Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .

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

Division 4 - Advertising for financial products  

SECTION 1018A   ADVERTISING OR OTHER PROMOTIONAL MATERIAL FOR FINANCIAL PRODUCT MUST REFER TO PRODUCT DISCLOSURE STATEMENT  

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) ).

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) ).

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) ).

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 .

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 .

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.