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CORPORATIONS ACT 2001 - SECT 761A

Definitions

                   In this Chapter:

"able to be traded " , in relation to a market, includes (but is not limited to) admitted to quotation on the market.

"acquire " , in relation to a financial product, has a meaning affected by section 761E.

"annual turnover " , of a body corporate during a 12-month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12-month period, other than:

                     (a)  supplies made from any of those bodies corporate to any other of those bodies corporate; or

                     (b)  supplies that are input taxed; or

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

                     (d)  supplies that are not made in connection with an enterprise that the body corporate carries on; or

                     (e)  supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

"arrangement " means, subject to section 761B, a contract, agreement, understanding, scheme or other arrangement (as existing from time to time):

                     (a)  whether formal or informal, or partly formal and partly informal; and

                     (b)  whether written or oral, or partly written and partly oral; and

                     (c)  whether or not enforceable, or intended to be enforceable, by legal proceedings and whether or not based on legal or equitable rights.

"Australian CS facility licence " means a licence under section 824B that authorises a person to operate a clearing and settlement facility.

"Australian derivative trade repository licence " : see section 905B.

"Australian financial services licence " means a licence under section 913B that authorises a person who carries on a financial services business to provide financial services.

"Australian market licence " means a licence under section 795B that authorises a person to operate a financial market.

"authorised representative " of a financial services licensee means a person authorised in accordance with section 916A or 916B to provide a financial service or financial services on behalf of the licensee.

"basic deposit product " means a deposit product that is a facility in relation to which the following conditions are satisfied:

                     (a)  the terms applicable to the facility (the governing terms ) do not permit the amount from time to time standing to the credit of the facility to be reduced otherwise than in consequence of one or more of the following:

                              (i)  a withdrawal, transfer or debit on the instruction of, or by authority of, the depositor, not being on account of entry fees, exit fees or charges for the management of the funds (but this does not exclude charges for the maintenance of the facility itself);

                             (ii)  a payment of charges or duties on deposits into, or withdrawals from, the facility that are payable under a law of the Commonwealth or of a State or Territory;

                            (iii)  a payment that a law of the Commonwealth, or of a State or Territory, requires to be made out of the facility;

                            (iv)  a payment that an order of a court requires to be made out of the facility;

                             (v)  the exercise of a right to combine accounts;

                            (vi)  the correction of an error;

                           (vii)  any other circumstances specified in regulations made for the purposes of this subparagraph; and

                     (b)  any return to be generated for the depositor on the amount from time to time standing to the credit of the facility is an amount that is set out in, or that is calculated by reference to a rate or rates that are set out in, the governing terms; and

                     (c)  either:

                              (i)  there is no minimum period before which funds cannot be withdrawn or transferred from the facility without a reduction in the return generated for the depositor; or

                             (ii)  if there is such a period, it expires on or before the end of the period of 5 years starting on the day on which funds were first deposited in the facility; and

                     (d)  unless subparagraph (c)(ii) applies and the period referred to in that subparagraph expires on or before the end of the period of 2 years starting on the day on which funds were first deposited in the facility--funds are able to be withdrawn or transferred from the facility on the instruction of, or by authority of, the depositor:

                              (i)  without any prior notice to the ADI that makes the facility available; or

                             (ii)  if the ADI that makes the facility available is included in a class of ADIs specified in regulations made for the purposes of this subparagraph--subject to a prior notice requirement that does not exceed the period specified in those regulations in relation to that class of ADIs;

                            whether or not the withdrawal or transfer will attract a reduction in the return generated for the depositor as mentioned in subparagraph (c)(i); and

                     (e)  any other conditions specified in regulations made for the purposes of this paragraph.

"binder " means an authorisation given to a person by a financial services licensee who is an insurer to do either or both of the following:

                     (a)  enter into contracts that are risk insurance products on behalf of the insurer as insurer; or

                     (b)  deal with and settle, on behalf of the insurer, claims relating to risk insurance products against the insurer as insurer;

but does not include an authorisation of a kind referred to in paragraph (a) that is limited to effecting contracts of insurance by way of interim cover unless there is also in existence an authority given by the insurer to the person to enter into, on behalf of the insurer and otherwise than by way of interim cover, contracts of insurance.

"carried on in this jurisdiction " , in relation to a financial services business, has a meaning affected by section 911D.

"certificate cancellation provisions " , in relation to a prescribed CS facility, means the provisions of the facility's operating rules that deal with:

                     (a)  the cancellation of documents of title to financial products transferred through the facility; and

                     (b)  matters incidental to the cancellation of those documents.

"CGS depository interest " means a depository interest, as defined in the Commonwealth Inscribed Stock Act 1911 , that can be transferred through a licensed CS facility.

"class " , in relation to financial products or financial services, has a meaning affected by regulations made for the purposes of section 761CA.

"clearing and settlement facility " has the meaning given by Division 6.

"clearing requirements " (in relation to derivative transactions): see subsection 901A(7).

"CS facility licensee " means a person who holds an Australian CS facility licence.

"current LVR " :

                     (a)  in relation to a standard margin lending facility--has the meaning given by subsection 761EA(3); and

                     (b)  in relation to a non-standard margin lending facility--has the meaning given by subsection 761EA(6).

"custodial or depository service " that a person provides has the meaning given by section 766E.

"dealing " in a financial product has the meaning given by section 766C (and deal has a corresponding meaning).

"deposit product " means a financial product described in paragraph 764A(1)(i).

"derivative " has the meaning given by section 761D.

"derivative trade data " means:

                     (a)  information about derivative transactions, or about positions relating to derivative transactions; or

                     (b)  information (including statistical data) that is created or derived from information referred to in paragraph (a).

"derivative trade repository " means a facility to which information about derivative transactions, or about positions relating to derivative transactions, can be reported (whether or not other information or data can also be reported to the facility).

"derivative trade repository licensee " means a person who holds an Australian derivative trade repository licence.

"derivative trade repository rules " : see subsection 903A(1).

"derivative transaction " means:

                     (a)  the entry into of an arrangement that is a derivative; or

                     (b)  the modification or termination of such an arrangement; or

                     (c)  the assignment, by a party to such an arrangement, of some or all of the party's rights and obligations under the arrangement; or

                     (d)  any other transaction that relates to a derivative and that is in a class of transactions prescribed by the regulations for the purpose of this paragraph.

"derivative transaction rules " : see subsection 901A(1).

"dispose " , in relation to a financial product, includes terminate or close out the legal relationship that constitutes the financial product.

"disqualified individual " means an individual who is disqualified within the meaning given by section 853A.

"employer-sponsor " has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

"execution requirements " (in relation to derivative transactions): see subsection 901A(5).

"financial market " has the meaning given by Division 5.

"financial product " has the meaning given by Division 3.

Note:          References in this Chapter to financial products have effect subject to particular express exclusions for particular purposes--see e.g. sections 1010A and 1074A.

"financial product advice " has the meaning given by section 766B.

"financial product advice law " means:

                     (a)  a provision of Chapter 7 that covers conduct relating to the provision of financial product advice (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of financial product advice; or

                     (b)  a provision of Chapter 9 as it applies in relation to a provision referred to in paragraph (a); or

                     (c)  a provision of Division 2 of Part 2 of the ASIC Act that covers conduct relating to the provision of financial product advice (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of financial product advice; or

                     (d)  any other Commonwealth, State or Territory legislation that covers conduct relating to the provision of financial product advice (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of financial product advice.

"financial service " has the meaning given by Division 4.

"financial services business " means a business of providing financial services.

Note:          The meaning of carry on a financial services business is affected by section 761C.

"Financial Services Guide " means a Financial Services Guide required by section 941A or 941B to be given in accordance with Division 2 of Part 7.7.

"financial services law " means:

                     (a)  a provision of this Chapter or of Chapter 5C, 5D, 6, 6A, 6B, 6C or 6D; or

                     (b)  a provision of Chapter 9 as it applies in relation to a provision referred to in paragraph (a); or

                     (c)  a provision of Division 2 of Part 2 of the ASIC Act; or

                     (d)  any other Commonwealth, State or Territory legislation that covers conduct relating to the provision of financial services (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of financial services ; or

                     (e)  in relation to a financial services licensee that is a licensed trustee company (in addition to paragraphs (a) to (d))--any rule of common law or equity that covers conduct relating to the provision of financial services that are traditional trustee company services (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of such services.

"financial services licensee " means a person who holds an Australian financial services licence.

"foreign exchange contract " means a contract:

                     (a)  to buy or sell currency (whether Australian or not); or

                     (b)  to exchange one currency (whether Australian or not) for another (whether Australian or not).

"funeral benefit " means a benefit that consists of the provision of funeral, burial or cremation services, with or without the supply of goods connected with such services.

"further market-related advice " means advice to which subsection 946B(1) applies.

"general advice " has the meaning given by subsection 766B(4).

"general insurance product " means a financial product described in paragraph 764A(1)(d).

"holder , in relation to a financial product, means the person to whom the financial product was issued, or if it has (since issue) been disposed of to another person who has not themselves disposed of it, that other person (and hold" has a corresponding meaning).

"insurance product " means a financial product described in paragraph 764A(1)(d), (e) or (f).

"investment life insurance product " means a financial product described in paragraph 764A(1)(f).

"involved in " a market licensee, CS facility licensee or derivative trade repository licensee, or in an applicant for such a licence, has the meaning given by section 853B.

"issue " , in relation to a financial product, has a meaning affected by section 761E.

"issuer " , in relation to a financial product, has a meaning affected by section 761E.

"kind " , in relation to financial products or financial services, has a meaning affected by regulations made for the purposes of section 761CA.

"licensed CS facility " means a clearing and settlement facility the operation of which is authorised by an Australian CS facility licence.

"licensed derivative trade repository " means a derivative trade repository the operation of which is authorised by an Australian derivative trade repository licence.

"licensed market " means a financial market the operation of which is authorised by an Australian market licence.

"licensed trustee company " has the same meaning as in Chapter 5D.

"life risk insurance product " means a financial product described in paragraph 764A(1)(e).

"limit " , in relation to a margin lending facility, has the meaning given by subsection 761EA(11).

"listing rules " of a financial market, or proposed financial market, means any rules (however described) that are made by the operator of the market, or contained in the operator's constitution, and that deal with:

                     (a)  admitting entities to, or removing entities from, the market's official list, whether for the purpose of enabling financial products of those entities to be traded on the market or for other purposes; or

                     (b)  the activities or conduct of entities that are included on that list.

"lodge with ASIC " , when used in a provision of this Chapter in relation to which regulations made for the purposes of this definition state that the lodgment is to be in a prescribed form, means lodge with ASIC in a prescribed form.

Note:          See section 350 for the meaning of lodge in a prescribed form .

"makes a market " for a financial product has the meaning given by section 766D.

"managed investment product " means a financial product described in paragraph 764A(1)(b).

"margin call " :

                     (a)  in relation to a standard margin lending facility--has the meaning given by subsection 761EA(4); and

                     (b)  in relation to a non-standard margin lending facility--has the meaning given by subsection 761EA(7); and

                     (c)  in relation to a facility that ASIC has declared to be a margin lending facility under subsection 761EA(8)--has the meaning given in the declaration.

"margin lending facility " has the meaning given by subsection 761EA(1).

"market integrity rules " means the rules made by ASIC under section 798G.

"market licensee " means a person who holds an Australian market licence.

"non-standard margin lending facility " has the meaning given by subsection 761EA(5).

"operated in this jurisdiction " :

                     (a)  in relation to a financial market, has a meaning affected by section 791D; and

                     (b)  in relation to a clearing and settlement facility, has a meaning affected by section 820D.

"operating rules " :

                     (a)  of a clearing and settlement facility, or proposed clearing and settlement facility, means any rules (however described) made by the operator of the facility, or contained in the operator's constitution, that deal with:

                              (i)  the activities or conduct of the facility; or

                             (ii)  the activities or conduct of persons in relation to the facility;

                            but does not include any such rules that deal with matters in respect of which licensed CS facilities must have written procedures under regulations made for the purposes of subsection 822A(2); or

                     (b)  of a financial market, or proposed financial market, means any rules (however described), including the market's listing rules (if any), that are made by the operator of the market, or contained in the operator's constitution, and that deal with:

                              (i)  the activities or conduct of the market; or

                             (ii)  the activities or conduct of persons in relation to the market;

                            but does not include:

                            (iii)  any such rules that deal with matters in respect of which licensed markets must have written procedures under regulations made for the purposes of subsection 793A(2); or

                            (iv)  compensation rules within the meaning of Part 7.5.

"participant " :

                     (a)  in relation to a clearing and settlement facility, means a person who is allowed to directly participate in the facility under the facility's operating rules and, when used in any of the following provisions, also includes a recognised affiliate in relation to the facility:

                              (i)  paragraph 821B(2)(b);

                             (ii)  section 822B;

                            (iii)  subsection 915F(2);

                            (iv)  any other provisions prescribed by regulations made for the purposes of this subparagraph; and

                     (b)  in relation to a financial market, means a person who is allowed to directly participate in the market under the market's operating rules and, when used in any of the following provisions, also includes a recognised affiliate in relation to the market:

                              (i)  paragraph 792B(2)(b);

                             (ii)  section 793B;

                            (iii)  section 883A;

                            (iv)  subsection 915F(2);

                             (v)  paragraphs 923B(3)(a) and (b);

                            (vi)  any other provisions prescribed by regulations made for the purposes of this subparagraph.

"person " has a meaning affected by section 761F (which deals with partnerships) and section 761FA (which deals with multiple trustees).

"personal advice " has the meaning given by subsection 766B(3).

"prescribed CS facility " means a licensed CS facility that is prescribed by regulations made for the purposes of this definition.

"prescribed derivative trade repository " means a facility that is (or that is in a class that is) prescribed by the regulations for the purpose of paragraph 901A(6)(b).

"Product Disclosure Statement " means a Product Disclosure Statement:

                     (a)  required by section 1012A, 1012B, 1012C or 1012I to be given in accordance with Division 2 of Part 7.9; or

                     (b)  that section 1012H requires an issuer of a financial product to take reasonable steps to ensure is given to a new group member in accordance with Division 2 of Part 7.9.

Note:          For the effect of the lodgment of a Replacement Product Disclosure Statement, see section 1014J.

"provide " , in relation to a financial product, has a meaning affected by section 761E.

"recognised affiliate " , in relation to a clearing and settlement facility or a financial market, means a person who is:

                     (a)  recognised by the operating rules of the facility or market as a suitably qualified affiliate of the facility or market; and

                     (b)  involved in the carrying on of a financial services business (including as an employee, director or in some other capacity).

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

"relevant personal circumstances " , in relation to advice provided or to be provided to a person in relation to a matter, are such of the person's objectives, financial situation and needs as would reasonably be considered to be relevant to the advice.

"Replacement Product Disclosure Statement " has the meaning given by section 1014H.

"reporting requirements " (in relation to derivative transactions): see subsection 901A(6).

"retail client " has the meaning given by sections 761G and 761GA.

"risk insurance product " means a financial product described in paragraph 764A(1)(d) or (e).

"RSA product " means a financial product described in paragraph 764A(1)(h).

"security " means:

                     (a)  a share in a body; or

                     (b)  a debenture of a body; or

                     (c)  a legal or equitable right or interest in a security covered by paragraph (a) or (b); or

                     (d)  an option to acquire, by way of issue, a security covered by paragraph (a), (b) or (c); or

                     (e)  a right (whether existing or future and whether contingent or not) to acquire, by way of issue, the following under a rights issue:

                              (i)  a security covered by paragraph (a), (b), (c) or (d);

                             (ii)  an interest or right covered by paragraph 764A(1)(b) or (ba); or

                      (f)  a CGS depository interest; or

                     (g)  a simple corporate bonds depository interest;

but does not include an excluded security. In Part 7.11, it also includes a managed investment product.

"self-managed superannuation fund " has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

"standard margin lending facility " has the meaning given by subsection 761EA(2).

"Statement of Advice " means a Statement of Advice required by section 946A to be given in accordance with Subdivisions C and D of Division 3 of Part 7.7.

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

"superannuation product " means a financial product described in paragraph 764A(1)(g).

"Supplementary Financial Services Guide " has the meaning given by section 943A.

"Supplementary Product Disclosure Statement " has the meaning given by section 1014A.

"title document " , for a financial product, means a certificate or other document evidencing ownership of the financial product.

"traditional trustee company services " has the same meaning as in Chapter 5D.

"trustee company " has the same meaning as in Chapter 5D.

"wholesale client " has the meaning given by section 761G.



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