Corporations Act 2001
Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .
View history note
Hide history noteCCH Note: Division 3 is modified by the ASIC Corporations (Financial Requirements for Corporate Directors of Retail Corporate Collective Investment Vehicles) Instrument 2022/449; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by the ASIC Corporations and Credit (Amendment) Instrument 2023/589).
CCH Note: Subdivision C is modified by the ASIC Corporations (Financial Requirements for Corporate Directors of Retail Corporate Collective Investment Vehicles) Instrument 2022/449; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by the ASIC Corporations and Credit (Amendment) Instrument 2023/589).
CCH Note: Section 912EA is modified by the ASIC Corporations (Financial Requirements for Corporate Directors of Retail Corporate Collective Investment Vehicles) Instrument 2022/449; the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by the ASIC Corporations and Credit (Amendment) Instrument 2023/589).
Notifying an affected client of a reportable situation
912EA(1)
A financial services licensee must take reasonable steps to notify a person (the affected client ) of a reportable situation in accordance with this section if: (a) the licensee, or a representative of the licensee, provides or has provided personal advice to the affected client as a retail client in relation to a relevant financial product; and (b) there are reasonable grounds to believe that the reportable situation has arisen in relation to the licensee as mentioned in:
(i) paragraph 912D(1)(a) (significant breach of a core obligation); or
(c) there are reasonable grounds to suspect that:
(ii) subsection 912D(2) (gross negligence or serious fraud); and
(i) the affected client has suffered or will suffer loss or damage as a result of the reportable situation; and
(ii) the affected client has a legally enforceable right to recover the loss or damage from the licensee.
Form and period for giving notice
912EA(2)
A notice under this section must: (a) be given in writing within 30 days after the financial services licensee first knows of, or is reckless with respect to, the circumstances mentioned in paragraphs (1)(a) , (b) and (c) ; and (b) if ASIC has approved the form in which the notice must be given:
(i) be in the approved form; and
(ii) include the information, statements, explanations or other matters required by the form; and
(iii) be accompanied by any other material required by the form.
Qualified privilege
912EA(3)
A financial services licensee has qualified privilege in relation to a notice given under this section.
912EA(4)
A financial services licensee who has qualified privilege under subsection (3) in respect of conduct is also not liable for any action based on breach of confidence in relation to that conduct.
Civil penalty provision
912EA(5)
A person contravenes this subsection if the person contravenes subsection (1) .
Note: This subsection is a civil penalty provision (see section 1317E ).
Meaning of knowledge and recklessness
912EA(6)
For the purposes of this section:
knowledge
has the meaning given by section
5.3
of the
Criminal Code
.
recklessness
has the meaning given by section
5.4
of the
Criminal Code
.
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