AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12DE Offering rebates, gifts, prizes etc.

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12DE

  (1)   A person contravenes this subsection if:

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

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

  (i)   the supply or possible supply of financial services; or

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

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

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

  (c)   when the person so offers it, the person intends not to provide it, or not to provide it 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.

  (2A)   A person contravenes this subsection if:

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

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

  (i)   the supply or possible supply of financial services; or

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

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

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

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

Note:   Failure to comply with this subsection is an offence (see section   12GB).

  (2B)   Subsection   (2A) does not apply if:

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

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

  (2C)   Subsection   (2A) does not apply to an offer that the person makes to another person if:

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

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

  (2D)   For the purposes of the application of the Criminal Code in relation to subsection   (2A), paragraph   (2A)(b) is taken to be a circumstance in which the conduct described in paragraph   (2A)(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 paragraphs   (1)(b) and (2A)(b) and (c) of this section.

Note:   For strict liability , see section   6.1 of the Criminal Code .

  (3A)   Subparagraph   (1)(b)(iii) or (2A)(b)(iii) applies whether or not an offer is made before or after the financial product consists of, or includes, an interest in land.

  (4)   In this section:

"interest" , in relation to land, has the same meaning as in subsection   12DC(3).