charges
does not include fees or charges payable under a law of the Commonwealth or of a State or Territory.
MySuper product
(Repealed by No 76 of 2023, s 3, Sch 2
[
516] (effective 20 October 2023).)
History
S 1017B(9) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1017B(10), see Corporations Regulations Schedule 10A, Part 10
-
Modifications relating to ongoing disclosure of material changes and significant events in relation to superannuation products and RSAs, item 10.2]
SECTION 1017BA
TRUSTEES OF REGULATED SUPERANNUATION FUNDS
-
OBLIGATION TO MAKE PRODUCT DASHBOARD PUBLICLY AVAILABLE
CCH Note:
Section 1017BA is modified by the ASIC Corporations (In-use Notices for Employer-sponsored Superannuation and Superannuation Dashboards) Instrument 2022/496; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1017BA(1)
The trustee, or the trustees, of a regulated superannuation fund that has 7 or more members must ensure:
(a)
that a product dashboard for each of the fund
'
s MySuper products and choice products is publicly available at all times on the fund
'
s website; and
(b)
that each product dashboard sets out the information required by subsection
(2)
or
(3)
; and
(c)
that the information set out in each product dashboard about fees and other costs is updated within 14 days after the end of a period prescribed by the regulations; and
(d)
that the other information set out in each product dashboard is updated within 14 days after any change to the information; and
(e)
if the regulations prescribe the way in which information is to be set out in a product dashboard
-
that each product dashboard sets out the information in accordance with the regulations.
[
CCH Note:
ASIC Class Order
[
CO 14/443 (F2014L00594)] (as amended by ASIC Corporations (Amendment) Instrument 2017/569
[
F2017L00742]) made under s
1020F(1)
of the
Corporations Act 2001
, provides as below:
Exemption
Deferral of obligation of trustees to make product dashboards for choice products publicly available
4
A trustee of a regulated superannuation fund that has 5 or more members does not have to comply with subsection
1017BA(1)
of the Act in relation to choice products until 1 July 2019.
Deferral of obligations of trustees to make information relating to investment of assets publicly available
5
A trustee of a registrable superannuation entity (other than a pooled superannuation trust) does not have to comply with subsection
1017BB(1)
of the Act in relation to a reporting day occurring before 31 December 2019.
Deferral of obligations of second parties to provide information relating to investment of assets
6
A second party does not have to comply with subsection
1017BC(3)
of the Act in relation to a reporting day occurring before 1 July 2019.
Declaration
Deferral of obligations of first parties and agents to give notice relating to investment of assets
7
Part
7.9
of Chapter
7
of the Act applies in relation to a Division
3
first party and an agent as if that Part were modified or varied as follows:
(a)
in subsection
1017BC(2)
, omit
"
at the time the arrangement is entered into
"
, substitute
"
on or before 1 July 2019
"
;
(b)
in subsections
1017BD(2)
and
1017BE(2)
, omit
"
at the time the core arrangement is entered into
"
, substitute
"
on or before 1 July 2019
"
.
8
The declaration in paragraph 7 applies in relation to an arrangement entered into between commencement of this instrument and 30 June 2019 (inclusive).
Interpretation
9
In this instrument:
agent
has the same meaning as in subsection
1017BC(4)
of the Act.
arrangement
means an arrangement to which section
1017BC
,
1017BD
or
1017BE
of the Act applies.
choice product
has the same meaning as in the
Superannuation Industry (Supervision) Act 1993
.
Division 3 first party
means a person who is a
first party
for the purposes of section
1017BC
,
1017BD
or
1017BE
of the Act.
registrable superannuation entity
has the same meaning as in the
Superannuation Industry (Supervision) Act 1993
.
reporting day
has the same meaning as subsection
1017BB(6)
of the Act.
regulated superannuation fund
has the same meaning as in the
Superannuation Industry (Supervision) Act 1993
.
second party
has the same meaning as in subsection
1017BC(1)
of the Act.]
History
S 1017BA(1) amended by No 35 of 2022, s 3, Sch 4, Pt 4[32] (effective 10 August 2022).
S 1017BA(1) amended by No 61 of 2013, s 3, Sch 1, Pt 1[10A].
1017BA(2)
The product dashboard for a MySuper product must set out:
(a)
the following, worked out in accordance with the regulations in relation to the period or periods prescribed by the regulations:
(i)
a return target or return targets for the product;
(ii)
a return or returns for the product;
(iii)
a comparison or comparisons between return targets and returns for the product;
(iv)
the level of investment risk that applies to the product;
(v)
a statement of fees and other costs in relation to the product; and
(b)
any other information prescribed by the regulations.
History
S 1017BA(2) substituted by No 61 of 2013, s 3, Sch 1, Pt 1[10B].
1017BA(3)
Subject to subsection
(4)
, the product dashboard for a choice product must set out:
(a)
the following for each investment option offered within the choice product, worked out in accordance with the regulations in relation to the period or periods prescribed by the regulations:
(i)
a return target or return targets for the investment option;
(ii)
a return or returns for the investment option;
(iii)
a comparison or comparisons between return targets and returns for the investment option;
(iv)
the level of investment risk that applies to the investment option;
(v)
a statement of fees and other costs in relation to the investment option; and
(b)
any other information prescribed by the regulations.
History
S 1017BA(3) substituted by No 61 of 2013, s 3, Sch 1, Pt 1[10C].
1017BA(4)
Subsection
(3)
does not apply to an investment option within a choice product if:
(a)
the assets of the fund that are invested under the option are invested only in one or more of the following:
(i)
a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;
(ii)
a life policy under which the benefit to a member (or a relative or dependant of a member) is based only on the realisation of a risk, not the performance of an investment;
(iii)
an investment account contract the only beneficiaries of which are a member, and relatives and dependants of a member; or
(b)
the sole purpose of the investment option is the payment of a pension to members who have satisfied a condition of release of benefits specified in a standard made under paragraph
31(2)(h)
of the
Superannuation Industry (Supervision) Act 1993
; or
(c)
the assets of the fund that are invested under the option are invested only in another single asset.
[
CCH Note:
For s 1017BA(4AA), see Corporations Regulations Schedule 10A, Part 6A
-
Modifications relating to MySuper measures, item 6A.1]
1017BA(4A)
The regulations may prescribe circumstances in which assets of a regulated superannuation fund are, or are not, to be treated as invested in a single asset for the purposes of paragraph
(4)(c)
.
History
S 1017BA(4A) inserted by No 61 of 2013, s 3, Sch 1, Pt 1[10D].
Civil liability
1017BA(4B)
A person contravenes this subsection if the person contravenes subsection
(1)
.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 1017BA(4B) inserted by No 17 of 2019, s 3, Sch 1
[
98] (effective 13 March 2019).
1017BA(5)
In this section:
choice product
(Repealed by No 76 of 2023, s 3, Sch 2
[
517] (effective 20 October 2023).)
fee
, in relation to a MySuper product or a choice product offered by a regulated superannuation fund, means a fee (other than an activity fee, an advice fee or an insurance fee within the meaning of the
Superannuation Industry (Supervision) Act 1993
) that may be charged by the trustee, or the trustees, of the regulated superannuation fund in relation to the product under that Act.
investment account contract
has the same meaning as in the
Life Insurance Act 1995
.
life policy
(Repealed by No 76 of 2023, s 3, Sch 2
[
517] (effective 20 October 2023).)
member
, in relation to a regulated superannuation fund, has the same meaning as in the
Superannuation Industry (Supervision) Act 1993
.
MySuper product
(Repealed by No 76 of 2023, s 3, Sch 2
[
517] (effective 20 October 2023).)
pension
(Repealed by No 76 of 2023, s 3, Sch 2
[
517] (effective 20 October 2023).)
quarter
(Repealed by No 61 of 2013, s 3, Sch 1, Pt 1[10E].)
regulated superannuation fund
(Repealed by No 76 of 2023, s 3, Sch 2
[
517] (effective 20 October 2023).)
History
S 1017BA inserted by No 171 of 2012, s 3, Sch 3, Pt 1[8].
SECTION 1017BB
TRUSTEES OF REGISTRABLE SUPERANNUATION ENTITIES
-
OBLIGATION TO MAKE INFORMATION RELATING TO INVESTMENT OF ASSETS PUBLICLY AVAILABLE
CCH Note:
Section 1017BB is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Obligation to publicise investment information
1017BB(1)
The trustee, or the trustees, of a registrable superannuation entity (the
reporting entity
) must make the following information about each of the entity
'
s investment options publicly available on the entity
'
s website no later than 90 days after each reporting day:
(a)
sufficient information to identify each investment item (a
disclosable item
) allocated to the investment option at the end of the reporting day that:
(i)
is held by the reporting entity, an associated entity of the reporting entity or a pooled superannuation trust; and
(ii)
is neither an investment in an associated entity of the reporting entity, nor an investment in a pooled superannuation trust;
(b)
sufficient information to identify the value, and the weighting or exposure, at the end of the reporting day of each disclosable item;
(c)
the total value, and the total weighting or exposure, at the end of the reporting day of all disclosable items.
History
S 1017BB(1) substituted by No 40 of 2019, s 3, Sch 6[1] (effective 6 April 2019).
1017BB(1A)
However, the regulations may provide that subsection
(1)
applies for a prescribed kind of disclosable item so that:
(a)
paragraphs
(1)(a)
and
(b)
need not be complied with for each item of that kind; and
(b)
instead, only the following need be disclosed:
(i)
the name of that kind of item;
(ii)
the total value, and the total weighting or exposure, at the end of the reporting day of all items of that kind.
History
S 1017BB(1A) inserted by No 40 of 2019, s 3, Sch 6[1] (effective 6 April 2019).
1017BB(2)
Information made publicly available under subsection
(1)
in respect of a reporting day must continue to be made publicly available on the registrable superannuation entity
'
s website until information relating to the next reporting day is made publicly available under subsection
(1)
.
1017BB(3)
If the regulations prescribe the way in which information made publicly available under subsection
(1)
must be organised, the information must be organised in accordance with the regulations.
Full exemption
1017BB(4)
Subsection
(1)
does not apply to the trustee, or the trustees, of a registrable superannuation entity if the entity is:
(a)
a pooled superannuation trust; or
(b)
a single member fund; or
(c)
a small APRA fund.
History
S 1017BB(4) substituted by No 40 of 2019, s 3, Sch 6[2] (effective 6 April 2019).
Partial exemptions
1017BB(5)
Subsection
(1)
does not apply to the trustee, or the trustees, of a registrable superannuation entity for:
(a)
an investment option of the entity that has been closed to new members for at least 5 years; or
(b)
an investment item that is not a material investment in accordance with regulations prescribed for the purposes of this paragraph; or
(c)
an investment item invested solely to support a defined benefit interest (within the meaning of the
Income Tax Assessment Act 1997
); or
(d)
an investment item invested in a life policy, or investment account contract, of a kind described in subparagraph
1017BA(4)(a)(i)
,
(ii)
or
(iii)
; or
(e)
an investment item of a kind prescribed by the regulations for the purposes of this paragraph.
Note: An investment item covered by any of paragraphs (b) to (e) will not be a disclosable item.
History
S 1017BB(5) substituted by No 40 of 2019, s 3, Sch 6[2] (effective 6 April 2019).
1017BB(5A)
(Repealed by No 46 of 2021, s 3, Sch 3
[
23] (effective 1 July 2021).)
1017BB(5AA)
A person contravenes this subsection if the person contravenes subsection
(1)
or
(2)
, or regulations made for the purposes of subsection
(3)
.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 1017BB(5AA) inserted by No 17 of 2019, s 3, Sch 1
[
99] (effective 13 March 2019).
Definitions
1017BB(6)
In this section:
investment item
means an asset or a derivative.
History
Definition of
investment item
inserted by No 40 of 2019, s 3, Sch 6[3] (effective 6 April 2019).
investment option
, for a registrable superannuation entity, means:
(a)
an investment pool maintained within the entity; or
(b)
a financial product made available to a member of the entity:
(i)
that is a managed investment scheme or other pooled investment; and
(ii)
in respect of which section
1012IA
applies if there is, or will be, a regulated acquisition of the product (within the meaning of that section).
History
Definition of
investment option
inserted by No 40 of 2019, s 3, Sch 6[3] (effective 6 April 2019).
member
, in relation to a superannuation fund (within the meaning of the
Superannuation Industry (Supervision) Act 1993
), has the same meaning as in that Act.
History
Definition of
member
inserted by No 40 of 2019, s 3, Sch 6[3] (effective 6 April 2019).
MySuper product
(Repealed by No 76 of 2023, s 3, Sch 2
[
518] (effective 20 October 2023).)
pooled superannuation trust
(Repealed by No 76 of 2023, s 3, Sch 2
[
518] (effective 20 October 2023).)
reporting day
means 30 June and 31 December each year.
small APRA fund
means a regulated superannuation fund with no more than 6 members.
History
Definition of
small APRA fund
amended by No 76 of 2023, s 3, Sch 2
[
519] (effective 20 October 2023).
Definition of
small APRA fund
amended by No 47 of 2021, s 3, Sch 1[3] (effective 1 July 2021).
Definition of
small APRA fund
inserted by No 40 of 2019, s 3, Sch 6[3] (effective 6 April 2019).
History
S 1017BB inserted by No 171 of 2012, s 3, Sch 3, Pt 1[8].
SECTION 1017BC
1017BC
OBLIGATIONS RELATING TO INVESTMENT OF ASSETS OF REGISTRABLE SUPERANNUATION ENTITIES
-
GENERAL RULE ABOUT GIVING NOTICE AND PROVIDING INFORMATION
(Repealed by No 40 of 2019, s 3, Sch 6
[
4] (effective 6 April 2019).)
SECTION 1017BD
1017BD
OBLIGATIONS RELATING TO INVESTMENT OF ASSETS OF REGISTRABLE SUPERANNUATION ENTITIES
-
GIVING NOTICE TO PROVIDERS UNDER CUSTODIAL ARRANGEMENTS
(Repealed by No 40 of 2019, s 3, Sch 6
[
4] (effective 6 April 2019).)
SECTION 1017BE
1017BE
OBLIGATIONS RELATING TO INVESTMENT OF ASSETS OF REGISTRABLE SUPERANNUATION ENTITIES
-
GIVING NOTICE TO ACQUIRERS UNDER CUSTODIAL ARRANGEMENTS
(Repealed by No 40 of 2019, s 3, Sch 6
[
4] (effective 6 April 2019).)
SECTION 1017C
INFORMATION FOR EXISTING HOLDERS OF SUPERANNUATION PRODUCTS AND RSAs
CCH Note:
Section 1017C is modified by the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Application
1017C(1)
This section applies to the issuer of a financial product if the product is:
(a)
a superannuation product; or
(b)
an RSA.
History
S 1017C(1) amended by No 76 of 2023, s 3, Sch 2
[
521] (effective 20 October 2023).
S 1017C(1) amended by No 141 of 2003, s 3, Sch 2
[
81].
S 1017C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Information for concerned person related to a superannuation product
1017C(2)
If the financial product is a superannuation product, then, subject to subsection
(4)
, the issuer must, on request by a concerned person, give the concerned person information that the concerned person reasonably requires for the purposes of:
(a)
understanding any benefit entitlements that the concerned person may have, has or used to have under the superannuation product; or
(b)
understanding the main features of:
(i)
the relevant sub-plan; or
(ii)
if there is no relevant sub-plan
-
the superannuation entity; or
(c)
making an informed judgment about the management and financial condition of:
(i)
the superannuation entity; and
(ii)
the relevant sub-plan (if any); or
(d)
making an informed judgment about the investment performance of:
(i)
the relevant sub-plan; or
(ii)
if there is no relevant sub-plan
-
the superannuation entity; or
(e)
understanding the particular investments of:
(i)
the superannuation entity; and
(ii)
the relevant sub-plan (if any).
The information must be given in accordance with the other requirements of this section.
Note 1: Subsection
(9)
defines
concerned person
and
relevant sub-plan
.
Note 2: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1017C(2) substituted by No 141 of 2003, s 3, Sch 2
[
82].
Information for concerned person related to an RSA
1017C(2A)
If the financial product is an RSA, then, subject to subsection
(4)
, the issuer must, on request by a concerned person, give the concerned person information that the concerned person reasonably requires for the purposes of:
(a)
understanding any benefit entitlements that the concerned person may have, has or used to have under the RSA; or
(b)
understanding the main features of the RSA.
The information must be given in accordance with the other requirements of this section.
Note 1: Subsection
(9)
defines
concerned person
.
Note 2: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1017C(2A) amended by No 76 of 2023, s 3, Sch 2
[
523] (effective 20 October 2023).
S 1017C(2A) inserted by No 141 of 2003, s 3, Sch 2
[
82].
Information for employer-sponsor related to a superannuation product
1017C(3)
If the financial product is a superannuation product, then, subject to subsection
(4)
, the issuer must, on request by an employer-sponsor, give the employer-sponsor information that the employer-sponsor reasonably requires for the purposes of:
(a)
understanding the kinds of benefits to which the employer-sponsor
'
s employees are entitled or will or may become entitled; or
(b)
understanding the main features of:
(i)
the relevant sub-plan; or
(ii)
if there is no relevant sub-plan
-
the superannuation entity; or
(c)
making an informed judgment about the management and financial condition of:
(i)
the superannuation entity; and
(ii)
the relevant sub-plan (if any); or
(d)
making an informed judgment about the investment performance of:
(i)
the relevant sub-plan; or
(ii)
if there is no relevant sub-plan
-
the superannuation entity; or
(e)
a matter related to the
Superannuation Guarantee (Administration) Act 1992
.
The information must be given in accordance with the other requirements of this section.
Note 1: Subsection
(9)
defines
relevant sub-plan
.
Note 2: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1017C(3) substituted by No 141 of 2003, s 3, Sch 2
[
82].
Reports prepared by a registrable superannuation entity etc.
1017C(3AA)
If the financial product is a superannuation product that relates to a registrable superannuation entity (within the meaning of Chapter
2M
), the issuer must, on request in writing by a person who is a concerned person, give the person:
(a)
a copy of the financial report of the entity for a specified financial year; and
(b)
a copy of the directors
'
report of the entity for a specified financial year; and
(c)
a copy of the auditor
'
s report on that financial report.
Each copy must be given in accordance with the other requirements of this section.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1017C(3AA) inserted by No 29 of 2023, s 3, Sch 6[175] (effective 1 July 2023).
Information for employer related to an RSA
1017C(3A)
If the financial product is an RSA, then, subject to subsection
(4)
, the issuer must, on request by an employer who made an application to acquire the RSA on behalf of an employee, give the employer information that the employer reasonably requires for the purposes of:
(a)
understanding the kinds of benefits to which the employer
'
s employees are entitled or will or may become entitled; or
(b)
understanding the main features of the RSA; or
(c)
a matter related to the
Superannuation Guarantee (Administration) Act 1992
.
The information must be given in accordance with the other requirements of this section.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1017C(3A) amended by No 76 of 2023, s 3, Sch 2
[
525] (effective 20 October 2023).
S 1017C(3A) inserted by No 141 of 2003, s 3, Sch 2
[
82].
Exceptions
1017C(4)
This section does not require (and does not, by implication, authorise) the disclosure of:
(a)
internal working documents of the issuer; or
(b)
information or documents that would disclose, or tend to disclose:
(i)
personal information of another person if, in the circumstances, the disclosure would be unreasonable; or
(ii)
trade secrets or other information having a commercial value that would be reduced or destroyed by the disclosure; or
(c)
information or documents in relation to which the issuer owes to another person a duty of non-disclosure.
Note: A defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the
Criminal Code
.
History
S 1017C(4) amended by No 141 of 2003, s 3, Sch 2
[
83].
S 1017C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Specific requirements
1017C(5)
The issuer must, on request in writing by a person who is a concerned person, an employer-sponsor (if the financial product is a superannuation product) or an employer referred to in subsection
(3A)
(if the financial product is an RSA), give the person:
(a)
a copy of a prescribed document (to the extent the issuer has access to the document) specified in the request; or
(b)
prescribed information (to the extent to which the issuer has or has access to the information) specified in the request.
The document or information must be given in accordance with the other requirements of this section.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 1017C(5) amended by No 76 of 2023, s 3, Sch 2
[
526] (effective 20 October 2023).
S 1017C(5) amended by No 141 of 2003, s 3, Sch 2
[
83] and
[
84].
S 1017C(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017C(6)
Subsection
(5)
does not apply if the issuer is the trustee of a self managed superannuation fund.
History
S 1017C(6) amended by No 49 of 2019, s 3, Sch 4
[
40] (effective 6 April 2019).
S 1017C(6) amended by No 141 of 2003, s 3, Sch 2
[
85].
S 1017C(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Documents may be made available for inspection
1017C(7)
It is sufficient compliance with a requirement imposed by this section on the issuer to give information, or to give a copy of a document, to a person (the
client
) if:
(a)
a document containing the information; or
(b)
a copy of the document;
is made available for inspection by the issuer:
(c)
at a suitable place (having adequate facilities for the person to inspect and photocopy the document); and
(d)
during normal business hours;
or as otherwise agreed between the issuer for the financial product and the client.
History
S 1017C(7) amended by No 141 of 2003, s 3, Sch 2
[
85].
S 1017C(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1017C(7A), see Corporations Regulations Schedule 10A, Part 9
-
Modifications relating to periodic statements for superannuation entities and RSA providers, item 9.1]
Time for compliance
1017C(8)
The issuer must comply with a request to give information, or a copy of a document, as soon as practicable. The issuer must, in any event, make reasonable efforts to comply with the request within 1 month of receiving the request.
History
S 1017C(8) amended by No 141 of 2003, s 3, Sch 2
[
85].
S 1017C(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1017C(8A)
-
(8D), see Corporations Regulations Schedule 10A, Part 11
-
Modifications relating to charges for information requested, item 11.1. For s 1017C(8A)
-
(8C), see Corporations Regulations Schedule 10A, Part 14
-
Modifications relating to obligation to give information about financial products, item 14.2]
Definitions
1017C(9)
In this section:
concerned person
:
(a)
in relation to a superannuation product
-
means a person who:
(i)
is, or was within the preceding 12 months, a member of the superannuation entity; or
(ii)
is a beneficiary of the superannuation entity; or
(b)
in relation to an RSA
-
means a person who:
(i)
is, or was within the preceding 12 months, a holder of the RSA; or
(ii)
has a right or a claim under the RSA.
History
Definition of
concerned person
amended by No 76 of 2023, s 3, Sch 2
[
527] (effective 20 October 2023).
Definition of
concerned person
substituted by No 141 of 2003, s 3, Sch 2
[
86].
relevant sub-plan
, in relation to a superannuation product, has the meaning given by the regulations.
History
Definition of
relevant sub-plan
amended by No 141 of 2003, s 3, Sch 2
[
87].
History
S 1017C(9) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1017D
PERIODIC STATEMENTS FOR RETAIL CLIENTS FOR FINANCIAL PRODUCTS THAT HAVE AN INVESTMENT COMPONENT
CCH Note:
Section 1017D is modified by the ASIC Corporations (In-use Notices for Employer-sponsored Superannuation and Superannuation Dashboards) Instrument 2022/496; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1017D(1)
If:
(a)
a person (the
holder
) of a financial product acquired the financial product as a retail client (whether or not it was acquired from the issuer); and
(b)
the product is:
(i)
a managed investment product; or
(ia)
a foreign passport fund product; or
(ii)
a superannuation product; or
(iii)
an RSA; or
(iiia)
(Repealed)
(iv)
an investment life insurance product; or
(v)
a deposit product; or
(va)
a margin lending facility; or
(vi)
specified in regulations made for the purposes of this paragraph; and
(c)
either:
(i)
the financial product was offered in this jurisdiction; or
(ii)
the holder applied for the financial product in this jurisdiction;
the issuer of the product must, in accordance with subsections
(2)
to
(6)
, give the holder a periodic statement for each reporting period during which the holder holds the product.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1017D(1) amended by No 76 of 2023, s 3, Sch 2
[
528] (effective 20 October 2023).
S 1017D(1) amended by No 61 of 2018, s 3, Sch 2[283] (effective 18 September 2018).
S 1017D(1) amended by No 70 of 2015, s 3, Sch 1
[
38].
S 1017D(1) amended by No 108 of 2009, s 3, Sch 1
[
14].
S 1017D(1) amended by No 45 of 2008, s 3, Sch 2
[
13].
S 1017D(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017D(2)
The following provisions apply in relation to reporting periods:
(a)
each reporting period lasts for a period, not exceeding 1 year, determined by the issuer;
(b)
the first reporting period starts when the holder acquired the product;
(c)
each subsequent reporting period starts at the end of the preceding reporting period;
(d)
if the holder ceases to hold the product, the period starting at the end of the preceding reporting period and ending when the holder ceases to hold the product is a reporting period.
[
CCH Note:
For substituted s 1017D(2)(a), see Corporations Regulations Schedule 10A, Part 16
-
Modifications relating to reporting periods, item 16.1]
History
S 1017D(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017D(3)
The periodic statement must be given as soon as practicable after, and in any event within 6 months after, the end of the reporting period to which it relates.
History
S 1017D(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1017D(3A)
-
(3D), see Corporations Regulations Schedule 10A, Part 12
-
Modifications relating to information when member leaves a fund, item 12.1]
1017D(4)
The periodic statement must give the holder the information that the issuer reasonably believes the holder needs to understand his or her investment in the financial product.
History
S 1017D(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017D(5)
The periodic statement must include the following if they are relevant to the financial product:
(a)
opening and closing balances for the reporting period;
(b)
the termination value of the investment at the end of the reporting period (to the extent to which it is reasonably practicable to calculate that value for the investment or a component of the investment);
(c)
details of transactions in relation to the product during the reporting period as required by regulations made for the purposes of this paragraph;
(d)
any increases in contributions in relation to the financial product by the holder or another person during the reporting period;
(e)
return on investment during the reporting period (on an individual basis if reasonably practicable to do so and otherwise on a fund basis);
(f)
details of any change in circumstances affecting the investment that has not been notified since the previous periodic statement;
(g)
details prescribed by regulations made for the purposes of this paragraph.
History
S 1017D(5) amended by No 141 of 2003, s 3, Sch 2
[
88].
S 1017D(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017D(5A)
Unless in accordance with the regulations:
(a)
for information to be disclosed in accordance with paragraphs
(5)(a)
,
(b)
,
(c)
,
(d)
and
(e)
, any amounts are to be stated in dollars; and
(b)
for any other information in relation to amounts paid by the holder of the financial product during the period, any amounts are to be stated in dollars.
History
S 1017D(5A) inserted by No 141 of 2003, s 3, Sch 2
[
88A].
1017D(6)
The periodic statement must be given in one of the following ways:
(a)
in writing; or
(b)
electronically; or
(c)
in a way specified in the regulations.
History
S 1017D(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017D(7)
The periodic statement need not be given if the issuer has already given the holder all the information that would be included in the periodic statement if it were to be given.
Note: A defendant bears an evidential burden in relation to the matters in this subsection.
History
S 1017D(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For s 1017D(8)
-
(17), see Corporations Regulations Schedule 10A, Part 7
-
Modifications relating to life pensioners, members subject to compulsory protection of small amounts and members with small amounts that are expected to grow quickly, item 7.1 and Part 8
-
Modifications relating to periodic statements for RSA providers, item 8.1. For s 1017D(8) and (9), see Corporations Regulations Schedule 10A, Part 13
-
Modifications relating to exceptions to exit reporting period provisions, item 13.1. For s 1017D(8)
-
(10), see Corporations Regulations Schedule 10A, Part 14
-
Modifications relating to obligation to give information about financial products, item 14.3]
SECTION 1017DA
TRUSTEES OF SUPERANNUATION ENTITIES
-
REGULATIONS MAY SPECIFY ADDITIONAL OBLIGATIONS TO PROVIDE INFORMATION
CCH Note:
Section 1017DA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1017DA(1)
The regulations may:
(a)
require the trustee of a superannuation entity to do all or any of the following:
(i)
provide the holder of a superannuation product (being an interest in that entity) with information relating to the management, financial condition and investment performance of the entity and/or of any relevant sub-plan (within the meaning of section
1017C
);
(ii)
provide the holder or former holder of a superannuation product (being an interest in that entity), or any other person to whom benefits under the product are payable, with information relating to his or her benefit entitlements;
(iii)
provide the holder of a superannuation product (being an interest in the entity) with information about arrangements for dealing with inquiries and/or complaints relating to the product; or
(b)
require an RSA provider to do either or both of the following:
(i)
provide the holder or former holder of an RSA provided by the RSA provider, or any other person to whom benefits under the product are payable, with information relating to his or her benefit entitlements;
(ii)
provide the holder of an RSA provided by the RSA provider with information about arrangements for dealing with inquiries and/or complaints relating to the product.
History
S 1017DA(1) amended by No 76 of 2023, s 3, Sch 2
[
529] (effective 20 October 2023).
S 1017DA(1) amended by No 49 of 2019, s 3, Sch 4[41]
-
[
45] (effective 6 April 2019).
1017DA(2)
Without limiting subsection
(1)
, regulations made for the purposes of that subsection may deal with all or any of the following:
(a)
what information is to be provided;
(b)
when information is to be provided;
(c)
how information is to be provided.
1017DA(3)
The trustee of a superannuation entity, or an RSA provider, must provide information in accordance with any applicable requirements of regulations made for the purposes of subsection
(1)
.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
[
CCH Note:
For s 1017DA(3A)
-
(3C), see Corporations Regulations Schedule 10A, Part 14
-
Modifications relating to obligation to give information about financial products, item 14.4]
1017DA(4)
(Repealed by No 76 of 2023, s 3, Sch 2
[
530] (effective 20 October 2023).)
History
S 1017DA inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1017E
DEALING WITH MONEY RECEIVED FOR FINANCIAL PRODUCT BEFORE THE PRODUCT IS ISSUED
CCH Note:
Section 1017E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1017E(1)
This section applies to money paid to:
(a)
an issuer (the
product provider
) of financial products; or
(b)
a seller (the
product provider
) of financial products in relation to which the seller has prepared a Product Disclosure Statement;
if:
(c)
the money is paid to acquire, or acquire an increased interest in, one or more of those financial products from the product provider (whether or not the acquisition would be by a person as a retail client); and
(d)
the product provider does not, for whatever reason, issue or transfer the product or products, or the increased interest, immediately after receiving the money; and
(e)
either:
(i)
the financial product or increased interest was offered in this jurisdiction; or
(ii)
the application for the financial product or increased interest was made in this jurisdiction; or
(iii)
the money was received in this jurisdiction.
[
CCH Note:
For s 1017E(1)(b), (ba) and (bb), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.10]
History
S 1017E(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017E(1A)
However, this section does not apply in relation to money paid to an issuer (the
product provider
) of foreign passport fund products if the money is paid to acquire, or acquire an increased interest in, one or more of those foreign passport fund products from the product provider (whether or not the acquisition would be by a person as a retail client).
History
S 1017E(1A) amended by No 61 of 2018, s 3, Sch 2[284] (effective 18 September 2018).
1017E(2)
The product provider must ensure that the money is paid into an account that satisfies these requirements:
(a)
the account is:
(i)
with an Australian ADI; or
(ii)
of a kind prescribed by regulations made for the purposes of this paragraph;
and is designated as an account for the purposes of this section of this Act; and
(b)
the only money paid into the account is:
(i)
money to which this section applies; or
(ii)
interest on the amount from time to time standing to the credit of the account; and
(c)
if regulations made for the purposes of this paragraph impose additional requirements
-
the requirements so imposed by the regulations.
The money must be paid into the account on the day it is received by the product provider, or on the next business day.
Note: See
section 1021O
for related offences.
History
S 1017E(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017E(2A)
Subject to subsection (2C), the money is taken to be held in trust by the product provider for the benefit of the person who paid the money.
History
S 1017E(2A) amended by No 141 of 2003, s 3, Sch 2
[
89].
S 1017E(2A) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017E(2B)
(Repealed by No 141 of 2003, s 3, Sch 2
[
90].)
1017E(2C)
The regulations may:
(a)
provide that subsection (2A) does not apply in relation to money in specified circumstances; and
(b)
provide for matters relating to the taking of money to be held in trust (including, for example, terms on which the money is taken to be held in trust and circumstances in which it is no longer taken to be held in trust).
History
S 1017E(2C) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017E(3)
The money must only be taken out of the account if:
(a)
it is taken out for the purpose of return to the person by whom it was paid; or
(b)
the product is issued or transferred to, or in accordance with the instructions of, that person; or
(c)
it is taken out for a purpose specified by regulations made for the purposes of this paragraph; or
(d)
it is taken out in a situation specified by regulations made for the purposes of this paragraph.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 1017E(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017E(4)
The product provider must:
(a)
return the money; or
(b)
issue or transfer the product to, or in accordance with the instructions of, the person who paid the money; or
(c)
if the money is taken out:
(i)
for a purpose specified by regulations made for the purposes of paragraph (3)(c); or
(ii)
in a situation specified by regulations made for the purposes of paragraph (3)(d);
do any action required, by regulations made for the purposes of this paragraph, after taking out that money;
either:
(d)
before the end of one month starting on the day on which the money was received; or
(e)
if it is not reasonably practicable to do so before the end of that month
-
by the end of such longer period as is reasonable in the circumstances.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 1017E(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017E(5)
The product provider may, for the purposes of this section, maintain a single account or 2 or more accounts.
History
S 1017E(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1017E(6)
Nothing in this section, or in regulations made for the purposes of this section, makes the body (not being the product provider) that the account is with under paragraph (2)(a) subject to any liability merely because of a failure by the product provider to comply with any of the provisions of this section or those regulations.
History
S 1017E(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1017F
CONFIRMING TRANSACTIONS
CCH Note:
Section 1017F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Confirming Transactions
-
Deceased Life Insurance Policyholder) Instrument 2023/437 the ASIC Corporations (Confirming Transactions
-
Recurring Insurance Benefit Payments) Instrument 2023/438; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Transactions to which this section applies
1017F(1)
This section applies in relation to a transaction involving a financial product if:
(a)
a person (the
holder
) acquired the product as a retail client; and
(b)
the transaction is:
(i)
the transaction by which the holder acquired the product; or
(ii)
a transaction that occurs while the holder holds the product, including a transaction by which the holder disposes of all or part of the product (and see also subsection (3)); and
(c)
the transaction is not one that does not require confirmation because of subsection (4); and
(d)
the holder has not, in accordance with regulations made for the purposes of paragraph (9)(d), waived their right to be provided with confirmation of the transaction; and
(e)
either:
(i)
the financial product was offered to, or acquired by, the holder in this jurisdiction; or
(ii)
the transaction takes place in this jurisdiction.
Note: This section extends to financial products that are securities (see
section 1010A
).
Obligation to confirm transactions
1017F(2)
The person (the
responsible person
) specified in column 3 of an item in the following table must provide the holder with confirmation of the transaction specified in column 2 of the same item. The confirmation must be provided in accordance with subsections (5) to (8).
(Table)
(Table)
Who bears the obligation to confirm a transaction
|
Item
|
Transaction
|
Whose obligation?
|
1 |
transaction by which the holder acquired the financial product, unless that transaction was a sale pursuant to an offer to which section 1012C applies |
the issuer of the product |
2 |
transaction by which the holder acquired the financial product, where that transaction was a sale pursuant to an offer to which section 1012C applies |
the seller of the product |
3 |
any other transaction in relation to the financial product that occurs while the holder holds the product, other than a disposal of all or part of the product |
the issuer of the product |
4 |
transaction by which the holder disposes of all or part of the financial product |
the person specified in the regulations made for the purposes of this item |
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
Examples of transactions that are covered by subparagraph (1)(b)(ii)
1017F(3)
Without limiting the generality of subparagraph (1)(b)(ii), the transactions that are covered by that subparagraph include:
(a)
varying the terms of the financial product while the holder holds the product (unless subsection (4) provides that the variation does not require confirmation); and
(b)
the redemption or surrender of the financial product from or by the holder.
Transactions that do not require confirmation
1017F(4)
The following transactions do not require confirmation:
(a)
a transaction consisting solely of an additional contribution towards the financial product in either of the following circumstances:
(i)
the timing and amount, or method of calculating the amount, of the additional contribution was agreed on when the product was acquired by the holder;
(ii)
the additional contribution is an amount that is payable under the terms of the product because of an increase in an external factor, such as a person's salary, an inflation index or a rate of a tax or levy;
(b)
if the financial product is a security
-
a transaction consisting solely of a variation of the rights attaching to the security;
(c)
if the financial product is a deposit product
-
any of the following transactions:
(i)
a withdrawal from the deposit product pursuant to a cheque drawn on the account;
(ii)
a deposit to, or withdrawal from, the deposit product under a direct credit arrangement or a direct debit arrangement;
(iii)
crediting interest to the deposit product;
(iv)
debiting the deposit product for fees or charges in respect of the product or transactions involving the product;
(v)
debiting the deposit product for charges or duties on deposits into, or withdrawals from, the product that are payable under a law of the Commonwealth or of a State or Territory;
(vi)
a transaction of a kind specified in regulations made for the purposes of this subparagraph;
(d)
a variation of the terms of all financial products in the class to which the financial product belongs;
(e)
a transaction of a kind specified in regulations made for the purposes of this paragraph.
Note 1: Because of subparagraph (a)(i), confirmation is not required, e.g., for regular monthly contributions to a superannuation fund.
Note 2: A defendant bears an evidential burden in relation to the matters in this subsection.
Confirmation may be provided on a transaction-by-transaction basis or by means of a standing facility
1017F(5)
Confirmation of a transaction must be provided:
(a)
by confirming the transaction in accordance with subsections (6) to (8), to the holder as soon as is reasonably practicable after the transaction occurs; or
(b)
subject to subsection (5A), by providing the holder with access to a facility through which they can, for themselves, get a confirmation of the transaction in accordance with subsections (6) to (8) as soon as is reasonably practicable after the transaction occurs.
An arrangement under which the holder may request or require another person to provide a confirmation does not count as a facility that satisfies paragraph (b).
When confirmation may be provided by means of a standing facility
1017F(5A)
Confirmation may only be provided by means of a facility as mentioned in paragraph (5)(b) if:
(a)
the holder concerned has agreed that confirmation of transactions involving the product may be provided by means of the facility; or
(b)
the holder concerned:
(i)
has, in accordance with the applicable requirements (if any) in regulations made for the purposes of this subparagraph, been informed, by or on behalf of the responsible person, about the facility and its availability to the holder as a means of obtaining confirmation of transactions involving the product; and
(ii)
has not advised the responsible person that the holder does not agree to use the facility as a means of obtaining such confirmations.
[
CCH Note:
For s 1017F(5B) and (5C), see Corporations Regulations Schedule 10A, Part 15
-
Modifications for confirmation of transactions, item 15.1]
Means of confirmation
1017F(6)
The confirmation of the transaction:
(a)
must be:
(i)
in writing; or
(ii)
electronic; or
(iii)
in some other form applicable under regulations made for the purposes of this paragraph; and
(b)
may be provided:
(i)
in a case to which paragraph (5)(a) applies
-
directly by the responsible person or through another person (such as a financial services licensee); or
(ii)
in a case to which paragraph (5)(b) applies
-
through a facility provided directly by the responsible person, or provided on behalf of the responsible person by someone else.
Content of confirmation
1017F(7)
The confirmation of the transaction must give the holder the information that the responsible person reasonably believes the holder needs (having regard to the information the holder has received before the transaction) to understand the nature of the transaction.
1017F(8)
Without limiting subsection (7), the confirmation of the transaction must:
(a)
identify the issuer and the holder; and
(b)
if required to be given by a person other than the issuer
-
identify that person; and
(c)
give details of the transaction, including:
(i)
the date of the transaction; and
(ii)
a description of the transaction; and
(iii)
subject to regulations made for the purposes of this subparagraph
-
any amount paid or payable by the holder in relation to the transaction; and
(iv)
subject to any regulations made for the purposes of this subparagraph
-
any taxes and stamp duties payable in relation to the transaction; and
(d)
give any other details prescribed by regulations made for the purposes of this paragraph.
Regulations may provide for modification or waiver of confirmation obligation
1017F(9)
The regulations may do all or any of the following:
(a)
modify subsection (2) to change the person required to provide confirmation of a transaction;
(b)
modify subsections (5) and (6) to expand on or change the way in which confirmation of a transaction must be provided in particular circumstances;
(c)
modify subsections (7) and (8) to expand on or change the information that must be included in the confirmation of a transaction in particular circumstances;
(d)
specify the circumstances in which a person may waive the right to be provided with confirmation of a transaction, and specify how such a waiver may be made.
History
S 1017F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1017G
CERTAIN PRODUCT ISSUERS AND REGULATED PERSONS MUST MEET APPROPRIATE DISPUTE RESOLUTION REQUIREMENTS
CCH Note:
Section 1017G is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1017G(1)
If:
(a)
particular financial products are, or have been, available for acquisition (whether by issue or sale) by a person or persons as retail clients; and
(b)
the issue or sale of those products is not covered by an Australian financial services licence;
both the issuer, and any regulated person obliged under subsection
1012C(5)
,
(6)
or
(8)
to give a retail client a Product Disclosure Statement for one or more of those financial products, must each:
(c)
have a dispute resolution system complying with subsection (2); and
(d)
give to ASIC the same information as the issuer or regulated person would be required to give under subparagraph
912A(1)(g)(ii)
of that Act if the issuer or regulated person were a financial services licensee.
Note 1: If the issue of particular financial products is covered by an Australian financial services licence, the requirement to have a dispute resolution system relating to the issue of the products is imposed by paragraph
912A(1)(g)
.
Note 2: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1017G(1) substituted by No 13 of 2018, s 3, Sch 2
[
4] (effective 6 March 2018).
1017G(2)
To comply with this subsection, a dispute resolution system must consist of:
(a)
an internal dispute resolution procedure that:
(i)
complies with standards, and requirements, made or approved by ASIC in accordance with regulations made for the purposes of this subparagraph; and
(ii)
covers complaints, against the person required to have the system, made by retail clients in relation to financial services provided in relation to any of those products or, if any of those products are foreign passport fund products, the operation of the relevant notified foreign passport fund; and
(b)
(Repealed)
(c)
membership of the AFCA scheme.
History
S 1017G(2) amended by No 61 of 2018, s 3, Sch 2[285] (effective 18 September 2018).
S 1017G(2) amended by No 13 of 2018, s 3, Sch 1
[
33] and
[
61] (effective 6 March 2018).
For Application of amendments by No 13 of 2018, please see CCH note under s
912A(2)
.
1017G(3)
Regulations made for the purposes of subparagraph (2)(a)(i) may also deal with the variation or revocation of:
(a)
standards or requirements made by ASIC; or
(b)
approvals given by ASIC.
History
S 1017G(3) amended by No 13 of 2018, s 3, Sch 1
[
62] (effective 6 March 2018).
For Application of amendments by No 13 of 2018, please see CCH note under s
912A(2)
.
S 1017G inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
For Division 3A
-
Short-Form Product Disclosure Statements and Division 3B
-
Supplementary Short-Form Product Disclosure Statements, see Corporations Regulations Schedule 10BA Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.1]
Division 4
-
Advertising for financial products
CCH Note:
Division 4 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1018A
ADVERTISING OR OTHER PROMOTIONAL MATERIAL FOR FINANCIAL PRODUCT MUST REFER TO PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 1018A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
[
CCH Note:
For substituted heading to s 1018A, see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.12]
Advertisements and promotional material must identify issuer (or issuer and seller) and refer to Product Disclosure Statement
1018A(1)
Subject to this section, if a particular financial product is available for acquisition by persons as retail clients (whether or not it is also available for acquisition by persons as wholesale clients) by way of issue, or pursuant to sale offers to which section
1012C
applies or will apply, a person must only:
(a)
advertise the product; or
(b)
publish a statement that is reasonably likely to induce people to acquire the product;
if the advertisement or statement:
(c)
identifies:
(i)
if the product is available by way of issue
-
the issuer of the product; or
(ii)
if the product is available pursuant to sale offers to which section
1012C
applies or will apply
-
the issuer of the product and the seller of the product; and
(ca)
in a case where Part
7.8A
requires a target market determination be made for the product
-
describes the target market for the product or specifies where the determination is available; and
(d)
indicates that a Product Disclosure Statement for the product is available and where it can be obtained; and
(e)
indicates that a person should consider the Product Disclosure Statement in deciding whether to acquire, or to continue to hold, the product.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
[
CCH Note:
For modified s 1018A(1)(e), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.4]
[
CCH Note:
For modified s 1018A(1), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, items 19.13 to 19.16]
History
S 1018A(1) amended by No 50 of 2019, s 3, Sch 1[6] (effective 5 April 2021).
S 1018A(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1018A(2)
Subject to this section, if a particular financial product, or proposed financial product, is not available for acquisition by persons as retail clients but it is reasonably likely that the product will become so available (whether or not it is, or will also become, available for acquisition by persons as wholesale clients) by way of issue, or pursuant to sale offers to which section
1012C
will apply, a person must only:
(a)
advertise the product; or
(b)
publish a statement that is reasonably likely to induce people to acquire the product;
if the advertisement or statement:
(c)
identifies:
(i)
if the product is likely to be so available by way of issue
-
the issuer of the product; or
(ii)
if the product is likely to be so available pursuant to sale offers to which section
1012C
will apply
-
the issuer of the product and the seller of the product; and
(ca)
in a case where Part
7.8A
requires a target market determination be made in relation to the product
-
describes the target market or specifies where the description is available; and
(d)
indicates that a Product Disclosure Statement for the product will be made available when the product is released or otherwise becomes available; and
(e)
indicates when and where the Product Disclosure Statement is expected to be made available; and
(f)
indicates that a person should consider the Product Disclosure Statement in deciding whether to acquire, or continue to hold, the product.
Note 1: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
Note 2: Subsection (2) has an extended operation in relation to recognised offers under Chapter 8 (see subsection
1200L(4)
).
[
CCH Note:
For modified s 1018A(2)(f), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.5]
[
CCH Note:
For modified s 1018A(2), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, items 19.17 to 19.19]
History
S 1018A(2) amended by No 50 of 2019, s 3, Sch 1[7] (effective 5 April 2021).
S 1018A(2) (Note 1) renumbered from (Note) by No 85 of 2007, s 3, Sch 1
[
14].
S 1018A(2) (Note 2) inserted by No 85 of 2007, s 3, Sch 1
[
15].
S 1018A(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Distribution of disclosure document
1018A(3)
A person may distribute a Product Disclosure Statement without contravening subsection (1) or (2). This does not apply if an order under section
1020E
is in force in relation to the product.
Note 1: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the
Criminal Code
.
Note 2: Subsection (3) has an extended operation in relation to recognised offers under Chapter 8 (see subsection
1200L(5)
).
[
CCH Note:
For modified s 1018A(3), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.6]
[
CCH Note:
For modified s 1018A(3), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.20]
History
S 1018A(3) (Note 1) renumbered from (Note) by No 85 of 2007, s 3, Sch 1
[
16].
S 1018A(3) (Note 2) inserted by No 85 of 2007, s 3, Sch 1
[
17].
S 1018A(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
General exceptions
1018A(4)
An advertisement or publication does not contravene subsection
(1)
or
(2)
if it:
(a)
relates to a financial product that is able to be traded on a financial market and consists of a notice or report by the issuer of the product, or one of its officers, about its affairs to the market operator; or
(b)
consists solely of a notice or report of a general meeting of the issuer; or
(c)
consists solely of a report about the issuer that is published by the issuer and:
(i)
does not contain information that materially affects affairs of the issuer, other than information previously made available in a Product Disclosure Statement that has been distributed, a disclosure document that has been lodged with ASIC, a CSF offer document that has been published on a platform of a CSF intermediary, an annual report or a notice or report referred to in paragraph (a) or (b); and
(ii)
does not refer (whether directly or indirectly) to the offer of the financial product; or
(d)
is a news report, or is genuine comment, in the media relating to:
(i)
a Product Disclosure Statement that has been distributed, a disclosure document that has been lodged with ASIC or a CSF offer document that has been published on a platform of a CSF intermediary; or
(ii)
information contained in such a Statement or document; or
(iii)
a notice or report covered by paragraph (a), (b) or (c); or
(e)
is a report about the financial products of the issuer published by someone who is not:
(i)
the issuer; or
(ii)
acting at the instigation of, or by arrangement with, the issuer; or
(iii)
a director of the issuer; or
(iv)
a person who has an interest in the success of the issue or sale of the financial product.
Paragraphs (d) and (e) do not apply if anyone gives consideration or another benefit for publishing the report.
Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the
Criminal Code
.
[
CCH Note:
For modified s 1018A(4)(d)(i), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.7]
[
CCH Note:
For modified s 1018A(4), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, items 19.21 and 19.22]
[
CCH Note:
S 1018A(4) will be amended by No 69 of 2020, s 3, Sch 1[1184], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (c)(i) and (d)(i) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1018A(4) amended by No 17 of 2017, s 3, Sch 1
[
28] and
[
29].
S 1018A(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Liability of publishers
1018A(5)
A person does not contravene subsection
(1)
or
(2)
by publishing an advertisement or statement if the person:
(a)
publishes it in the ordinary course of a media business; and
(b)
did not know, and had no reason to suspect, that its publication would amount to a contravention of a provision of this section.
Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the
Criminal Code
.
History
S 1018A(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Meaning of
media
1018A(6)
For the purposes of this section, the
media
consists of:
(a)
newspapers and magazines; and
(b)
radio and television broadcasting services; and
(c)
electronic services (including services provided through the internet) that:
(i)
are operated on a commercial basis; and
(ii)
are similar to newspapers, magazines or radio or television broadcasts.
History
S 1018A(6) amended by No 5 of 2011, s 3, Sch 1
[
44].
S 1018A(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1018B
PROHIBITION ON ADVERTISING PERSONAL OFFERS COVERED BY SECTION 1012E
CCH Note:
Section 1018B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1018B(1)
A person must not advertise an offer, or intended offer, of financial products that would not need a Product Disclosure Statement because of section
1012E
.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
1018B(2)
A person does not contravene subsection (1) by publishing an advertisement or statement if the person:
(a)
publishes it in the ordinary course of a media business; and
(b)
did not know, and had no reason to suspect, that a Product Disclosure Statement was needed.
For this purpose,
media
has the same meaning as it has in section
1018A
.
Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the
Criminal Code
.
History
S 1018B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 5
-
Cooling-off periods
CCH Note:
Division 5 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1019A
SITUATIONS IN WHICH THIS DIVISION APPLIES
CCH Note:
Section 1019A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1019A(1)
Subject to subsection
(2)
, this Division applies if:
(a)
a financial product of one of the following classes is provided in this jurisdiction to a person as a retail client after the commencement of this Chapter:
(i)
risk insurance products;
(ii)
investment life insurance products;
(iii)
managed investment products;
(iiia)
foreign passport fund products;
(iv)
superannuation products;
(v)
RSAs; and
(b)
the product is provided to the person:
(i)
by way of issue; or
(ii)
by way of sale pursuant to an offer to which section
1012C
applies.
History
S 1019A(1) amended by No 76 of 2023, s 3, Sch 2
[
531] (effective 20 October 2023).
S 1019A(1) amended by No 61 of 2018, s 3, Sch 2[286] (effective 18 September 2018).
S 1019A(1) amended by No 70 of 2015, s 3, Sch 1
[
38].
S 1019A(1) amended by No 45 of 2008, s 3, Sch 2
[
14].
S 1019A(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1019A(2)
The regulations may do any or all of the following:
(a)
provide that a specified subclass of financial products that would otherwise be covered by a subparagraph of paragraph
(1)(a)
are excluded from that subparagraph;
(b)
provide additional requirements to be satisfied before this Division applies in relation to a class or subclass of financial products;
(c)
provide that this Division does not apply in relation to the provision of a financial product in specified circumstances.
History
S 1019A(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1019A(3)
In this Division:
(a)
the person referred to in paragraph
(1)(a)
is the
client
; and
(b)
the person who issues or sells the product to the client is the
responsible person
.
History
S 1019A(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1019B
COOLING-OFF PERIOD FOR RETURN OF FINANCIAL PRODUCT
CCH Note:
Section 1019B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1019B(1)
Subject to this section, the client has the right to return the financial product to the responsible person and to have the money they paid to acquire the product repaid. This is so even if the responsible person is being wound up.
1019B(2)
The right to return the product must be exercised by notifying the responsible person in one of the following ways:
(a)
in writing; or
(b)
electronically; or
(c)
in any other way specified in the regulations.
Also, if the regulations require the client to comply with other requirements in order to exercise the right to return the product, those other requirements must be complied with.
1019B(3)
The right to return the product can only be exercised during the period of 14 days starting on the earlier of:
(a)
the time when the confirmation requirement (if applicable) is complied with; or
(b)
the end of the fifth business day after the day on which the product was issued or sold to the client.
History
S 1019B(3) amended by No 8 of 2022, s 3, Sch 8[13] (effective 23 February 2022).
1019B(4)
For the purposes of subsection (3), 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 product; or
(b)
confirmation of that transaction is available to the client by a facility as mentioned in paragraph
1017F(5)(b)
.
1019B(5)
The right to return the product (and have money paid to acquire it repaid) cannot be exercised at any time after:
(a)
the client has (whether before or after the start of the period referred to in subsection
(3)
) exercised a right or power that they have under the terms applicable to the product; or
(b)
the time (whether before or after the start of the period referred to in subsection
(3)
) at which, under the terms applicable to the product, the client's rights or powers in respect of the product end.
Note: So, e.g.:
(a) if the product is a contract of insurance, the right to return cannot be exercised after the client has made a claim under the contract of insurance; and
(b) if the product is a contract of insurance covering a period of only one week, the right to return cannot be exercised after the end of that week.
1019B(5A)
The regulations may specify other circumstances in which the right to return the product (and have money paid to acquire it repaid) cannot be exercised.
1019B(6)
On the exercise of the right to return the product:
(a)
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 section, terminated with effect from that time without penalty to the client; and
(b)
any contract for the acquisition of the product by the client is, by force of this section, terminated with effect from that time without penalty to the client.
1019B(7)
The regulations may provide for consequences and obligations (in addition to those provided for by subsection
(6)
) to apply if the right to return a financial product is exercised.
1019B(8)
The regulations may provide that, in specified circumstances, the amount to be repaid on exercise of the right to return a financial product is to be increased or reduced in accordance with the regulations.
History
S 1019B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 5A
-
Unsolicited offers to purchase financial products off-market
CCH Note:
Division 5A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
History
Div 5A inserted by No 141 of 2003, s 3, Sch 1
[
7].
SECTION 1019C
1019C
DEFINITIONS
(Repealed by No 76 of 2023, s 3, Sch 2
[
532] (effective 20 October 2023).)
SECTION 1019D
OFFERS TO WHICH THIS DIVISION APPLIES
CCH Note:
Section 1019D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1019D(1)
This Division applies to an offer in relation to which the following paragraphs are satisfied:
(a)
the offer is an unsolicited offer to purchase a financial product made by a person (the
offeror
) to another person (the
offeree
);
(b)
the offer is made otherwise than on a licensed market;
(c)
one or more of the following apply:
(i)
the offer is made in the course of a business of purchasing financial products;
(ii)
the offeror was not in a personal or business relationship with the offeree before the making of the offer;
(iii)
the offer is made in circumstances specified in regulations made for the purposes of this subparagraph;
(d)
the offer is not:
(i)
made to the issuer of the financial products; or
(ii)
to buy back shares under a buy-back authorised by section
257A
; or
(iii)
made under a compromise or arrangement approved at a meeting held as a result of an order under subsection
411(1)
or
(1A)
; or
(iv)
to acquire securities under an off-market bid; or
(v)
to compulsorily acquire or buy out securities under Chapter
6A
; or
(vi)
to acquire shares from a dissenting shareholder under section
414
; or
(vii)
made in relation to particular financial products that are specified in regulations made for the purposes of this subparagraph; or
(viii)
made in circumstances that are specified in regulations made for the purposes of this subparagraph;
(e)
the offer is made or received in this jurisdiction.
1019D(2)
The regulations may clarify:
(a)
when an offer is, or is not, made in the course of a business of purchasing financial products; or
(b)
when an offeror was, or was not, in a previous personal or business relationship with an offeree.
Regulations made for the purposes of this subsection have effect despite anything else in this section.
History
S 1019D inserted by No 141 of 2003, s 3, Sch 1
[
7].
SECTION 1019E
HOW OFFERS ARE TO BE MADE
CCH Note:
Section 1019E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1019E(1)
An offer to which this Division applies must not be made otherwise than by sending an offer document in printed or electronic form to the offeree in accordance with the following requirements:
(a)
the document must be sent to an address of the offeree (which may be an electronic address);
(b)
either the envelope or the container in which it is sent, or the message that accompanies it, must be addressed to the offeree.
1019E(2)
The offer document must be sent to the offeree as soon as practicable after the date of offer.
History
S 1019E inserted by No 141 of 2003, s 3, Sch 1
[
7].
SECTION 1019F
1019F
PROHIBITION ON INVITING OFFERS TO SELL
CCH Note:
Section 1019F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
A person must not invite another person to make an offer to sell a financial product in circumstances in which, if the invitation were instead an offer to purchase the financial product, that offer would be an offer to which this Division applies.
History
S 1019F inserted by No 141 of 2003, s 3, Sch 1
[
7].
SECTION 1019G
DURATION AND WITHDRAWAL OF OFFERS
CCH Note:
Section 1019G is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1019G(1)
An offer to which this Division applies:
(a)
must remain open for at least 1 month after the date of offer; and
(b)
cannot remain open for more than 12 months after the date of offer.
History
S 1019G(1) substituted by No 131 of 2010, Sch 1[12] (effective 13 December 2010).
1019G(2)
The offer may be withdrawn by the offeror at any time, but not within 1 month of the date of offer.
1019G(3)
The offer may only be withdrawn by the offeror by sending a withdrawal document in printed or electronic form to the offeree in accordance with paragraphs
1019E(1)(a)
and(b). The withdrawal document must identify the offeror and be dated.
1019G(4)
A purported withdrawal of the offer contrary to subsection (2) or (3) is ineffective.
History
S 1019G inserted by No 141 of 2003, s 3, Sch 1
[
7].
SECTION 1019H
TERMS OF OFFER CANNOT BE VARIED
CCH Note:
Section 1019H is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1019H(1)
The terms of an offer to which this Division applies, as set out in the offer document, cannot be varied.
1019H(2)
A purported variation of the terms of the offer is ineffective.
1019H(3)
This section does not:
(a)
affect the offeror's obligation under section
1019J
to update the market value of the financial product to which the offer relates; or
(b)
prevent the offeror from withdrawing the offer in accordance with section
1019G
or paragraph
1019J(2)
(a) and making another offer on different terms; or
(c)
prevent the offeree from making a counter-offer on different terms.
History
S 1019H inserted by No 141 of 2003, s 3, Sch 1
[
7].
SECTION 1019I
CONTENTS OF OFFER DOCUMENT
CCH Note:
Section 1019I is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1019I(1)
The offer document by which an offer to which this Division applies is made must identify the offeror and be dated.
History
S 1019I(1) amended by No 76 of 2023, s 3, Sch 2
[
533] (effective 20 October 2023).
1019I(2)
The offer document must also contain the following:
(a)
the price at which the offeror wishes to purchase the financial products;
(b)
if the financial product is able to be traded on a licensed market and there is a market value for the product as traded on that market
-
the market value of the product as at the date of offer;
(c)
if paragraph (b) does not apply
-
a fair estimate of the value of the product as at the date of offer, and an explanation of the basis on which that estimate was made;
(d)
the period during which the offer remains open (which must be consistent with subsection
1019G(1)
);
(e)
a statement to the effect that the offer may be withdrawn by sending a withdrawal document to the offeree, but generally not within 1 month of the date of offer;
(f)
any other information specified in regulations made for the purposes of this paragraph.
1019I(3)
The regulations may clarify:
(a)
the manner in which a fair estimate of the value of a financial product (see paragraph (2)(c)) is to be worked out; and
(b)
the level of detail required in the explanation of the basis on which the estimate was made.
Regulations made for the purposes of this subsection have effect despite anything else in this section.
1019I(4)
The offer document must be worded and presented in a clear, concise and effective manner.
History
S 1019I inserted by No 141 of 2003, s 3, Sch 1
[
7].
SECTION 1019J
OBLIGATION TO UPDATE MARKET VALUE
CCH Note:
Section 1019J is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1019J(1)
This section applies if:
(a)
the offer document by which an offer to which this Division applies is made states the market value of the financial product to which the offer relates as at the date of the offer; and
(b)
while the offer remains open, there is an increase or decrease in the market value of the product when compared to:
(i)
unless subparagraph (ii) applies
-
the market value (the
currently stated value
) stated as mentioned in paragraph (a); or
(ii)
if this section has previously applied in relation to the offer and one or more supplementary offer documents have been sent to the offeree
-
the market value (the
currently stated value
) stated as mentioned in paragraph (3)(c) in the supplementary offer document most recently sent to the offeree; and
(c)
the increase or decrease, expressed as a percentage of the currently stated value, exceeds the percentage specified in the regulations
[
sic
] for the purposes of this paragraph.
1019J(2)
The offeror must, within 10 business days of this section applying because of a particular increase or decrease in value:
(a)
withdraw the offer by sending a withdrawal document, in printed or electronic form, to the offeree in accordance with paragraphs
1019E(1)(a)
and (b):
(i)
that identifies the offeror and that is dated; and
(ii)
that contains a statement to the effect that the offer is withdrawn because of a change in the market value of the product, and that withdrawal for this reason is permitted even within 1 month of the date of offer; or
(b)
send a supplementary offer document (see subsection (3)) in printed or electronic form to the offeree in accordance with paragraphs
1019E(1)(a)
and (b).
Nothing in section
1019G
affects the effectiveness of a withdrawal of the offer under paragraph (a) of this subsection.
1019J(3)
A supplementary offer document must:
(a)
identify the offer to which it relates; and
(b)
be dated; and
(c)
state the market value of the financial product to which the offer relates as at that date; and
(d)
state the price that was stated in the offer document as required by paragraph
1019I(2)(a)
, and contain a statement to the effect that this is still the price at which the offeror wishes to purchase the product and that the terms of the offer remain unchanged; and
(e)
contain a statement to the effect that the document has been prepared because the market value of the product has changed.
1019J(4)
A supplementary offer document must be worded and presented in a clear, concise and effective manner.
1019J(5)
In this section, a reference to stating a market value of a financial product includes a reference to purporting to state the market value of the product.
History
S 1019J inserted by No 141 of 2003, s 3, Sch 1
[
7].
SECTION 1019K
RIGHTS IF REQUIREMENTS OF DIVISION NOT COMPLIED WITH
CCH Note:
Section 1019K is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
First situation covered by this section
-
offers to which this Division applies
1019K(1)
This section applies if, in relation to an offer to which this Division applies, the offeree (the
seller
) accepts the offer and enters into a contract for the sale of the financial product to the offeror (the
buyer
), and one or more of the following paragraphs applies:
(a)
section
1019E
was not complied with in relation to the offer;
(b)
the offer was accepted after the period referred to in paragraph
1019G(1)(b)
;
(c)
the offeror gave the offeree an offer document and either:
(i)
the offer document did not comply with section
1019I
; or
(ii)
there was a misleading or deceptive statement in the offer document;
(d)
in a situation to which section
1019J
applies, either:
(i)
subsection
1019J(2)
was not complied with; or
(ii)
subsection
1019J(2)
was complied with, but the offeree did not receive the withdrawal document, or the supplementary offer document, as the case requires, until after the offeree had accepted the offer;
(e)
in a situation to which section
1019J
applies, the offeror gave the offeree a supplementary offer document and either:
(i)
the supplementary offer document did not comply with subsection
1019J(3)
; or
(ii)
there was a misleading or deceptive statement in the supplementary offer document.
History
S 1019K amended by No 131 of 2010, Sch 1[13] (effective 13 December 2010).
Second situation covered by this section
-
invitations prohibited by section 1019F
1019K(2)
This section applies if, in response to an invitation prohibited by section
1019F
, a person (the
seller
) makes an offer to sell a financial product to the person who made the invitation (the
buyer
), and that person accepts the offer and enters into a contract for the purchase of that financial product from the seller.
Seller
'
s right to refuse to transfer, or to seek the return of, the financial product
1019K(3)
The seller has:
(a)
the right to refuse to transfer the financial product to the buyer; or
(b)
if the seller has already transferred the financial product to the buyer
-
the right to have the financial product returned to the seller, if the buyer still holds the product.
The seller
'
s right under paragraph (a) or (b) is conditional on the seller repaying any money that has been paid to the seller for the purchase of the financial product.
How the seller
'
s right is to be exercised
1019K(4)
The seller
'
s right under subsection (3) must be exercised by notifying the buyer in one of the following ways:
(a)
in writing;
(b)
electronically;
(c)
in any other way specified in regulations made for the purposes of this paragraph.
Also, if the regulations require the seller to comply with other requirements in order to exercise that right, those other requirements must be complied with.
1019K(5)
The seller
'
s right under subsection (3) can only be exercised during the period of 30 days starting on the day the contract was entered into.
Effect of exercise of seller
'
s right
1019K(6)
On the exercise of the seller
'
s right under subsection (3), the contract referred to in subsection (1) or (2) is, by force of this section, terminated from that time without penalty to the seller.
Regulations may provide for certain matters
1019K(7)
The regulations may provide for consequences and obligations (in addition to those provided for by subsection (6)) to apply if the seller
'
s right under subsection (3) is exercised.
1019K(8)
The regulations may provide that, in specified circumstances, the amount to be repaid as mentioned in subsection (3) is to be increased or reduced in accordance with the regulations.
History
S 1019K inserted by No 141 of 2003, s 3, Sch 1
[
7].
Division 5B
-
Disclosure etc. in relation to short sales covered by securities lending arrangement of listed section 1020B products
CCH Note:
Division 5B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497 the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Note: Section 1020B prohibits certain short sales of section 1020B products.
History
Div 5B (comprising s 1020AA to 1020AF) inserted by No 146 of 2008, s 3, Sch 3
[
3].
SECTION 1020AAA
TREATMENT OF TRANSACTIONS RELATING TO SECTION 1020B PRODUCTS
1020AAA(1)
For the purposes of this Division, treat the following as being made on a licensed market:
(a)
a sale of section
1020B
products made by a financial services licensee on behalf of both the buyer and the seller of the products;
(b)
a sale of section
1020B
products made by a financial services licensee on behalf of the buyer of the products and on its own behalf as seller of the products;
(c)
a sale of section
1020B
products made by a financial services licensee on behalf of the seller of the products and on its own behalf as buyer of the products.
1020AAA(2)
To avoid doubt, for the purposes of this Division, treat the entering into of an agreement to sell section
1020B
products as the sale of the products.
1020AAA(3)
To avoid doubt, for the purposes of this Division, treat a financial services licensee as making a sale on behalf of a person if the sale is, in economic substance, made by the licensee for the person.
Example: A request that the sale be made is passed from the person to the financial services licensee through a chain of intermediaries.
History
S 1020AAA inserted by No 76 of 2023, s 3, Sch 2
[
534] (effective 20 October 2023).
SECTION 1020AA
1020AA
MEANING OF SECURITIES LENDING ARRANGEMENT
CCH Note:
Section 1020AA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
A
securities lending arrangement
is an arrangement under which:
(a)
one entity (the
lender
) agrees that it will:
(i)
deliver particular securities, managed investment products, foreign passport fund products or other financial products to another entity (the
borrower
) or to an entity nominated by the borrower; and
(ii)
vest title in those products in the entity to which they are delivered; and
(b)
the borrower agrees that it will, after the lender does the things mentioned in paragraph
(a)
:
(i)
deliver the products (or equivalent products) to the lender or to an entity nominated by the lender; and
(ii)
vest title in those products (or those equivalent products) in the entity to which they are delivered.
History
S 1020AA substituted by No 76 of 2023, s 3, Sch 2
[
534] (effective 20 October 2023).
SECTION 1020AB
SELLER DISCLOSURE
CCH Note:
Section 1020AB is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020AB(1)
Subsection (3) applies if:
(a)
either:
(i)
a financial services licensee, on behalf of a person (the
seller
), makes a sale in this jurisdiction of section
1020B
products on a licensed market to a buyer; or
(ii)
a financial services licensee (the
seller
), on its own behalf, makes a sale in this jurisdiction of section
1020B
products on a licensed market to a buyer; and
(b)
before the time of the sale, the seller had entered into or gained the benefit of a securities lending arrangement; and
(c)
at the time of the sale, the seller intends that the securities lending arrangement will ensure that some or all the section
1020B
products can be vested in the buyer; and
(d)
the following requirements are satisfied (if applicable):
(i)
if regulations made for the purposes of this subparagraph specify a kind of section
1020B
product
-
the section
1020B
products are of that kind;
(ii)
if regulations made for the purposes of this subparagraph specify a kind of section
1020B
product
-
the section
1020B
products are not of that kind;
(iii)
if regulations made for the purposes of this subparagraph specify circumstances in which the sale is made
-
the sale is made in those circumstances.
1020AB(2)
Subsection (3) applies regardless of whether the seller is inside or outside Australia.
Offence
1020AB(3)
The seller must:
(a)
give the entity mentioned in subsection (4) particulars specified in the regulations in relation to the circumstances mentioned in paragraphs (1)(a), (b) and (c); and
(b)
do so:
(i)
on or before the time specified in the regulations; and
(ii)
in the manner specified in the regulations.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
1020AB(4)
The entity is:
(a)
if subparagraph (1)(a)(i) applies:
(i)
the financial services licensee mentioned in that subparagraph; or
(ii)
if the regulations specify another entity
-
that entity; or
(b)
if subparagraph (1)(a)(ii) applies:
(i)
the operator of the licensed market mentioned in that subparagraph; or
(ii)
if the regulations specify another entity
-
that entity.
History
S 1020AB inserted by No 146 of 2008, s 3, Sch 3
[
3].
SECTION 1020AC
LICENSEE DISCLOSURE
CCH Note:
Section 1020AC is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020AC(1)
Subsection (2) applies if:
(a)
the seller mentioned in subparagraph
1020AB(1)(a)(i)
gives a financial services licensee information in accordance with section
1020AB
in relation to a sale of section
1020B
products on a licensed market; and
(b)
the following requirements are satisfied (if applicable):
(i)
if regulations made for the purposes of this subparagraph specify a kind of section
1020B
product
-
the section
1020B
products are of that kind;
(ii)
if regulations made for the purposes of this subparagraph specify a kind of section
1020B
product
-
the section
1020B
products are not of that kind;
(iii)
if regulations made for the purposes of this subparagraph specify circumstances in which the sale is made
-
the sale is made in those circumstances.
Offence
1020AC(2)
The financial services licensee must:
(a)
give the entity mentioned in subsection (3) particulars specified in the regulations in relation to the circumstances mentioned in paragraph (1)(a); and
(b)
do so:
(i)
on or before the time specified in the regulations; and
(ii)
in the manner specified in the regulations.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
1020AC(3)
The entity is:
(a)
the operator of the licensed market mentioned in paragraph (1)(a); or
(b)
if the regulations specify another entity
-
that entity.
History
S 1020AC inserted by No 146 of 2008, s 3, Sch 3
[
3].
SECTION 1020AD
PUBLIC DISCLOSURE OF INFORMATION
CCH Note:
Section 1020AD is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020AD(1)
Subsection (2) applies if:
(a)
any of the following apply, in relation to a sale of section
1020B
products on a licensed market:
(i)
the seller mentioned in subparagraph
1020AB(1)(a)(ii)
gives information to the operator of a licensed market (or to another entity) in accordance with section
1020AB
;
(ii)
the financial services licensee mentioned in paragraph
1020AC(1)(a)
gives information to the operator of a licensed market (or to another entity) in accordance with section
1020AC
;
(iii)
if regulations for the purposes of subparagraph
1020AB(4)(a)(ii)
provide that the entity to which information is to be given in accordance with section
1020AB
is the operator of a licensed market (or another entity)
-
the seller mentioned in subparagraph
1020AB(1)(a)(i)
gives information to the operator (or other entity) in accordance with that section; and
(b)
the following requirements are satisfied (if applicable):
(i)
if regulations made for the purposes of this subparagraph specify a kind of section
1020B
product
-
the section
1020B
products are of that kind;
(ii)
if regulations made for the purposes of this subparagraph specify a kind of section
1020B
product
-
the section
1020B
products are not of that kind;
(iii)
if regulations made for the purposes of this subparagraph specify circumstances in which the sale is made
-
the sale is made in those circumstances.
Offence
1020AD(2)
The operator (or the other entity) must:
(a)
make a public disclosure of particulars specified in the regulations in relation to the information mentioned in paragraph (1)(a); and
(b)
do so:
(i)
on or before the time specified in the regulations; and
(ii)
in the manner specified in the regulations.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1020AD inserted by No 146 of 2008, s 3, Sch 3
[
3].
SECTION 1020AE
1020AE
LICENSEE
'
S OBLIGATION TO ASK SELLER ABOUT SHORT SALE
CCH Note:
Section 1020AE is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
The financial services licensee must not make a sale in this jurisdiction of section
1020B
products on a licensed market if:
(a)
the sale is on behalf of a person (the
seller
); and
(b)
the seller will be obliged under section
1020AB
to give the financial services licensee information in relation to the sale; and
(c)
either or both of the following apply:
(i)
before making the sale, the financial services licensee failed to ask the seller, orally or in writing, whether the seller will be obliged under section
1020AB
to give the financial services licensee information in relation to the sale;
(ii)
before making the sale, the financial services licensee failed to record, in writing, the seller
'
s answer.
Note 1: Failure to comply with this section is an offence (see subsection
1311(1)
).
Note 2: For the definition of
writing
, see section
2B
of the
Acts Interpretation Act 1901
.
History
S 1020AE amended by No 76 of 2023, s 3, Sch 1[19] (effective 20 October 2023).
S 1020AE inserted by No 146 of 2008, s 3, Sch 3
[
3].
SECTION 1020AF
REGULATIONS
CCH Note:
Section 1020AF is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020AF(1)
Regulations made for the purposes of this Division may specify a matter or thing differently for different kinds of persons, things or circumstances. For example, the regulations may:
(a)
specify a matter or thing differently for different kinds of sellers mentioned in subsection
1020AB(1)
or
1020AC(1)
; and
(b)
specify a time differently for different kinds of circumstances.
Note: For specification by class, see subsection 13(3) of the
Legislation Act 2003
.
History
S 1020AF(1) amended by No 49 of 2019, s 3, Sch 4[46] (effective 6 April 2019).
1020AF(2)
Subsection (1) does not limit the regulations that may be made for the purposes of this Division.
History
S 1020AF inserted by No 146 of 2008, s 3, Sch 3
[
3].
Division 5C
-
Information about CGS depository interests
CCH Note:
Division 5C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
History
Div 5C inserted by No 155 of 2012, s 3, Sch 1
[
14].
SECTION 1020AG
JURISDICTIONAL SCOPE OF DIVISION
CCH Note:
Section 1020AG is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020AG(1)
Section
1020AI
applies only in relation to recommendations received in this jurisdiction.
1020AG(2)
The regulations may make provision dealing with the jurisdictional scope of some or all of the other provisions of this Division. The other provisions of this Division have effect subject to any such regulations.
History
S 1020AG inserted by No 155 of 2012, s 3, Sch 1
[
14].
SECTION 1020AH
MEANING OF CGS DEPOSITORY INTEREST INFORMATION WEBSITE, INFORMATION STATEMENT AND REGULATED PERSON
CCH Note:
Section 1020AH is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020AH(1)
In this Act:
CGS depository interest information website
means a website that is prescribed by the regulations for the purposes of this definition.
information statement
for a class of CGS depository interests means a document that:
(a)
contains a statement that the document is an information statement for that class; and
(b)
contains information about all CGS depository interests of that class (whether or not it also contains information about CGS depository interests of another class); and
(c)
is prepared by the Commonwealth; and
(d)
is published on the CGS depository interest information website.
1020AH(2)
In this Division and Division
7
:
regulated person
, in relation to a CGS depository interest, means:
(a)
an issuer of the CGS depository interest; or
(b)
any financial services licensee; or
(c)
any authorised representative of a financial services licensee; or
(d)
any 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)
; or
(e)
any person who is required to hold an Australian financial services licence but who does not hold such a licence.
History
S 1020AH substituted by No 76 of 2023, s 3, Sch 2
[
535] (effective 20 October 2023).
SECTION 1020AI
REQUIREMENT TO GIVE INFORMATION STATEMENTS FOR CGS DEPOSITORY INTEREST IF RECOMMENDING ACQUISITION OF INTEREST
CCH Note:
Section 1020AI is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020AI(1)
A regulated person must give a person (the
client
) each information statement for a class of CGS depository interests if:
(a)
the regulated person provides financial product advice to the client that consists of, or includes, a recommendation that the client acquire a CGS depository interest of that class; and
(b)
the financial product advice is provided to the client as a retail client; and
(c)
the financial product advice is personal advice to the client.
Each information statement must be given at or before the time when the regulated person provides the advice and must be given in accordance with this Division.
Note: If the recommendation is to acquire CGS depository interests of a class for which there is an information statement and that is a subset of a wider class of CGS depository interests for which there is another information statement, the regulated person must give the client both information statements.
1020AI(2)
However, the regulated person does not have to give the client an information statement for a class of CGS depository interests if:
(a)
the client has already received that statement; or
(b)
the regulated person reasonably believes that the client has received that statement.
Strict liability offence of failing to give statement
1020AI(3)
A regulated person commits an offence if:
(a)
the regulated person is required by this section to give another person an information statement for a class of CGS depository interests; and
(b)
the regulated person does not give the other person, in accordance with section
1020AK
, that statement by the time the regulated person is required to do so.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the
Criminal Code
.
1020AI(4)
An offence based on subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the
Criminal Code
.
Ordinary offence of failing to give statement
1020AI(5)
A regulated person commits an offence if:
(a)
the regulated person is required by this section to give another person an information statement for a class of CGS depository interests; and
(b)
the regulated person does not give the other person, in accordance with section
1020AK
, that statement by the time the regulated person is required to do so.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2).
Defence for authorised representative
1020AI(6)
In any proceedings against an authorised representative of a financial services licensee for an offence based on subsection (3) or (5), it is a defence if:
(a)
the licensee had provided the representative with information or instructions about the giving of information statements for a class of CGS depository interests; and
(b)
the representative
'
s failure to give an information statement for that class occurred because the representative was acting in reliance on that information or those instructions; and
(c)
the representative
'
s reliance on that information or those instructions was reasonable.
Note: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3) of the
Criminal Code
.
Offence of failing to ensure authorised representative gives statement
1020AI(7)
A financial services licensee commits an offence if the licensee does not take reasonable steps to ensure that an authorised representative of the licensee complies with the representative
'
s obligations under this section to give each information statement for a class of CGS depository interests as and when required by this section.
History
S 1020AI inserted by No 155 of 2012, s 3, Sch 1
[
14].
SECTION 1020AJ
1020AJ
INFORMATION STATEMENT GIVEN MUST BE UP TO DATE
CCH Note:
Section 1020AJ is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
A regulated person must not, in purported compliance with this Division, give a person at a time a document that:
(a)
purports to be an information statement for a class of CGS depository interests; and
(b)
is not an information statement for that class published at that time on the CGS depository interest information website.
Note: Failure to comply with this section is an offence (see subsection
1311(1)
).
History
S 1020AJ inserted by No 155 of 2012, s 3, Sch 1
[
14].
SECTION 1020AK
HOW AN INFORMATION STATEMENT IS TO BE GIVEN
CCH Note:
Section 1020AK is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020AK(1)
An information statement for a class of CGS depository interests:
(a)
must be:
(i)
given to a person, or the person
'
s agent, personally; or
(ii)
sent to the person, or the person
'
s agent, at an address (including an electronic address) or fax number nominated by the person or the agent; and
(b)
may be printed or be in electronic form.
1020AK(2)
For the purposes of this section, the information statement is sent to a person at an address if, and only if:
(a)
the information statement is sent to the address; and
(b)
either:
(i)
the envelope or other container in which the information statement is sent; or
(ii)
the message that accompanies the information statement;
is addressed to the person.
1020AK(3)
The information statement may be given or sent to the 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 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)
;
(d)
a person who is required to hold an Australian financial services licence but who does not hold such a licence;
(e)
an employee, director or other representative of a person referred to in paragraph (a), (b), (c) or (d).
1020AK(4)
The regulations may provide for other ways of giving an information statement for a class of CGS depository interests.
1020AK(5)
The regulations may specify requirements as to the manner in which an information statement for a class of CGS depository interests may be given to a person. The giving of the information statement is not effective unless those requirements are satisfied.
History
S 1020AK inserted by No 155 of 2012, s 3, Sch 1
[
14].
SECTION 1020AL
CIVIL ACTION FOR LOSS OR DAMAGE
CCH Note:
Section 1020AL is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020AL(1)
A person (the
client
) who suffers loss or damage for a reason described in column 1 of an item of the table may recover the amount of the loss or damage by action begun against a person indicated in column 2 of that item within 6 years after the loss or damage was suffered.
Recovery of amount of loss or damage
|
|
Column 1
Reason for loss or damage
|
Column 2
Person amount may be recovered from
|
1 |
The client was not given an information statement for a class of CGS depository interests as and when required by this Division |
The person required to give the statement or, if that person was an authorised representative of a financial services licensee, each such licensee responsible for the person
'
s conduct (see subsection (2)) |
2 |
The client was given at a time, in purported compliance with this Division, a document that:
(a) purported to be an information statement for a class of CGS depository interests; and
(b) was not an information statement for that class that was published at that time on the CGS depository interest information website |
Each person who:
(a) directly or indirectly caused or contributed to the giving of the document; and
(b) did not take reasonable steps to ensure that the document given would be an information statement published at that time on the CGS depository interest information website |
1020AL(2)
A financial services licensee is responsible for the conduct of an authorised representative of the licensee for the purposes of item 1 of the table in subsection (1), and the authorised representative is not liable under that item, if:
(a)
the authorised representative is not an authorised representative of any other financial services licensee; or
(b)
the licensee is responsible (alone or jointly and severally with other financial services licensees) for the authorised representative
'
s conduct under section
917C
, disregarding sections
917D
and
917F
.
1020AL(3)
This section does not affect any liability that a person has under any other law.
Other orders
1020AL(4)
The court dealing with an action under subsection (1) may, in addition to awarding loss or damage under that subsection and if it thinks it necessary in order to do justice between the parties:
(a)
make an order declaring void a contract entered into by the client referred to in that subsection for or relating to a financial product or a financial service; and
(b)
if it makes an order under paragraph (a)
-
make such other order or orders as it thinks are necessary or desirable because of that order.
1020AL(5)
Without limiting paragraph (4)(b), the orders that may be made under that paragraph include (but are not limited to) an order for the return of money paid by a person, and/or an order for payment of an amount of interest specified in, or calculated in accordance with, the order.
History
S 1020AL inserted by No 155 of 2012, s 3, Sch 1
[
14].
Division 6
-
Miscellaneous
CCH Note:
Division 6 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1020A
OFFERS ETC. RELATING TO CERTAIN MANAGED INVESTMENT SCHEMES NOT TO BE MADE IN CERTAIN CIRCUMSTANCES
CCH Note:
Section 1020A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Obligation
1020A(1)
A person must not engage in conduct of a kind referred to in subsection (2) in relation to a financial product described in paragraph
764A(1)(ba)
(which relates to certain managed investment schemes that are not registered schemes) if the managed investment scheme concerned needs to be, or will need to be, registered and has not been registered. This is so even if it is proposed to register the scheme.
1020A(2)
Subject to subsection (3), the kinds of conduct that must not be engaged in in relation to such a managed investment product are as follows:
(a)
making a recommendation, as described in subsection
1012A(3)
, that is received in this jurisdiction;
(b)
making an offer, as described in subsection
1012B(3)
or
1012C(3)
, that is received in this jurisdiction;
(c)
accepting an offer, made as described in subsection
1012B(3)
or
(4)
, that was received in this jurisdiction.
Exceptions
1020A(3)
Subsection (2) does not apply to a recommendation or offer made in a situation to which a subsection of section
1012D
, other than subsection
1012D(1)
, applies.
Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the
Criminal Code
.
Fault-based offence
1020A(4)
A person commits an offence if the person contravenes subsection (1).
Civil liability
1020A(5)
A person contravenes this subsection if the person contravenes subsection (1).
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 1020A substituted by No 17 of 2019, s 3, Sch 1
[
100] (effective 13 March 2019).
SECTION 1020BAA
OFFERS ETC. RELATING TO FOREIGN PASSPORT FUNDS NOT TO BE MADE IN CERTAIN CIRCUMSTANCES
CCH Note:
Section 1020BAA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020BAA(1)
A person must not engage in conduct of a kind referred to in subsection (2) in relation to an interest in a foreign passport fund if the fund is not:
(a)
a notified foreign passport fund; or
(b)
a registered scheme.
This is so even if it is proposed that the fund will become a notified foreign passport fund or a registered scheme.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
1020BAA(2)
Subject to subsection (3), the kinds of conduct that must not be engaged in in relation to an interest in such a foreign passport fund are as follows:
(a)
making a recommendation, as described in subsection
1012A(3)
, that is received in this jurisdiction;
(b)
making an offer, as described in subsection
1012B(3)
or
1012C(3)
, that is received in this jurisdiction;
(c)
accepting an offer, made as described in subsection
1012B(3)
or (4), that was received in this jurisdiction.
1020BAA(3)
Subsection (2) does not apply to:
(a)
a recommendation or offer made in a situation to which a subsection of section
1012D
, other than subsection
1012D(1)
, applies; or
(b)
a recognised offer.
History
S 1020BAA inserted by No 61 of 2018, s 3, Sch 2[288] (effective 18 September 2018).
SECTION 1020B
PROHIBITION OF CERTAIN SHORT SALES OF SECURITIES, MANAGED INVESTMENT PRODUCTS, FOREIGN PASSPORT FUND PRODUCTS AND CERTAIN OTHER FINANCIAL PRODUCTS
CCH Note:
Section 1020B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020B(1)
In this Act:
section 1020B products
means:
(a)
securities; or
(b)
managed investment products; or
(ba)
foreign passport fund products; or
(c)
financial products referred to in paragraph
764A(1)(j)
; or
(d)
financial products of any other kind prescribed by regulations made for the purposes of this definition.
History
S 1020B(1) amended by No 76 of 2023, s 3, Sch 2
[
536] (effective 20 October 2023).
S 1020B(1) amended by No 61 of 2018, s 3, Sch 2[290] (effective 18 September 2018).
S 1020B(1) amended by No 146 of 2008, s 3, Sch 3
[
4].
S 1020B(1) amended by No 146 of 2008, s 3, Sch 2
[
1].
S 1020B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020B(2)
Subject to this section and the regulations, a person must only, in this jurisdiction, sell section
1020B
products to a buyer if, at the time of the sale:
(a)
the person has or, if the person is selling on behalf of another person, that other person has; or
(b)
the person believes on reasonable grounds that the person has, or if the person is selling on behalf of another person, that other person has;
a presently exercisable and unconditional right to vest the products in the buyer.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 1020B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020B(3)
For the purposes of subsection
(2)
:
(a)
a person who, at a particular time, has a presently exercisable and unconditional right to have section
1020B
products vested in the person, or in accordance with the directions of the person, has at that time a presently exercisable and unconditional right to vest the products in another person; and
(b)
a right of a person to vest section
1020B
products in another person is not conditional merely because the products are subject to a security interest in favour of another person to secure the repayment of money.
History
S 1020B(3) amended by No 96 of 2010, s 3, Sch 1, Pt 3
[
48].
S 1020B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020B(4)
Subsection
(2)
does not apply in relation to a sale of section
1020B
products by a person who, before the time of sale, has entered into a contract to buy those products and who has a right to have those products vested in the person that is conditional only upon all or any of the following:
(a)
payment of the consideration in respect of the purchase;
(b)
the receipt by the person of a proper instrument of transfer in respect of the products;
(c)
the receipt by the person of the documents that are, or are documents of title to, the products.
History
S 1020B(4) substituted by No 146 of 2008, s 3, Sch 2
[
2].
S 1020B(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020B(5)
(Repealed by No 146 of 2008, s 3, Sch 2
[
2].)
1020B(6)
(Repealed by No 146 of 2008, s 3, Sch 2
[
2].)
1020B(7)
For the purposes of this section, a person who:
(a)
purports to sell section
1020B
products; or
(b)
offers to sell section
1020B
products; or
(c)
holds himself, herself or itself out as entitled to sell section
1020B
products; or
(d)
instructs a financial services licensee to sell section
1020B
products;
is taken to sell the products.
History
S 1020B(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1020C
1020C
ASIC
'
S POWER TO PROHIBIT SHORT SELLING IN CERTAIN CASES
(Repealed by No 146 of 2008, s 3, Sch 2
[
3] (effective 8 January 2009).)
SECTION 1020D
1020D
PART CANNOT BE CONTRACTED OUT OF
CCH Note:
Section 1020D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
A condition of a contract for the acquisition of a financial product is void if it provides that a party to the contract is:
(a)
required or bound to waive compliance with any requirement of this Part (or of regulations made for the purposes of this Part); or
(b)
if the acquisition occurs in circumstances in which the party is required by a provision of this Part to have been given a Product Disclosure Statement for the product
-
taken to have notice of any contract, document or matter not specifically referred to in a Product Disclosure Statement or Supplementary Product Disclosure Statement given to the party.
[
CCH Note:
For modified s 1020D(b), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.8]
[
CCH Note:
For substituted s 1020D(b), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.23]
History
S 1020D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1020E
STOP ORDERS BY ASIC
CCH Note:
Section 1020E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020E(1)
This section applies if:
(a)
either:
(i)
a disclosure document or statement is defective (see subsection (11)); or
(ia)
a disclosure document or statement does not comply with a requirement of this Part that it be worded and presented in a clear, concise and effective manner; or
(ii)
an advertisement or statement of a kind referred to in
subsection 1018A(1)
or
(2)
that relates to financial products is defective (see subsection (11)); or
(b)
an issuer of financial products is in breach of
section 1017G
; or
(c)
information made publicly available under section
1017BA
or
1017BB
is defective (see subsection (11)).
History
S 1020E(1) amended by No 40 of 2019, s 3, Sch 6[5] (effective 6 April 2019).
S 1020E(1) amended by No 171 of 2012, s 3, Sch 3, Pt 1[9].
S 1020E(1) amended by No 141 of 2003, s 3, Sch 2
[
91].
S 1020E(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(2)
ASIC may order that:
(a)
if paragraph (1)(a) applies
-
specified conduct in respect of the financial products to which the document, advertisement or statement relates; or
(b)
if paragraph (1)(b) applies
-
specified conduct in respect of financial products issued by that issuer; or
(c)
if paragraph (1)(c) applies
-
specified conduct in respect of the financial products or other property to which the information relates;
must not be engaged in while the order is in force.
History
S 1020E(2) amended by No 171 of 2012, s 3, Sch 3, Pt 1[10].
S 1020E(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(3)
The order may include a statement that specified conduct engaged in contrary to the order will be regarded as not complying with the requirements of a specified provision of this Part.
History
S 1020E(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(4)
Before making an order under subsection (2), ASIC must:
(a)
hold a hearing; and
(b)
give a reasonable opportunity to any interested people to make oral or written submissions to ASIC on whether an order should be made.
History
S 1020E(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(5)
If ASIC considers that any delay in making an order under subsection (2) pending the holding of a hearing would be prejudicial to the public interest, ASIC may make an interim order under that subsection. The interim order may be made without holding a hearing and lasts for 21 days after the day on which it is made unless revoked before then.
History
S 1020E(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(6)
At any time during the hearing, ASIC may make an interim order under subsection (2). The interim order lasts until:
(a)
ASIC makes an order under subsection (2) after the conclusion of the hearing; or
(b)
the interim order is revoked;
whichever happens first.
History
S 1020E(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(7)
The order under subsection (2) must be in writing and must be served on:
(a)
unless paragraph (b), (c) or (d) applies
-
the issuer of the financial products concerned; or
(b)
if paragraph (1)(a) applies and the document, advertisement or statement relates to a sale or proposed sale of the financial products
-
the seller of the financial products; or
(c)
if subparagraph (1)(a)(i) applies and the disclosure document or statement is an offer document of a kind referred to in section
1019E
or a supplementary offer document of a kind referred to in section
1019J
-
the offeror referred to in subsection
1019D(1)
; or
(d)
if paragraph (1)(c) applies
-
the person who made the information publicly available or who provided the information.
[
CCH Note:
For modified s 1020E(7)(b), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.24]
History
S 1020E(7) amended by No 171 of 2012, s 3, Sch 3, Pt 1[11]
-
[
12].
S 1020E(7) amended by No 141 of 2003, s 3, Sch 1
[
8]
-
[
9].
S 1020E(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(8)
The person on whom the order is served must take reasonable steps to ensure that other people who engage in conduct to which the order applies are aware of the order.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 1020E(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(9)
The person on whom the order is served, or a person who is aware of the order, must not engage in conduct contrary to the order.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 1020E(9) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(10)
If the person on whom the order is served, or a person who is aware of the order, engages in conduct contrary to the order, any relevant statement included in the order under subsection (3) has effect accordingly. This applies in addition to any other consequence that is provided for by this Act.
History
S 1020E(10) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020E(11)
In this section:
defective
:
(a)
in relation to a disclosure document or statement
-
has the same meaning as in
Subdivision B
of
Division 7
; and
(b)
in relation to an advertisement or statement of a kind referred to in
subsection 1018A(1)
or
(2)
that relates to financial products
-
means:
(i)
there is a misleading or deceptive statement in the advertisement or statement; or
(ii)
there is an omission from the advertisement or statement of material required by paragraph
1018A(1)
(c), (d) or (e), or paragraph
1018A(2)
(c), (d), (e) or (f), to be included in the advertisement or statement; and
(c)
in relation to information made publicly available under section
1017BA
-
means:
(i)
the information has not been updated as required by that section; or
(ii)
the information is otherwise misleading or deceptive; or
(iii)
there is an omission from the information; and
(d)
in relation to information made publicly available under section
1017BB
-
means:
(i)
the information is misleading or deceptive; or
(ii)
there is an omission from the information.
History
Definition of
defective
amended No 40 of 2019, s 3, Sch 6[6] (effective 6 April 2019).
Definition of
defective
amended by No 171 of 2012, s 3, Sch 3, Pt 1[13].
Definition of
defective
amended by No 141 of 2003, s 3, Sch 2
[
91A]
-
[
91B].
disclosure document or statement
has the same meaning as it has in
Subdivision B
of
Division 7
.
History
Definition of
disclosure document or statement
amended by No 141 of 2003, s 3, Sch 2
[
91C].
History
S 1020E(11) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1020F
EXEMPTIONS AND MODIFICATIONS BY ASIC
CCH Note:
Section 1020F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020F(1)
ASIC may:
(a)
exempt a person or class of persons from all or specified provisions of this Part; or
(b)
exempt a financial product or a class of financial products from all or specified provisions of this Part; or
(c)
declare that this Part applies in relation to a person or a financial product, or a class of persons or financial products, as if specified provisions were omitted, modified or varied as specified in the declaration.
History
S 1020F(1) amended by No 141 of 2003, s 3, Sch 2
[
92].
S 1020F(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020F(2)
-
(3)
(Repealed by No 141 of 2003, s 3, Sch 2
[
93].)
1020F(4)
An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.
History
S 1020F(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020F(5)
An exemption or declaration must be in writing and ASIC must publish notice of it in the
Gazette
.
History
S 1020F(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020F(6)
If conduct (including an omission) of a person would not have constituted an offence if a particular declaration under paragraph (1)(c) had not been made, that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the gazettal requirement of subsection (5)):
(a)
the text of the declaration was made available by ASIC on the internet; or
(b)
ASIC gave written notice setting out the text of the declaration to the person.
In a prosecution for an offence to which this subsection applies, the prosecution must prove that paragraph (a) or (b) was complied with before the conduct occurred.
History
S 1020F(6) amended by No 5 of 2011, s 3, Sch 1
[
45].
S 1020F(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020F(7)
For the purpose of this section, the
provisions of this Part
include:
(a)
definitions in this Act, or in the regulations, as they apply to references in this Part; and
(b)
any provisions of
Part 10.2
(transitional provisions) that relate to provisions of this Part.
Note: Because of section
761H
, a reference to this Part or Part
10.2
also includes a reference to regulations or other instruments made for the purposes of this Part or Part
10.2
(as the case requires).
History
S 1020F(7) (Note) inserted by No 141 of 2003, s 3, Sch 2
[
94].
S 1020F(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020F(8)
To avoid doubt, a declaration under paragraph (1)(c) may specify omissions, modifications or variations that have any or all of the following effects:
(a)
suspending, prohibiting or limiting:
(i)
any form of short selling of financial products; or
(ii)
any transaction that has the same or substantially similar market effect as a short sale of financial products;
(b)
varying requirements under this Part that apply to:
(i)
any form of short selling of financial products; or
(ii)
any transaction that has the same or substantially similar market effect as a short sale of financial products;
(c)
removing some or all requirements under this Part that apply to:
(i)
any form of short selling of financial products; or
(ii)
any transaction that has the same or substantially similar market effect as a short sale of financial products;
(d)
imposing requirements that apply to:
(i)
any form of short selling of financial products; or
(ii)
any transaction that has the same or substantially similar market effect as a short sale of financial products.
History
S 1020F(8) inserted by No 146 of 2008, s 3, Sch 1
[
1].
SECTION 1020G
EXEMPTIONS AND MODIFICATIONS BY REGULATIONS
CCH Note:
Section 1020G is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1020G(1)
The regulations may:
(a)
exempt a person or class of persons from all or specified provisions of this Part; or
(b)
exempt a financial product or a class of financial products from all or specified provisions of this Part; or
(c)
provide that this Part applies as if specified provisions were omitted, modified or varied as specified in the regulations.
History
S 1020G(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1020G(2)
(Repealed by No 141 of 2003, s 3, Sch 2
[
95].)
1020G(3)
For the purpose of this section, the
provisions of this Part
include:
(a)
definitions in this Act, or in the regulations, as they apply to references in this Part; and
(b)
any provisions of
Part 10.2
(transitional provisions) that relates to provisions of this Part.
History
S 1020G(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 7
-
Enforcement
CCH Note:
Division 7 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Subdivision A
-
Offences
CCH Note:
Subdivision A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1021A
1021A
OVERVIEW
CCH Note:
Section 1021A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
This Subdivision contains provisions creating offences by reference to various rules contained in preceding 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.
History
S 1021A amended by No 141 of 2003, s 3, Sch 2
[
95A].
S 1021A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021B
MEANING OF DEFECTIVE AND DISCLOSURE DOCUMENT OR STATEMENT
CCH Note:
Section 1021B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1021B(1)
In this Subdivision:
defective
, in relation to a disclosure document or statement, means:
(a)
there is a misleading or deceptive statement in the disclosure document or statement; or
(b)
if it is a Product Disclosure Statement
-
there is an omission from the Product Disclosure Statement of material required by section
1013C
, other than material required by section
1013B
or
1013G
; or
(c)
if it is a Supplementary Product Disclosure Statement that is given for the purposes of section
1014E
-
there is an omission from the Supplementary Product Disclosure Statement of material required by that section; or
(d)
if it is information required by paragraph
1012G(3)(a)
-
there is an omission from the information of material required by that paragraph;
being a statement, or an omission, that is or would be materially adverse from the point of view of a reasonable person considering whether to proceed to acquire the financial product concerned.
Note: In determining whether a Product Disclosure Statement is defective, the effect of section
1014D
must be taken into account (section
1014D
takes information and statements in a Supplementary Product Disclosure Statement to be included in the Product Disclosure Statement it supplements).
[
CCH Note:
For s 1021B(1) (definition of
defective
, para (ba) and (ca)), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, items 3.9 and 3.10]
History
Definition of
defective
amended by No 141 of 2003, s 3, Sch 2
[
95C].
disclosure document or statement
means:
(a)
a Product Disclosure Statement; or
(b)
a Supplementary Product Disclosure Statement; or
(c)
information required by paragraph
1012G(3)(a)
.
[
CCH Note:
For s 1021B(1) (definition of
disclosure document or statement
, para (ba) and (bb)), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.11]
History
Definition of
disclosure document or statement
amended by No 141 of 2003, s 3, Sch 2
[
95D].
regulated person
(Repealed by No 76 of 2023, s 3, Sch 2[538] (effective 20 October 2023).)
History
S 1021B(1) amended by No 141 of 2003, s 3, Sch 2
[
95B].
S 1021B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021B(1A)
For the avoidance of doubt, if section
1012J
(information must be up to date) is not complied with in relation to a Product Disclosure Statement, then, for the purposes of the definition of
defective
in subsection
(1)
:
(a)
if the circumstance constituting the non-compliance is that particular information included in the Product Disclosure Statement is not as up to date as section
1012J
requires it to be
-
the information so included constitutes a misleading statement in the Product Disclosure Statement; and
(b)
if the circumstance constituting the non-compliance is a failure to include particular information that was not previously required to be included in the Product Disclosure Statement
-
the failure to include the information constitutes an omission from the Statement of material required by section
1013C
.
Note 1: The effect of section
1014D
(information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements) must be taken into account in determining whether section
1012J
is complied with in relation to a Product Disclosure Statement.
Note 2: Whether the inclusion of out of date information, or the failure to include information, results in the Product Disclosure Statement being
defective
as defined in subsection
(1)
depends on whether the materiality test set out in that definition is satisfied.
History
S 1021B(1A) inserted by No 141 of 2003, s 3, Sch 2
[
95F].
1021B(2)
In this Subdivision, a reference (including in the definitions in subsection
(1)
) to a document or statement, or to information, of a kind referred to in a paragraph of the definition of
disclosure document or statement
in subsection
(1)
includes a reference to something purporting to be a document or statement, or to be information, of that kind.
History
S 1021B(2) amended by No 141 of 2003, s 3, Sch 2
[
95G] and
[
95H].
S 1021B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021C
OFFENCE OF FAILING TO GIVE ETC. A DISCLOSURE DOCUMENT OR STATEMENT
CCH Note:
Section 1021C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
[
CCH Note:
For substituted heading to s 1021C, see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.25]
1021C(1)
Strict liability offence.
A person (the
providing entity
) commits an offence if:
(a)
the providing entity:
(i)
is required by a provision of this Part to give another person a Product Disclosure Statement or a Supplementary Product Disclosure Statement (the
required disclosure document or statement
); or
(ii)
is required by paragraph
1012G(3)
(a) to orally communicate information (the
required disclosure document or statement
) to another person; and
(b)
the providing entity does not:
(i)
if subparagraph (a)(i) applies
-
give (in accordance with section
1015C
) the other person anything purporting to be the required disclosure document or statement by the time they are required to do so; or
(ii)
if subparagraph (a)(ii) applies
-
orally communicate to the other person anything purporting to be the information required by paragraph
1012G(3)
(a) by the time they are required to do so.
Note: A defendant bears an evidential burden in relation to the matters in sections
1012D
,
1012DAA
,
1012DA
and
1012E
.
[
CCH Note:
For substituted s 1021C(1)(a)(i) and (b)(i), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, items 19.26 and 19.27]
History
S 1021C(1) (Note) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
151] (effective 28 June 2007).
S 1021C(1) (Note) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
23] (effective 1 July 2004).
S 1021C(1) amended by No 141 of 2003, s 3, Sch 2
[
95I-95J] (effective 18 December 2003).
S 1021C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
1021C(2)
[
Strict liability offence]
An offence based on subsection (1) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 1021C(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
1021C(3)
Ordinary offence.
A person (the
providing entity
) commits an offence if:
(a)
the providing entity:
(i)
is required by a provision of this Part to give another person a Product Disclosure Statement or a Supplementary Product Disclosure Statement (the
required disclosure document or statement
); or
(ii)
is required by paragraph
1012G(3)
(a) to orally communicate information (the
required disclosure document or statement
) to another person; and
(b)
the providing entity does not:
(i)
if subparagraph (a)(i) applies
-
give (in accordance with section
1015C
) the other person anything purporting to be the required disclosure document or statement by the time they are required to do so; or
(ii)
if subparagraph (a)(ii) applies
-
orally communicate to the other person anything purporting to be the information required by paragraph
1012G(3)
(a) by the time they are required to do so.
Note: A defendant bears an evidential burden in relation to the matters in sections
1012D
,
1012DAA
,
1012DA
and
1012E
.
[
CCH Note:
For substituted s 1021C(3)(a)(i) and (b)(i), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, items 19.28 and 19.29]
History
S 1021C(3) (Note) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
151] (effective 28 June 2007).
S 1021C(3) (Note) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
24] (effective 1 July 2004).
S 1021C(3) amended by No 141 of 2003, s 3, Sch 2
[
95K-95L] (effective 18 December 2003).
S 1021C(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
1021C(4)
Defence for authorised representative.
In any proceedings against an authorised representative of a financial services licensee for an offence based on subsection (1) or (3), it is a defence if:
(a)
the licensee had provided the representative with information or instructions about the giving or communication of disclosure documents or statements; and
(b)
the representative
'
s failure to give or communicate the required disclosure document or statement occurred because the representative was acting in reliance on that information or those instructions; and
(c)
the representative
'
s reliance on that information or those instructions was reasonable.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3) of the
Criminal Code
.
[
CCH Note:
For substituted s 1021C(4)(b), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.30]
History
S 1021C(4) amended by No 141 of 2003, s 3, Sch 2
[
95M-95N] (effective 18 December 2003).
S 1021C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
1021C(5)
Circumstances in which a person is taken not to contravene this section.
If:
(a)
a person does not give another person a Product Disclosure Statement for a financial product because of section
1012DAA
or
1012DA
; and
(b)
a notice was given under subsection
1012DAA(2)
or
1012DA(5)
; and
(c)
the notice purported to comply with subsection
1012DAA(7)
or
1012DA(6)
but did not actually comply with that subsection;
the person is taken not to contravene this section.
History
S 1021C(5) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
152
-
154] (effective 28 June 2007).
S 1021C(5) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
25] (effective 1 July 2004).
[
CCHNote:
For s 1021C(6), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.12]
SECTION 1021D
OFFENCE OF PREPARER OF DEFECTIVE DISCLOSURE DOCUMENT OR STATEMENT GIVING THE DOCUMENT OR STATEMENT KNOWING IT TO BE DEFECTIVE
CCH Note:
Section 1021D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1021D(1)
A person commits an offence if:
(a)
the person prepares (or has someone else prepare for them) a disclosure document or statement (not being information required by paragraph
1012G(3)
(a)); and
(b)
the person knows that the disclosure document or statement is defective; and
(c)
the person:
(i)
gives (see subsection (3)) another person the disclosure document or statement in circumstances in which it is required by a provision of this Part to be given to the other person; or
(ii)
gives (see subsection (3)), or makes available to, another person the disclosure document or statement reckless as to whether the other person will or may rely on the information in it.
Note: A defendant bears an evidential burden in relation to the matters in sections
1012D
,
1012DAA
,
1012DA
and
1012E
.
History
S 1021D(1) (Note) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
155].
S 1021D(1) (Note) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
26].
S 1021D(1) amended by No 141 of 2003, s 3, Sch 2
[
95O].
S 1021D(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021D(2)
A person commits an offence if:
(a)
the person prepares (or has someone else prepare for them) a disclosure document or statement (not being information required by paragraph
1012G(3)
(a)); and
(b)
the person knows that the disclosure document or statement is defective; and
(c)
the person gives (see subsection (3)), or makes available to, another person the disclosure document or statement, reckless as to whether the other person, or someone else, will or may give it, or make it available, to another person as mentioned in subparagraph (1)(c)(i) or (ii).
History
S 1021D(2) amended by No 141 of 2003, s 3, Sch 2
[
95O].
S 1021D(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021D(3)
In this section,
give
means give by any means (including orally), and is not limited to giving in accordance with section
1015C
.
History
S 1021D(3) amended by No 141 of 2003, s 3, Sch 2
[
95P].
S 1021D(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021E
PREPARER OF DEFECTIVE DISCLOSURE DOCUMENT OR STATEMENT GIVING THE DOCUMENT OR STATEMENT (WHETHER OR NOT KNOWN TO BE DEFECTIVE)
CCH Note:
Section 1021E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Obligations
1021E(1)
A person contravenes this subsection if:
(a)
the person prepares (or has someone else prepare for them) a disclosure document or statement (not being information required by paragraph
1012G(3)(a)
); and
(b)
the disclosure document or statement is defective; and
(c)
the person:
(i)
gives (see subsection (4)) another person the disclosure document or statement in circumstances in which it is required by a provision of this Part to be given to the other person; or
(ii)
gives (see subsection (4)), or makes available to, another person the disclosure document or statement, reckless as to whether the other person will or may rely on the information in it.
Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in sections
1012D
,
1012DAA
,
1012DA
and
1012E
.
1021E(2)
A person contravenes this subsection if:
(a)
the person prepares (or has someone else prepare for them) a disclosure document or statement (not being information required by paragraph
1012G(3)(a)
); and
(b)
the disclosure document or statement is defective; and
(c)
the person gives (see subsection (4)), or makes available to, another person the disclosure document or statement, reckless as to whether the other person, or someone else, will or may give it, or make it available, to another person as mentioned in subparagraph (1)(c)(i) or (ii).
Exception
1021E(3)
A person does not contravene subsection (1) or (2) if the person took reasonable steps to ensure that the disclosure document or statement would not be defective.
Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3) of the
Criminal Code
.
Meaning of
give
1021E(4)
In this section,
give
means give by any means (including orally), and is not limited to giving in accordance with section
1015C
.
Fault-based offence
1021E(5)
A person commits an offence if the person contravenes subsection (1) or (2).
1021E(6)
For the purposes of an offence based on subsection (1), strict liability applies to the physical element of the offence specified in paragraph (1)(b).
1021E(7)
For the purposes of an offence based on subsection (2), strict liability applies to the physical element of the offence specified in paragraph (2)(b).
Civil liability
1021E(8)
A person contravenes this subsection if the person contravenes subsection (1) or (2).
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 1021E substituted by No 17 of 2019, Sch 1[101] (effective 13 March 2019).
SECTION 1021F
OFFENCE OF REGULATED PERSON (OTHER THAN PREPARER) GIVING DISCLOSURE DOCUMENT OR STATEMENT KNOWING IT TO BE DEFECTIVE
CCH Note:
Section 1021F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1021F(1)
A regulated person commits an offence if:
(a)
another person prepares (or has someone else prepare for them) a disclosure document or statement (not being information required by paragraph
1012G(3)
(a)); and
(b)
the regulated person knows that the disclosure document or statement is defective; and
(c)
the regulated person:
(i)
gives (see subsection (2)) another person the disclosure document or statement in circumstances in which it is required by a provision of this Part to be given to the other person; or
(ii)
gives (see subsection (2)), or makes available to, another person the disclosure document or statement, reckless as to whether the other person will or may rely on the information in it.
Note: A defendant bears an evidential burden in relation to the matters in sections
1012D
,
1012DAA
,
1012DA
and
1012E
.
History
S 1021F(1) (Note) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
155].
S 1021F(1) (Note) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
28].
S 1021F(1) amended by No 141 of 2003, s 3, Sch 2
[
95S].
S 1021F(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021F(2)
In this section,
give
means give by any means (including orally), and is not limited to giving in accordance with
section 1015C
.
History
S 1021F(2) amended by No 141 of 2003, s 3, Sch 2
[
95T].
S 1021F(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021FA
PARAGRAPH 1012G(3)(a) OBLIGATION
-
OFFENCES RELATING TO COMMUNICATION OF INFORMATION
CCH Note:
Section 1021FA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Offence where information known to be defective
1021FA(1)
A person (the
providing entity
) commits an offence if:
(a)
the providing entity communicates information required by paragraph
1012G(3)(a)
to another person in circumstances in which the providing entity is required to do so; and
(b)
the providing entity knows that the information is defective.
Note: A defendant bears an evidential burden in relation to the matters in sections
1012D
and
1012E
.
Offence whether or not information known to be defective
1021FA(2)
A person (the
providing entity
) commits an offence if:
(a)
the providing entity communicates information required by paragraph
1012G(3)(a)
to another person in circumstances in which the providing entity is required to do so; and
(b)
the information is defective.
Note: A defendant bears an evidential burden in relation to the matters in sections
1012D
and
1012E
.
1021FA(3)
For the purposes of an offence based on subsection (2), strict liability applies to the physical element of the offence specified in paragraph (2)(b).
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
Defences
1021FA(4)
In any proceedings against a person for an offence based on subsection (1) or (2), it is a defence if the person took reasonable steps to ensure that the information communicated would not be defective.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3) of the
Criminal Code
.
1021FA(5)
In any proceedings against a person for an offence based on subsection (2), it is a defence if the information communicated was defective because of information, or an omission from information, provided to the person (whether in a document or otherwise) by the issuer of the financial product concerned.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the
Criminal Code
.
History
S 1021FA inserted by No 141 of 2003, s 3, Sch 2
[
95U].
SECTION 1021FB
PARAGRAPH 1012G(3)(a) OBLIGATION
-
OFFENCES RELATING TO INFORMATION PROVIDED BY PRODUCT ISSUER FOR COMMUNICATION BY ANOTHER PERSON
CCH Note:
Section 1021FB is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Product issuer knows information is defective
1021FB(1)
The issuer of a financial product commits an offence if:
(a)
the issuer provides information (whether in a document or otherwise) relating to the product to a person:
(i)
for the purpose of the information being communicated under paragraph
1012G(3)(a)
; or
(ii)
knowing that it is likely that the information will be so communicated; and
(b)
the issuer knows that, if the person communicates the provided information for the purpose of paragraph
1012G(3)(a)
, the information communicated will be defective.
Product issuer knows information is not all the required information
1021FB(2)
The issuer of a financial product commits an offence if:
(a)
the issuer provides information (whether in a document or otherwise) relating to the product to a person:
(i)
for the purpose of it being communicated under paragraph
1012G(3)(a)
; or
(ii)
knowing that it is likely that it will be so communicated; and
(b)
the provided information relates to a matter or matters, but the issuer knows that it is not all of the information relating to the matter or matters that is required to be so communicated; and
(c)
the issuer is reckless as to whether the person will or may communicate information for the purposes of paragraph
1012G(3)(a)
on the basis that the provided information is all the information relating to the matter or matters that is required to be so communicated.
Product issuer provides information that results in information required by paragraph 1012G(3)(a) being defective
1021FB(3)
The issuer of a financial product commits an offence if:
(a)
the issuer provides information (whether in a document or otherwise) relating to the product to a person:
(i)
for the purpose of it being communicated under paragraph
1012G(3)(a)
; or
(ii)
knowing that it is likely that it will be so communicated; and
(b)
the person communicates the information for the purpose of paragraph
1012G(3)(a)
; and
(c)
the information communicated is defective because it includes the provided information (whether or not it is defective for other reasons).
1021FB(4)
For the purposes of an offence based on subsection (3), strict liability applies to the physical element of the offence specified in paragraph (3)(c).
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
Defence to subsection (3) offence
1021FB(5)
In any proceedings against the issuer of a financial product for an offence based on subsection (3), it is a defence if the issuer took reasonable steps to ensure that the information they provided would not be such as to make the information communicated for the purpose of paragraph
1012G(3)(a)
defective.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the
Criminal Code
.
Product issuer does not provide all the required information
1021FB(6)
The issuer of a financial product commits an offence if:
(a)
the issuer provides information (whether in a document or otherwise) relating to the product to a person:
(i)
for the purpose of it being communicated under paragraph
1012G(3)
(a); or
(ii)
knowing that it is likely that it will be so communicated; and
(b)
the provided information relates to a matter or matters, but it is not all of the information relating to the matter or matters that is required to be so communicated; and
(c)
the person communicates information for the purpose of paragraph
1012G(3)(a)
on the basis that the provided information is all the information relating to the matter or matters that is required to be so communicated; and
(d)
the information communicated is defective because it includes only that information about the matter or matters (whether or not it is also defective for other reasons).
1021FB(7)
For the purposes of an offence based on subsection (6), strict liability applies to the physical elements of the offence specified in paragraphs (6)(b) and (d).
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
Defence to subsection (6) offence
1021FB(8)
In any proceedings against the issuer of a financial product for an offence based on subsection (6), it is a defence if the issuer took reasonable steps to ensure that the information they provided about the matter or matters would be all the information about the matter or matters that would be required by paragraph
1012G(3)(a)
to be communicated.
Note: A defendant bears an evidential burden in relation to the matters in subsection (8). See subsection 13.3(3) of the
Criminal Code
.
History
S 1021FB inserted by No 141 of 2003, s 3, Sch 2
[
95U].
SECTION 1021G
FINANCIAL SERVICES LICENSEE FAILING TO ENSURE AUTHORISED REPRESENTATIVE GIVES ETC. DISCLOSURE DOCUMENTS OR STATEMENTS AS REQUIRED
CCH Note:
Section 1021G is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Financial services licensee must ensure authorised representative gives etc. disclosure documents or statements as required
1021G(1)
A financial services licensee contravenes this subsection if the licensee does not take reasonable steps to ensure that an authorised representative of the licensee complies with their obligations under this Part to give or communicate disclosure documents or statements as and when required by this Part.
Fault-based offence
1021G(2)
A person commits an offence if the person contravenes subsection (1).
Civil liability
1021G(3)
A person contravenes this subsection if the person contravenes subsection (1).
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 1021G substituted by No 17 of 2019, Sch 1[102] (effective 13 March 2019).
SECTION 1021H
OFFENCES IF A PRODUCT DISCLOSURE STATEMENT (OR SUPPLEMENTARY PDS) DOES NOT COMPLY WITH CERTAIN REQUIREMENTS
CCH Note:
Section 1021H is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1021H(1)
A person commits an offence if:
(a)
the person prepares (or has someone else prepare for them) a Product Disclosure Statement, a Supplementary Product Disclosure Statement or a Replacement Product Disclosure Statement (the
disclosure document
); and
(b)
the disclosure document does not comply with:
(i)
if it is a Product Disclosure Statement
-
section 1013B
or
1013G
or subsection
942DA(3)
; or
(ii)
if it is a Supplementary Product Disclosure Statement
-
section 1013G
,
1014B
or1014C
; or
(iii)
if it is a Replacement Product Disclosure Statement
-
subsection
942DA(3)
, section
1013G
or subsection
1014K(1)
,
(2)
or
(3)
; and
(c)
the person:
(i)
gives (see subsection (3)) another person the disclosure document in circumstances in which it is required by a provision of this Part to be given to the other person; or
(ii)
gives (see subsection (3)), or makes available to, another person the disclosure document, reckless as to whether the other person will or may rely on the information in it; or
(iii)
gives (see subsection (3)), or makes available to, another person the disclosure document, reckless as to whether the other person, or someone else, will or may give it, or make it available, to another person as mentioned in subparagraph (i) or (ii).
Note: A defendant bears an evidential burden in relation to the matters in sections
1012D
,
1012DAA
,
1012DA
and
1012E
.
[
CCH Note:
For modified s 1021H(1)(a), (b)(i) and (b)(ii), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, items 3.13, 3.14 and 3.15]
[
CCH Note:
For s 1021H(1)(b)(iii), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.16]
History
S 1021H(1) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
156]
-
[
159].
S 1021H(1) (Note) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
29].
S 1021H(1) amended by No 141 of 2003, s 3, Sch 2
[
96].
S 1021H(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
230] contained the following application provision (which was effective 28 June 2007):
Application of items 8, 70, 94, 146 to 150 and 156 to 158
The amendments made by items 8, 70, 94, 146 to 150 and 156 to 158 of this Schedule apply in relation to a Product Disclosure Statement that is lodged with ASIC whether the Statement is lodged before, on or after the day the amendments commence.
]
1021H(2)
For the purposes of an offence based on subsection (1), strict liability applies to paragraph (b) of that subsection.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 1021H(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021H(3)
In this section,
give
means give by any means (including orally), and is not limited to giving in accordance with
section 1015C
.
History
S 1021H(3) amended by No 141 of 2003, s 3, Sch 2
[
96A].
S 1021H(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021I
OFFENCE OF GIVING DISCLOSURE DOCUMENT OR STATEMENT THAT HAS NOT BEEN PREPARED BY THE APPROPRIATE PERSON
CCH Note:
Section 1021I is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1021I(1)
A regulated person commits an offence if:
(a)
the regulated person:
(i)
gives (see subsection (2)) another person a disclosure document or statement (not being information required by paragraph
1012G(3)(a)
) in circumstances in which it is required by a provision of this Part to be given to the other person; or
(ii)
gives (see subsection (2)), or makes available to, another person a disclosure document or statement (not being information required by paragraph
1012G(3)(a)
), reckless as to whether the other person will or may rely on the information in it; and
(b)
the disclosure document or statement has not been prepared by, or on behalf of, the person required by section
1013A
to prepare it.
Note: A defendant bears an evidential burden in relation to the matters in sections
1012D
,
1012DAA
,
1012DA
and
1012E
.
History
S 1021I(1) (Note) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
159].
S 1021I(1) (Note) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
30].
S 1021I(1) amended by No 141 of 2003, s 3, Sch 2
[
96B-96C].
S 1021I(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021I(2)
In this section,
give
means give by any means (including orally), and is not limited to giving in accordance with
section 1015C
.
History
S 1021I(2) amended by No 141 of 2003, s 3, Sch 2
[
96D].
S 1021I(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021J
OFFENCES IF PREPARER ETC. OF DISCLOSURE DOCUMENT OR STATEMENT BECOMES AWARE THAT IT IS DEFECTIVE
CCH Note:
Section 1021J is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1021J(1)
A person commits an offence if:
(a)
the person prepares (or has someone else prepare for them) a disclosure document or statement (not being information required by paragraph
1012G(3)(a)
); and
(b)
the person becomes aware that the disclosure document or statement is defective; and
(c)
the person does not, as soon as practicable, take reasonable steps to ensure that any regulated person to whom the disclosure document or statement has been provided for further distribution is given a direction that satisfies one of more of the following subparagraphs:
(i)
a direction not to distribute the disclosure document or statement;
(ii)
if it is a Product Disclosure Statement
-
a direction not to distribute the Product Disclosure Statement unless it is accompanied by a Supplementary Product Disclosure Statement that corrects the deficiency;
(iii)
if it is a Product Disclosure Statement or a Supplementary Product Disclosure Statement
-
a direction not to distribute the Product Disclosure Statement or Supplementary Product Disclosure Statement 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
.
[
CCH Note:
For s 1021J(1)(c)(iia) and (iiia), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, items 3.17 and 3.18]
History
S 1021J(1) amended by No 141 of 2003, s 3, Sch 2
[
96E].
S 1021J(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021J(2)
A regulated person commits an offence if:
(a)
the person is given a direction referred to in paragraph (1)(c); and
(b)
the person does not comply with the direction.
History
S 1021J(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021J(3)
A regulated person commits an offence if:
(a)
a disclosure document or statement (not being information required by paragraph
1012G(3)(a)
) has been provided to the person for distribution; and
(b)
the person becomes aware that the disclosure document or statement is defective; and
(c)
the person does not take reasonable steps to notify the person by whom, or on whose behalf, the disclosure document or statement was prepared of the particulars of the deficiency.
History
S 1021J(3) amended by No 141 of 2003, s 3, Sch 2
[
96E].
S 1021J(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021J(4)
In this section, a reference to
distributing
a disclosure document or statement includes (but is not limited to) giving the document or statement to another person in purported compliance with a requirement of this Part.
History
S 1021J(4) amended by No 141 of 2003, s 3, Sch 2
[
96F].
S 1021J(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1021J(5)
(Repealed by No 141 of 2003, s 3, Sch 2
[
96G].)
SECTION 1021K
OFFENCE OF UNAUTHORISED ALTERATION OF PRODUCT DISCLOSURE STATEMENT (OR SUPPLEMENTARY PDS)
CCH Note:
Section 1021K is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1021K(1)
A person commits an offence if:
(a)
the person engages in conduct that results in an alteration of a Product Disclosure Statement or a Supplementary Product Disclosure Statement that has been prepared by or on behalf of another person (the
responsible person
); and
(b)
the alteration results in the Product Disclosure Statement or Supplementary Product Disclosure Statement becoming defective, or more defective than it previously was; and
(c)
the alteration is not made with the authority of the responsible person; and
(d)
either:
(i)
the person, in purported compliance with a provision of this Part, gives (see subsection (2)) the altered Product Disclosure Statement or Supplementary Product Disclosure Statement to another person; or
(ii)
the person gives (see subsection (2)), or makes available to, another person the altered Product Disclosure Statement or Supplementary Product Disclosure Statement, reckless as to whether the other person will or may rely on the information in it; or
(iii)
the person gives (see subsection (2)), or makes available to, another person the altered Product Disclosure Statement or Supplementary Product Disclosure Statement, reckless as to whether the other person, or someone else, will or may give it, or make it available, to another person as mentioned in subparagraph (i) or (ii).
[
CCH Note:
For modified s 1021K(1)(a), (b) and (d)(i), (ii) and (iii), see Corporations Regulations Schedule 10BA
-
Modification of the Act relating to short-form product disclosure statements, Part 3, items 3.19, 3.20 and 3.21]
1021K(2)
In this section,
give
means give by any means (including orally), and is not limited to giving in accordance with
section 1015C
.
History
S 1021K inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021L
OFFENCES OF GIVING, OR FAILING TO WITHDRAW, CONSENT TO INCLUSION OF DEFECTIVE STATEMENT
CCH Note:
Section 1021L is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1021L(1)
A person commits an offence if:
(a)
they consent to the inclusion of a statement (the
consented material
) in a Product Disclosure Statement or a Supplementary Product Disclosure Statement as mentioned in paragraph
1013K(1)(a)
; and
(b)
either:
(i)
there is a misleading or deceptive statement in the consented material; or
(ii)
there is an omission of information from the consented material; and
(c)
the statement or omission is or would be materially adverse from the point of view of a reasonable person considering whether to proceed to acquire the financial product concerned.
[
CCH Note:
For modified s 1021L(1)(a), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.22]
1021L(2)
A person commits an offence if:
(a)
they consent to the inclusion of a statement (the
consented material
) in a Product Disclosure Statement or a Supplementary Product Disclosure Statement as mentioned in paragraph
1013K(1)(a)
; and
(b)
they become aware that either:
(i)
there is a misleading or deceptive statement in the consented material; or
(ii)
there is an omission of information from the consented material;
being a statement, or an omission, that:
(iii)
is or would be materially adverse from the point of view of a reasonable person considering whether to proceed to acquire the financial product concerned; or
(iv)
results in the Product Disclosure Statement or the Supplementary Product Disclosure Statement being defective, or more defective than it would otherwise be; and
(c)
they do not withdraw their consent after becoming aware of the matter mentioned in paragraph (b).
[
CCH Note:
For modified s 1021L(2)(a) and (b)(iv), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, items 3.23 and 3.24]
History
S 1021L inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021M
OFFENCES RELATING TO KEEPING AND PROVIDING COPIES OF PRODUCT DISCLOSURE STATEMENTS (OR SUPPLEMENTARY PDSs)
CCH Note:
Section 1021M is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Strict liability offence
1021M(1)
A person commits an offence if:
(a)
the person is required by section
1015D
:
(i)
to notify ASIC that a Product Disclosure Statement or a Supplementary Product Disclosure Statement is in use; or
(ii)
to keep a copy of a Product Disclosure Statement or a Supplementary Product Disclosure Statement for a particular period; or
(iii)
to make a copy of a Product Disclosure Statement or a Supplementary Product Disclosure Statement available to ASIC; or
(iv)
to comply with a request from a person for a copy of a Product Disclosure Statement or a Supplementary Product Disclosure Statement; and
(b)
the person does not comply with that requirement.
[
CCH Note:
For modified s 1021M(1)(a)(i), (ii), (iii) and (iv), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.25]
[
CCH Note:
S 1021M(1) will be amended by No 69 of 2020, s 3, Sch 1[1185], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (a)(i) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
1021M(2)
An offence based on subsection (1) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
Ordinary offence
1021M(3)
A person commits an offence if:
(a)
the person is required by section
1015D
:
(i)
to notify ASIC that a Product Disclosure Statement or a Supplementary Product Disclosure Statement is in use; or
(ii)
to keep a copy of a Product Disclosure Statement or a Supplementary Product Disclosure Statement for a particular period; or
(iii)
to make a copy of a Product Disclosure Statement or a Supplementary Product Disclosure Statement available to ASIC; or
(iv)
to comply with a request from a person for a copy of a Product Disclosure Statement or a Supplementary Product Disclosure Statement; and
(b)
the person does not comply with that requirement.
[
CCH Note:
For modified s 1021M(3)(a)(i), (ii), (iii) and (iv), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.26]
[
CCH Note:
S 1021M(3) will be amended by No 69 of 2020, s 3, Sch 1[1185], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (a)(i) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1021M inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021N
1021N
OFFENCE OF FAILING TO PROVIDE ADDITIONAL INFORMATION REQUESTED UNDER SECTION 1017A
CCH Note:
Section 1021N is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
A person (the
responsible person
) commits an offence if:
(a)
a request is made to them by another person, in accordance with subsection
1017A(1)
, to provide further information about a financial product; and
(b)
the responsible person is required by subsection
1017A(2)
to give the other person the information; and
(c)
the other person has paid any charge in respect of the request, being a charge that is in accordance with subsections
1017A(5)
and
(6)
; and
(d)
the responsible person does not take reasonable steps to ensure that, as soon as practicable after receiving the request, and in any event within one month, the information is provided to the other person in accordance with subsection
1017A(4)
.
History
S 1021N inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021NA
OFFENCES RELATING TO OBLIGATION TO MAKE PRODUCT DASHBOARD PUBLICLY AVAILABLE
CCH Note:
Section 1021NA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Failure to comply with obligation to make product dashboard publicly available
1021NA(1)
A person commits an offence if:
(a)
the person is a trustee of a regulated superannuation fund; and
(b)
as trustee, the person is required, under section
1017BA
, to ensure that a product dashboard for each of the fund
'
s MySuper products and choice products is made publicly available on the fund
'
s website; and
(c)
a product dashboard for each of the fund
'
s MySuper products and choice products is not made publicly available as required by that section.
Offence where information known to be defective
1021NA(2)
A person commits an offence if:
(a)
the person is a trustee of a regulated superannuation fund; and
(b)
a product dashboard is made publicly available on the fund
'
s website in purported compliance with section
1017BA
; and
(c)
the person knows that:
(i)
the information set out in the product dashboard has not been updated as required by that section; or
(ii)
the information set out in the product dashboard is otherwise misleading or deceptive; or
(iii)
there is an omission from the information set out in the product dashboard.
Offence whether or not information known to be defective
1021NA(3)
A person commits an offence if:
(a)
the person is a trustee of a regulated superannuation fund; and
(b)
a product dashboard is made publicly available on the fund
'
s website in purported compliance with section
1017BA
; and
(c)
either:
(i)
the information set out in the product dashboard has not been updated as required by that section; or
(ii)
the information set out in the product dashboard is otherwise misleading or deceptive; or
(iii)
there is an omission from the information set out in the product dashboard.
1021NA(4)
For the purposes of an offence based on subsection (3), strict liability applies to the physical element of the offence specified in any of subparagraphs (3)(c)(i) to (iii).
Note: For strict liability, see section 6.1 of the
Criminal Code
.
Defences
1021NA(5)
In any proceedings against a trustee of a regulated superannuation fund for an offence based on subparagraph (2)(c)(iii) or (3)(c)(iii), it is a defence if:
(a)
the trustee or another trustee of the fund took reasonable steps to ensure that there would not be an omission from the information set out in the product dashboard; or
(b)
both of the following apply:
(i)
the information was omitted because it was not up to date;
(ii)
the trustee or another trustee of the fund took reasonable steps to obtain up-to-date information; or
(c)
both of the following apply:
(i)
the information was omitted because it would have been misleading or deceptive;
(ii)
the trustee or another trustee of the fund took reasonable steps to obtain information that would not have been misleading or deceptive.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the
Criminal Code
.
1021NA(6)
In any proceedings against a trustee of a regulated superannuation fund for an offence based on subparagraph (3)(c)(i), it is a defence if the trustee or another trustee of the fund took reasonable steps to ensure that the information set out in the product dashboard was updated as required by section
1017BA
.
Note: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3) of the
Criminal Code
.
1021NA(7)
In any proceedings against a trustee of a regulated superannuation fund for an offence based on subparagraph (3)(c)(ii), it is a defence if the trustee or another trustee of the fund took reasonable steps to ensure that the information set out in the product dashboard would not be misleading or deceptive.
Note: A defendant bears an evidential burden in relation to the matters in subsection (7). See subsection 13.3(3) of the
Criminal Code
.
History
S 1021NA inserted by No 171 of 2012, s 3, Sch 3, Pt 1[14].
SECTION 1021NB
OFFENCES RELATING TO OBLIGATION TO MAKE SUPERANNUATION INVESTMENT INFORMATION PUBLICLY AVAILABLE
CCH Note:
Section 1021NB is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; and the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Failure to comply with obligation to make information publicly available
1021NB(1)
A person commits an offence if:
(a)
the person is a trustee of a registrable superannuation entity; and
(b)
as trustee, the person is required, under section
1017BB
, to make information publicly available on the entity
'
s website; and
(c)
the information is not made publicly available as required by that section.
Offence where information known to be defective
1021NB(2)
A person commits an offence if:
(a)
the person is a trustee of a registrable superannuation entity; and
(b)
as trustee, the person is required, under section
1017BB
, to make information publicly available; and
(c)
information is made publicly available in purported compliance with that requirement; and
(d)
the trustee knows that:
(i)
the information is misleading or deceptive; or
(ii)
there is an omission from the information.
Offence whether or not information known to be defective
1021NB(3)
A person commits an offence if:
(a)
the person is a trustee of a registrable superannuation entity; and
(b)
as trustee, the person is required, under section
1017BB
, to make information publicly available; and
(c)
information is made publicly available in purported compliance with that requirement; and
(d)
either:
(i)
the information is misleading or deceptive; or
(ii)
there is an omission from the information.
1021NB(4)
For the purposes of an offence based on subsection (3), strict liability applies to the physical element of the offence specified in subparagraph (3)(d)(i) or (ii).
Note: For strict liability, see section 6.1 of the
Criminal Code
.
Defences
1021NB(5)
In any proceedings against a trustee of a registrable superannuation entity for an offence based on subsection (1), it is a defence if the information would have been made publicly available but for the fact that the trustee or another trustee of the entity was unable to obtain the information after taking reasonable steps to do so.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the
Criminal Code
.
1021NB(6)
In any proceedings against a trustee of a registrable superannuation entity for an offence based on subparagraph (2)(d)(ii) or (3)(d)(ii), it is a defence if:
(a)
there was an omission from the information made publicly available because the trustee or another trustee of the entity was unable to obtain the information after taking reasonable steps to do so; or
(b)
both of the following apply:
(i)
the information was omitted because it would have been misleading or deceptive;
(ii)
the trustee or another trustee of the entity took reasonable steps to obtain information that would not have been misleading or deceptive.
Note: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3) of the
Criminal Code
.
1021NB(7)
In any proceedings against a trustee of a registrable superannuation entity for an offence based on subparagraph (3)(d)(i), it is a defence if the trustee or another trustee of the entity took reasonable steps to ensure that the information made publicly available would not be misleading or deceptive.
Note: A defendant bears an evidential burden in relation to the matters in subsection (7). See subsection 13.3(3) of the
Criminal Code
.
History
S 1021NB inserted by No 171 of 2012, s 3, Sch 3, Pt 1[14].
SECTION 1021NC
1021NC
OFFENCES RELATING TO OBLIGATIONS UNDER SECTIONS 1017BC, 1017BD AND 1017BE
(Repealed by No 40 of 2019, s 3, Sch 6
[
7] (effective 6 April 2019).)
SECTION 1021O
OFFENCES OF ISSUER OR SELLER OF FINANCIAL PRODUCT FAILING TO PAY MONEY INTO AN ACCOUNT AS REQUIRED
CCH Note:
Section 1021O is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Strict liability offence
1021O(1)
An issuer or seller of financial products commits an offence if:
(a)
the issuer or seller is required by subsection
1017E(2)
to pay particular money into an account in accordance with that subsection; and
(b)
the issuer or seller does not pay the money into an account in accordance with that subsection.
1021O(2)
An offence based on subsection (1) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
Ordinary offence
1021O(3)
An issuer or seller of financial products commits an offence if:
(a)
the issuer or seller is required by
subsection 1017E(2)
to pay particular money into an account in accordance with that subsection; and
(b)
the issuer or seller does not pay the money into an account in accordance with that subsection.
History
S 1021O inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1021P
OFFENCES RELATING TO OFFERS TO WHICH DIVISION 5A APPLIES
CCH Note:
Section 1021P is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
Failure to comply with requirements of section 1019E relating to how offers are made
1021P(1)
A person commits an offence if:
(a)
the person makes an offer; and
(b)
the offer is an offer to which Division
5A
applies (see section
1019D
); and
(c)
in making the offer, the person fails to comply with a requirement of section
1019E
.
Contravening section 1019F by inviting offers to sell
1021P(2)
A person commits an offence if:
(a)
the person invites another person to make an offer to sell a financial product; and
(b)
in making the invitation, the person contravenes section
1019F
.
Failure to comply with requirements of section 1019G relating to duration and withdrawal of offers
1021P(3)
A person commits an offence if:
(a)
the person makes an offer; and
(b)
the offer is an offer to which Division 5A applies (see section
1019D
); and
(c)
any of the following apply:
(i)
the offer does not remain open for the period required by paragraph
1019G(1)(a)
;
(ii)
the offer remains open for longer than is permitted by paragraph
1019G(1)(b)
;
(iii)
in purporting to withdraw the offer, the person fails to comply with a requirement of subsection
1019G(2)
or
(3)
.
History
S 1021P(3) amended by No 131 of 2010, Sch 1[14].
Failure to comply with requirements of section 1019I relating to price or value
1021P(4)
A person commits an offence if:
(a)
the person makes an offer; and
(b)
the offer is an offer to which Division
5A
applies (see section
1019D
); and
(c)
the person gives the offeree an offer document; and
(d)
either:
(i)
the offer document does not comply with paragraph
1019I(2)(a)
, (b) or (c); or
(ii)
material of a kind referred to in paragraph
1019I(2)(a)
, (b) or (c) that is included in the offer document is misleading or deceptive.
Failure to comply with other requirements of section 1019I
1021P(5)
A person commits an offence if:
(a)
the person makes an offer; and
(b)
the offer is an offer to which Division
5A
applies (see section
1019D
); and
(c)
the person gives the offeree an offer document; and
(d)
either:
(i)
the offer document does not comply with subsection
1019I(1)
, or paragraph
1019I(2)(d)
, (e) or (f); or
(ii)
material of a kind referred to in subsection
1019I(1)
, or paragraph
1019I(2)(d)
, (e) or (f), that is included in the offer document is misleading or deceptive.
Failure to comply with requirements of section 1019J
1021P(6)
A person commits an offence if:
(a)the person makes an offer; and
(b)
the offer is an offer to which Division
5A
applies (see section
1019D
); and
(c)
section
1019J
applies because of an increase or decrease in the market value of the financial product to which the offer relates; and
(d)
one of the following subparagraphs applies:
(i)
the person fails to comply with subsection
1019J(2)
in relation to that increase or decrease; or
(ii)
the person gives the offeree a supplementary offer document in relation to that increase or decrease, but that document does not comply with subsection
1019J(3)
; or
(iii)
the person gives the offeree a supplementary offer document in relation to that increase or decrease, but material of a kind referred to in subsection
1019J(3)
that is included in that document is misleading or deceptive.
History
S 1021P inserted by No 141 of 2003, s 3, Sch 1
[
10].
Subdivision B
-
Civil liability
CCH Note:
Subdivision B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
SECTION 1022A
MEANING OF DEFECTIVE AND DISCLOSURE DOCUMENT OR STATEMENT
CCH Note:
Section 1022A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1022A(1)
In this Subdivision:
defective
, in relation to a disclosure document or statement, means:
(a)
there is a misleading or deceptive statement in the disclosure document or statement; or
(b)
if it is a Product Disclosure Statement
-
there is an omission from the Product Disclosure Statement of material required by section
1013C
, other than material required by section
1013B
or
1013G
; or
(c)
if it is a Supplementary Product Disclosure Statement that is given for the purposes of section
1014E
-
there is an omission from the Supplementary Product Disclosure Statement of material required by that section; or
(d)
if it is information required by paragraph
1012G(3)(a)
-
there is an omission from the information of material required by that paragraph; or
(e)
if it is an offer document of a kind referred to in section
1019E
-
there is an omission from the document of material required by section
1019I
; or
(f)
if it is a supplementary offer document of a kind referred to in section
1019J
-
there is an omission from the document of material required by subsection
1019J(3)
.
Note: In determining whether a Product Disclosure Statement is defective, the effect of section
1014D
must be taken into account (section
1014D
takes information and statements in a Supplementary Product Disclosure Statement to be included in the Product Disclosure Statement it supplements).
[
CCH Note:
For s 1022A(1) (definition of
defective
, para (ba) and (ca)), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, items 3.27 and 3.28]
History
Definition of
defective
amended by No 141 of 2003, s 3, Sch 1
[
11].
Definition of
defective
amended by No 141 of 2003, s 3, Sch 2
[
96H].
disclosure document or statement
means:
(a)
a Product Disclosure Statement; or
(b)
a Supplementary Product Disclosure Statement; or
(c)
information required by paragraph
1012G(3)(a)
; or
(d)
an offer document of a kind referred to in section
1019E
; or
(e)
a supplementary offer document of a kind referred to in section
1019J
.
[
CCH Note:
For s 1022A(1) (definition of
disclosure document or statement
, para (ba) and (bb)), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, item 3.29]
History
Definition of
disclosure document or statement
amended by No 141 of 2003, s 3, Sch 1
[
12].
Definition of
disclosure document or statement
amended by No 141 of 2003, s 3, Sch 2
[
96I].
regulated person
(Repealed by No 76 of 2023, s 3, Sch 2[540] (effective 20 October 2023).)
History
S 1022A(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1022A(1A)
For the avoidance of doubt, if section
1012J
(information must be up to date) is not complied with in relation to a Product Disclosure Statement, then, for the purposes of the definition of
defective
in subsection
(1)
:
(a)
if the circumstance constituting the non-compliance is that particular information included in the Product Disclosure Statement is not as up to date as section
1012J
requires it to be
-
the information so included constitutes a misleading statement in the Product Disclosure Statement; and
(b)
if the circumstance constituting the non-compliance is a failure to include particular information that was not previously required to be included in the Product Disclosure Statement
-
the failure to include the information constitutes an omission from the Statement of material required by section
1013C
.
Note: The effect of section
1014D
(information in a Supplementary Product Disclosure Statement is taken to be contained in the Product Disclosure Statement it supplements) must be taken into account in determining whether section
1012J
is complied with in relation to a Product Disclosure Statement.
History
S 1022A(1A) inserted by No 141 of 2003, s 3, Sch 2
[
96K].
1022A(2)
In this Subdivision, a reference (including in the definitions in subsection
(1)
) to a document or statement, or to information, of a kind referred to in a paragraph of the definition of
disclosure document or statement
in subsection
(1)
includes a reference to something purporting to be a document or statement, or to be information, of that kind.
History
S 1022A(2) amended by No 141 of 2003, s 3, Sch 2
[
96L] and
[
96M].
S 1022A(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1022B
CIVIL ACTION FOR LOSS OR DAMAGE
CCH Note:
Section 1022B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1022B(1)
This section applies in the following situations:
(a)
a person:
(i)
is required by a provision of this Part to give another person (the
client
) a Product Disclosure Statement or a Supplementary Product Disclosure Statement (the
required disclosure document or statement
); and
(ii)
does not give (in accordance with
section 1015C
) the client anything purporting to be the required disclosure document or statement by the time they are required to do so; or
(aa)
a person makes an offer to which Division
5A
applies (see section
1019D
) to another person (the
client
) otherwise than by sending the client an offer document in accordance with section
1019E
; or
(ab)
a person makes an invitation prohibited by section
1019F
to another person (the
client
); or
(ac)
a person:
(i)
is required by subsection
1019J(2)
, in relation to an offer made to another person (the
client
), to send the client a withdrawal document or a supplementary offer document; and
(ii)
does not send (in accordance with paragraphs
1019E(1)
(a) and (b)) the client anything purporting to be either of those things by the time they are required to do so; or
(b)
a person:
(i)
is required by paragraph
1012G(3)
(a) to orally communicate information (the
required disclosure document or statement
) to another person (the
client
); and
(ii)
does not orally communicate to the other person anything purporting to be the information required by that paragraph by the time they are required to do so; or
(c)
a person:
(i)
gives another person (the
client
) a disclosure document or statement (other than an offer document of a kind referred to in section
1019E
or a supplementary offer document of a kind referred to in section
1019J
) that is defective in circumstances in which a disclosure document or statement is required by a provision of this Part to be given to the client; or
(ia)
makes an offer to which Division
5A
applies (see section
1019D
) by sending another person (the
client
) an offer document in accordance with section
1019E
, but that offer document is defective; or
(ib)
in a situation to which section
1019J
applies, sends a person (the
client
) a supplementary offer document in accordance with that section but that supplementary offer document is defective; or
(ii)
is a regulated person and gives, or makes available to, another person (the
client
) a disclosure document or statement, being a Product Disclosure Statement or a Supplementary Product Disclosure Statement, that is defective, reckless as to whether the client will or may rely on the information in it; or
(d)
a person:
(i)
gives consent to the inclusion of a statement in a Product Disclosure Statement or a Supplementary Product Disclosure Statement as mentioned in
subsection 1021L(1)
, disregarding paragraph 1021L(1)(c); or
(ii)
does not take reasonable steps to withdraw such a statement as mentioned in
subsection 1021L(2)
, disregarding subparagraphs 1021L(2)(b)(iii) and (iv); or
(e)
a person contravenes
section 1017B
or
1017D
; or
(f)
a person is required by section
1017BA
to make information publicly available on a regulated superannuation fund
'
s website and any of the following circumstances apply:
(i)
the information is not made publicly available as required by that section;
(ii)
the information made publicly available is not updated as required by that section;
(iii)
the information made publicly available is misleading or deceptive;
(iv)
there is an omission from the information made publicly available; or
(g)
a person is required by section
1017BB
to make information publicly available on a registrable superannuation entity
'
s website and any of the following circumstances apply:
(i)
the information is not made publicly available as required by that section;
(ii)
the information made publicly available is misleading or deceptive;
(iii)
there is an omission from the information made publicly available.
(h)
(Repealed)
In paragraph (c),
give
means give by any means (including orally), and is not limited to giving in accordance with
section 1015C
or paragraph
1012G(3)
(a).
[
CCH Note:
For modified s 1022B(1)(a)(i), (c)(ii) and (d)(i), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 3, items 3.30, 3.31 and 3.32]
[
CCH Note:
For s 1022B(1)(ad)
-
(af), see Corporations Regulations Schedule 10A, Part 19
-
Modifications for carbon units, Australian carbon credit units and eligible international emissions units, item 19.32]
History
S 1022B(1) amended by No 40 of 2019, s 3, Sch 6[8] and
[
9] (effective 6 April 2019).
S 1022B(1) amended by No 171 of 2012, s 3, Sch 3, Pt 1[15].
S 1022B(1) amended by No 141 of 2003, s 3, Sch 1
[
13-15].
S 1022B(1) amended by No 141 of 2003, s 3, Sch 2
[
96N].
S 1022B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1022B(2)
In a situation to which this section applies, if a person suffers loss or damage:
(a)
if paragraph (1)(a) applies
-
because the client was not given the disclosure document or statement that they should have been given; or
(aa)
if paragraph (1)(aa) applies
-
because the client was not sent an offer document in accordance with section
1019E
; or
(ab)
if paragraph (1)(ab) applies
-
because the client received an invitation prohibited by section
1019F
rather than being sent an offer document in accordance with section
1019E
; or
(ac)
if paragraph (1)(ac) applies
-
because the client was not sent a withdrawal document or a supplementary offer document as required by subsection
1019J(2)
; or
(b)
if paragraph (1)(b) applies
-
because the information required by paragraph
1012G(3)
(a) was not communicated to the client; or
(c)
if paragraph (1)(c) applies
-
because the disclosure document or statement the client was given or sent was defective; or
(d)
if paragraph (1)(d) applies
-
because the consent referred to in that paragraph was given, or was not withdrawn, as the case requires; or
(e)
if paragraph (1)(e) applies
-
because of the contravention referred to in that paragraph; or
(f)
if paragraph (1)(f) or (g) apply
-
because of any of the circumstances mentioned in those paragraphs;
the person may recover the amount of the loss or damage by action against the, or a, liable person (see subsections (3) to (5)), whether or not that person (or anyone else) has been convicted of an offence in respect of the matter referred to in paragraph (a), (aa), (ab), (ac), (b), (c), (d), (e) or (f).
History
S 1022B(2) amended by No 40 of 2019, s 3, Sch 6[10] (effective 6 April 2019).
S 1022B(2) amended by No 171 of 2012, s 3, Sch 3, Pt 1[16]
-
[
17].
S 1022B(2) amended by No 141 of 2003, s 3, Sch 1
[
16-18].
S 1022B(2) amended by No 141 of 2003, s 3, Sch 2
[
96O].
S 1022B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1022B(3)
For the purposes of subsection (2), the, or a,
liable person
is:
(a)
if paragraph (1)(a), (aa), (ab), (ac) or (b) applies
-
subject to subsection (4), the person first-referred to in that paragraph; or
(aa)
if paragraph (1)(c) applies and the disclosure document or statement is information required by paragraph
1012G(3)
(a)
-
subject to subsection (5A), the person first-referred to in paragraph (1)(c) of this section; or
(b)
if paragraph (1)(c) (other than subparagraph (1)(c)(ia) or (ib)) applies and the disclosure document or statement is not information required by paragraph
1012G(3)
(a)
-
subject to subsection (5):
(i)
the person by whom, or on whose behalf, the disclosure document or statement was prepared; and
(ii)
each other person involved in the preparation of the disclosure document or statement who, directly or indirectly, caused the disclosure document or statement to be defective or contributed to it being defective; or
(ba)
if subparagraph (1)(c)(ia) or (ib) applies
-
the person who made the offer; or
(c)
if paragraph (1)(d) applies
-
the person who gave the consent; or
(d)
if paragraph (1)(e) applies
-
the person who contravened the provision concerned; or
(e)
if paragraph (1)(f) applies
-
the trustee, or the trustees, of the regulated superannuation fund on whose website the information was required to be made publicly available; or
(f)
if paragraph (1)(g) applies
-
the trustee, or the trustees, of the registrable superannuation entity on whose website the information was required to be made publicly available.
(g)
(Repealed)
History
S 1022B(3) amended by No 40 of 2019, s 3, Sch 6[11] and
[
12] (effective 6 April 2019).
S 1022B(3) amended by No 171 of 2012, s 3, Sch 3, Pt 1[18].
S 1022B(3) amended by No 141 of 2003, s 3, Sch 1
[
19-21].
S 1022B(3) amended by No 141 of 2003, s 3, Sch 2
[
96P-96Q].
S 1022B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1022B(4)
If paragraph (1)(a) or (b) applies, or paragraph (1)(c) applies so far as it relates to information required by paragraph
1012G(3)
(a), and the person who would, but for this subsection, be the liable person is an authorised representative, the authorised representative is not the liable person and the following paragraphs apply:
(a)
if the authorised representative is an authorised representative of only one financial services licensee
-
that financial services licensee is the liable person;
(b)
if the authorised representative is an authorised representative of more than one financial services licensee:
(i)
if, under the rules in
section 917C
, one of those licensees is responsible for the person
'
s conduct
-
that licensee is the (or a) liable person; or
(ii)
if, under the rules in
section 917C
, 2 or more of those licensees are jointly and severally responsible for the person
'
s conduct
-
each of those licensees is a liable person.
History
S 1022B(4) amended by No 141 of 2003, s 3, Sch 2
[
96R].
S 1022B(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1022B(4A)
For the purposes of paragraph (4)(b):
(a)
section 917C
is taken to apply, despite
section 917F
; and
(b)
section 917D
is taken not to apply.
History
S 1022B(4A) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1022B(5)
If:
(a)
paragraph (1)(c) (other than subparagraph (1)(c)(ia) or (ib)) applies; and
(b)
an alteration was made to the disclosure document or statement (not being information required by paragraph
1012G(3)
(a)) before it was given to the client; and
(c)
the alteration made the disclosure document or statement defective, or more defective than it would otherwise have been; and
(d)
the alteration was not made by, or with the authority of, the person who would, but for this subsection, be a liable person because of subparagraph (3)(b)(i);
then, so far as a person has suffered loss or damage because the disclosure document or statement was defective because of the alteration, the person who made the alteration is a liable person, rather than the person referred to in paragraph (d).
History
S 1022B(5) amended by No 141 of 2003, s 3, Sch 1
[
22].
S 1022B(5) amended by No 141 of 2003, s 3, Sch 2
[
96S].
S 1022B(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1022B(5A)
If:
(a)
paragraph (3)(aa) applies; and
(b)
the person referred to in that paragraph is not the issuer, or an authorised representative of the issuer, of the financial product to which the required disclosure document or statement relates; and
(c)
the required disclosure document or statement was defective because of information, or an omission from information, provided to that person (whether in a document or otherwise) by the issuer of the product;
the issuer of the product is the liable person, rather than the person who would otherwise be the liable person because of paragraph (3)(aa) or subsection (4).
History
S 1022B(5A) inserted by No 141 of 2003, s 3, Sch 2
[
96T].
1022B(6)
An action under subsection (2) may be begun at any time within 6 years after the day on which the cause of action arose.
History
S 1022B(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1022B(7)
A person is not liable under subsection (2) in a situation described in paragraph (1)(c) if the person took reasonable steps to ensure that the disclosure document or statement would not be defective.
History
S 1022B(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
1022B(7A)
If subsection (5A) applies, the issuer of the financial product is not liable under subsection (2) if the issuer took reasonable steps to ensure that the information provided as mentioned in paragraph (5A)(c) would not be such as to make the required disclosure document or statement defective.
History
S 1022B(7A) inserted by No 141 of 2003, s 3, Sch 2
[
96U].
1022B(7B)
A person is not liable under subsection (2) in a situation described in subparagraph (1)(f)(iii) or (g)(ii) if the person took reasonable steps to ensure that the information would not be misleading or deceptive.
History
S 1022B(7B) amended by No 40 of 2019, s 3, Sch 6[13] (effective 6 April 2019).
S 1022B(7B) inserted by No 171 of 2012, s 3, Sch 3, Pt 1[19].
1022B(7C)
A person is not liable under subsection (2) in a situation described in subparagraph (1)(f)(iv) or (g)(iii) if the person took reasonable steps to ensure that there would not be an omission from the information.
History
S 1022B(7C) amended by No 40 of 2019, s 3, Sch 6[14] (effective 6 April 2019).
S 1022B(7C) inserted by No 171 of 2012, s 3, Sch 3, Pt 1[19].
1022B(8)
This section does not affect any liability that a person has under any other law.
History
S 1022B(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 1022C
ADDITIONAL POWERS OF COURT TO MAKE ORDERS
CCH Note:
Section 1022C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649; the ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497; the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693.
1022C(1)
The court dealing with an action under subsection
1022B(2)
may, in addition to awarding loss or damage under that subsection and if it thinks it necessary in order to do justice between the parties:
(a)
make an order declaring void a contract entered into by the client referred to in that subsection for or relating to a financial product or a financial service; and
(b)
if it makes an order under paragraph (a)
-
make such other order or orders as it thinks are necessary or desirable because of that order.
1022C(2)
Without limiting paragraph (1)(b), the orders that may be made under that paragraph include (but are not limited to) an order for the return of money paid by a person, and/or an order for payment of an amount of interest specified in, or calculated in accordance with, the order.
History
S 1022C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
The next section is s 1040A.]