Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

PART 7.9 - FINANCIAL PRODUCT DISCLOSURE AND OTHER PROVISIONS RELATING TO ISSUE, SALE AND PURCHASE OF FINANCIAL PRODUCTS  

Division 2 - Product Disclosure Statements  

Subdivision F - Other rights and obligations related to Product Disclosure Statements  

SECTION 1016A   PROVISIONS RELATING TO USE OF APPLICATION FORMS  

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 ).

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 ).

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 product; 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(da) (Repealed)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.

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
has the same meaning as in the Retirement Savings Accounts Act 1997 .

standard employer-sponsor
has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

standard employer-sponsored fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

standard employer-sponsored member
has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

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 product;

(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 product 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) ).

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) ).

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).


 

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