[pic] Australian Securities and Investments Commission Act 2001 Act No. 51 of 2001 as amended This compilation was prepared on 9 July 2008 taking into account amendments up to Act No. 61 of 2008 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Prepared by the Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra Contents Part 1-Preliminary 1 Division 1-Objects 1 1 Objects 1 Division 2-Citation 3 1A Short title [see Note 1] 3 Division 3-Commencement and application 4 2 Commencement [see Note 1] 4 4 Application of this Act 4 4A Application of the Criminal Code 5 Division 4-Interpretation 6 5 Interpretation 6 5A Application of the Acts Interpretation Act 1901 14 6 Giving information 14 Part 2-Australian Securities and Investments Commission and consumer protection in relation to financial services 15 Division 1-Australian Securities and Investments Commission 15 8 ASIC is a body corporate 15 8A ASIC's liabilities are Commonwealth liabilities 16 9 Membership 16 10 Chairperson and Deputy Chairperson 17 10A Chairperson not subject to direction by ASIC on certain matters 17 11 Corporations legislation functions and powers and other functions and powers 17 12 Directions by Minister 20 12A Other functions and powers 21 Division 2-Unconscionable conduct and consumer protection in relation to financial services 23 Subdivision A-Application 23 12AC Division extends to some conduct outside Australia 23 12AD Application of Division to Commonwealth and Commonwealth authorities 24 12AE Saving of other laws and remedies 24 Subdivision B-Interpretation 25 12BA Interpretation 25 12BAA Definition of financial product 28 12BAB Meaning of financial service 34 12BB Misleading representations 38 12BC Consumers 39 12BD Acquisition, supply and re-supply 41 12BE Application of Division in relation to leases and licences of land and buildings 41 Subdivision C-Unconscionable conduct 42 12CA Unconscionable conduct within the meaning of the unwritten law of the States and Territories 42 12CB Unconscionable conduct 42 12CC Unconscionable conduct in business transactions 43 Subdivision D-Consumer protection 49 12DA Misleading or deceptive conduct 49 12DB False or misleading representations 50 12DC False representations and other misleading or offensive conduct in relation to financial products that involve interests in land 51 12DD Cash price to be stated in certain circumstances 53 12DE Offering gifts and prizes 53 12DF Certain misleading conduct in relation to financial services 54 12DG Bait advertising 54 12DH Referral selling 55 12DI Accepting payment without intending or being able to supply as ordered 56 12DJ Harassment and coercion 57 12DK Pyramid selling of financial products 57 12DL Unsolicited credit cards and debit cards 59 12DM Assertion of right to payment for unsolicited financial services 61 12DN Application of provisions of Division to prescribed information providers 62 Subdivision E-Conditions and warranties in consumer transactions 64 12EA Conflict of laws 64 12EB Application of provisions not to be excluded or modified 64 12EC Limitation of liability for breach of certain conditions or warranties 65 12ED Warranties in relation to the supply of financial services 66 Subdivision G-Enforcement and remedies 67 12GA Interpretation 67 12GB Offences against Subdivision D 67 12GC Enforcement and recovery of certain fines 69 12GCA Preference must be given to compensation for victims 71 12GD Injunctions 71 12GF Actions for damages 73 12GG Finding in proceedings to be evidence 74 12GH Conduct by directors, employees or agents 74 12GI Defences 76 12GJ Jurisdiction of courts 77 12GK Transfer of matters 78 12GL Transfer of certain proceedings to Family Court 80 12GLA Non-punitive orders 81 12GLB Punitive orders requiring adverse publicity 83 12GM Other orders 83 12GN Power of Court to prohibit payment or transfer of money or other property 86 12GNA Limit on liability for misleading or deceptive conduct 89 12GO Intervention by ASIC 90 Subdivision GA-Proportionate liability for misleading and deceptive conduct 90 12GP Application of Subdivision 90 12GQ Certain concurrent wrongdoers not to have benefit of apportionment 91 12GR Proportionate liability for apportionable claims 91 12GS Defendant to notify plaintiff of concurrent wrongdoer of whom defendant is aware 92 12GT Contribution not recoverable from defendant 93 12GU Subsequent actions 93 12GV Joining non-party concurrent wrongdoer in the action 93 12GW Application of Subdivision 94 Subdivision H-Miscellaneous 94 12HA Relationship of this Subdivision to Part 3 94 12HB Disclosure of documents by ASIC 94 12HC Prosecutions 95 12HD Jurisdiction of Court to make declarations and orders 96 Part 3-Investigations and information-gathering 97 Division 1-Investigations 97 13 General powers of investigation 97 14 Minister may direct investigations 98 15 Investigation after report of receiver or liquidator 98 16 Interim report on investigation 99 17 Final report on investigation 99 18 Distribution of report 100 Division 2-Examination of persons 101 19 Notice requiring appearance for examination 101 20 Proceedings at examination 101 21 Requirements made of examinee 101 22 Examination to take place in private 102 23 Examinee's lawyer may attend 102 24 Record of examination 103 25 Giving to other persons copies of record 103 26 Copies given subject to conditions 104 27 Record to accompany report 104 Division 3-Inspection of books and audit information-gathering powers 105 28 When certain powers may be exercised 105 29 ASIC may inspect books without charge 105 30 Notice to produce books about affairs of body corporate or registered scheme 106 30A Notice to auditors concerning information and books 106 31 Notice to produce books about financial products 108 32A Notice to produce books about financial services 109 33 Notice to produce documents in person's possession 109 34 ASIC may authorise persons to require production of books, giving of information etc. 109 35 Application for warrant to seize books not produced 110 36 Grant of warrant 111 37 Powers where books produced or seized 112 38 Powers where books not produced 113 39 Power to require person to identify property of body corporate 113 39A ASIC may give copy of book relating to registered scheme to another person 114 39B ASIC to notify foreign regulator's access to information or books 114 Division 4-Requirements to disclose information about financial products 115 40 When certain powers may be exercised 115 41 Acquisitions and disposals of financial products 115 43 Exercise of certain powers of ASIC in relation to financial products 117 47 Disclosures to take place in private 119 48 Lawyer of person making disclosure may attend 119 Division 5-Proceedings after an investigation 120 49 ASIC may cause prosecution to be begun 120 50 ASIC may cause civil proceeding to be begun 121 Division 6-Hearings 122 51 Power to hold hearings 122 52 General discretion to hold hearing in public or private 122 53 Request by person appearing at hearing that it take place in public 122 54 Certain hearings to take place in private 123 55 ASIC may restrict publication of certain material 123 56 Who may be present when hearing takes place in private 123 57 Involvement of person entitled to appear at hearing 124 58 Power to summon witnesses and take evidence 124 59 Proceedings at hearings 125 60 ASIC to take account of evidence and submissions 126 61 Reference to Court of question of law arising at hearing 126 62 Protection of members etc. 127 Division 7-Offences 128 63 Non-compliance with requirements made under this Part 128 64 False information 129 65 Obstructing person acting under this Part 129 66 Contempt of ASIC 130 67 Concealing books relevant to investigation 131 68 Self-incrimination 131 69 Legal professional privilege 132 70 Powers of Court where non-compliance with Part 133 Division 8-ASIC's powers where non-compliance with Part 134 71 Orders by ASIC 134 72 Orders in relation to securities of a body corporate 134 73 Orders in relation to financial products generally 135 75 Orders under this Division 136 Division 9-Evidentiary use of certain material 137 76 Statements made at an examination: proceedings against examinee 137 77 Statements made at an examination: other proceedings 137 78 Weight of evidence admitted under section 77 138 79 Objection to admission of statements made at examination 139 80 Copies of, or extracts from, certain books 140 81 Report under Division 1 140 82 Exceptions to admissibility of report 141 83 Material otherwise admissible 142 Division 10-Miscellaneous 143 84 Requirement made of a body corporate 143 85 Evidence of authority 143 86 Giving documents to natural persons 143 87 Place and time for production of books 144 88 Application of Crimes Act and Evidence Act 144 89 Allowances and expenses 144 90 Expenses of investigation under Division 1 144 91 Recovery of expenses of investigation 145 92 Compliance with Part 146 93 Effect of Part 146 93AA Enforcement of undertakings 146 Part 3A-Enforceable undertakings in relation to registered schemes 148 93A Undertakings by responsible entity 148 Part 4-ASIC's business 150 Division 1-General 150 94 Arrangement of ASIC's business 150 95 ASIC to establish offices 150 96 Regional Commissioners 150 Division 2-Divisions of ASIC 151 97 ASIC may establish Division 151 98 Effect of direction establishing Division 151 99 ASIC may reconstitute Division 151 100 Effect of reconstituting Division 151 101 Multiple Divisions 152 Division 3-Delegation by ASIC 153 102 Delegation 153 Division 4-Meetings of ASIC 155 103 Convening of meetings 155 104 Approved methods of communication 155 105 Quorum 155 106 Who is to preside at meetings 156 107 Procedure at meetings 156 Part 5-ASIC's members 157 Division 1-Terms and conditions 157 108 Term of office as member 157 109 Term of office as Chairperson or Deputy Chairperson 157 110 Resignation 157 111 Termination of appointment 157 112 Remuneration and allowances etc. 159 113 Leave of absence 159 114 Superannuation arrangements 160 115 Other terms and conditions 160 Division 2-Acting appointments 161 116 Acting members 161 117 Acting Chairperson 161 118 Acting Deputy Chairperson 162 119 Limitation on appointments to act during vacancy 162 Division 3-Delegation by members 163 119A Delegation by members 163 Part 6-ASIC's staff 164 120 Staff 164 121 Consultants etc. 164 122 Staff seconded to ASIC 164 Part 7-Preventing conflicts of interest and misuse of information 166 Division 1-Disclosure of interests 166 123 Members to disclose certain interests to Minister 166 124 Members to disclose certain interests to Chairperson 167 125 Notification of interests to ASIC 168 126 Defence 168 Division 2-Confidentiality 169 127 Confidentiality 169 Part 8-Finance and reporting requirements 174 Division 1-Companies and Unclaimed Moneys Special Account 174 133 Companies and Unclaimed Moneys Special Account 174 134 Credits to the Account 174 135 Purpose of the Account 174 Division 2-Reporting requirements 176 136 Annual reports 176 Division 3-Liability to taxation 178 137 Liability to taxation 178 Part 9-The Corporations and Markets Advisory Committee 179 Division 1-General 179 146 CAMAC is a body corporate 179 146A CAMAC's liabilities are Commonwealth liabilities 179 147 Membership 180 147A Convenor not subject to direction by CAMAC on certain matters 180 148 Functions 181 149 Term of office as member 181 150 Resignation 181 151 Termination of appointment 181 152 Remuneration and allowances etc. 182 153 Meetings 182 154 CAMAC to inform itself in any manner 182 155 Publication of advice or recommendations 183 Division 2-Staff 184 156 Staff 184 157 Consultants etc. 184 158 Staff seconded to CAMAC 184 Division 3-Liability to taxation 186 159 Liability to taxation 186 Division 4-Reporting requirements 187 162 Annual report 187 Part 10-The Takeovers Panel 188 Division 1-General 188 172 Membership 188 173 President 189 174 Functions and powers of Panel 189 175 Term of office as member 189 176 Term of office as President 189 177 Resignation 190 178 Termination of appointment 190 179 Remuneration and allowances 190 180 Leave of absence 191 181 Other terms and conditions 191 182 Acting President 191 183 Annual report 191 Division 2-Conduct of Panel's business 192 184 Constitution of Panel in relation to particular matters 192 185 Disclosure of interests by members 193 186 Application of Division 2 of Part 7 194 Division 3-Panel proceedings 195 187 Interpretation 195 188 Power to conduct proceedings 195 190 Panel may restrict publication of certain material 195 192 Power to summon witnesses and take evidence 196 193 Quorum 197 194 Legal representation in proceedings before the Panel 197 195 Procedure 197 197 Protection of members etc. 198 198 Non-compliance with requirements made under section 192 198 199 False evidence 198 200 Contempt of Panel 199 201 Powers of Court where non-compliance with section 192 199 201A Undertakings to the Panel 200 Part 11-Companies Auditors and Liquidators Disciplinary Board 201 Division 1-Constitution of Disciplinary Board 201 203 Membership of Disciplinary Board 201 204 Functions and powers of Disciplinary Board 202 205 Term of office 202 206 Resignation from office 202 207 Termination of appointment 202 208 Acting Chairperson 203 208A Acting Deputy Chairperson 204 210 Meetings of the Disciplinary Board 204 210A Panel to be constituted to deal with application 205 210B Meetings of Panel of the Disciplinary Board 206 211 Disclosure of interests 207 212 Remuneration and allowances 208 213 Confidentiality 208 214 Annual report 209 Division 2-Hearings by Disciplinary Board 210 215 Definition 210 216 Hearings 210 217 Power to summon witnesses and take evidence 211 218 Proceedings at hearings 212 219 Failure of witnesses to attend and answer questions 213 220 Contempt of Disciplinary Board 215 221 Protection of members etc. 215 222 Hearings taken to be judicial proceedings 216 223 Costs 216 Part 12-The Australian financial reporting system 218 224 Main objects of this Part 218 Division 1-The financial reporting system 219 Subdivision A-The Financial Reporting Council 219 225 Functions and powers of the Financial Reporting Council 219 225A Financial Reporting Council's information gathering powers 223 Subdivision B-The Australian Accounting Standards Board and the Office of the Australian Accounting Standards Board 225 226 The Office of the Australian Accounting Standards Board 225 226A Office of the AASB's functions and powers 226 227 AASB's functions and powers 226 Subdivision C-The Auditing and Assurance Standards Board and the Office of the Auditing and Assurance Standards Board 228 227AA The Office of the Auditing and Assurance Standards Board 228 227AB Office of the AUASB's functions and powers 228 227A The Auditing and Assurance Standards Board 229 227B AUASB's functions and powers 229 Division 2-Accounting standards 231 228 Purposive interpretation of standards 231 229 Generic and specific standards 231 230 Comparative amounts 232 231 Cost/benefit analysis 232 232 FRC views 232 233 International accounting standards 232 234 Validity of accounting standards 233 Division 2A-Auditing standards 234 234A Purposive interpretation of standards 234 234B Generic and specific standards 234 234C FRC views 234 234D International auditing standards 234 234E Validity of auditing standards 235 Division 3-Administrative provisions 236 Subdivision A-The Financial Reporting Council 236 235A Membership of FRC 236 235B Annual report 236 235BA Report on auditor independence functions 236 235C Procedure 237 Subdivision AA-The Office of the AASB 237 235D Duties of the Chair of the AASB 237 235E Staff of the Office of the AASB 238 235F Consultants and persons seconded to the Office of the AASB 238 235G Office of the AASB to have regard to FRC's advice etc. 239 235H Chair not subject to direction by the AASB on certain matters 239 235J Annual report 239 Subdivision B-The Australian Accounting Standards Board 239 236A Procedures 239 236AA AASB to have regard to FRC's advice etc. 240 236B Appointment of members of the AASB 240 236C Resignation and termination of appointment 241 236D Acting appointments 242 236DA Disclosure of interests 243 Subdivision BAA-The Office of the AUASB 244 236DB Duties of the Chair of the AUASB 244 236DC Staff of the Office of the AUASB 244 236DD Consultants and persons seconded to the Office of the AUASB 245 236DE Office of the AUASB to have regard to FRC's advice etc. 246 236DF Chair not subject to direction by the AUASB on certain matters 246 236DG Annual report 246 Subdivision BA-The Auditing and Assurance Standards Board 246 236E Procedures 246 236EA AUASB to have regard to FRC's advice etc. 247 236F Appointment of members of the AUASB 247 236G Resignation and termination of appointment 248 236H Acting appointments 249 236J Disclosure of interests 250 Subdivision C-Confidentiality 251 237 Confidentiality 251 Part 13-Financial Reporting Panel 252 Division 1-General 252 239AA Financial Reporting Panel 252 239AB Membership 252 239AC Chairperson 252 239AD Functions and powers of Financial Reporting Panel 253 239AE Term of office as member 253 239AF Term of office as Chairperson 253 239AG Resignation 253 239AH Termination of appointment 253 239AI Remuneration and allowances 254 239AJ Leave of absence 254 239AK Other terms and conditions 254 239AL Acting Chairperson 254 239AM Annual report 255 Division 2-Conduct of Financial Reporting Panel's business 256 239BA Constitution of Financial Reporting Panel in relation to particular matters 256 239BB Disclosure of interests by members 257 239BC Application of Division 2 of Part 7 258 Division 3-Financial Reporting Panel proceedings 259 239CA Interpretation 259 239CB Power to conduct proceedings 259 239CC Financial Reporting Panel proceedings 259 239CD Financial Reporting Panel may restrict publication of certain material 261 239CE Power to summon witnesses and take evidence 262 239CF Quorum 263 239CG No legal representation in proceedings before the Financial Reporting Panel 263 239CH Procedure 264 239CI Protection of members etc. 264 239CJ Non-compliance with requirements made under section 239CE 265 239CK Contempt of Financial Reporting Panel 265 239CL Powers of Court where non-compliance with section 239CE 265 Part 14-The Parliamentary Joint Committee on Corporations and Financial Services 266 241 Membership 266 242 Powers and proceedings 267 243 Duties 267 Part 15-Miscellaneous 268 243B Offences committed partly in and partly out of the jurisdiction 268 243D Financial transaction reports 268 243E Suspicious matters reports under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 269 244 Review by Administrative Appeals Tribunal of certain decisions 269 244A Notice of reviewable decision and review rights 270 245 Validity of certain actions 270 246 Liability for damages 271 247 Duplicate seals 272 248 Judicial notice of ASIC's seal and members' signatures 272 251 The regulations 273 Part 16-Transition from the old ASIC legislation 274 Division 1-Preliminary 274 253 Object of Part 274 254 Definitions 275 255 Relationship of Part with State validation Acts 279 256 References to things taken or deemed to be the case etc. 280 257 Existence of several versions of the old ASIC legislation does not result in this Part operating to take the same thing to be done several times under the new ASIC legislation etc. 280 258 Penalty units in respect of pre-commencement conduct remain at $100 281 259 Ceasing to be a referring State does not affect previous operation of this Part 281 Division 2-Carrying over bodies established etc. or persons appointed under the old ASIC Act 282 260 Division has effect subject to Division 7 regulations 282 261 Carrying over bodies established under the old ASIC Act 282 262 Carrying over the Chairman and Deputy Chairman of the Financial Reporting Council 282 Division 3-Carrying over the old ASIC Regulations 283 263 Division has effect subject to Division 7 regulations 283 264 Old ASIC Regulations continue to have effect 283 Division 4-Court proceedings and orders 284 265 Division has effect subject to Division 7 regulations 284 266 Definitions 284 267 Treatment of court proceedings under or related to the old ASIC legislation-proceedings other than federal ASIC proceedings 286 268 Treatment of court proceedings under or related to the old ASIC legislation-federal ASIC proceedings 288 268A Appeals etc. in relation to some former federal corporations proceedings 289 268B Effect of decisions and orders made in federal corporations proceedings before commencement 290 269 References to proceedings and orders in the new ASIC legislation 290 Division 5-Functions and powers of ASIC 293 270 Division has effect subject to Division 7 regulations 293 271 Non-federal proceedings etc. 293 272 NCSC's functions and powers 294 Division 6-General transitional provisions relating to other things done etc. under the old ASIC legislation 295 273 Provisions in this Division have effect subject to the other Divisions 295 274 Provisions of this Division may have an overlapping effect 295 275 Things done by etc. carried over provisions continue to have effect 296 276 Creation of equivalent rights and liabilities to those that existed before the commencement under carried over provisions of the old ASIC legislation 298 277 Creation of equivalent rights and liabilities to those that existed before the commencement under repealed provisions of the old ASIC legislation 299 278 Old ASIC legislation time limits continue to run 300 279 Preservation of significance etc. of events or circumstances 301 280 References in the new ASIC legislation generally include references to events, circumstances or things that happened or arose before the commencement 301 281 References in the new ASIC legislation to that legislation or the new corporations legislation generally include references to corresponding provisions of the old ASIC legislation or old corporations legislation 302 282 Carrying over references to corresponding previous laws or relevant previous laws 303 283 References to ASIC legislation in instruments 304 284 Old transitional provisions continue to have their effect 304 Division 7-Regulations dealing with transitional matters 307 285 Regulations may deal with transitional matters 307 Part 17-Transitional provisions relating to the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 308 285A Definitions 308 286 Application of new subsection 225A(5) 308 287 Application of Part 8 of Schedule 1 to the amending Act 308 288 Application of Schedule 3 to the amending Act 309 Notes 311 An Act to provide for the Australian Securities and Investments Commission, a Corporations and Markets Advisory Committee and certain other bodies, and for other purposes Part 1-Preliminary Division 1-Objects 1 Objects (1) The objects of this Act are: (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 (b) to provide for ASIC's functions, powers and business; and (c) to establish a Corporations and Markets Advisory Committee to provide informed and expert advice to the Minister about the content, operation and administration of the corporations legislation (other than the excluded provisions), about corporations and about financial products and financial markets; and (d) to establish a Takeovers Panel, a Companies Auditors and Liquidators Disciplinary Board, a Financial Reporting Council, an Australian Accounting Standards Board, an Auditing and Assurance Standards Board, a Financial Reporting Panel and a Parliamentary Joint Committee on Corporations and Financial Services. (2) In performing its functions and exercising its powers, ASIC must strive to: (a) 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 (b) promote the confident and informed participation of investors and consumers in the financial system; and (d) administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and (e) receive, process and store, efficiently and quickly, the information given to ASIC under the laws that confer functions and powers on it; and (f) ensure that information is available as soon as practicable for access by the public; and (g) 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. (3) This Act has effect, and is to be interpreted, accordingly. Division 2-Citation 1A Short title [see Note 1] This Act may be cited as the Australian Securities and Investments Commission Act 2001. Division 3-Commencement and application 2 Commencement [see Note 1] This Act commences at the same time as the Corporations Act 2001. 4 Application of this Act (1) This Act applies: (a) in this jurisdiction; and (b) 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 (c) in such external Territories (if any) as are prescribed. (2) Without limiting paragraph (1)(c), if an external Territory is prescribed, regulations prescribing the external Territory may provide: (a) that only some of the provisions of this Act apply in the external Territory; and (b) that provisions that apply in the external Territory only apply in specified circumstances. (3) If: (a) an external Territory is prescribed; and (b) in a provision of this Act that applies (either generally or in particular circumstances) in the external Territory, there is: (i) a reference to "Australia" or "this jurisdiction"; or (ii) a reference to a term the definition of which includes a reference to "Australia" or "this jurisdiction"; then, unless a contrary intention appears, the reference to "Australia" or "this jurisdiction" in that provision as so applying, or in that definition as applying for the purposes of that provision as so applying, includes a reference to that external Territory. 4A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Division 4-Interpretation 5 Interpretation (1) In this Act, unless the contrary intention appears: AASB means the Australian Accounting Standards Board. absent from office, in relation to a holder of an office, means: (a) absent from duty or from Australia; or (b) 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. APRA means the Australian Prudential Regulation Authority. 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: (a) to perform functions: (i) as a member, officer or employee of the ASIC delegate; and (ii) in connection with the ASIC delegate's performance or exercise of a function or power delegated under section 102; or (b) 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. auditor independence requirements means the auditor independence requirements provided for in: (a) the Corporations Act; and (b) the codes of professional conduct. Australia has a meaning affected by subsection 4(3). Australian auditor means: (a) an individual auditor; or (b) an audit firm; or (c) an audit company; that is conducting, or that has conducted, audits undertaken for the purposes of the Corporations Act and includes a registered company auditor who is participating in, or has participated in, audits of that kind. books includes: (a) a register; and (b) financial reports or financial records, however compiled, recorded or stored; and (c) a document; and (d) banker's books; and (e) any other record of information. business member of the Disciplinary Board has the meaning given by subsection 203(1A). CAMAC means the Corporations and Markets Advisory Committee. Chairperson means: (a) except in Part 11 or in relation to the Disciplinary Board-the Chairperson of ASIC; and (b) in Part 11 or in relation to the Disciplinary Board-the Chairperson of the Disciplinary Board. contravention, in relation to a law, includes an ancillary offence relating to an offence against that law. Convenor means the Convenor of CAMAC. Corporations Act means the Corporations Act 2001 and regulations made under that Act. corporations legislation means: (a) this Act; and (b) the Corporations Act. court, except in section 248, includes a tribunal having power to require the production of documents or the answering of questions. CPAA member of the Disciplinary Board has the meaning given by subsection 203(1A). Deputy Chairperson means the Deputy Chairperson of ASIC. Disciplinary Board means the Companies Auditors and Liquidators Disciplinary Board. eligible employee has the same meaning as in the Superannuation Act 1976. eligible person, in relation to a person, means a person who: (a) if the first-mentioned person is a body corporate-is or has been an officer of the body within the meaning of the corporations legislation (other than the excluded provisions); or (b) in any case: (i) is or has been an employee, agent, banker, solicitor or auditor of; or (ii) is acting, or has acted, in any other capacity on behalf of; the first-mentioned person. engage in conduct: (a) in Division 2 of Part 2-has the meaning given by subsection 12BA(2); and (b) 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, in relation to an investigation under Division 1 of Part 3, includes costs and expenses incurred in relation to a proceeding begun under section 50 as a result of the investigation. fail means refuse or fail. financial product: (a) in Division 2 of Part 2-has the meaning given by section 12BAA; and (b) in the other provisions of this Act-has the same meaning as it has in Chapter 7 of the Corporations Act. financial service: (a) in Division 2 of Part 2-has the meaning given by section 12BAB; and (b) in the other provisions of this Act-has the same meaning as it has in Chapter 7 of the Corporations Act. foreign country includes: (a) a part of a foreign country; and (b) 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: (a) in relation to a document-a meaning affected by section 86; and (b) 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. ICAA member of the Disciplinary Board has the meaning given by subsection 203(1A). information has a meaning affected by section 6. international accounting standards means accounting standards made by: (a) the International Accounting Standards Board; or (b) another body specified by the regulations. international auditing standards means auditing standards made by: (a) the International Auditing and Assurance Standards Board; or (b) another body specified by the regulations. investigate, in relation to ASIC, means investigate in the course of performing or exercising any of ASIC's functions and powers. meeting means: (a) in Part 4-a meeting of ASIC; (b) in Part 9-a meeting of CAMAC; (c) in Part 11-a meeting of the Disciplinary Board. member means: (a) except in Division 2 of Part 4, in Part 9, 10, 11, 12 or 14, or in relation to a Division, CAMAC, the Panel, the Disciplinary Board, the FRC, the AASB or the Parliamentary Committee-a member of ASIC; and (b) in Part 9 or in relation to CAMAC-a member of CAMAC; and (c) in Part 10 or in relation to the Panel-a member of the Panel; and (d) in Part 11 or in relation to the Disciplinary Board-the Chairperson or any other member of the Disciplinary Board; and (e) in relation to the FRC-a member of the FRC; and (ea) in relation to the AASB-a member of the AASB; and (eb) in relation to the AUASB-a member of the AUASB; and (f) 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: (a) an officer within the meaning of the Corporations Act; or (b) a provisional liquidator. Panel means the Takeovers Panel. Panel of the Disciplinary Board means a Panel constituted by the Chairperson of the Disciplinary Board under section 210A to hear a particular matter. Panel proceedings means proceedings before the Panel on: (a) an application made to the Panel under the Corporations Act; or (b) a reference of a decision to the Panel for review under the Corporations Act. Parliamentary Committee means the Parliamentary Joint Committee on Corporations and Financial Services. power includes an authority. prescribed means prescribed by this Act or the regulations. President means the President of the Panel. proceeding means: (a) a proceeding in a court; or (b) 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, in relation to an examination, 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. staff member means: (a) a member of the staff referred to in subsection 120(1) or a person employed under subsection 120(3); or (b) a person engaged under subsection 121(1); or (c) any of the officers, employees and persons who under section 122 are to assist ASIC. statement, in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination. superannuation benefits includes: (a) 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. Territory has the meaning given by the following paragraphs: (a) a reference in a provision of this Act to a Territory covers the Capital Territory and the Northern Territory; (b) if the reference is in a provision of this Act that applies (either generally or in particular circumstances) to a particular external Territory-the reference also covers that external Territory, but only to the extent that the provision applies in that external Territory; (c) if the reference is to a Territory in a geographical sense-the reference also covers, for each Territory that the reference covers because of paragraph (a) or (b), to the same extent that the reference covers the Territory, that Territory's coastal sea. this Act includes the regulations. this jurisdiction means: (a) each referring State (including its coastal sea); and (b) the Capital Territory (including the coastal sea of the Jervis Bay Territory); and (c) the Northern Territory (including its coastal sea). Its meaning is also affected by subsection 4(3) (relating to external Territories). tribunal means: (a) a tribunal in Australia; or (b) any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence. witness: (a) in relation to a hearing before ASIC, means a person appearing at the hearing to give evidence; or (b) in relation to Panel proceedings, means a person appearing in the proceedings to give evidence. written record, in relation to an examination, means: (a) a record of the examination: (i) that is made in writing; or (ii) as reduced to writing; or (b) a part of such a record. (2) Unless the contrary intention appears: (a) an expression that: (i) is used, but not defined, in this Act; and (ii) is defined in section 761A of the Corporations Act (regardless of whether it is also defined in another section of that Act); has the same meaning in this Act as in section 761A of the Corporations Act; and (b) an expression that: (i) is used, but not defined, in this Act; and (ii) is not defined in section 761A of the Corporations Act; and (ii) is used in the Corporations Act; has the same meaning in this Act as in the Corporations Act. (3) Except so far as the contrary intention appears in this Act, Parts 1.2 and 1.3 of the Corporations Act apply for the purposes of this Act as if the provisions of this Act were provisions of that Act. 5A Application of the Acts Interpretation Act 1901 (1) Until the date of commencement of section 4 of the Legislative Instruments (Transitional and Consequential Amendments) Act 2003 (the Legislative Instruments commencement day), the Acts Interpretation Act 1901 as in force on 1 November 2000 applies to this Act. (2) On and after the Legislative Instruments commencement day, the Acts Interpretation Act 1901 as in force on that day applies to this Act. (3) Amendments of the Acts Interpretation Act 1901 made after the Legislative Instruments commencement day do not apply to this Act. 6 Giving information A reference in this Act to giving information includes a reference to: (a) explaining or stating a matter; or (b) identifying a person, matter or thing; or (c) disclosing information; or (d) answering a question. Part 2-Australian Securities and Investments Commission and consumer protection in relation to financial services Division 1-Australian Securities and Investments Commission 8 ASIC is a body corporate (1) ASIC: (a) is a body corporate, with perpetual succession; and (b) has a common seal; and (c) may, subject to subsection (5), acquire, hold and dispose of real and personal property; and (ca) may enter into contracts; and (d) may sue and be sued in its corporate name. Note: ASIC was established by section 7 of the Australian Securities and Investments Commission Act 1989 and is continued in existence by section 261 of this Act. (2) ASIC may enter into contracts in its own right. Note: The Chairperson of ASIC may also enter into contracts on behalf of the Commonwealth. See section 44 of the Financial Management and Accountability Act 1997. (3) Any real or personal property held by ASIC is held for and on behalf of the Commonwealth. (4) Any money received by ASIC is received for and on behalf of the Commonwealth. (5) ASIC cannot hold real or personal property or money on trust. Note: Any real or personal property or money that ASIC would otherwise hold on trust is held by the Commonwealth on trust. (6) Despite any rule of equity, ASIC may, for and on behalf of the Commonwealth, perform all the duties and exercise all the powers of the Commonwealth as trustee in relation to any real or personal property or money held on trust by the Commonwealth. (7) To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (3). 8A ASIC's liabilities are Commonwealth liabilities (1) Any financial liabilities of ASIC are taken to be liabilities of the Commonwealth. (2) For the purposes of this section: financial liability means a liability to pay a person an amount where the amount, or the method for working out the amount, has been determined. 9 Membership (1) ASIC is to consist of not fewer than 3 nor more than 8 members. (2) The Governor-General appoints the members on the nomination of the Minister. (3) At least 3 of the members must be appointed as full-time members and each of the remaining members (if any) may be appointed as a full-time member or as a part-time member. (4) The Minister is to nominate a person as a member only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields, namely: (a) business; (b) administration of companies; (c) financial markets; (d) financial products and financial services; (e) law; (f) economics; (g) accounting. (5) The performance of ASIC's functions or the exercise of ASIC's powers is not affected by reason only that the number of members, or the number of full-time members, is less than 3 unless a continuous period of 3 months has elapsed since the number of members, or the number of full-time members, as the case may be, fell below 3. (6) For the purposes of subsection (5), an acting member is taken to be a member. 10 Chairperson and Deputy Chairperson The Governor-General is to appoint as Chairperson of ASIC a person who is, or is to be, a full-time member and may appoint as Deputy Chairperson of ASIC a person (other than the Chairperson) who is, or is to be, a full-time member. Note: For the manner in which the Chairperson and Deputy Chairperson may be referred to, see section 18B of the Acts Interpretation Act 1901. 10A Chairperson not subject to direction by ASIC on certain matters The Chairperson of ASIC is not subject to direction by ASIC in relation to the Chairperson's performance of functions, or exercise of powers, under: (a) the Financial Management and Accountability Act 1997; or (b) the Public Service Act 1999; in relation to ASIC. 11 Corporations legislation functions and powers and other functions and powers (1) ASIC has such functions and powers as are conferred on it by or under the corporations legislation (other than the excluded provisions). (2) ASIC also has the following functions: (a) to provide such staff and support facilities to the Panel, the Disciplinary Board and the Review Board as are necessary or desirable for the performance and exercise by the Panel, the Disciplinary Board and the Review Board of their respective functions and powers; (b) 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. (3) ASIC may, on its own initiative or when requested by the Minister, advise the Minister, and make to the Minister such recommendations as it thinks fit, about any matter of a kind referred to in section 148. (4) ASIC has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions. (6) Subject to this Act, ASIC has the general administration of this Act. (8) ASIC may, with the consent of the Minister, enter into an agreement or arrangement with a State or Territory for the performance of functions or the exercise of powers by ASIC as an agent of the State or Territory. (9) ASIC has such functions and powers as are referred to in such an agreement or arrangement. However, ASIC is not under a duty to perform such functions or exercise such powers. (9A) ASIC may have functions or powers conferred on it by or under a law of a State or Territory if: (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 (b) the conferral of the powers or functions is in accordance with: (i) 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 (ii) 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. (10) ASIC may, with the written consent of the Minister, enter into an agreement or arrangement with a regulatory body of a foreign country under which ASIC undertakes to assist that regulatory body to ascertain whether Australian auditors comply with audit requirements that are: (a) imposed by or under laws of that foreign country; or (b) adopted as professional standards in that foreign country. (11) The Minister may, in writing, vary or revoke the Minister's consent mentioned in subsection (10). (12) If ASIC enters into an agreement or arrangement with a regulatory body under subsection (10), it must, as soon as practicable after entering into that agreement or arrangement, by notice published in the Gazette: (a) set out the identifying particulars of the regulatory body; and (b) give brief particulars of the agreement or arrangement entered into; and (c) identify the audit requirements to which the agreement or arrangement relates. (13) A notice published under subsection (12) is not a legislative instrument. (14) ASIC has the following functions: (a) 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; (b) 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. (15) In performing the function referred to in paragraph (14)(a), ASIC may examine policies and working practices of an auditor in general or in their application to particular audits or in both of those respects. (16) ASIC is not under a duty to perform a function referred to in subsection (14) or to exercise a power in relation to such a function. (17) ASIC is not subject to any directions of the Minister in relation to: (a) entering into an agreement or arrangement under subsection (8) or (10); or (b) performing functions or exercising powers referred to in subsection (9); or (c) performing functions conferred under subsection (9A) or (14) or exercising any related powers. 12 Directions by Minister (1) The Minister may give ASIC a written direction about policies it should pursue, or priorities it should follow, in performing or exercising any of its functions or powers under the corporations legislation (other than the excluded provisions). (2) The Minister must not give a direction under subsection (1) unless he or she has: (a) notified ASIC in writing that he or she is considering giving the direction; and (b) given the Chairperson an adequate opportunity to discuss with the Minister the need for the proposed direction. (3) The Minister must not give a direction under subsection (1) about a particular case. (4) ASIC must comply with a direction under subsection (1). (5) The Minister must cause a copy of an instrument under subsection (1): (a) to be published in the Gazette within 21 days after the instrument is made; and (b) to be laid before each House of the Parliament within 15 sitting days of that House after the publication; but failure of the Minister to do so does not affect the instrument's validity. 12A Other functions and powers (1) ASIC has the functions and powers that are conferred on it by or under Division 2 of Part 2 of this Act and by or under the following Acts: (c) the Insurance Contracts Act 1984; (d) the Superannuation (Resolution of Complaints) Act 1993; (e) the Life Insurance Act 1995; (f) the Retirement Savings Accounts Act 1997; (g) the Superannuation Industry (Supervision) Act 1993; (h) the First Home Saver Accounts Act 2008. (2) ASIC has the function of monitoring and promoting market integrity and consumer protection in relation to the Australian financial system. (3) ASIC has the function of monitoring and promoting market integrity and consumer protection in relation to the payments system by: (a) promoting the adoption of approved industry standards and codes of practice; and (b) promoting the protection of consumer interests; and (c) promoting community awareness of payments system issues; and (d) promoting sound customer-banker relationships, including through: (i) monitoring the operation of industry standards and codes of practice; and (ii) monitoring compliance with such standards and codes. (4) Subsections (2) and (3) confer functions and powers to the extent to which they are not in excess of the legislative power of the Commonwealth. (5) ASIC may: (a) 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 (b) advise the Minister and make such recommendations as it thinks fit about any matter relating to its functions in subsections (2) and (3). (6) ASIC has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions. Division 2-Unconscionable conduct and consumer protection in relation to financial services Subdivision A-Application 12AC Division extends to some conduct outside Australia (1) This Division extends to the engaging in conduct outside Australia by: (a) bodies corporate incorporated or carrying on business within Australia; or (b) Australian citizens; or (c) persons ordinarily resident within Australia. (2) If a claim under section 12GF is made in a proceeding, a person may rely at a hearing in respect of that proceeding on conduct to which a provision of this Division extends because of subsection (1) of this section only if the Minister consents in writing to the reliance. (3) A person other than the Minister or ASIC may apply to the Court for an order under subsection 12GM(1) or (2) in a proceeding in respect of conduct to which a provision of this Division extends because of subsection (1) of this section only if the Minister consents in writing to the application. (4) The Minister must give a consent under subsection (2) or (3) in respect of a proceeding unless, in the Minister's opinion: (a) the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct; and (b) it is not in the national interest to give the consent. 12AD Application of Division to Commonwealth and Commonwealth authorities (1) Subject to this section, this Division binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth. (3) Nothing in this Division makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence. (4) The protection in subsection (3) does not apply to an authority of the Commonwealth. (5) For the purposes of this section, the following transactions do not amount to carrying on a business: (a) 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); (b) a transaction involving only persons who are all acting for the same authority of the Commonwealth; (c) a transaction involving only the Crown in right of the Commonwealth and one or more non-commercial authorities of the Commonwealth; (d) a transaction involving only non-commercial authorities of the Commonwealth. (6) Subsection (5) does not limit the things that do not amount to carrying on a business for the purposes of this section. (7) For the purposes of this section, an authority of the Commonwealth is non-commercial if: (a) it is constituted by only one person; and (b) it is neither a trading corporation nor a financial corporation. 12AE Saving of other laws and remedies (1) Except as provided by subsection (2), Subdivision C (sections 12CA to 12CC), Subdivision D (sections 12DA to 12DN) and Subdivision E (sections 12EA to 12ED) are not intended to exclude or limit the concurrent operation of any law of a State or Territory. (2) If: (a) 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 (b) the person is convicted of either of those offences; the person is not liable to be convicted of the other of those offences. (3) Except as expressly provided by Subdivision C (sections 12CA to 12CC), Subdivision D (sections 12DA to 12DN) or Subdivision E (sections 12EA to 12ED), nothing in those Subdivisions is taken to limit, restrict or otherwise affect any right or remedy a person would have had if that Subdivision had not been enacted. (4) This Division does not affect the operation of: (a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Division; or (b) 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 12BA Interpretation (1) In this Division, unless the contrary intention appears: acquire, in relation to services, includes accept. acquisition of services has the meaning given by section 12BD. authority, in relation to a State or Territory (including an external Territory), means: (a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or (b) 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) 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 (b) 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. conduct has the meaning given by subsection (2). consumer has the meaning given by section 12BC. 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. engage in conduct has the meaning given by subsection (2). Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge). financial corporation: (a) means a financial corporation within the meaning of paragraph 51(xx) of the Constitution; and (b) includes a body corporate that carries on as its sole or principal business the business of: (i) banking (other than State banking not extending beyond the limits of the State concerned); or (ii) 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. misleading has the meaning given by section 12BB. price includes a charge of any description. provision, in relation to an understanding, means any matter forming part of the understanding. 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 Trade Practices Act 1974; or (b) the performance of work under a contract of service. supply: (a) includes provide, grant or confer when used as a verb in relation to services; and (b) 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. unsolicited financial services means financial services supplied to a person without any request made by the person or on the person's behalf. (2) In this Division: (a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including: (i) making, or giving effect to a provision of, a contract or arrangement; or (ii) arriving at, or giving effect to a provision of, an understanding; or (iii) requiring the giving of, or giving, a covenant; and (b) 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: (i) making, or giving effect to a provision of, a contract or arrangement; or (ii) arriving at, or giving effect to a provision of, an understanding; or (iii) requiring the giving of, or giving, a covenant; and (c) a reference to refusing to do an act includes a reference to: (i) refraining (otherwise than inadvertently) from doing that act; or (ii) making it known that that act will not be done; and (d) 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. 12BAA Definition of financial product General definition of financial product (1) Subject to subsection (8), for the purposes of this Division, a financial product is a facility through which, or through the acquisition of which, a person does one or more of the following: (a) makes a financial investment (see subsection (4)); (b) manages financial risk (see subsection (5)); (c) makes non-cash payments (see subsection (6)). (2) Subject to subsection (8), for the purposes of this Division, a particular facility that is of a kind through which people commonly make financial investments, manage financial risks or make non-cash payments is a financial product even if that facility is acquired by a particular person for some other purpose. (3) A facility does not cease to be a financial product merely because: (a) the facility has been acquired by a person other than the person to whom it was originally issued; and (b) that person, in acquiring the product, was not making a financial investment or managing a financial risk. Meaning of makes a financial investment (4) For the purposes of this section, a person (the investor) makes a financial investment if: (a) the investor gives money or money's worth (the contribution) to another person and any of the following apply: (i) the other person uses the contribution to generate a financial return, or other benefit, for the investor; (ii) 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); (iii) the other person intends that the contribution will be used to generate a financial return, or other benefit, for the investor; and (b) the investor has no day-to-day control over the use of the contribution to generate the return or benefit. Note 1: Examples of actions that constitute making a financial investment under this subsection are: (a) 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 (b) 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). Note 2: Examples of actions that do not constitute making a financial investment under this subsection are: (a) 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 (b) 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 (5) For the purposes of this section, a person manages financial risk if they: (a) manage the financial consequences to them of particular circumstances happening; or (b) avoid or limit the financial consequences of fluctuations in, or in the value of, receipts or costs (including prices and interest rates). Note 1: Examples of actions that constitute managing a financial risk are: (a) taking out insurance; or (b) hedging a liability by acquiring a futures contract or entering into a currency swap. Note 2: An example of an action that does not constitute managing a financial risk is employing a security firm (while that is a way of managing the risk that thefts will happen, it is not a way of managing the financial consequences if thefts do occur). Meaning of makes non-cash payments (6) For the purposes of this section, a person makes non-cash payments if they make payments, or cause payments to be made, otherwise than by the physical delivery of Australian currency in the form of notes and/or coins. Note: Examples of actions that constitute making non-cash payments are: (a) making payments by means of a facility for direct debit of a deposit account; or (b) 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 (d) making payments by means of traveller's cheques in Australian currency. Specific things that are financial products (subject to subsection (8)) (7) Subject to subsection (8), the following are financial products for the purposes of this Division: (a) a security; (b) any of the following in relation to a managed investment scheme: (i) an interest in the scheme; (ii) a legal or equitable right or interest in an interest covered by subparagraph (i); (iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii); (c) a derivative; (d) a contract of insurance (see subsection (9)) other than: (i) health insurance provided as part of a health insurance business (as defined by Division 121 of the Private Health Insurance Act 2007); or (ii) 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 section 10 of the Superannuation Industry (Supervision) Act 1993); (g) an RSA (retirement savings account) within the meaning of the Retirement Savings Accounts Act 1997; (ga) an FHSA (first home saver account) within the meaning of the First Home Saver Accounts Act 2008; (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)); (i) a debenture, stock or bond issued or proposed to be issued by a government; (j) a foreign exchange contract; (k) a credit facility (within the meaning of the regulations); (m) anything declared by the regulations to be a financial product for the purposes of this subsection. Note: Even though something is expressly excluded from one of these paragraphs, it may still be a financial product (subject to subsection (8)) either because: (a) it is covered by another of these paragraphs; or (b) it is covered by the general definition in subsection (1). Specific things that are not financial products (8) Despite anything else in this section, the following are not financial products for the purposes of this Division: (a) an excluded security; (b) health insurance provided as part of a health insurance business (as defined in Division 121 of the Private Health Insurance Act 2007); (ba) 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); (c) State insurance or Northern Territory insurance, including insurance entered into by: (i) a State or the Northern Territory; and (ii) some other insurer; as joint insurers; (d) 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; (e) a facility that is a designated payment system for the purposes of the Payment Systems (Regulation) Act 1998; (f) a facility for the exchange and settlement of non-cash payments (see subsection (6)) between providers of non-cash payment facilities; (g) a facility that is: (i) a financial market; or (ii) a clearing and settlement facility; or (iii) a payment system operated as part of a clearing and settlement facility; (h) so much of an arrangement as is not a derivative within the meaning of the Corporations Act because of paragraph 761D(3)(a) of that Act; (i) an arrangement that is not a derivative within the meaning of the Corporations Act because of paragraph 761D(3)(b) of that Act; (j) an arrangement that is not a derivative within the meaning of the Corporations Act because of subsection 761D(4) of that Act; (k) any of the following: (i) an interest in something that is not a managed investment scheme within the meaning of the Corporations Act because of paragraph (c), (e), (f), (k), (l) or (m) of the definition of managed investment scheme in section 9 of that Act; (ii) a legal or equitable right or interest in an interest covered by subparagraph (i); (iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i); (m) a deposit-taking facility that is used for State banking; (n) equipment or infrastructure by which something else that is a financial product is provided; (o) a funeral benefit; (p) a facility, interest or other thing declared by regulations made for the purposes of this subsection not to be a financial product. (9) For the purpose of paragraphs (7)(d) and (e), contract of insurance includes: (a) 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 (b) 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. 12BAB Meaning of financial service When does a person provide a financial service? (1) For the purposes of this Division, subject to paragraph (2)(b), a person provides a financial service if they: (a) provide financial product advice (see subsection (5)); or (b) deal in a financial product (see subsection (7)); or (c) make a market for a financial product (see subsection (11)); or (d) operate a registered scheme; or (e) provide a custodial or depository service (see subsection (12)); or (f) operate a financial market (see subsection (15)) or clearing and settlement facility (see subsection (17)); or (g) provide a service that is otherwise supplied in relation to a financial product; or (h) engage in conduct of a kind prescribed in regulations made for the purposes of this paragraph. (2) The regulations may set out: (a) 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 (b) the circumstances in which persons are taken to provide, or are taken not to provide, a financial service. (4) For the purposes of this section, a person is not operating a registered scheme merely because: (a) they are acting as an agent or employee of another person; or (b) they are taking steps to wind up the scheme. Meaning of financial product advice (5) For the purposes of this section, financial product advice means a recommendation or a statement of opinion, or a report of either of those things, that: (a) 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 (b) could reasonably be regarded as being intended to have such an influence; but does not include anything in: (c) 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 (d) any other document of a kind prescribed by regulations made for the purposes of this paragraph. (6) Advice given by a lawyer in his or her professional capacity about matters of law, legal interpretation or the application of the law to any facts is not financial product advice. Meaning of dealing (7) For the purposes of this section, the following conduct constitutes dealing in a financial product: (a) applying for or acquiring a financial product; (b) issuing a financial product; (c) in relation to securities or managed investment interests- underwriting the securities or interests; (d) varying a financial product; (e) disposing of a financial product. (8) Arranging for a person to engage in conduct referred to in subsection (7) is also dealing in a financial product, unless the actions concerned amount to providing financial product advice. (9) A person is taken not to deal in a financial product if the person deals in the product on their own behalf, unless: (a) the person is an issuer of financial products; and (b) the dealing is in relation to one or more of those products. (10) The regulations may prescribe conduct that is taken to be, or not to be, dealing in a financial product. Regulations made for the purposes of this subsection have effect despite anything else in this section. Meaning of makes a market for a financial product (11) For the purposes of this section, a person makes a market for a financial product if: (a) 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 (b) other persons have a reasonable expectation that they will be able to regularly effect transactions at the stated prices; and (c) 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 (12) For the purposes of this section, a person (the provider) provides a custodial or depository service to another person (the client) if, under an arrangement between the provider and the client, or between the provider and another person with whom the client has an arrangement, (whether or not there are also other parties to any such arrangement), a financial product, or a beneficial interest in a financial product, is held by the provider in trust for, or on behalf of, the client or another person nominated by the client. (14) However, the following conduct does not constitute providing a custodial or depository service: (a) the operation of a clearing and settlement facility; (b) the operation of a registered scheme, or the holding of the assets of a registered scheme; (c) the operation of a regulated superannuation fund, an approved deposit fund or a pooled superannuation trust (within the meaning of the Superannuation Industry (Supervision) Act 1993); (d) the provision of services to a related body corporate; (e) any other conduct of a kind prescribed by regulations made for the purposes of this paragraph. Meaning of financial market (15) For the purposes of this section, a financial market is a facility through which: (a) offers to acquire or dispose of financial products are regularly made or accepted; or (b) 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: (i) the making of offers to acquire or dispose of financial products; or (ii) the acceptance of such offers. (16) However, the following conduct does not constitute operating a financial market for the purposes of this section: (a) 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; (b) conducting treasury operations between related bodies corporate; (c) conducting an auction of forfeited shares; (d) any other conduct of a kind prescribed by regulations made for the purposes of this paragraph. Meaning of clearing and settlement facility (17) For the purposes of this section, a clearing and settlement facility is a facility that provides a regular mechanism for the parties to transactions relating to financial products to meet obligations to each other that: (a) arise from entering into the transactions; and (b) are of a kind prescribed by regulations made for the purposes of this paragraph. (18) However, the following conduct does not constitute operating a clearing and settlement facility for the purposes of this section: (a) an ADI (within the meaning of the Banking Act 1959) acting in the ordinary course of its banking business; (b) a person acting on their own behalf, or on behalf of one party to a transaction only; (c) 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; (d) 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; (e) conducting treasury operations between related bodies corporate; (h) operating a facility for the exchange and settlement of non- cash payments between providers of non-cash payment facilities; (i) any other conduct of a kind prescribed by regulations made for the purposes of this paragraph. 12BB Misleading representations (1) For the purposes of Subdivision D (sections 12DA to 12DN), if a person makes a representation about a 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 to be misleading. (2) For the purpose of applying subsection (1) to a proceeding concerning a representation made by a person about a future matter, the person is taken not to have had reasonable grounds for making the representation unless it adduces evidence to the contrary. (3) Subsection (1) does not limit by implication the meaning of a reference in this Division to: (a) a misleading representation; or (b) a representation that is misleading in a material particular; or (c) conduct that is misleading or is likely or liable to mislead. 12BC Consumers (1) For the purposes of this Division, unless the contrary intention appears, a person is taken to have acquired particular financial services as a consumer if, and only if: (a) the price of the services did not exceed the prescribed amount; or (b) 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 (c) if the services were acquired for use 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. (2) For the purposes of subsection (1): small business means a business employing less than: (a) if the business is or includes the manufacture of goods-100 people; or (b) otherwise-20 people. (3) For the purposes of subsection (1): (a) the prescribed amount is: (i) $40,000; or (ii) if a greater amount is prescribed for the purposes of this paragraph-that greater amount; and (b) 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 (c) 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: (i) 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 (ii) 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 (iii) 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 (d) if a person acquired services otherwise than by way of purchase, the price of the services is taken to have been: (i) the price at which, at the time of the acquisition, the person could have purchased the services from the supplier; or (ii) 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 (iii) 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. (4) If it is alleged in a proceeding under this Division, or in any other proceeding in respect of a matter arising under this Division, that a person was a consumer in relation to particular services, it is presumed that the person was a consumer in relation to those services unless the contrary is established. 12BD Acquisition, supply and re-supply In this Division, unless the contrary intention appears: (a) a reference to the supply or acquisition of services includes a reference to agreeing to supply or acquire services; and (b) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and (c) a reference to the re-supply of services (the original services) acquired from a person (the original supplier) includes a reference to: (i) a supply of the original services to another person in an altered form or condition; and (ii) a supply to another person of other services that are substantially similar to the original services and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier. 12BE Application of Division in relation to leases and licences of land and buildings In this Division: (a) a reference to a contract includes a reference to a lease of, or a licence in respect of, land or a building or part of a building (despite the express references in this Division to such leases or licences); and (b) a reference to making or entering into a contract, in relation to such a lease or licence, is a reference to granting or taking the lease or licence. Subdivision C-Unconscionable conduct 12CA Unconscionable conduct within the meaning of the unwritten law of the States and Territories (1) A person must not, in trade or commerce, engage in conduct in relation to financial services if the conduct is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories. (2) This section does not apply to conduct that is prohibited by section 12CB. 12CB Unconscionable conduct (1) A person must not, in trade or commerce, in connection with the supply or possible supply of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable. (2) Without limiting the matters to which the Court may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of services to a person (the consumer), the Court may have regard to: (a) the relative strengths of the bargaining positions of the supplier and the consumer; and (b) whether, as a result of conduct engaged in by the supplier, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the consumer was able to understand any documents relating to the supply or possible supply of the services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the services; and (e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent services from a person other than the supplier. (3) A person is not taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of financial services to another person merely because the person: (a) institutes legal proceedings in relation to that supply or possible supply; or (b) refers a dispute or claim in relation to that supply or possible supply to arbitration. (4) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of financial services to another person: (a) the Court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the Court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section. (5) A reference in this section to financial services is a reference to financial services of a kind ordinarily acquired for personal, domestic or household use. 12CC Unconscionable conduct in business transactions (1) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of financial services (see subsection (6)) to another person (other than a listed public company); or (b) the acquisition or possible acquisition of financial services (see subsection (7)) from another person (other than a listed public company); engage in conduct that is, in all the circumstances, unconscionable. (2) Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of financial services to another person (the service recipient), the Court may have regard to: (a) the relative strengths of the bargaining positions of the supplier and the service recipient; and (b) 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 (c) whether the service recipient was able to understand any documents relating to the supply or possible supply of the financial services; and (d) 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 (e) 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 (f) 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 (g) if the person is a corporation-the requirements of any applicable industry code (see subsection (11)); and (h) the requirements of any other industry code (see subsection (11)), if the service recipient acted on the reasonable belief that the supplier would comply with that code; and (i) the extent to which the supplier unreasonably failed to disclose to the service recipient: (i) any intended conduct of the supplier that might affect the interests of the service recipient; and (ii) 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 (j) the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the financial services with the service recipient; and (ja) 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 (k) the extent to which the supplier and the service recipient acted in good faith. (3) Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a person (the acquirer) has contravened subsection (1) in connection with the acquisition or possible acquisition of financial services from a person (the business supplier), the Court may have regard to: (a) the relative strengths of the bargaining positions of the acquirer and the business supplier; and (b) whether, as a result of conduct engaged in by the acquirer, the business supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and (c) whether the business supplier was able to understand any documents relating to the acquisition or possible acquisition of the financial services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business supplier or a person acting on behalf of the business 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 (e) the amount for which, and the circumstances in which, the business supplier could have supplied identical or equivalent financial services to a person other than the acquirer; and (f) the extent to which the acquirer's conduct towards the business supplier was consistent with the acquirer's conduct in similar transactions between the acquirer and other like business suppliers; and (g) if the person is a corporation-the requirements of any applicable industry code (see subsection (11)); and (h) the requirements of any other industry code (see subsection (11)), if the business supplier acted on the reasonable belief that the acquirer would comply with that code; and (i) the extent to which the acquirer unreasonably failed to disclose to the business supplier: (i) any intended conduct of the acquirer that might affect the interests of the business supplier; and (ii) any risks to the business supplier arising from the acquirer's intended conduct (being risks that the acquirer should have foreseen would not be apparent to the business supplier); and (j) the extent to which the acquirer was willing to negotiate the terms and conditions of any contract for the acquisition of the financial services with the business supplier; and (ja) whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the business supplier for the acquisition of the financial services; and (k) the extent to which the acquirer and the business supplier acted in good faith. (4) A person is not taken for the purposes of this section to engage in unconscionable conduct in connection with: (a) the supply or possible supply of financial services to another person; or (b) the acquisition or possible acquisition of financial services from another person; merely because the person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition or refers a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition to arbitration. (5) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply, possible supply, acquisition, or possible acquisition of financial products: (a) the Court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the Court may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement. (6) Subject to subsection (8), a reference in this section to the supply or possible supply of financial services is a reference to the supply or possible supply of financial services to a person whose acquisition or possible acquisition of the financial services is or would be for the purpose of trade or commerce. (7) Subject to subsection (9), a reference in this section to the acquisition or possible acquisition of financial services is a reference to the acquisition or possible acquisition of financial services by a person whose acquisition or possible acquisition of the financial services is or would be for the purpose of trade or commerce. (8) A reference in this section to the supply or possible supply of financial services does not include a reference to the supply or possible supply of financial services at a price in excess of $10,000,000, or such higher amount as is prescribed. (9) A reference in this section to the acquisition or possible acquisition of financial services does not include a reference to the acquisition or possible acquisition of financial services at a price in excess of $10,000,000, or such higher amount as is prescribed. (10) For the purposes of subsections (8) and (9): (a) subject to paragraphs (b), (c), (d) and (e), the price for: (i) the supply or possible supply of financial services to a person; or (ii) the acquisition or possible acquisition of financial services by a person; is taken to be the amount paid or payable by the person for the financial services; and (b) if a person: (i) was supplied financial services pursuant to a purchase; or (ii) acquired financial services by way of purchase; 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: (iii) the price at which, at the time of the supply or acquisition, the person could have purchased the services from the supplier without the other property or services; or (iv) if, at the time of the purchase, the services were only available for purchase together with the other property or services but, at that time, services of the kind purchased 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 (v) if, at the time of the purchase, services of the kind purchased were not available for purchase from any supplier except together with other property or services-the value of the services at that time; and (c) if a person is supplied with financial services otherwise than pursuant to a purchase, the price of the services is taken to have been: (i) the price at which, at the time of the supply, the person could have purchased the services from the supplier; or (ii) if, at the time of the supply, 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 supplied 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 (iii) if services of the kind supplied were not available, at the time of the supply, 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 (d) without limiting by implication the meaning of the expression services in subsection 12BA(1): (i) the obtaining of credit by a person in connection with the supply of financial services to the person is taken to be the acquisition by the person of a service; and (ii) 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; and (e) the price for the supply or possible supply, or the acquisition or possible acquisition, of services comprising or including a loan or loan facility is taken to include the capital value of the loan or loan facility. (11) In this section: applicable industry code, in relation to a corporation, has the same meaning as it has in subsection 51ACA(1) of the Trade Practices Act 1974. industry code has the same meaning as it has in subsection 51ACA(1) of the Trade Practices Act 1974. listed public company has the same meaning as it has in the Income Tax Assessment Act 1997. Subdivision D-Consumer protection 12DA Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive. (1A) Conduct: (a) that contravenes: (i) section 670A of the Corporations Act (misleading or deceptive takeover document); or (ii) section 728 of the Corporations Act (misleading or deceptive fundraising document); or (b) in relation to a disclosure document or statement within the meaning of section 953A of the Corporations Act; or (c) 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. (2) Nothing in sections 12DB to 12DN limits by implication the generality of subsection (1). 12DB False or misleading representations (1) A person must not, in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services: (a) falsely represent that services are of a particular standard, quality, value or grade; or (b) falsely represent that a particular person has agreed to acquire services; or (c) represent that services have sponsorship, approval, performance characteristics, uses or benefits they do not have; or (d) represent that the person has a sponsorship, approval or affiliation it does not have; or (e) make a false or misleading representation with respect to the price of services; or (f) make a false or misleading representation concerning the need for any services; or (g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. Note: Failure to comply with this subsection is an offence (see section 12GB). (2) Conduct: (a) that contravenes: (i) section 670A of the Corporations Act (misleading or deceptive takeover document); or (ii) section 728 of the Corporations Act (misleading or deceptive fundraising document); or (b) in relation to a disclosure document or statement within the meaning of section 953A of the Corporations Act; or (c) 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. (3) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 12DC False representations and other misleading or offensive conduct in relation to financial products that involve interests in land (1) A person must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of a financial product that consists of, or includes, an interest in land, or in connection with the promotion by any means of a financial product that consists of, or includes, an interest in land: (a) represent that the person has a sponsorship, approval or affiliation it does not have; or (b) 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. Note: Failure to comply with this subsection is an offence (see section 12GB). (1A) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (2) A person contravenes this subsection if: (a) the person offers gifts, prizes or other free items; and (b) the person offers the gifts, prizes or other free items, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of a financial product, mentioned in subsection (1), or in connection with the promotion by any means of the sale or grant of such a financial product; and (c) when the person so offers the gifts, prizes or other free items the person intends not to provide them, or not to provide them as offered. Note: Failure to comply with this subsection is an offence (see section 12GB). (2A) A person contravenes this subsection if: (a) a person uses physical force or undue harassment or coercion; and (b) the person uses such force, harassment or coercion in connection with the sale or grant, or the possible sale or grant, of a financial product mentioned in subsection (1), or the payment for such a financial product. Note: Failure to comply with this subsection is an offence (see section 12GB). (2B) For the purposes of the application of the Criminal Code in relation to an offence under subsection 12GB(1) relating to subsection (2) of this section, paragraphs (2)(b) and (c) of this section are taken to be circumstances in which the conduct described in paragraph (2)(a) of this section occurs. (2C) For the purposes of the application of the Criminal Code in relation to an offence under subsection 12GB(1), strict liability applies to paragraphs (2)(b) and (2A)(b) of this section. Note: For strict liability, see section 6.1 of the Criminal Code. (2D) Nothing in this section is to be taken as implying that other provisions in this Subdivision do not apply in relation to the supply or acquisition, or the possible supply or acquisition, of a financial product mentioned in subsection (1). (3) In this section: interest, in relation to land, means: (a) a legal or equitable estate or interest in the land; or (b) 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 (c) a right, power or privilege over, or in connection with, the land. 12DD Cash price to be stated in certain circumstances (1) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of financial services; or (b) 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. Note: Failure to comply with this subsection is an offence (see section 12GB). (2) This section does not apply to dealings in securities (within the meaning of Chapter 6 of the Corporations Act). (3) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 12DE Offering gifts and prizes (1) A person contravenes this subsection if: (a) the person offers gifts, prizes or other free items; and (b) the person offers the gifts, prizes or other free items in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services; and (c) when the person so offers them, the person intends not to provide them, or not to provide them as offered. Note: Failure to comply with this subsection is an offence (see section 12GB). (2) For the purposes of the application of the Criminal Code in relation to subsection (1), paragraphs (1)(b) and (c) are taken to be circumstances in which the conduct described in paragraph (1)(a) occurs. (3) For the purposes of the application of the Criminal Code in relation to an offence under subsection 12GB(1), strict liability applies in relation to paragraph (1)(b) of this section. Note: For strict liability, see section 6.1 of the Criminal Code. 12DF Certain misleading conduct in relation to financial services (1) A person must not, in trade or commerce, engage in conduct that is liable