AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12DK Pyramid selling of financial products

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12DK

  (1)   A person contravenes this section if:

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

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

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

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

  (2)   A person also contravenes this section if:

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

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

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

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

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

  (3)   A person (the promoter ) also contravenes this section if the promoter promotes, or takes part   in the promotion of, a scheme under which:

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

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

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

  (3A)   An offence under subsection   12GB(1) relating to subsection   (1), (2) or (3) of this section is an offence of strict liability.

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

  (4)   For the purposes of subsection   (1), (2) or (3):

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

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

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

  (5)   For the purposes of this section, a scheme is a trading scheme to which this section applies if the scheme includes the following elements:

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

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

  (6)   For the purposes of subsection   (5):

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

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

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