CHAPTER 8B
-
CORPORATE COLLECTIVE INVESTMENT VEHICLES
History
Ch 8B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
PART 8B.7
-
CONTROL, FINANCIAL SERVICES AND DISCLOSURE
History
Pt 8B.7 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 1
-
Takeovers, compulsory acquisitions and buy-outs
History
Div 1 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1240
1240
MEANING OF SECURITIES
(Repealed by No 76 of 2023, s 3, Sch 2
[
595] (effective 20 October 2023).)
SECTION 1240A
1240A
TAKEOVERS
-
PROHIBITION ON ACQUISITIONS OF SHARES IN A LISTED CCIV
The prohibitions in subsections
606(1)
and
(2)
only apply to an acquisition of a relevant interest in issued voting shares in a CCIV if the CCIV is a listed company (including an acquisition resulting from an acquisition of a legal or equitable interest in securities).
Note: A retail CCIV that has only one sub-fund may be a listed company, see section
1222N
.
History
S 1240A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1240B
TAKEOVERS
-
DIRECTORS OF THE CORPORATE DIRECTOR OF A LISTED CCIV
1240B(1)
The provisions mentioned in subsection
(2)
apply as if each of the following were a director of a CCIV that is a listed company:
(a)
the corporate director of the CCIV;
(b)
a director of the corporate director of the CCIV.
1240B(2)
The provisions are the following:
(a)
subsection
609(9)
;
(b)
subsection
638(1A)
;
(c)
subsection
638(3)
;
(d)
subsection
639(1)
;
(e)
subsection
640(1)
;
(f)
subsection
642(1)
;
(g)
subsection
658C(5)
;
(h)
subsection
670B(1)
;
(i)
subsection
670D(3)
.
1240B(3)
Paragraph
(1)(a)
is included for the avoidance of doubt.
History
S 1240B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1240C
TAKEOVERS
-
BIDDER
'
S STATEMENT CONTENT
1240C(1)
Subsection
636(1)
has effect as if:
(a)
a reference in paragraph
636(1)(c)
to a company or body did not include a reference to a CCIV that is a listed company; and
(b)
subsection
636(1)
also included the following paragraph:
"
(da)
if the target is a CCIV that is a listed company
-
details of the bidder
'
s intentions regarding:
(i)
the continued operation of the CCIV; and
(ii)
any major changes to be made to the operation of the CCIV, including any redeployment of the property of the CCIV; and
(iii)
any plans to remove the current corporate director of the CCIV and appoint a new corporate director;
"
.
1240C(2)
Subsection
636(1)
also has effect as if:
(a)
a reference in paragraph
636(1)(g)
to securities did not include a reference to securities in a CCIV that is a listed company; and
(b)
subsection
636(1)
also included the following paragraph:
"
(gb)
if any securities in a CCIV that is a listed company are offered as consideration under the bid and the bidder is:
(i)
a retail CCIV; or
(ii)
the corporate director of a retail CCIV; or
(iii)
a person who controls a retail CCIV or the corporate director of a retail CCIV;
all material that would be required by section 1013C to be included in a Product Disclosure Statement given to a person in an issue situation in relation to those securities;
"
.
History
S 1240C(2) amended by No 76 of 2023, s 3, Sch 2
[
566] (effective 20 October 2023).
History
S 1240C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1240D
1240D
TAKEOVERS PANEL
-
DECLARATION OF UNACCEPTABLE CIRCUMSTANCES MAY ONLY BE MADE IN RELATION TO A LISTED CCIV
The Takeovers Panel may only declare under section
657A
circumstances to be unacceptable circumstances in relation to the affairs of a CCIV if the CCIV is a listed company.
History
S 1240D amended by No 76 of 2023, s 3, Sch 2[615] (effective 20 October 2023).
S 1240D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1240E
COMPULSORY ACQUISITION
-
ONLY AVAILABLE FOR SECURITIES IN A LISTED CCIV
1240E(1)
Securities in a CCIV may only be compulsorily acquired or bought out under Chapter
6A
if the CCIV is a listed company.
1240E(2)
If Part
6A.1
applies to a CCIV that is a listed company at the end of the bid period for a takeover, that Part continues to apply to the CCIV in relation to the takeover bid even if the CCIV ceases to be listed.
1240E(3)
If Part
6A.2
applies to a CCIV that is a listed company when a compulsory acquisition notice under section
664C
is lodged, that Part (including Division
2
of that Part) continues to apply to the CCIV in relation to the notice even if the CCIV ceases to be listed.
History
S 1240E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 2
-
Continuous disclosure
History
Div 2 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1240F
1240F
CONTINUOUS DISCLOSURE
-
CCIVs
Paragraph
675(2)(c)
applies in relation to securities in a CCIV in the same way the paragraph applies in relation to securities that are managed investment products.
History
S 1240F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 3
-
Fundraising
History
Div 3 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1240G
1240G
FUNDRAISING RULES DO NOT APPLY TO CCIVs
Subject to subsection
1240H(6)
, in Chapter
6D
,
securities
does not include a security in a CCIV.
History
S 1240G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1240H
OFFERING SECURITIES OF A CCIV OR SUB-FUND THAT DOES NOT EXIST
1240H(1)
A person must not offer securities of a CCIV that does not exist if the offer would give rise to an obligation to give a Product Disclosure Statement under Chapter
7
(as that Chapter applies to securities in a CCIV under Division
4
of Part
8B.7
) if the CCIV did exist.
1240H(2)
A person must not offer securities of a CCIV that are referable to a sub-fund of the CCIV that has not been established if the offer would give rise to an obligation to give a Product Disclosure Statement under Chapter
7
(as that Chapter applies to securities in a CCIV under Division
4
of Part
8B.7
) if the sub-fund were established.
Note 1: For when a sub-fund is established, see section
1222T
.
Note 2: For when shares and debentures are referable to a sub-fund of a CCIV, see sections
1230
(for shares) and
1231N
(for debentures).
1240H(3)
Subsections
(1)
and
(2)
apply even if it is proposed to incorporate the CCIV or register the sub-fund.
1240H(4)
In this section,
securities
has the same meaning as it has in Chapter
6D
(apart from section
1240G
).
1240H(5)
For the purposes of subsection
(2)
, a security referred to in paragraph
95(c)
or
(d)
is taken to be referable to the sub-fund of the CCIV to which the relevant security covered by paragraph
95(a)
or
(b)
is, or would be, referable.
Note: For example, an option to acquire by way of issue a share in a CCIV (covered by paragraph
95(d)
) is referable to the sub-fund of the CCIV to which the share (covered by paragraph
95(a)
) is referable.
History
S 1240H(5) substituted by No 76 of 2023, s 3, Sch 2[85] (effective 20 October 2023).
1240H(6)
The following provisions apply in relation to this section in the same way the provisions apply in relation to Chapter
6D
:
(a)
subsection
700(4)
;
(b)
sections
702
,
703
and
703A
.
History
S 1240H(6) amended by No 76 of 2023, s 3, Sch 2[86] (effective 20 October 2023).
History
S 1240H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 4
-
Financial services and markets
History
Div 4 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241
1241
APPLICATION OF CHAPTER 7 TO CCIVs
Chapter
7
applies to a CCIV subject to the modifications set out in this Division.
History
S 1241 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241A
FOR CHAPTER 7, TREAT THE CORPORATE DIRECTOR AS PROVIDING FINANCIAL SERVICES ETC. BEING PROVIDED BY THE CCIV
1241A(1)
This section applies to a provision of Chapter
7
that applies in relation to:
(a)
a financial services licensee; or
(b)
a financial service or a financial services business; or
(c)
a matter prescribed by the regulations for the purposes of this paragraph.
General rule
1241A(2)
For the purposes of that provision of Chapter
7
:
(a)
treat any conduct engaged in by, or on behalf of, a CCIV as also being engaged in by, or on behalf of, the corporate director of the CCIV; and
(b)
treat any conduct relating to the CCIV that is engaged in by a person (other than the corporate director of the CCIV) as also being engaged in by that person in relation to the corporate director of the CCIV.
1241A(3)
In subsection
(2)
,
conduct
means an act, an omission to perform an act or a state of affairs.
Exceptions
1241A(4)
If the CCIV issues a security in the CCIV, then subsection
(2)
does not treat the corporate director of the CCIV as also being the issuer of the security.
1241A(5)
If the CCIV is a participant in:
(a)
a clearing and settlement facility; or
(b)
a financial market;
subsection
(2)
does not treat the corporate director of the CCIV as also being a participant in relation to the facility or market.
History
S 1241A(5) amended by No 69 of 2023, s 3, Sch 2[105] (effective 15 September 2023).
1241A(6)
Subsection
(2)
does not apply in any circumstances prescribed by the regulations for the purposes of this subsection.
History
S 1241A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241B
CERTAIN LICENSING CONCEPTS DO NOT APPLY TO CCIVs
1241B(1)
Subsection
911A(1)
(about the requirement to be licensed to carry on a financial services business) does not apply to a CCIV.
Note: That subsection will instead apply to the corporate director of the CCIV in relation to any financial services business carried on by the CCIV (see subsection
1241A(2)
).
1241B(2)
Subsection
911B(1)
(about requirements for providing financial services on behalf of another person) does not apply to a CCIV.
Note: This subsection confirms that the CCIV is not subject to extra requirements if it is viewed as providing financial services on behalf of its corporate director.
1241B(3)
For the purposes of Chapter
7
, treat a CCIV as not being a representative of the corporate director of the CCIV.
Note: Activities of the CCIV relating to a financial service etc. are instead treated as activities of the corporate director (see subsection
1241A(2)
).
History
S 1241B(3) amended by No 76 of 2023, s 3, Sch 2
[
567] (effective 20 October 2023).
1241B(4)
For the purposes of Chapter
7
, a CCIV cannot be authorised under Division
5
(about authorised representatives of licensees) of Part
7.6
.
Note: Activities of the CCIV relating to a financial service etc. are instead treated as activities of the corporate director (see subsection
1241A(2)
).
History
S 1241B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241C
EXTRA KINDS OF FINANCIAL SERVICES RELATING TO CCIVs
1241C(1)
Subject to paragraph
766A(2)(b)
, treat subsection
766A(1)
as also providing that a person provides a
financial service
if:
(a)
the person operates the business and conducts the affairs of a CCIV; and
(b)
the person is the corporate director of the CCIV.
Note: Subsection
(1)
means persons other than the corporate director will not be treated as providing that financial service if they operate the business and conduct the affairs of the CCIV while:
(a) acting as an agent of the CCIV, or as an agent or employee of the corporate director; or
(b) taking steps to wind up the CCIV.
1241C(2)
For the purposes of Chapter
7
, each of the members of a CCIV covered by subsection
(1)
is a client for the financial service covered by that subsection.
History
S 1241C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241D
1241D
CCIV BUY-BACK OR REDEMPTION FACILITY DOES NOT MAKE A MARKET
Subsection
766D(1)
does not apply to a CCIV, nor to the corporate director of a CCIV, for:
(a)
a proposed buy-back by the CCIV; or
(b)
the proposed issuing or redeeming by the CCIV of:
(i)
redeemable shares in the CCIV; or
(ii)
redeemable preference shares in the CCIV.
History
S 1241D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241E
1241E
CERTAIN CONDUCT RELATING TO CCIVs IS NOT PROVIDING A CUSTODIAL OR DEPOSITORY SERVICE
Treat subsection
766E(3)
as also providing that none of the following conduct constitutes providing a
custodial or depository service
:
(a)
operating as a CCIV;
(b)
operating the business and conducting the affairs of a CCIV;
(c)
holding the money or property of a CCIV.
Note: Holding the assets of a sub-fund of a CCIV is covered by paragraph (c) and does not constitute providing a
custodial or depository service
.
History
S 1241E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241F
AUSTRALIAN FINANCIAL SERVICES LICENCES
1241F(1)
For the purposes of Chapter
7
, a single Australian financial services licence can cover operating the business and conducting the affairs of more than one CCIV.
Note: This confirms that a corporate director of several CCIVs could be granted a single licence to operate the business and conduct the affairs of those CCIVs.
1241F(2)
Treat subsection
911A(4)
as also providing that a person is not exempt under any paragraph of subsection
911A(2)
for a financial service they provide if:
(a)
the service is operating the business and conducting the affairs of a CCIV; and
(b)
the person is the corporate director of the CCIV.
1241F(3)
Despite paragraph
912A(4)(b)
, paragraph
912A(1)(d)
also applies to an RSE licensee that is the corporate director of a CCIV.
1241F(4)
Despite subsection
912A(5)
, paragraph
912A(1)(h)
also applies to an RSE licensee that is the corporate director of a CCIV, except to the extent that the risk relates solely to the operation of a regulated superannuation fund by the RSE licensee.
1241F(5)
Treat subsection
912D(4)
as also providing that, for the purposes of section
912D
, a breach of a core obligation is taken to be
significant
in the case of a CCIV if the breach results, or is likely to result, in material loss or damage to a member of members of the CCIV.
1241F(6)
(Repealed by No 76 of 2023, s 3, Sch 2
[
568] (effective 20 October 2023).)
History
S 1241F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241G
1241G
IMMEDIATE SUSPENSIONS OR CANCELLATIONS OF LICENCES
Treat subsection
915B(3)
as also providing that ASIC may suspend or cancel an Australian financial services licence held by a body corporate, by giving written notice to the body, if:
(a)
the body is the corporate director of a CCIV; and
(b)
the CCIV or the members of the CCIV have suffered, or are likely to suffer, loss or damage because the corporate director or the CCIV has breached this Act.
History
S 1241G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241H
1241H
RESTRICTION ON USE OF CERTAIN WORDS OR EXPRESSIONS
Treat subsection
923A(1)
as also providing that a CCIV contravenes that subsection if the CCIV assumes or uses, in this jurisdiction, a restricted word or expression in relation to a financial services business or financial service.
History
S 1241H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241J
AGREEMENTS WITH CERTAIN UNLICENSED PERSONS
1241J(1)
Subdivision
B
of Division
11
of Part
7.6
also applies to an agreement entered into by:
(a)
a CCIV (in that Subdivision called the non-licensee); and
(b)
another person (in that Subdivision called the client) who is not a financial services licensee;
that constitutes, or relates to, the provision of a financial service by the corporate director of the CCIV (in that Subdivision called the corporate director) if:
(c)
the agreement is entered into in the course of a financial services business carried on by the corporate director; and
(d)
the corporate director does not hold an Australian financial services licence covering the provision of the financial service; and
(e)
the corporate director is not exempt from the requirement to hold such a licence.
Note 1: A CCIV does not need to be licensed to provide a financial service, instead the CCIV
'
s corporate director needs to be (see subsection
1241B(1)
). This means section
924A
will work appropriately only if the agreement mentioned in that section is between the corporate director and the client.
Note 2: This section works similarly to section
924A
to ensure that the appropriate result happens if the agreement mentioned in section
924A
is instead between the CCIV and the client.
Note 3: This section applies whether the financial service is provided to the client as a wholesale client or as a retail client.
History
S 1241J(1) amended by No 76 of 2023, s 3, Sch 2
[
596]
-
[
598] (effective 20 October 2023).
1241J(2)
Subdivision
B
of Division
11
of Part
7.6
applies to the agreement whether or not anyone else is a party to the agreement.
1241J(3)
That Subdivision applies to the agreement as if subsections
925A(4)
and
(5)
were replaced by the following:
"
(4)
The client is not entitled to give a notice under this section if, within a reasonable period before the agreement was entered into, the non-licensee informed the client (whether or not in writing) that the corporate director did not hold an Australian financial services licence.
(5)
If, at a time when an Australian financial services licence held by the corporate director was suspended, the non-licensee informed the client that the licence was suspended, the non-licensee is to be taken for the purposes of subsection (4) to have informed the client at that time that the corporate director did not hold the licence.
"
.
History
S 1241J inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241K
1241K
TREAT THE CCIV AS A PROFESSIONAL INVESTOR
Treat the definition of
professional investor
in section
9
as also meaning a CCIV if and while the corporate director of the CCIV holds an Australian financial services licence.
History
S 1241K inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241L
1241L
FINANCIAL SERVICES DISCLOSURE DOES NOT APPLY TO OPERATING THE BUSINESS AND CONDUCTING THE AFFAIRS OF CCIVs
Part
7.7
does not apply to a financial service if:
(a)
the financial service consists only of operating the business and conducting the affairs of a CCIV; and
(b)
the financial service is provided by the corporate director of the CCIV.
History
S 1241L inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241M
1241M
FINANCIAL RECORDS OF THE CORPORATE DIRECTOR OF A CCIV
When section
988E
applies to a licensee because the licensee is the corporate director of a CCIV, treat that section as requiring the particulars of the matters in paragraphs
988E(a)
to
(g)
to be shown so that they are clearly identifiable for each sub-fund of the CCIV.
Note: Section
988E
is about the categories of information to be shown in the licensee
'
s financial records.
History
S 1241M inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241N
PROHIBITION ON HAWKING OF SECURITIES IN A CCIV
1241N(1)
Treat subsection
992A(2)
as also providing that subsection
992A(1)
does not apply to the offering of securities in a CCIV, hawking of which is prohibited by section
992AA
(as extended by this section).
1241N(2)
Subsection
992AA(1)
also applies as if the reference in that subsection to interests in managed investment schemes included a reference to securities in a CCIV.
Note: Failure to comply with subsection
992AA(1)
is an offence (see subsection
1311(1)
).
1241N(3)
Subsection
992AA(1)
, as it applies because of subsection
(2)
of this section, does not apply to an offer of securities in a CCIV if:
(a)
the offer is not to a retail client; or
(b)
the CCIV is a listed company and the offer is an offer of securities in the CCIV made by telephone by a financial services licensee; or
(c)
the offer is made to a client by a financial services licensee through whom the client has acquired or disposed of a security in a CCIV in the previous 12 months.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection
13.3(3)
of the
Criminal Code
).
1241N(4)
For the purposes of subsection
992AA(1)
, as it applies because of subsection
(2)
of this section:
(a)
a reference to offering securities in a CCIV for issue includes a reference to inviting an application for the issue of securities in the CCIV; and
(b)
a reference to offering securities in a CCIV for sale includes a reference to inviting an offer to purchase securities in the CCIV.
1241N(5)
Subsection
736(1)
(about prohibiting the hawking of securities) does not apply to securities in a CCIV.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection
13.3(3)
of the
Criminal Code
).
History
S 1241N inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241P
MODIFICATIONS OF PART 7.8A
1241P(1)
Paragraph
994B(3)(d)
(about an exception to making a target market determination for a financial product) does not apply to a fully paid ordinary share in a CCIV.
1241P(2)
If a contravention referred to in paragraph
994M(1)(a)
is a contravention by a CCIV, subsection
994M(1)
applies to authorise recovery by action against the CCIV
'
s corporate director instead of against the CCIV.
Note: Subsection
994M(1)
authorises a client to recover the amount of loss or damage suffered because of certain contraventions.
History
S 1241P inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241Q
PART 7.9 APPLIES TO THE ISSUE OR SALE OF SECURITIES IN A CCIV
1241Q(1)
Despite subsection
1010A(1)
, Part
7.9
applies to securities in a CCIV.
Note: This and other sections in this Part extend and modify how Part
7.9
applies for a CCIV. A consequence is that, for a CCIV, references outside of Part
7.9
to provisions of Part
7.9
become references to those provisions as they apply because of this Part.
1241Q(2)
Despite subsection
1010B(1)
, Part
7.9
applies in relation to the issue of any security in a CCIV.
1241Q(3)
If the corporate director of a CCIV is, apart from this subsection, a regulated person (within the meaning of Division
2
of Part
7.9
) because it is the seller of a security in the CCIV, treat the CCIV as being the regulated person within the meaning of that Division instead of the corporate director.
Note 1: The corporate director of the CCIV will continue to be a regulated person for any other case.
Note 2: The CCIV will also be the regulated person for an issue of securities in the CCIV (see subsection
1241A(4)
and section
1011B
).
1241Q(4)
If a reference in Part
7.9
to a seller of a financial product applies to the corporate director of a CCIV as the seller of a security in the CCIV, treat the reference as referring to the CCIV.
1241Q(5)
Subsections
(3)
and
(4)
apply despite subsection
1241A(2)
.
Note: This subsection confirms that the general rule in subsection
1241A(2)
does not affect subsections
(3)
and
(4)
of this section.
History
S 1241Q inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241R
1241R
PRODUCT DISCLOSURE STATEMENTS
-
WHEN A SECURITY IN A CCIV IS OF THE SAME KIND AS ANOTHER PRODUCT
For the purposes of sections
1012C
and
1012D
(as affected by this Part), a security in a CCIV that is referable to a sub-fund of the CCIV is of the same kind as another product only if the other product:
(a)
is also a security in the CCIV; and
(b)
is also referable to that sub-fund of the CCIV; and
(c)
is issued on the same terms and conditions (other than price) as the first-mentioned security.
History
S 1241R inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241S
PRODUCT DISCLOSURE STATEMENTS
-
SITUATIONS WHEN NOT REQUIRED FOR CCIVs
No consideration to be provided
1241S(1)
Paragraph
1012D(5)(b)
also applies to the case where the financial product is not an option and is a security in a CCIV.
Client is associated with the CCIV
1241S(2)
Treat section
1012D
as also providing that, 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 security in a CCIV; and
(b)
the client is associated (within the meaning of subsection
(3)
of this section) with the CCIV.
1241S(3)
For the purposes of subsection
(2)
, the client is associated with the CCIV if the client is:
(a)
the corporate director of the CCIV; or
(b)
a director or secretary of that corporate director; or
(c)
a senior manager of the corporate director or of a related body corporate of that corporate director; or
(d)
a spouse, parent, child, brother or sister of a person who is a director or senior manager of:
(i)
that corporate director; or
(ii)
a related body corporate of that corporate director; or
(e)
a body corporate controlled by a person referred to in paragraph
(a)
,
(b)
,
(c)
or
(d)
.
Dividend reinvestment plan or bonus share plan
1241S(4)
Treat section
1012D
as also providing that, in a recommendation situation or issue situation, the regulated person does not have to give the client a Product Disclosure Statement for a fully-paid share in a CCIV if:
(a)
the client already holds a share, of the same kind, in the CCIV; and
(b)
either:
(i)
in a recommendation situation
-
the advice that constitutes the relevant conduct relates to an offer made under a dividend reinvestment plan or bonus share plan; or
(ii)
in an issue situation
-
the offer or issue that constitutes the relevant conduct is made under a dividend reinvestment plan or bonus share plan.
Note: For when such a share is of the same kind, see section
1241R
.
Compromise or arrangement under Part 5.1
1241S(5)
Treat section
1012D
as also providing that, in an issue situation or a sale situation, the regulated person does not have to give the client a Product Disclosure Statement if the issue situation or sale situation is an offer:
(a)
of securities in a CCIV; and
(b)
made under a compromise or arrangement under Part
5.1
approved at a meeting held as a result of an order under subsection
411(1)
or
(1A)
.
Rights issues
1241S(6)
Subsection
1012DAA(3)
also applies to contraventions of the following provisions:
(a)
if the relevant product is a security in a CCIV
-
the provisions of Chapter
2M
(as affected by Division
4
of Part
8.4B
), or the provisions of that Division, as they:
(i)
apply to the CCIV; or
(ii)
apply for a sub-fund of the CCIV;
(b)
if the relevant product is a security in a CCIV
-
section
675
as it applies to the CCIV.
1241S(7)
Treat subsection
1012DAA(7)
as:
(a)
providing that paragraph
1012DAA(7)(d)
applies only if the relevant product is an interest in a registered scheme; and
(b)
also including the following paragraph:
"
(da)
if the relevant product is a security in a CCIV
-
states that, as at the date of the notice, the CCIV has complied with the provisions of Chapter
2M
(as affected by Division
4
of Part
8.4B
), and the provisions of that Division, as they:
(i)
apply to the CCIV; and
(ii)
apply for each sub-fund of the CCIV; and
"
.
Small scale offerings
1241S(8)
Section
1012E
also applies to financial products that are securities in a CCIV. For the purposes of that section, to the extent that those securities are referable to a sub-fund of the CCIV, treat the:
(a)
20 purchasers ceiling (subsections
1012E(6)
and
(7)
); and
(b)
$2 million ceiling (subsections
1012E(6)
and
(7)
);
as applying only to financial products that are securities referable to that sub-fund of the CCIV.
History
S 1241S inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241T
PRODUCT DISCLOSURE STATEMENTS
-
CONTENT REQUIREMENTS
Main requirements
1241T(1)
Treat subsection
1013D(1)
as also including the following paragraph:
"
(la)
if the product is a share in a CCIV, and the CCIV
'
s constitution makes provision for acquisitions described in paragraph 1223G(e)
-
a statement to the effect that the CCIV may acquire, in respect of any of its sub-funds, one or more shares that are referable to another of its sub-funds; and
"
.
1241T(2)
Treat subsection
1013D(2A)
as also including securities in a CCIV.
Extra requirements for ED securities in a CCIV
1241T(3)
Section
1013I
also applies as if:
(a)
references in that section to managed investment products included references to securities in a CCIV; and
(b)
references in that section to a scheme included references to the CCIV.
History
S 1241T inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241U
1241U
PRODUCT DISCLOSURE STATEMENTS
-
REPLACEMENT STATEMENTS
Section
1014G
also applies as if the reference in paragraph
1014G(a)
to an interest in a managed investment scheme included a reference to an interest that is a security in a CCIV.
History
S 1241U inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241V
PRODUCT DISCLOSURE STATEMENTS
-
LODGING WITH ASIC
1241V(1)
Section
1015B
also applies as if:
(a)
a reference in that section to a managed investment product included a reference to a security in a CCIV; and
(b)
paragraph
1015B(1)(ba)
were not enacted; and
(c)
an extra paragraph of subsection
1015B(1)
provided that the financial product is a security that:
(i)
is in a CCIV; and
(ii)
is referable to a sub-fund of the CCIV that is an Australian passport fund.
1241V(2)
When section
1015B
so applies, treat subsection
1015B(2)
as instead providing that the lodgement with ASIC of a Statement in relation to a security in the CCIV requires the consent of every director of the corporate director of the CCIV.
Note: This is the case whether the Statement is an issue Statement or a sale Statement.
History
S 1241V inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241W
1241W
PRODUCT DISCLOSURE STATEMENTS
-
USE OF APPLICATION FORMS
Treat the definition of
relevant financial product
in subsection
1016A(1)
as also meaning a security in a CCIV.
History
S 1241W inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241X
1241X
PRODUCT DISCLOSURE STATEMENTS
-
IF LODGED, THEN SECURITY NOT TO BE ISSUED OR SOLD BEFORE SPECIFIED PERIOD
Section
1016B
does not apply in relation to a financial product to which a Product Disclosure Statement relates if the financial product is a security that:
(a)
is in a CCIV; and
(b)
is referable to a sub-fund of the CCIV that is an Australian passport fund.
Note: This section does not prevent section
1016B
from applying in relation to a security in the CCIV referable to any other kind of sub-fund of the CCIV.
History
S 1241X inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241Y
1241Y
REMEDIES FOR PERSON ACQUIRING FINANCIAL PRODUCT UNDER DEFECTIVE PRODUCT DISCLOSURE DOCUMENT
If, for the purposes of subsection
1016F(2)
, the responsible person is a CCIV, treat the reference in that subsection to the directors of the responsible person as if it were instead a reference to the directors of the corporate director of the CCIV.
History
S 1241Y inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241Z
DISCLOSURE OBLIGATIONS OF ISSUERS OF SECURITIES IN CCIVs
1241Z(1)
Subsection
1017B(2)
also applies in relation to a financial product that is an ED security in a CCIV.
Note: A defendant bears an evidential burden in relation to the matter in subsection
1017B(2)
(see subsection
13.3(3)
of the
Criminal Code
).
1241Z(2)
Paragraph
1017D(1)(b)
also applies as if it referred to a product that is a security in a CCIV.
History
S 1241Z inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241ZA
1241ZA
COOLING-OFF PERIODS
Division
5
of Part
7.9
also applies as if securities in a CCIV were another class of financial product covered by paragraph
1019A(1)(a)
.
History
S 1241ZA inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241ZB
1241ZB
UNSOLICITED OFFERS TO PURCHASE SECURITIES IN CCIVs OFF-MARKET
For financial products that are securities in a CCIV, treat paragraph
1019D(1)(d)
as also providing that the offer is not made to the corporate director of the CCIV.
History
S 1241ZB inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241ZC
1241ZC
PRODUCT INTERVENTION ORDERS
If a contravention referred to in paragraph
1023Q(1)(a)
is a contravention by a CCIV, subsection
1023Q(1)
applies to authorise recovery by action against the CCIV
'
s corporate director instead of against the CCIV.
Note: Subsection
1023Q(1)
authorises a client to recover the amount of loss or damage suffered because of contraventions of a product intervention order.
History
S 1241ZC inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1241ZD
INSIDER TRADING
-
EXCEPTIONS
Buy-back of shares in a CCIV
1241ZD(1)
Treat section
1043B
as also providing that subsection
1043A(1)
does not apply in respect of the acquisition of shares as part of a buy-back by a CCIV if the amount paid to each affected member of the CCIV for the buy-back is calculated (so far as is reasonably practicable) by reference to:
(a)
the underlying value of the assets of the sub-fund to which the shares are referable; less
(b)
any reasonable charge for the buy-back.
Redemption of shares in a CCIV
1241ZD(2)
Treat section
1043B
as also providing that subsection
1043A(1)
does not apply in respect of the redemption of shares in a CCIV if the amount paid to each affected member on redemption is calculated (so far as is reasonably practicable) by reference to:
(a)
the underlying value of the assets of the sub-fund to which the shares are referable; less
(b)
any reasonable charge for that redemption.
Officer or employee is aware of certain transactions
1241ZD(3)
Subsections
1043I(2)
and
(3)
apply to a body corporate that is a CCIV as if the reference in subsection
1043I(2)
to an officer or employee of the body corporate were instead a reference to:
(a)
the corporate director of the CCIV acting on behalf of the CCIV; or
(b)
an officer or employee (an
official
) of the corporate director of the CCIV acting:
(i)
on behalf of the CCIV; and
(ii)
within the scope of the official
'
s actual or apparent authority in relation to the corporate director;
and as if subsection
1043I(3)
were not enacted, and the reference to that subsection in subsection
1043I(2)
were omitted.
1241ZD(4)
If the second person for the purposes of section
1043J
is a CCIV, that section applies as if the reference in subsection
1043J(1)
to the first person were instead a reference to:
(a)
an agent of the CCIV acting:
(i)
on behalf of the CCIV; and
(ii)
within the scope of the agent
'
s actual or apparent authority in relation to the CCIV; or
(b)
the corporate director of the CCIV acting on behalf of the CCIV; or
(c)
an officer or employee (an
official
) of the corporate director of the CCIV acting:
(i)
on behalf of the CCIV; and
(ii)
within the scope of the official
'
s actual or apparent authority in relation to the corporate director;
and as if subsection
1043J(2)
were not enacted, and the reference to that subsection in subsection
1043J(1)
were omitted.
History
S 1241ZD inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).