(a) to provide for the Australian Securities and Investments Commission (ASIC) which will administer such laws of the Commonwealth, a State or a Territory as confer functions and powers under those laws on ASIC; and

to provide for ASIC’s functions, powers and business; and

to establish a Takeovers Panel, a Companies Auditors Disciplinary Board, a Financial Reporting Council, an Australian Accounting Standards Board, an Auditing and Assurance Standards Board and a Parliamentary Joint Committee on Corporations and Financial Services.

maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and

promote the confident and informed participation of investors and consumers in the financial system; and

administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and

receive, process and store, efficiently and quickly, the information given to ASIC under the laws that confer functions and powers on it; and

ensure that information is available as soon as practicable for access by the public; and

take whatever action it can take, and is necessary, in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it.

in this jurisdiction; and

in a State that is not a referring State (but only to the extent to which the application would be within the legislative powers of the Parliament (including powers it has under paragraphs 51(xxxvii) and (xxxix) of the Constitution)); and

in such external Territories (if any) as are prescribed.

that only some of the provisions of this Act apply in the external Territory; and

that provisions that apply in the external Territory only apply in specified circumstances.

“Australia”;

“Commonwealth”;

“Territory”;

“this jurisdiction”;

a term the definition of which includes a term mentioned in paragraphs (a) to (d).

absent from duty or from Australia; or

unable, for any reason, to perform the functions of the office.

accounting member of the Disciplinary Board has the meaning given by subsection 203(1A).

affairs, in relation to a body corporate, has the same meaning as in section 232 of the Corporations Act.

arrangement has the meaning given by subsection 761B(1) of the Corporations Act.

ASIC means the Australian Securities and Investments Commission.

ASIC delegate means a person to whom, or a body to which, a function or power is delegated under section 102.

assist, in relation to an ASIC delegate, means:

to perform functions:

as a member, officer or employee of the ASIC delegate; and

in connection with the ASIC delegate’s performance or exercise of a function or power delegated under section 102; or

to perform services for the ASIC delegate in connection with the ASIC delegate’s performance or exercise of a function or power delegated under section 102.

AUASB means the Auditing and Assurance Standards Board.

audit deficiency report has the meaning given by subsection 50C(1).

Australia means the Commonwealth of Australia and, when used in a geographical sense, includes each Territory.

Australian auditor means:

an individual auditor; or

an audit firm; or

an audit company;

that is conducting, or that has conducted, audits undertaken for the purposes of the Australian Charities and Not-for-profits Commission Act 2012 or the Corporations Act and includes a registered company auditor who is participating in, or has participated in, audits of that kind.

benefit derived and detriment avoided:

because of an offence—has the meaning given by section 93F; and

because of the contravention of a civil penalty provision—has the meaning given by section 12GBCE.

books includes:

a register; and

financial reports or financial records, however compiled, recorded or stored; and

a document; and

sustainability reports or sustainability records, however compiled, recorded or stored; and

banker’s books; and

any other record of information.

business member of the Disciplinary Board has the meaning given by subsection 203(1A).

Chairperson means:

except in Part 11 or in relation to the Disciplinary Board—the Chairperson of ASIC; and

in Part 11 or in relation to the Disciplinary Board—the Chairperson of the Disciplinary Board.

Commonwealth means the Commonwealth of Australia and, when used in a geographical sense, includes each Territory.

contravention:

in relation to an offence against a law—includes:

(i) an offence against Crimes Act 1914; andsection 6 of the

(ii) an ancillary offence (within the meaning of the Criminal Code);

relating to the offence against the law; and

in relation to a civil penalty provision—has a meaning affected by section 12GBCL.

Corporations Act means the Corporations Act 2001 and regulations and rules made under that Act.

corporations legislation means:

this Act; and

the Corporations Act.

court, except in section 248, includes a tribunal having power to require the production of documents or the answering of questions.

CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.

dealing in a financial product has the meaning given by section 766C of the Corporations Act and deal in a financial product has a corresponding meaning.

Deputy Chairperson means:

in relation to the Disciplinary Board—the Deputy Chairperson of the Disciplinary Board; and

in any other case—a Deputy Chairperson of ASIC.

Disciplinary Board means the Companies Auditors Disciplinary Board.

eligible employee has the same meaning as in the Superannuation Act 1976.

eligible person means a person who: if the first-mentioned person is a body corporate (other than a CCIV)—is or has been an officer of the body within the meaning of the corporations legislation (other than the excluded provisions); or if the first-mentioned person is a CCIV—is or has been: an officer of the CCIV; or an officer of an officer of the CCIV; or in any case: is or has been an employee, agent, banker, solicitor or auditor of; or is acting, or has acted, in any other capacity on behalf of; the first-mentioned person. engage in conduct: in Division 2 of Part 2—has the meaning given by subsection 12BA(2); and in the other provisions of this Act—means do an act or omit to do an act.

if the first-mentioned person is a body corporate (other than a CCIV)—is or has been an officer of the body within the meaning of the corporations legislation (other than the excluded provisions); or

if the first-mentioned person is a CCIV—is or has been:

an officer of the CCIV; or

an officer of an officer of the CCIV; or

in any case:

is or has been an employee, agent, banker, solicitor or auditor of; or

is acting, or has acted, in any other capacity on behalf of;

the first-mentioned person.

engage in conduct:

in Division 2 of Part 2—has the meaning given by subsection 12BA(2); and

in the other provisions of this Act—means do an act or omit to do an act.

examination means an examination of a person pursuant to a requirement made under section 19.

excluded provisions means section 12A and Division 2 of Part 2.

expenses includes costs and expenses incurred in relation to a proceeding begun under section 50 as a result of the investigation.

external Territory:

means a Territory referred to in section 122 of the Constitution, where an Act makes provision for the government of the Territory as a Territory; but

(b) does not include a Territory covered by the definition of Territory in this subsection.

fail means refuse or fail.

financial product:

in Division 2 of Part 2—has the meaning given by section 12BAA; and

in the other provisions of this Act—has the meaning given by Division 3 of Part 7.1 of the Corporations Act.

financial service:

in Division 2 of Part 2—has the meaning given by section 12BAB; and

in the other provisions of this Act—has the same meaning as it has in the Corporations Act.

Financial Services and Credit Panel means a panel convened under subsection 139(1).

foreign business law means:

a law of a foreign country that regulates, or relates to the regulation of, business or persons engaged in business; or

a law, or rules or regulations (however described), that an international business regulator administers or enforces.

foreign country includes:

a part of a foreign country; and

when used in a provision of this Act that does not apply (either generally or in particular circumstances) to a particular external Territory—that external Territory (but only to the extent that the provision does not apply in that external Territory).

FRC means the Financial Reporting Council.

give has:

in relation to a document—a meaning affected by section 86; and

in relation to information—a meaning affected by section 6.

hearing, in this section and Part 3, means a hearing before ASIC and, in sections 52, 54, 55 and 56, includes a part of such a hearing.

House means a House of the Parliament.

information has a meaning affected by section 6.

international accounting standards means accounting standards made by: the International Accounting Standards Board; or another body specified by the regulations.

the International Accounting Standards Board; or

another body specified by the regulations.

international auditing standards means auditing standards made by: the International Auditing and Assurance Standards Board; or another body specified by the regulations.

the International Auditing and Assurance Standards Board; or

another body specified by the regulations.

international business regulator means a body that satisfies the following conditions: the body has functions relating to the regulation, in 2 or more countries, of business, or persons engaged in business; those functions are conferred on the body by: a law or laws in force in those countries; or a treaty, or other international agreement, to which those countries are parties; or without limiting subparagraphs (i) and (ii)—a parliament or other body established by or under a treaty, or other international agreement, to which those countries are parties.

the body has functions relating to the regulation, in 2 or more countries, of business, or persons engaged in business;

those functions are conferred on the body by:

a law or laws in force in those countries; or

a treaty, or other international agreement, to which those countries are parties; or

without limiting subparagraphs (i) and (ii)—a parliament or other body established by or under a treaty, or other international agreement, to which those countries are parties.

international sustainability standards means sustainability standards made by: the International Sustainability Standards Board; or another body specified by the regulations.

the International Sustainability Standards Board; or

another body specified by the regulations.

investigate means investigate in the course of performing or exercising any of ASIC’s functions and powers.

meeting means:

in Part 4—a meeting of ASIC;

in Part 11—a meeting of the Disciplinary Board.

member means:

except in Division 2 of Part 4, in Part 10, 11, 12 or 14, or in relation to a Division, the Takeovers Panel, a Financial Services and Credit Panel, the Disciplinary Board, the FRC, the AASB or the Parliamentary Committee—a member of ASIC; and

in relation to a Financial Services and Credit Panel—a member of the panel appointed under subsection 140(1); and

in Part 10 or in relation to the Takeovers Panel—a member of the Takeovers Panel; and

in Part 11 or in relation to the Disciplinary Board—the Chairperson or any other member of the Disciplinary Board; and

in relation to the FRC—a member of the FRC; and

in relation to the AASB—a member of the AASB; and

in relation to the AUASB—a member of the AUASB; and

in Part 14 or in relation to the Parliamentary Committee—a member of the Parliamentary Committee.

Office of the AASB means the Office of the Australian Accounting Standards Board.

Office of the AUASB means the Office of the Auditing and Assurance Standards Board.

officer means:

an officer within the meaning of the Corporations Act; or

a provisional liquidator.

old ASIC Act means the Australian Securities and Investments Commission Act 1989 as in force from time to time before the commencement of this Act.

Panel Chairperson has the meaning given by subsection 210A(3A) (about constituting a Panel of the Disciplinary Board).

Panel of the Disciplinary Board means a Panel constituted by the Chairperson of the Disciplinary Board under section 210A to hear a particular matter.

Parliamentary Committee means the Parliamentary Joint Committee on Corporations and Financial Services.

to an offence committed by an individual:

in Division 2 of Part 2—has the meaning given by section 12GBCA; and

in the other provisions of this Act——has the meaning given by section 93D; and

to an offence committed by a body corporate:

in Division 2 of Part 2—has the meaning given by section 12GBCA; and

in the other provisions of this Act——has the meaning given by section 93E.

person has the same meaning as in Chapter 7 of the of the Corporations Act.

power includes an authority.

prescribed means prescribed by this Act or the regulations.

President means the President of the Takeovers Panel.

proceeding means:

a proceeding in a court; or

a proceeding or hearing before, or an examination by or before, a tribunal;

whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.

produce, except in Part 3, includes permit access to.

professional accounting body means a body prescribed by the regulations for the purposes of this definition.

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action and money.

record means the whole or a part of a record made under section 24 of statements made at the examination.

regulations means regulations made under this Act.

report includes an interim report.

Schedule 2 to the Corporations Act means Schedule 2 to the Corporations Act 2001 and rules made under that Schedule.

security has the meaning given by subsection 92(5) of the Corporations Act.

senior staff member means a staff member identified as a senior staff member in a determination made under section 122A.

staff member means:

a person employed under section 120; or

a person engaged under subsection 121(1); or

any of the officers, employees and persons who under section 122 are to assist ASIC.

statement includes a question asked, an answer given, and any other comment or remark made, at the examination.

superannuation benefits includes:

benefits in the nature of superannuation benefits; and

(b) benefits similar to benefits provided under the Superannuation Act 1976; and

(c) benefits similar to the benefits provided under the Superannuation Act 1990.

Takeovers Panel means the Takeovers Panel continued in existence by section 261.

Takeovers Panel proceedings means proceedings before the Takeovers Panel on: an application made to the Takeovers Panel under the Corporations Act; or a reference of a decision to the Takeovers Panel for review under the Corporations Act. Territory: means the following: the Australian Capital Territory; the Jervis Bay Territory; the Northern Territory; Norfolk Island; the Territory of Christmas Island; the Territory of Cocos (Keeling) Islands; and when used in a geographical sense—includes the Territory’s coastal sea (if any).

an application made to the Takeovers Panel under the Corporations Act; or

a reference of a decision to the Takeovers Panel for review under the Corporations Act.

Territory:

means the following:

the Australian Capital Territory;

the Jervis Bay Territory;

the Northern Territory;

Norfolk Island;

the Territory of Christmas Island;

the Territory of Cocos (Keeling) Islands; and

when used in a geographical sense—includes the Territory’s coastal sea (if any).

this Act includes the regulations.

this jurisdiction means:

each referring State (including, when used in a geographical sense, its coastal sea); and

each Territory.

tribunal means:

a tribunal in Australia; or

any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence.

trust property means property that is or was held by the trustee company as trustee.

virtual enquiry technology means any technology that allows a person to appear at all or part of a hearing, examination or other enquiry without being physically present at the hearing, examination or other enquiry.

witness:

in relation to a hearing before ASIC, means a person appearing at the hearing to give evidence; or

in relation to Takeovers Panel proceedings, means a person appearing in the proceedings to give evidence.

written record, in relation to an examination, means:

a record of the examination:

that is made in writing; or

as reduced to writing; or

a part of such a record.

is a body corporate, with perpetual succession; and

has a common seal; and

may, subject to subsection (5), acquire, hold and dispose of real and personal property; and

may enter into contracts; and

may sue and be sued in its corporate name.

to be a non-corporate Commonwealth entity, and not to be a corporate Commonwealth entity; and

to be a part of the Commonwealth; and

not to be a body corporate.

business;

administration of companies;

financial markets;

financial products and financial services;

law;

economics;

accounting.

to provide such staff and support facilities to the Takeovers Panel, the Disciplinary Board and the Review Board as are necessary or desirable for the performance and exercise by the Takeovers Panel, the Disciplinary Board and the Review Board of their respective functions and powers;

to provide such staff and support facilities to Financial Services and Credit Panels as are necessary or desirable for the performance and exercise by the panels of their functions and powers;

to advise the Minister about any changes to the corporations legislation (other than the excluded provisions) that, in ASIC’s opinion, are needed to overcome, or would assist in overcoming, any problems that ASIC has encountered in the course of performing or exercising any of its functions and powers.

a proposal to make corporations legislation, or to make amendments of the corporations legislation (other than the excluded provisions); or

the operation or administration of the corporations legislation (other than the excluded provisions); or

law reform in relation to the corporations legislation (other than the excluded provisions); or

companies or a segment of the financial products and financial services industry; or

a proposal for improving the efficiency of the financial markets.

(a) that law provides for, or relates to, the repeal, amendment or termination (however described) of the operation of, any of the replaced legislation within the meaning of item 22 of Schedule 8 to the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999; and

the conferral of the powers or functions is in accordance with:

provisions of an agreement entered into by the Commonwealth and the State or Territory, being provisions approved by the Minister for the purposes of this subsection; or

an approval given by the Minister for the purposes of this subsection.

ASIC has the functions and powers so conferred by that law. However, ASIC is not under a duty to perform such functions or exercise such powers.

imposed by or under laws of that foreign country; or

adopted as professional standards in that foreign country.

set out the identifying particulars of the regulatory body; and

give brief particulars of the agreement or arrangement entered into; and

identify the audit requirements to which the agreement or arrangement relates.

to assist a regulatory body with which it has entered into an agreement or arrangement under subsection (10) to examine the policies and working practices of an Australian auditor, so as to help the regulatory body to ascertain compliance with audit requirements to which the agreement or arrangement relates;

to disclose to a regulatory body with which it has entered into an agreement or arrangement under subsection (10) the information that ASIC has obtained in assisting in such an examination.

entering into an agreement or arrangement under subsection (8) or (10); or

performing functions or exercising powers referred to in subsection (9); or

performing functions conferred under subsection (9A), (14) or (16A) or exercising any related powers.

notified ASIC in writing that he or she is considering giving the direction; and

given the Chairperson an adequate opportunity to discuss with the Minister the need for the proposed direction.

(a) the ASIC Supervisory Cost Recovery Levy Act 2017;

(b) the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017;

(ba) the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023;

(c) the Insurance Contracts Act 1984;

(e) the Life Insurance Act 1995;

(f) the Retirement Savings Accounts Act 1997;

(g) the Superannuation Industry (Supervision) Act 1993;

(i) the National Consumer Credit Protection Act 2009;

(j) the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009;

(k) the Business Names Registration Act 2011;

(l) the Business Names Registration (Transitional and Consequential Provisions) Act 2011;

(m) the Financial Accountability Regime Act 2023;

(n) the Financial Accountability Regime (Consequential Amendments) Act 2023;

(o) the SPF provisions (within the meaning of the Competition and Consumer Act 2010).

promoting the adoption of approved industry standards and codes of practice; and

promoting the protection of consumer interests; and

promoting community awareness of payments system issues; and

promoting sound customer-banker relationships, including through:

monitoring the operation of industry standards and codes of practice; and

monitoring compliance with such standards and codes.

advise the Minister about any changes to a law listed in subsection (1) that ASIC thinks are needed to help overcome any problems that ASIC has encountered in the course of performing its functions or exercising any of its powers under that law; and

advise the Minister and make such recommendations as it thinks fit about any matter relating to its functions in subsections (2) and (3).

this section does not affect the operation of that law; and

that law does not affect the operation of this section.

a transaction involving only persons who are all acting for the Crown in right of the Commonwealth (and none of whom is an authority of the Commonwealth);

a transaction involving only persons who are all acting for the same authority of the Commonwealth;

a transaction involving only the Crown in right of the Commonwealth and one or more non-commercial authorities of the Commonwealth;

a transaction involving only non-commercial authorities of the Commonwealth.

it is constituted by only one person; and

it is neither a trading corporation nor a financial corporation.

an act or omission of a person is both an offence against section 12GB and an offence under the law of a State or Territory; and

the person is convicted of either of those offences;

the person is not liable to be convicted of the other of those offences.

the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Division; or

the law relating to breaches of confidence;

but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Division.

Subdivision B—Interpretation

a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or

an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.

authority of the Commonwealth means:

a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or

an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.

business includes a business not carried on for profit.

civil penalty provision has the meaning given by subsection 12GBA(6).

commission includes:

any financial or other benefit in the nature of a commission; and

in relation to an add-on risk product provided to a person in connection with the person providing a warranty to another person—the amount (if any) by which the consideration for the warranty exceeds so much of the consideration for the add-on risk product as relates to the warranty.

It may take any form of monetary consideration, or any form of non-monetary consideration to which a monetary value can be assigned.

conduct has the meaning given by subsection (2).

consumer has the meaning given by section 12BC.

consumer contract has the meaning given by subsection 12BF(3).

contract has the meaning given by section 12BE.

covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land) and proposed covenant has a corresponding meaning.

enforcement proceeding means a proceeding instituted under Subdivision G of Division 2 of Part 2 (other than sections 12GNB, 12GNE and 12GNF).

engage in conduct has the meaning given by subsection (2).

financial corporation:

means a financial corporation within the meaning of paragraph 51(xx) of the Constitution; and

includes a body corporate that carries on as its sole or principal business the business of:

banking (other than State banking not extending beyond the limits of the State concerned); or

insurance (other than State insurance not extending beyond the limits of the State concerned).

financial product has the meaning given by section 12BAA.

financial service has the meaning given by section 12BAB.

individual fine formula means the formula set out in subsection 93D(3).

infringement notice means an infringement notice issued under section 12GX.

Insurance Contracts Act insurance contract means a contract of insurance to which the Insurance Contracts Act 1984 applies.

long-term lease, of a motor vehicle, means a contract for the hire of the motor vehicle for a fixed period of more than 4 months, or for an indefinite period.

misleading includes the meaning given by section 12BB.

money has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.

motor vehicle means:

any motor-powered vehicle of a kind intended for use as land transport (other than rail transport), whether or not it is for use on a road; or

any other vehicle of a kind intended to be towed by such a motor-powered vehicle;

but does not include a vehicle (other than a vehicle for use on a road) that is of a kind intended primarily for use by persons with restricted mobility.

National Credit Code has the same meaning as in the National Consumer Credit Protection Act 2009.

non-party means:

in relation to conduct—a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; or

in relation to a term of a contract—a person who is not, or has not been, a party to an enforcement proceeding in relation to the term.

payment period for an infringement notice, has the meaning given by section 12GXC.

pecuniary penalty order has the meaning given by subsection 12GBB(4).

price includes a charge of any description.

provision means any matter forming part of the understanding.

registrable superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

relinquishment order has the meaning given by subsection 12GBCC(1).

rely on, in relation to a term of a consumer contract or small business contract, includes the following:

attempt to enforce the term;

attempt to exercise a right conferred, or purportedly conferred, by the term;

assert the existence of a right conferred, or purportedly conferred, by the term.

re-supply of services has the meaning given by section 12BD.

send includes deliver, and sent and sender have corresponding meanings.

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce but does not include: (a) the supply of goods within the meaning of the Competition and Consumer Act 2010; or the performance of work under a contract of service.

(a) the supply of goods within the meaning of the Competition and Consumer Act 2010; or

the performance of work under a contract of service.

small business contract has the meaning given by subsection 12BF(4).

standard form contract has a meaning affected by section 12BK.

subject to an infringement notice under Subdivision GB of Division 2 of Part 2, has the meaning given by section 12GXA.

substantiation notice means a notice under section 12GY.

substantiation notice compliance period for a substantiation notice has the meaning given by subsection 12GYB(2).

superannuation trustee service has the same meaning as in the Corporations Act.

supply:

includes provide, grant or confer when used as a verb in relation to services; and

has a corresponding meaning when used as a noun;

and supplied and supplier have corresponding meanings.

supply of services has the meaning given by section 12BD.

the Court or the Federal Court means the Federal Court of Australia.

trade or commerce means trade or commerce within Australia or between Australia and places outside Australia.

trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.

transparent, in relation to a term of a consumer contract or small business contract, has the meaning given by subsection 12BG(3).

unfair, in relation to a term of a consumer contract or small business contract, has the meaning given by subsection 12BG(1).

unsolicited financial services means financial services supplied to a person without any request made by the person or on the person’s behalf.

upfront price has the meaning given by subsection 12BI(2).

a reference to engaging in conduct is a reference to doing or refusing to do any act, including:

making, or giving effect to a provision of, a contract or arrangement; or

arriving at, or giving effect to a provision of, an understanding; or

requiring the giving of, or giving, a covenant; and

a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to doing or refusing to do any act, including:

making, or giving effect to a provision of, a contract or arrangement; or

arriving at, or giving effect to a provision of, an understanding; or

requiring the giving of, or giving, a covenant; and

a reference to refusing to do an act includes a reference to:

refraining (otherwise than inadvertently) from doing that act; or

making it known that that act will not be done; and

a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

makes a financial investment (see subsection (4));

manages financial risk (see subsection (5));

makes non-cash payments (see subsection (6)).

the facility has been acquired by a person other than the person to whom it was originally issued; and

that person, in acquiring the product, was not making a financial investment or managing a financial risk.

Meaning of makes a financial investment

(a) the investor gives money or money’s worth (the contribution) to another person and any of the following apply:

the other person uses the contribution to generate a financial return, or other benefit, for the investor;

the investor intends that the other person will use the contribution to generate a financial return, or other benefit, for the investor (even if no return or benefit is in fact generated);

the other person intends that the contribution will be used to generate a financial return, or other benefit, for the investor; and

the investor has no day-to-day control over the use of the contribution to generate the return or benefit.

a person paying money to a company for the issue to the person of shares in the company (the company uses the money to generate dividends for the person and the person, as a shareholder, does not have control over the day-to-day affairs of the company); or

a person contributing money to acquire interests in a registered scheme from the responsible entity of the scheme (the scheme uses the money to generate financial or other benefits for the person and the person, as a member of the scheme, does not have day-to-day control over the operation of the scheme).

a person purchasing real property or bullion (while the property or bullion may generate a return for the person, it is not a return generated by the use of the purchase money by another person); or

a person giving money to a financial services licensee who is to use it to purchase shares for the person (while the purchase of the shares will be a financial investment made by the person, the mere act of giving the money to the licensee will not of itself constitute making a financial investment).

Meaning of manages a financial risk

manage the financial consequences to them of particular circumstances happening; or

avoid or limit the financial consequences of fluctuations in, or in the value of, receipts or costs (including prices and interest rates).

taking out insurance; or

hedging a liability by acquiring a futures contract or entering into a currency swap.

Meaning of makes non-cash payments

making payments by means of a facility for direct debit of a deposit account; or

making payments by means of a facility for the use of cheques; or

(c) making payments by means of a purchased payment facility within the meaning of the Payment Systems (Regulation) Act 1998, such as a smart card; or

making payments by means of traveller’s cheques in Australian currency.

Specific things that are financial products (subject to subsection (8))

a security;

any of the following in relation to a managed investment scheme:

an interest in the scheme;

a legal or equitable right or interest in an interest covered by subparagraph (i);

an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii);

a derivative;

a contract of insurance (see subsection (9)) other than:

(i) health insurance provided as part of a health insurance business (as defined by Private Health Insurance Act 2007); orDivision 121 of the

insurance provided as part of a health-related business (as defined by section 131-15 of that Act) that is conducted through a health benefits fund (as defined by section 131-10 of that Act);

(e) a life policy, or a sinking fund policy, within the meaning of the Life Insurance Act 1995, that is not a contract of insurance (see subsection (9));

(f) a beneficial interest in a superannuation fund (as defined by Superannuation Industry (Supervision) Act 1993);section 10 of the

(g) an RSA (retirement savings account) within the meaning of the Retirement Savings Accounts Act 1997;

(h) any deposit-taking facility made available by an ADI (within the meaning of the Banking Act 1959) in the course of its banking business (within the meaning of that Act), other than an RSA (RSAs are covered by paragraph (g));

a debenture, stock or bond issued or proposed to be issued by a government;

a foreign exchange contract;

a credit facility (within the meaning of the regulations);

an Australian carbon credit unit;

an eligible international emissions unit;

anything declared by the regulations to be a financial product for the purposes of this subsection.

it is covered by another of these paragraphs; or

it is covered by the general definition in subsection (1).

Specific things that are not financial products

an excluded security;

(b) health insurance provided as part of a health insurance business (as defined in Private Health Insurance Act 2007);Division 121 of the

insurance provided as part of a health-related business (as defined by section 131-15 of that Act) that is conducted through a health benefits fund (as defined by section 131-10 of that Act);

State insurance or Northern Territory insurance, including insurance entered into by:

a State or the Northern Territory; and

some other insurer;

as joint insurers;

a facility:

(i) that is an approved RTGS system for the purposes of the Payment Systems and Netting Act 1998; or

(ii) for the transmission and reconciliation of non-cash payments (see subsection (6)), and the establishment of final positions, for settlement through an approved RTGS system within the meaning of the Payment Systems and Netting Act 1998;

a facility that is:

(i) a designated payment system or special designated payment system (or both) for the purposes of the Payment Systems (Regulation) Act 1998; and

declared by regulations made for the purposes of this paragraph not to be a financial product;

a facility for the exchange and settlement of non-cash payments (see subsection (6)) between providers of non-cash payment facilities;

a facility that is:

a financial market; or

a clearing and settlement facility; or

a payment system operated as part of a clearing and settlement facility; or

a derivative trade repository;

so much of an arrangement as is not a derivative because of paragraph 761D(3)(a) of the Corporations Act;

an arrangement that is not a derivative because of paragraph 761D(3)(b) of the Corporations Act;

an arrangement that is not a derivative because of subsection 761D(4) of the Corporations Act;

any of the following:

(i) an interest in something that is not a managed investment scheme because of paragraph (c), (e), (f), (k), (l) or (m) of the definition of managed investment scheme in section 9 of the Corporations Act;

a legal or equitable right or interest in an interest covered by subparagraph (i);

an option to acquire, by way of issue, an interest or right covered by subparagraph (i);

a deposit-taking facility that is used for State banking;

equipment or infrastructure by which something else that is a financial product is provided;

a funeral benefit;

a facility, interest or other thing declared by regulations made for the purposes of this subsection not to be a financial product.

a contract that would ordinarily be regarded as a contract of insurance even if some of its provisions are not by way of insurance; and

a contract that includes provisions of insurance in so far as those provisions are concerned, even if the contract would not ordinarily be regarded as a contract of insurance.

provide financial product advice (see subsection (5)); or

deal in a financial product (see subsection (7)); or

make a market for a financial product (see subsection (11)); or

operate a registered scheme; or

provide a custodial or depository service (see subsection (12)); or

provide a superannuation trustee service; or

provide a claims handling and settling service; or

operate a financial market (see subsection (15)) or clearing and settlement facility (see subsection (17)); or

provide a service (not being the operation of a derivative trade repository) that is otherwise supplied in relation to a financial product (other than an Australian carbon credit unit or an eligible international emissions unit); or

operate the business and conduct the affairs of a CCIV, and the person is the corporate director of the CCIV; or

engage in conduct of a kind prescribed in regulations made for the purposes of this paragraph.

acting as an agent of the CCIV, or as an agent or employee of the corporate director; or

taking steps to wind up a sub-fund of the CCIV.

(1AA) Without limiting subsection (1), for the purposes of this Division, a financial product is a financial service.

the circumstances in which persons facilitating the provision of a financial service (for example, by publishing information) are taken also to provide that service; or

the circumstances in which persons are taken to provide, or are taken not to provide, a financial service.

they are acting as an agent or employee of another person; or

they are taking steps to wind up the scheme.

Meaning of financial product advice

is intended to influence a person or persons in making a decision in relation to a particular financial product or class of financial products, or an interest in a particular financial product or class of financial products; or

could reasonably be regarded as being intended to have such an influence;

but does not include anything in:

a document prepared in accordance with requirements of Chapter 7 of the Corporations Act, other than a document of a kind prescribed by regulations made for the purposes of this paragraph; or

any other document of a kind prescribed by regulations made for the purposes of this paragraph.

applying for or acquiring a financial product;

issuing a financial product;

in relation to securities or interests in managed investment schemes—underwriting the securities or interests;

varying a financial product;

disposing of a financial product.

the person is an issuer of financial products; and

the dealing is in relation to one or more of those products.

either through a facility, at a place or otherwise, the person regularly states the prices at which they propose to acquire or dispose of financial products on their own behalf; and

other persons have a reasonable expectation that they will be able to regularly effect transactions at the stated prices; and

the actions of the person do not, or would not if they happened through a facility or at a place, constitute operating a financial market because of the effect of paragraph (16)(a).

Meaning of provide a custodial or depository service

the operation of a clearing and settlement facility;

the operation of a registered scheme, or the holding of the assets of a registered scheme;

the operation of a notified foreign passport fund;

the holding of the assets of a notified foreign passport fund;

the operation of:

a regulated superannuation fund; or

an AFCA regulated superannuation scheme; or

an approved deposit fund; or

a pooled superannuation trust;

the provision of services to a related body corporate;

operating as a CCIV;

operating the business and conducting the affairs of a CCIV;

holding the money or property of a CCIV;

any other conduct of a kind prescribed by regulations made for the purposes of this paragraph.

Meaning of financial market

offers to acquire or dispose of financial products are regularly made or accepted; or

offers or invitations are regularly made to acquire or dispose of financial products that are intended to result or may reasonably be expected to result, directly or indirectly, in:

the making of offers to acquire or dispose of financial products; or

the acceptance of such offers.

a person making or accepting offers or invitations to acquire or dispose of financial products on the person’s own behalf, or on behalf of one party to the transaction only;

conducting treasury operations between related bodies corporate;

conducting an auction of forfeited shares;

any other conduct of a kind prescribed by regulations made for the purposes of this paragraph.

Meaning of clearing and settlement facility

arise from entering into the transactions; and

are of a kind prescribed by regulations made for the purposes of this paragraph.

(a) an ADI (within the meaning of the Banking Act 1959) acting in the ordinary course of its banking business;

a person acting on their own behalf, or on behalf of one party to a transaction only;

a person who provides financial services to another person dealing with the other person’s accounts in the ordinary course of the first person’s business activities;

the actions of a participant in a clearing and settlement facility who has taken on the delivery or payment obligations, in relation to a particular financial product, of another person who is a party to a transaction relating to a financial product;

conducting treasury operations between related bodies corporate;

operating a facility for the exchange and settlement of non-cash payments between providers of non-cash payment facilities;

any other conduct of a kind prescribed by regulations made for the purposes of this paragraph.

a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and

the person does not have reasonable grounds for making the representation;

the representation is taken, for the purposes of Subdivision D (sections 12DA to 12DN), to be misleading.

a party to the proceeding; or

any other person;

the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or

have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.

a misleading representation; or

a representation that is misleading in a material particular; or

conduct that is misleading or is likely or liable to mislead;

and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.

the price of the services did not exceed the prescribed amount; or

if the price of the services exceeded the prescribed amount—the services were of a kind ordinarily acquired for personal, domestic or household use or consumption; or

if the services were acquired for use or consumption in connection with a small business (see subsection (2)) and the price of the services exceeded the prescribed amount—the services were of a kind ordinarily acquired for business use or consumption.

if the business is or includes the manufacture of goods—100 people; or

otherwise—20 people.

the prescribed amount is:

$40,000; or

if a greater amount is prescribed for the purposes of this paragraph—that greater amount; and

subject to paragraph (c), the price of services purchased by a person is taken to have been the amount paid or payable by the person for the services; and

if a person purchased services together with other property or services, or with both other property and services, and a specified price was not allocated to the services in the contract under which they were purchased, the price of the services is taken to have been:

the price at which, at the time of the acquisition, the person could have purchased the services from the supplier without the other property or services; or

if, at the time of the acquisition, the services were only available for purchase from the supplier together with the other property or services but, at that time, services of the kind acquired were available for purchase from another supplier without other property or services—the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or

if, at the time of the acquisition, services of the kind acquired were not available for purchase from any supplier except together with other property or services—the value of the services at that time; and

if a person acquired services otherwise than by way of purchase, the price of the services is taken to have been:

the price at which, at the time of the acquisition, the person could have purchased the services from the supplier; or

if, at the time of the acquisition, the services were not available for purchase from the supplier, or were available only together with other property or services, but, at that time, services of the kind acquired were available for purchase from another supplier—the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or

if services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier, or were not available except together with other property or services—the value of the services at that time; and

(e) without limiting by implication the meaning of the expression services in subsection 12BA(1), the obtaining of credit by a person in connection with the person’s acquisition of services is taken to be the acquisition by the person of a service and any amount by which the amount paid or payable by the person for the services is increased by reason of the person’s so obtaining credit is taken to be paid or payable by the person for that service.

makes a demand for the payment or asserts a present or prospective right to the payment; or

threatens to bring any legal proceedings with a view to obtaining the payment; or

places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment; or

invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or

sends any invoice or other document that:

states the amount of the payment; or

sets out the price of unsolicited financial services; or

sets out the charge for an advertisement, for financial services, that has been published;

and does not contain a statement, to the effect that the document is not an assertion of a right to a payment, that complies with any requirements prescribed by the regulations.

the term is unfair; and

the contract is a standard form contract; and

the contract is:

a financial product; or

a contract for the supply, or possible supply, of services that are financial services.

the person makes a contract; and

the contract is a consumer contract or small business contract; and

the contract is a standard form contract; and

the contract is either a financial product or a contract for the supply, or possible supply, of financial services; and

a term of the contract is unfair; and

the person proposed the unfair term.

the person applies or relies on, or purports to apply or rely on, a term of a contract; and

the contract is a consumer contract or small business contract; and

the contract is a standard form contract; and

the contract is either a financial product or a contract for the supply, or possible supply, of financial services; and

the term is unfair.

the upfront price payable under the contract does not exceed $5,000,000; and

at least one party to the contract satisfies either or both of the following conditions:

the party makes the contract in the course of carrying on a business and at a time when the party employs fewer than 100 persons;

(ii) the party’s turnover, worked out under subsection (7) for the party’s last income year (within the meaning of the Income Tax Assessment Act 1997) that ended at or before the time when the contract is made, is less than $10,000,000.

a casual employee is not to be counted unless employed on a regular and systematic basis; and

a part-time employee (including a part-time casual employee counted under paragraph (a) of this subsection) is to be counted as an appropriate fraction of a full-time equivalent.

supplies that are input taxed;

(b) supplies that are not for consideration (and are not taxable supplies under A New Tax System (Goods and Services Tax) Act 1999);section 72-5 of the

supplies that are not made in connection with an enterprise that the party carries on;

supplies that are not connected with the indirect tax zone.

it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

the extent to which the term is transparent;

the contract as a whole.

expressed in reasonably plain language; and

legible; and

presented clearly; and

readily available to any party affected by the term.

a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract;

a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract;

a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract;

a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract;

a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract;

a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract;

a term that permits, or has the effect of permitting, one party unilaterally to vary financial services to be supplied under the contract;

a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning;

a term that limits, or has the effect of limiting, one party’s vicarious liability for its agents;

a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party’s consent;

a term that limits, or has the effect of limiting, one party’s right to sue another party;

a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract;

a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract;

a term of a kind, or a term that has an effect of a kind, prescribed by the regulations.

the detriment that a term of that kind would cause to consumers; and

the detriment that a term of that kind would cause to persons who carry on a business and employ fewer than 100 persons; and

the impact on business generally of prescribing that kind of term or effect; and

the public interest.

the term defines the main subject matter of the contract; or

the term sets the upfront price payable under the contract; or

the term is required, or expressly permitted, by a law of the Commonwealth or of a State or Territory; or

the term is included in the contract, or is taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract; or

inclusion of the term has either or both of the following results:

one or more other terms are included in the contract, or are taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract;

such a law requires one or more other terms to be included in the contract; or

if the contract is an Insurance Contracts Act insurance contract—the term is a transparent term and:

is disclosed at or before the time when the contract is made; and

sets an amount of excess or deductible under the contract.

is provided, or is to be provided, for the supply under the contract; and

is disclosed at or before the time the contract is entered into;

but does not include any other consideration that is contingent on the occurrence or non-occurrence of a particular event.

whether one of the parties has all or most of the bargaining power relating to the transaction;

whether one of the parties has made another contract, in the same or substantially similar terms, prepared by that party, and, if so, how many such contracts that party has made;

whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties;

whether another party was, in effect, required either to accept or reject the terms of the contract (other than the terms referred to in subsection 12BI(1)) in the form in which they were presented;

whether another party was given an effective opportunity to negotiate the terms of the contract that were not the terms referred to in subsection 12BI(1);

whether the terms of the contract (other than the terms referred to in subsection 12BI(1)) take into account the specific characteristics of another party or the particular transaction;

any other matter prescribed by the regulations.

an opportunity for a party to negotiate changes, to terms of the contract, that are minor or insubstantial in effect;

an opportunity for a party to select a term from a range of options determined by another party;

an opportunity for a party to another contract or proposed contract to negotiate terms of the other contract or proposed contract.

(a) under which a person provides medical indemnity cover (within the meaning of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003) for:

a medical practitioner (within the meaning of that Act); or

a registered health professional (within the meaning of that Act) prescribed by regulations made under that Act for the purposes of a provision of Part 3 of that Act; and

to which that Act applies.

the Minister must be satisfied that the law provides enforceable protections for persons who carry on a business and employ fewer than 100 persons that are equivalent to the protections provided by this Subdivision together with Subdivision G; and

the Minister must take into consideration:

any detriment to businesses of that kind resulting from prescribing the law; and

the impact on business generally resulting from prescribing the law; and

the public interest.

(a) that establishes, contains or incorporates rules governing the operation of a payment or settlement system approved under Payment Systems and Netting Act 1998; orsection 9 of the

that is made in the course of, or for the purposes of, operating such a system.

replaces as mentioned in subsection (2) of this section:

a contract that constitutes a life policy within the meaning of that Act and was made before 5 April 2021; or

a contract to which this Subdivision does not apply because of one or more previous applications of this section; or

links, as mentioned in subsection (3) of this section, 2 or more contracts, each of which is a contract of a kind referred to in subparagraph (a)(i) or (ii) of this subsection; or

is one of 2 or more contracts that unlink, as mentioned in subsection (4) of this section, a contract of a kind referred to in subparagraph (a)(i) or (ii) of this subsection.

the replacement policy reinstates the previous policy and is issued at the request of the owner of the previous policy after the previous policy lapses; or

the replacement policy is a reissue of the previous policy to correct an administrative error in the previous policy; or

the replacement policy is issued, at the request of the owner of the previous policy, for one or more of the following reasons:

to change the ownership of the policy;

to extend or vary, in accordance with a term of the previous policy, the cover provided under the policy;

to change the terms relating to premiums paid under the policy.

(a) constitutes a life policy within the meaning of the Life Insurance Act 1995; and

was made before 5 April 2021; and

either:

is guaranteed renewable; or

the insurer guarantees not to cancel in response to a change in the risk.

that exists because of:

section 793B of the Corporations Act (legal effect of operating rules of a licensed market); or

section 822B of that Act (legal effect of operating rules of a licensed CS facility); or

that is made under, or in accordance with:

the operating rules of a licensed market; or

the operating rules of a licensed CS facility.

the operator of a licensed market; and

any of the following:

an entity included in the market’s official list;

the responsible entity for a registered scheme that is so included;

the operator of a foreign passport fund that is so included;

to the extent that the contract consists of, or includes, listing rules of the licensed market.

the supply or possible supply of financial services to a person; or

the acquisition or possible acquisition of financial services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or

refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.

the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

this section is not limited by the unwritten law of the States and Territories relating to unconscionable conduct; and

this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:

the terms of the contract; and

the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract.

the relative strengths of the bargaining positions of the supplier and the service recipient; and

whether, as a result of conduct engaged in by the supplier, the service recipient was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

whether the service recipient was able to understand any documents relating to the supply or possible supply of the financial services; and

whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the service recipient or a person acting on behalf of the service recipient by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the financial services; and

the amount for which, and the circumstances under which, the service recipient could have acquired identical or equivalent financial services from a person other than the supplier; and

the extent to which the supplier’s conduct towards the service recipient was consistent with the supplier’s conduct in similar transactions between the supplier and other like service recipients; and

if the supplier is a corporation—the requirements of any applicable industry code (see subsection (3)); and

the requirements of any other industry code (see subsection (3)), if the service recipient acted on the reasonable belief that the supplier would comply with that code; and

the extent to which the supplier unreasonably failed to disclose to the service recipient:

any intended conduct of the supplier that might affect the interests of the service recipient; and

any risks to the service recipient arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the service recipient); and

if there is a contract between the supplier and the service recipient for the supply of the financial services:

the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the service recipient; and

the terms and conditions of the contract; and

the conduct of the supplier and the service recipient in complying with the terms and conditions of the contract; and

any conduct that the supplier or the service recipient engaged in, in connection with their commercial relationship, after they entered into the contract; and

without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the service recipient for the supply of the financial services; and

the extent to which the supplier and the service recipient acted in good faith.

the relative strengths of the bargaining positions of the acquirer and the supplier; and

whether, as a result of conduct engaged in by the acquirer, the supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and

whether the supplier was able to understand any documents relating to the acquisition or possible acquisition of the financial services; and

whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the supplier or a person acting on behalf of the supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the financial services; and

the amount for which, and the circumstances in which, the supplier could have supplied identical or equivalent financial services to a person other than the acquirer; and

the extent to which the acquirer’s conduct towards the supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like suppliers; and

the requirements of any applicable industry code (see subsection (3)); and

the requirements of any other industry code (see subsection (3)), if the supplier acted on the reasonable belief that the acquirer would comply with that code; and

the extent to which the acquirer unreasonably failed to disclose to the supplier:

any intended conduct of the acquirer that might affect the interests of the supplier; and

any risks to the supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the supplier); and

if there is a contract between the acquirer and the supplier for the acquisition of the financial services:

the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the supplier; and

the terms and conditions of the contract; and

the conduct of the acquirer and the supplier in complying with the terms and conditions of the contract; and

any conduct that the acquirer or the supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and

without limiting paragraph (j), whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the supplier for the acquisition of the financial services; and

the extent to which the acquirer and the supplier acted in good faith.

that contravenes:

section 670A of the Corporations Act (misleading or deceptive takeover document); or

section 728 of the Corporations Act (misleading or deceptive fundraising document); or

section 738Y of the Corporations Act (other liabilities relating to CSF offer documents); or

in relation to a disclosure document or statement within the meaning of section 953A of the Corporations Act; or

in relation to a disclosure document or statement within the meaning of section 1022A of the Corporations Act;

does not contravene subsection (1). For this purpose, conduct contravenes the provision even if the conduct does not constitute an offence, or does not lead to any liability, because of the availability of a defence.

does not contravene subsection 674A(2) of the Corporations Act, but would contravene that subsection if paragraph 674A(2)(d) of the Corporations Act contained the same text as paragraph 674(2)(d) of the Corporations Act; or

does not contravene subsection 675A(2) of the Corporations Act, but would contravene that subsection if paragraph 675A(2)(b) of the Corporations Act contained the same text as paragraph 675(2)(b) of the Corporations Act;

the person’s engaging in that conduct does not contravene subsection (1) of this section.

make a false or misleading representation that services are of a particular standard, quality, value or grade; or

make a false or misleading representation that a particular person has agreed to acquire services; or

make a false or misleading representation that purports to be a testimonial by any person relating to services; or

make a false or misleading representation concerning:

a testimonial by any person; or

a representation that purports to be such a testimonial;

relating to services; or

make a false or misleading representation that services have sponsorship, approval, performance characteristics, uses or benefits; or

make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or

make a false or misleading representation with respect to the price of services; or

make a false or misleading representation concerning the need for any services; or

make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including an implied warranty under section 12ED); or

make a false or misleading representation concerning a requirement to pay for a contractual right that:

is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including an implied warranty under section 12ED); and

a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law).

have the effect that, merely because such evidence to the contrary is adduced, the representation is not misleading; or

have the effect of placing on any person an onus of proving that the representation is not misleading.

that contravenes:

section 670A of the Corporations Act (misleading or deceptive takeover document); or

section 728 of the Corporations Act (misleading or deceptive fundraising document); or

section 738Y of the Corporations Act (other liabilities relating to CSF offer documents); or

in relation to a disclosure document or statement within the meaning of section 953A of the Corporations Act; or

in relation to a disclosure document or statement within the meaning of section 1022A of the Corporations Act;

does not contravene subsection (1). For this purpose, conduct contravenes the provision even if the conduct does not constitute an offence, or does not lead to any liability, because of the availability of a defence.

represent that the person has a sponsorship, approval or affiliation it does not have; or

make a false or misleading representation concerning the nature of the interest in the land, the price payable for the financial product, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put or the existence or availability of facilities associated with the land.

(1AA) Subsection (1) applies whether or not a representation is made before or after the financial product consists of, or includes, an interest in land.

a person uses physical force or undue harassment or coercion; and

the person uses such force, harassment or coercion in connection with the supply, or the possible supply, of a financial product mentioned in subsection (1), or the payment for such a financial product.

a legal or equitable estate or interest in the land; or

a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or

a right, power or privilege over, or in connection with, the land.

the supply or possible supply of financial services; or

the promotion by any means of the supply or use of financial services;

make a representation about an amount that, if paid, would constitute a part of the consideration for the supply of the services unless the person also specifies the cash price for the services.

the person offers any rebate, gift, prize or other free item; and

the person offers the rebate, gift, prize or other free item in trade or commerce, in connection with:

the supply or possible supply of financial services; or

the promotion by any means of the supply or use of financial services; or

the supply or possible supply of a financial product that consists of, or includes, an interest in land; or

the promotion by any means of a financial product that consists of, or includes, an interest in land; and

when the person so offers it, the person intends not to provide it, or not to provide it as offered.

the person offers any rebate, gift, prize or other free item; and

the person offers the rebate, gift, prize or other free item in trade or commerce, in connection with:

the supply or possible supply of financial services; or

the promotion by any means of the supply or use of financial services; or

the supply or possible supply of a financial product that consists of, or includes, an interest in land; or

the promotion by any means of a financial product that consists of, or includes, an interest in land; and

the person fails, within the time specified in the offer or (if no such time is specified) within a reasonable time after making the offer, to provide the rebate, gift, prize or other free item in accordance with the offer.

the person’s failure to provide the rebate, gift, prize or other free item in accordance with the offer was due to the act or omission of another person, or to some other cause beyond the person’s control; and

the person took reasonable precautions and exercised due diligence to avoid the failure.

the person offers to the other person a different rebate, gift, prize or other free item as a replacement; and

the other person agrees to receive the different rebate, gift, prize or other free item.

for a period that is; and

in quantities that are;

reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.

for a period that is; and

in quantities that are;

reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.

it offered to supply, or to procure an alternative supplier to supply, services of the kind advertised to the customer within a reasonable time, in a reasonable quantity and at the advertised price; or

it offered to supply immediately, or to procure an alternative supplier to supply within a reasonable time, equivalent services to the customer in a reasonable quantity and at the price at which the first-mentioned services were advertised;

and, in either case, if the offer was accepted by the customer, the person has so supplied, or procured an alternative supplier to supply, services.

giving the person the names of prospective customers; or

otherwise assisting the person to supply financial services to other consumers;

if receipt of the rebate, commission or other benefit is contingent on an event occurring after that contract is made.

the person, in trade or commerce, accepts payment or other consideration for financial services; and

at the time of acceptance, the person intends:

not to supply the financial services; or

to supply financial services materially different from the financial services in respect of which the payment or other consideration is accepted.

the person, in trade or commerce, accepts payment or other consideration for financial services; and

at the time of acceptance, there are reasonable grounds for believing that the person will not be able to supply the financial services within the period specified by the person or, if no period is specified, within a reasonable time.

the person uses physical force or undue harassment or coercion; and

the person uses such force, harassment or coercion in connection with the supply or possible supply of financial services to a consumer, or the payment for financial services by a consumer.

the person is the promoter of, or (if there are more than one) one of the promoters of, or is a participant in, a trading scheme to which this section applies; and

(b) another person (the targeted person), who is a participant in that trading scheme, or has applied or been invited to become a participant in that trading scheme, makes any payment to or for the benefit of the person; and

the targeted person is induced to make the payment because the prospect is held out to him or her of receiving payments or other benefits in respect of the introduction (whether by himself or herself or by another person) of other persons who become participants in that trading scheme.

the person is the promoter of, or (if there are more than one) one of the promoters of, is a participant in, or is otherwise acting in accordance with, a trading scheme to which this section applies; and

(b) the person, by holding out to another person (the targeted person) the prospect of receiving payments or other benefits in respect of the introduction (whether by the targeted person or by another person) of other persons who become participants in that trading scheme, attempts to induce the targeted person:

if the targeted person is already a participant in that trading scheme, to make any payment to or for the benefit of the promoter or any of the promoters or to or for the benefit of a participant in that trading scheme; or

if the targeted person is not already a participant in that trading scheme, to become such a participant and to make a payment of a kind mentioned in subparagraph (i).

(a) a payment is to be made by another person (the targeted person) who participates, or who has applied or been invited to participate, in the scheme to or for the benefit of the promoter or another person who takes part in the promotion of the scheme or to or for the benefit of any person other than the targeted person who participates in the scheme; and

the inducement for making the payment is the holding out to the targeted person the prospect of receiving payments from other persons who may participate in the scheme.

a prospect of a kind mentioned in that subsection is taken to be held out to a person whether it is held out so as to confer on him or her a legally enforceable right or not; and

in determining whether an inducement or attempt to induce is made by holding out a prospect of a kind mentioned in that subsection, it is sufficient if a prospect of that kind constitutes or would constitute a substantial part of the inducement; and

any reference to the making of a payment to or for the benefit of a person includes a reference to the making of a payment partly to or for the benefit of that person and partly to or for the benefit of one or more other persons.

(a) financial products are to be provided by the person promoting the scheme (the promoter) or, in the case of a scheme promoted by 2 or more persons acting in concert (the promoters), are to be provided by one or more of those persons; and

(b) the financial products so provided are to be supplied to or for other persons under transactions arranged or effected by persons who participate in the scheme (each of whom is in this section referred to as a participant), being persons not all of whom are promoters.

a scheme is taken to include the element referred to in paragraph (5)(b) whether a participant who is not a promoter acts in relation to a transaction referred to in that paragraph in the capacity of an employee or agent of the promoter or of one of the promoters or in any other capacity; and

a scheme includes any arrangements made in connection with the carrying on of a business, whether those arrangements are made or recorded wholly or partly in writing or not; and

a reference to the provision of a financial product by a person includes a reference to the provision of a financial product under arrangements to which that person is a party.

(a) in pursuance of a request in writing by the person (the liable person) who will be under a liability to the issuer of the card in respect of the use of the card; or

in renewal or replacement of, or in substitution for:

a card of the same kind previously sent to the targeted person in pursuance of a request in writing by the liable person to the issuer of the previous card; or

a card of the same kind previously sent to the targeted person and used for a purpose for which it was intended to be used.

another person who has a credit card to use the card as a debit card; or

another person who has a debit card to use the card as a credit card;

except in accordance with a request in writing by the other person.

is of a kind described in one or more of the following subparagraphs:

an article of a kind commonly known as a credit card;

a similar article intended for use in obtaining cash, goods or services on credit;

an article of a kind that persons carrying on business commonly issue to their customers or prospective customers for use in obtaining goods or services from those persons on credit; and

is part of, or provides access to, a credit facility that is a financial product;

or an article that may be used as an article referred to in paragraphs (a) and (b).

debit card means:

an article intended for use by a person in obtaining access to an account that is:

held by the person for the purpose of withdrawing or depositing cash or obtaining goods or services; and

a financial product; or

an article that may be used as an article referred to in paragraph (a).

states the amount of a payment, or sets out the charge, for supplying unsolicited financial services; and

does not contain a warning statement that complies with the requirements set out in the regulations.

(1AB) Subsection (1AA) does not apply if the person had reasonable cause to believe that there was a right to the payment or charge.

the other person; or

the other person’s profession, business, trade or occupation;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.

states the amount of a payment, or sets out the charge for placing, in a publication, an advertisement, for financial services, relating to:

the other person; or

the other person’s profession, business, trade or occupation; and

does not contain a warning statement that complies with the requirements set out in the regulations;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.

the publisher of a publication that has an audited circulation of 10,000 copies or more per week, as confirmed by the most recent audit of the publication by a body specified in the regulations; or

a body corporate related to such a publisher; or

the Commonwealth, a State or a Territory, or an authority of the Commonwealth, a State or a Territory; or

a person specified in the regulations.

is not liable to make any payment to another person; and

is entitled to recover by action in a court of competent jurisdiction against another person any payment made by the person to the other person;

in full or part satisfaction of a charge for placing, in a publication, an advertisement for financial services, unless the person has authorised the publishing of the advertisement.

a document authorising the placing of the advertisement has been signed by the person or by another person authorised by him or her; and

a copy of the document has been given to the person before the right to payment of a charge for the placing of the advertisement is asserted; and

the document specifies:

the name and address of the person placing the advertisement; and

particulars of the advertisement; and

the amount of the charge for the placing of the advertisement, or the basis on which the charge is, or is to be, calculated.

the person provides a commission to another person, or receives a commission from another person, in connection with the supply (by any person to any person) of a financial service; and

(b) the financial service is the provision of an add-on risk product to a person (the product recipient) in connection with:

the sale or long-term lease of a motor vehicle to the product recipient; or

the provision of credit connected with the sale or long-term lease of a motor vehicle to the product recipient; or

the provision of a warranty by the product recipient in connection with the sale or long-term lease of a motor vehicle to another person by the product recipient; and

the person acquiring the motor vehicle does so as a consumer (within the meaning of the Australian Consumer Law); and

providing the add-on risk product is covered by a determination under subsection (3); and

the value of the commission exceeds the cap that applies, under that determination, to providing the add-on risk product.

Meaning of add-on risk product

limit the circumstances in which provision of an add-on risk product of that kind is covered by the determination;

provide for the way in which the value of commissions is to be ascertained for the purposes of the determination.

Valuing commissions

the value ascertained in accordance with the determination under subsection (3) that covers the provision of the add-on risk product; or

if the determination does not provide for the way in which the value is to be ascertained—the sum of:

to the extent that the commission is expressed as an amount of money—that amount; and

otherwise—the market value of so much of the commission as is not expressed as an amount of money.

in accordance with the determination under subsection (3) that covers the provision of the add-on risk products; or

if the determination does not provide for such apportionment—on a reasonable basis.

Multiple commissions

one single commission is provided that comprises all of those commissions; and

if those commissions are provided by more than one person—that single commission is jointly provided by all of those persons; and

the value of that single commission is the sum of the values of all of those commissions.

Commissions for consumer credit insurance

is an add-on risk product of a kind covered by a determination under subsection (3); and

is provided in connection with:

the sale or long-term lease of a motor vehicle; or

the provision of credit connected with the sale or long-term lease of a motor vehicle.

in any case—the information provider made the publication in the course of carrying on a business of providing information; or

(b) if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992—the publication was by way of a radio or television broadcast by the information provider.

Exception—advertisements

the publicised financial services were services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or

the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies financial services of the same kind as the publicised financial services; or

the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies financial services of the same kind as the publicised financial services.

Exception—information provider connected with supply etc. of financial products consisting of etc. interests in land

the publicised financial products were interests of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or

the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies financial products of the same kind as the publicised financial products; or

the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies financial products of the same kind as the publicised financial products.

(a) the holder of a licence granted under the Broadcasting Services Act 1992;

a person who is the provider of a broadcasting service under a class licence under that Act;

(c) the holder of a licence continued in force by Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992;section 5(1) of the

the Australian Broadcasting Corporation;

the Special Broadcasting Service Corporation.

Subdivision DA—Deferred sales for add-on insurance products

(a) is offered or sold to a consumer (the customer) in connection with the customer acquiring, or entering into a commitment to acquire, the principal product or service; and

is offered or sold by:

the provider of the principal product or service; or

another person, in accordance with an arrangement to which the provider of the principal product or service is a party; and

manages financial risk (within the meaning of section 12BAA) relating to the principal product or service; and

either:

is a contract of insurance; or

provides for the customer to benefit from a contract of insurance to which the provider of the financial product is a party.

a contract that would ordinarily be regarded as a contract of insurance even if some of its provisions are not by way of insurance; and

a contract that includes provisions of insurance in so far as those provisions are concerned, even if the contract would not ordinarily be regarded as a contract of insurance.

(a) there is an add-on insurance deferral period in relation to the customer acquiring, or entering into a commitment to acquire, the principal product or service; and

the add-on insurance deferral period is the period beginning at the later of:

the time the customer enters into the commitment (or, if the customer acquires the principal product or service without previously entering into a commitment to do so, the time the customer acquires the principal product or service); and

the time the customer is given the information;

and ending at the end of 4 days after the day on which the period begins.

begins when the customer indicates an intention to acquire the principal product or service; and

if there is an add-on insurance deferral period in relation to the customer acquiring, or entering into a commitment to acquire, the principal product or service—ends immediately before the start of that period; and

if there is no such add-on insurance deferral period—does not end.

information to be given for the purposes of subsection (1);

the form and manner in which the information is to be given (which may require the information to be given to a particular customer each time the customer enters into a commitment to acquire, or acquires, the products or services).

must include information that relates to a customer giving notice that the customer does not want to receive: offers of add-on insurance products; or requests or invitations for the customer to ask or apply for add-on insurance products; in relation to the principal product or service; and

offers of add-on insurance products; or

requests or invitations for the customer to ask or apply for add-on insurance products;

in relation to the principal product or service; and

may include information relating to any other matter that ASIC thinks appropriate.

(a) another person (the customer) acquires, or enters into a commitment to acquire, a product or service (the principal product or service) from the first person; and

the first person also sells a financial product to the customer; and

the financial product is an add-on insurance product in relation to the principal product or service.

(a) another person (the customer) acquires, or enters into a commitment to acquire, a product or service (the principal product or service) from the first person; and

a third person sells the customer a financial product that is an add-on insurance product in relation to the principal product or service.

Exception for sale after add-on insurance deferral period

there is an add-on insurance deferral period in relation to the customer acquiring, or entering into a commitment to acquire, the principal product or service; and

the add-on insurance product is sold to the customer after the end of the add-on insurance deferral period.

Contravention by third party provider

(a) the third party provider sells a financial product to a consumer (the customer); and

(b) the financial product is an add-on insurance product in relation to a product or service (the principal product or service) offered or provided by another person; and

either:

there is no add-on insurance deferral period in relation to the customer acquiring, or entering into a commitment to acquire, the principal product or service; or

there is such an add-on insurance deferral period, and the third party provider sells the add-on insurance product to the customer before the end of the period.

Timing of sale

(a) another person (the customer) acquires, or enters into a commitment to acquire, a product or service (the principal product or service) from the principal provider; and

the principal provider offers a financial product for issue or sale to the customer, or requests or invites the customer to ask or apply for a financial product or to purchase a financial product; and

the financial product is an add-on insurance product in relation to the principal product or service; and

the offer, request or invitation is made otherwise than in writing.

Exceptions for subsection (1)—offer made outside add-on insurance deferral period

during the add-on insurance pre-deferral period in relation to the principal product or service; or

if there is an add-on insurance deferral period in relation to the customer acquiring, or entering into a commitment to acquire, the principal product or service—after the end of the period of 6 weeks beginning on the first day of the add-on insurance deferral period.

Offer by third party provider

(a) another person (the customer) acquires, or enters into a commitment to acquire, a product or service (the principal product or service); and

the third party provider offers a financial product for issue or sale to the customer, or requests or invites the customer to ask or apply for a financial product or to purchase a financial product; and

the financial product is an add-on insurance product in relation to the principal product or service; and

the offer, request or invitation is made otherwise than in writing; and

there is an add-on insurance deferral period in relation to the customer acquiring, or entering into a commitment to acquire, the principal product or service; and

the offer, request or invitation is made during the period of 6 weeks beginning on the first day of the add-on insurance deferral period.

Exception for subsections (1) and (3)—contact initiated by customer

the offer, request or invitation is made in response to contact initiated by the customer; and

either:

the offer, request or invitation is made after the end of the add-on insurance deferral period; or

the offer, request or invitation relates only to the purpose for which the customer initiated the contact.

(a) another person (the customer) acquires, or enters into a commitment to acquire, a product or service (the principal product or service); and

the first person offers a financial product for issue or sale to the customer, or requests or invites the customer to ask or apply for a financial product or to purchase a financial product; and

the financial product is an add-on insurance product in relation to the principal product or service; and

before the offer, request or invitation is made, the customer informs the first person that the customer does not want to receive such offers, requests or invitations.

(a) another person (the customer) acquires, or enters into a commitment to acquire, a product or service (the principal product or service); and

the first person offers a financial product for issue or sale to the customer, or requests or invites the customer to ask or apply for a financial product or to purchase a financial product; and

the financial product is an add-on insurance product in relation to the principal product or service; and

before the offer, request or invitation is made, the customer informs any of the following that the customer does not want to receive such offers, requests or invitations:

the person who provided the principal product or service (if that person is not the first person);

any person (other than the first person) with whom the person mentioned in subparagraph (i) has an arrangement of a kind mentioned in subparagraph 12DO(1)(b)(ii).

(a) if, under Corporations Act 2001, the customer has a right to return the product within a particular period—1 month after the end of that period; orsection 1019B of the

otherwise—1 month and 14 days after the product was sold.

if the product is constituted by a legal relationship between the customer and any other person—by force of this section, that relationship is terminated, with effect from the time of the return, without penalty to the customer; and

by force of this section, any contract for the acquisition of the product by the customer is terminated, with effect from the time of the return, without penalty to the customer.

must be the entire amount paid for the product; but

may be reduced by any amount paid as a result of a claim under the product.

covers that sale; and

provides for a period during which the product must not be sold.

an offer to issue or sell; or

a request or invitation to ask or apply for;

an add-on insurance product that would, if offered to a consumer, be covered by a product intervention order in force under Corporations Act 2001 that provides for a period during which the product must not be sold to the consumer.Part 7.9A of the

to an individual who:

wholly or partly owns a motor vehicle; or

has the use of a motor vehicle under a lease of at least 4 months’ duration; and

in respect of all of the following (whether or not the product also provides insurance cover in respect of other matters):

loss of, or damage to, the motor vehicle resulting from an accident;

loss of, or damage to, property of another person resulting from an accident in which the motor vehicle is involved;

loss of, or damage to, the motor vehicle caused by fire, theft or malicious acts.

is designed to travel by road; and

is designed to carry passengers, or is a motorcycle; and

does not have a carrying capacity that exceeds 2 tonnes.

an add-on insurance product sold by a specified person; or

a class of add-on insurance products sold by a specified person.

any evidence as to whether the add-on insurance product, or the class of add-on insurance products, has historically been good value for money;

whether, without an exemption, there is a high risk of underinsurance or non-insurance;

any evidence as to whether the add-on insurance product, or the class of add-on insurance products, is well understood by consumers;

any differences between the add-on insurance product, or add-on insurance products in the class, and financial products of a similar kind that are not sold as add-on insurance products;

any other matters that ASIC considers relevant.

Conditions on exemptions

(a) a product intervention order is in force under Corporations Act 2001 in relation to the product; andPart 7.9A of the

the product intervention order provides for a period during which the product must not be sold.

sells or offers to sell an add-on insurance product, if an exemption under section 12DX or 12DY applies to the product; or

sells a product or service, if:

there is an arrangement between the person and another person that relates to the provision by the other person of add-on insurance products in relation to that kind of product or service; and

an exemption under section 12DX or 12DY applies to any of those add-on insurance products; or

offers an add-on insurance product for issue or sale to a consumer, or requests or invites a consumer to ask or apply for an add-on insurance product or to purchase an add-on insurance product, where an exemption under section 12DX or 12DY applies to the add-on insurance product;

must not contravene a condition of the exemption.

Product intervention orders

(a) a product intervention order is in force under Corporations Act 2001 in relation to the product; andPart 7.9A of the

the product intervention order provides for a period during which the product must not be sold.

Subdivision E—Conditions and warranties in consumer transactions

the application of all or any of the provisions of this Subdivision (sections 12EA to 12ED); or

the exercise of a right conferred by such a provision; or

any liability of the person for breach of a condition or warranty implied by such a provision.

the supplying of the services again; or

the payment of the cost of having the services supplied again.

(a) the strength of the bargaining positions of the supplier and the person to whom the services were supplied (the buyer) relative to each other, taking into account, among other things, the availability of equivalent services and suitable alternative sources of supply;

whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity to acquire the services or equivalent services from any source of supply under a contract that did not include that term;

whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties).

the services will be rendered with due care and skill; and

any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied.

a person supplies financial services to a consumer in the course of a business; and

the consumer, expressly or by implication, makes known to the person:

any particular purpose for which the services are required; or

the result that he or she desires the services to achieve;

there is an implied warranty that:

the services supplied under the contract for the supply of the services; and

any materials supplied in connection with those services;

will be reasonably fit for that purpose or are of such a nature and quality that they might reasonably be expected to achieve that result, except if the circumstances show that the consumer does not rely, or that it is unreasonable for him or her to rely, on the person’s skill or judgment.

there is a breach of an implied warranty that exists because of this section in a contract made after the commencement of this subsection; and

the law of a State or Territory is the proper law of the contract;

the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of a liability, for breach of another term of the contract.

contravenes; or

attempts to contravene; or

is involved in a contravention of;

a provision of Subdivision D (sections 12DA to 12DN), other than section 12DA, or a provision of Subdivision DA.

(1AA) A person commits an offence if the person contravenes section 12DMC.

(1AB) Subsection (1AA) is an offence of strict liability.

a person is convicted of 2 or more offences against subsection (1) constituted by, or relating to, contraventions of the same provision of Subdivision D (sections 12DA to 12DN) or Subdivision DA (sections 12DO to 12DZA); and

the contraventions appear to the Court to have been of the same nature or a substantially similar nature and to have occurred at or about the same time;

the Court must not, in respect of the offences, impose on the person fines that, in the aggregate, exceed the maximum fine that would be applicable in respect of one offence by that person against subsection (1) in relation to that provision.

a person is convicted of 2 or more offences against subsection (1AA) constituted by contraventions of section 12DMC; and

the contraventions appear to the Court to have been of the same nature or a substantially similar nature and to have occurred at or about the same time;

the Court must not, in respect of the offences, impose on the person fines that, in the aggregate, exceed the maximum fine that would be applicable in respect of one offence by that person against subsection (1AA).

a person is convicted of an offence constituted by, or relating to, a contravention of a provision of Subdivision D (sections 12DA to 12DN) or Subdivision DA (sections 12DO to 12DZA); and

a fine has, or fines have, previously been imposed on the person by the Court for an offence or offences constituted by, or relating to, another contravention or other contraventions of the same provision, being a contravention that, or contraventions each of which, appears to the Court to have been of the same nature as, or of a substantially similar nature to, and to have occurred at or about the same time as, the contravention referred to in paragraph (a);

the Court must not, in respect of the offence referred to in paragraph (a), impose on the person a fine that exceeds the amount (if any) by which the maximum fine applicable (under subsection (1) or (1AA)) in respect of the offence referred to in paragraph (a) is greater than the amount of the fine, or the sum of the amounts of the fines, referred to in paragraph (b). This applies whether or not a fine has, or fines have, also previously been imposed on the person for an offence or offences constituted by, or relating to, a contravention or contraventions of that provision that were of a different nature or occurred at a different time.

grant an injunction under section 12GD against the person in relation to:

the conduct that constitutes, or is alleged to constitute, the contravention; or

other conduct of that kind; or

make an order under section 12GLA (non-punitive orders) in relation to the contravention; or

make an order under section 12GLB (punitive orders requiring adverse publicity) in relation to the contravention.

the Court that made the declaration;

the civil penalty provision that was contravened;

the person who contravened the provision;

the conduct that constituted the contravention.

Declaration of contravention conclusive evidence

a provision of Subdivision BA;

a provision of Subdivision C;

a provision of Subdivision D (other than section 12DA);

a provision of Subdivision DA;

a provision of Subdivision GC.

the nature and extent of the contravention; and

the nature and extent of any loss or damage suffered because of the contravention; and

the circumstances in which the contravention took place; and

whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct; and

in the case of a contravention by the trustee of a registrable superannuation entity—the impact that the penalty under consideration would have on the beneficiaries of the entity.

5,000 penalty units; and

if the Court can determine the benefit derived and detriment avoided because of the contravention—that amount multiplied by 3.

Pecuniary penalty applicable to the contravention of a civil penalty provision—by a body corporate

50,000 penalty units; and

if the Court can determine the benefit derived and detriment avoided because of the contravention—that amount multiplied by 3; and

either:

10% of the annual turnover of the body corporate for the 12-month period ending at the end of the month in which the body corporate contravened, or began to contravene, the civil penalty provision; or

if the amount worked out under subparagraph (i) is greater than an amount equal to 2.5 million penalty units—2.5 million penalty units.

Contrary intention

on its own initiative, during proceedings before the Court; or

on application by ASIC, made within 6 years after the alleged contravention.

Relationship between relinquishment orders and pecuniary penalty orders

criminal proceedings are commenced or have already been commenced against the person for an offence; and

the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.

the civil proceedings are dismissed; and

(b) costs must not be awarded in relation to the civil proceedings.

the individual previously gave the information or produced the documents in proceedings for a declaration of contravention, a pecuniary penalty order or a relinquishment order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and

the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

within a particular period; or

before a particular time;

then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).

within a particular period; or

before a particular time;

commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant pecuniary penalty order is made or any later day).

the person’s intention; or

the person’s knowledge; or

the person’s recklessness; or

the person’s negligence; or

any other state of mind of the person.

in relation to a contravention by a person of subsection 12DQ(4), it is necessary to prove that the person was reckless as to the matters in paragraph 12DQ(4)(c); and

in relation to a contravention by a person of subsection 12DR(3), it is necessary to prove that the person was reckless as to the matters in paragraphs 12DR(3)(e) and (f); and

in relation to a contravention by a person of subsection 12DS(2), it is necessary to prove that the person was reckless as to the matters in paragraph 12DS(2)(d).

the person is aware of a substantial risk that the fact exists; and

having regard to the circumstances known to the person, it is unjustifiable to take the risk.

a liability to pay an amount under:

a pecuniary penalty order made under section 12GBB; or

a relinquishment order made under section 12GBCC;

legal costs incurred in defending or resisting proceedings in which the person is found to have such a liability.

(a) convicted of an offence (the relevant offence) against subsection (1) of this section; or

(b) convicted of an offence (the relevant offence) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection (1) of this section;

the relevant offence is taken to be punishable on conviction by a fine not exceeding 30 penalty units.

exercise any power that the Court has apart from this section with respect to the enforcement and recovery of fines imposed by the Court; or

make an order, on the application of the Minister or ASIC, declaring that the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the Court.

the order must not be executed unless the person fails to pay the fine within that time or fails to pay an instalment at or before the time when it becomes payable, as the case may be; and

if the person pays the fine within that time or pays all the instalments, as the case may be, the order is taken to have been discharged in respect of the fine.

on payment of the fine; or

if the fine is not paid—on full compliance with the order.

a person would, but for this subsection, be required under an order or orders under subsection (1) in respect of 3 or more fines to serve periods of imprisonment in respect of those fines exceeding in the aggregate 3 years; and

those fines were imposed (whether or not in the same proceedings) for offences constituted by contraventions that occurred within a period of 2 years, being contraventions that appear to the Court to have been of the same nature or a substantially similar nature;

the Court must, by order, declare that the order or orders are to cease to have effect in respect of those fines after the person has served an aggregate of 3 years’ imprisonment in respect of those fines.

make a pecuniary penalty order against a person in relation to the contravention of a civil penalty provision; or

make a relinquishment order against a person in relation to the contravention of a civil penalty provision; or

impose a fine against a person in relation to a commission of an offence constituted by the same conduct as the conduct constituting a contravention mentioned in paragraph (a) or (b).

must consider the effect that making the order or imposing the fine would have on the amount available to pay compensation to persons who might reasonably be expected to be entitled to recover compensation for loss or damage suffered as a result of the contravention; and

give preference to making an appropriate amount available for compensation.

a contravention of a provision of this Division; or