Commonwealth Consolidated Acts

FINANCIAL SERVICES REFORM (CONSEQUENTIAL PROVISIONS) ACT 2002 - SCHEDULE 2

1  Before section 97

Insert:

95A   Solvency and insolvency

             (1)  A person is solvent if, and only if, the person is able to pay all the person's debts, as and when they become due and payable.

             (2)  A person who is not solvent is insolvent.

2  Subsection 992A(3)

Omit all the words before paragraph (a), substitute:

                   A person must not make an offer to issue or sell a financial product in the course of, or because of:

                    (aa)  an unsolicited telephone call to another person; or

                    (ab)  an unsolicited contact with another person in another way that is prescribed by the regulations for the purposes of this paragraph;

unless the other person has been:

3  After subsection 992A(3)

Insert:

          (3A)  Neither subsection (1) nor (3) applies to an offer of financial products if the offer is not to a retail client.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code .

4  Section 1042A (paragraph (c) of the definition of Division 3 financial products )

Repeal the paragraph, substitute:

                     (c)  interests in a managed investment scheme; or

                    (ca)  debentures, stocks or bonds issued or proposed to be issued by a government; or

5  Section 1043H

Omit "entered into, one or more transactions or agreements in relation to financial products issued by that other person", substitute "entered into or proposed to enter into, one or more transactions or agreements in relation to financial products issued by the other person or by a third person".

6  Subsections 1043I(1) and (2)

Omit "entered into, one or more transactions or agreements in relation to financial products issued by the other person", substitute "entered into or proposed to enter into, one or more transactions or agreements in relation to financial products issued by the other person or by a third person".

7  Subsection 1043J(1)

Omit "entered into, one or more transactions or agreements in relation to financial products issued by the third person", substitute "entered into or proposed to enter into, one or more transactions or agreements in relation to financial products issued by the third person or by a fourth person".

8  Section 1317DA (definition of financial services civil penalty provision )

Omit "(jb)", substitute "(ja)".