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CORPORATIONS ACT 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS    View history reference

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

Division 2 - Product Disclosure Statements    View history reference

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

SECTION 1016A  PROVISIONS RELATING TO USE OF APPLICATION FORMS  

 View history reference

1016A(1)  

 View history reference
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


(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(da) (Repealed)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)).

 View history reference

[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)).

 View history reference

[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).


 



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