CORPORATIONS REGULATIONS 2001 - REG 7.6.02AA Modification of section 912B of the Act: professional indemnity insurance and security instead of arrangements for compensation

CORPORATIONS REGULATIONS 2001 - REG 7.6.02AA

  (1)   For paragraph   926B(1)(c) of the Act, Part   7.6 of the Act applies as if section   912B of the Act were modified by substituting that section with the following:

'912B   Financial services provided to persons as retail clients--requirements in certain circumstances

  (1)   Subsection   (2) applies in relation to a financial services licensee if the licensee's financial services licence authorises the licensee to carry on an activity:

  (a)   to which paragraph   19(1)(b) or subparagraph   31B(1)(a)(ii) or (b)(ii) of the Insurance (Agents and Brokers) Act 1984 (the repealed Act ) would have applied if that Act were not repealed; and

  (b)   for which the licensee would have been required under those provisions to have in force an acceptable contract of professional indemnity insurance.

  (2)   The repealed Act, and any associated provisions, continue to apply in relation to the licensee to the extent necessary to require the licensee to have in force an acceptable contract of professional indemnity insurance in relation to the activity.

  (3)   Subsections   (4) and (5) apply in relation to a financial services licensee if the licensee's financial services licence authorises the licensee to carry on an activity:

  (a)   to which Part   7.3 of the old Corporations Act would have applied if that Part were not repealed; and

  (b)   for which the licensee would have been required under that Part to have a dealers licence or investment advisers licence that could have been subject to the condition specified in paragraph   786(2)(d) of the old Corporations Act.

  (4)   Section   914A of the Act is taken to authorise ASIC to impose the condition specified in paragraph   786(2)(d) of the old Corporations Act as a condition of the licensee's financial services licence.

  (5)   If ASIC acts under subsection   (4), Part   7.3 of the old Corporations Act, and any associated provisions, continue to apply to the extent necessary to specify the content of the condition specified in paragraph   786(2)(d) of the old Corporations Act.'

  (6)   In this section:

    associated provisions , in relation to provisions (the core provisions ) of a particular Act as in force at a particular time, include (but are not limited to):

  (a)   any regulations or other instruments that are or were in force for the purposes of any of the core provisions at that time; and

  (b)   any interpretation provisions that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and

  (c)   any provisions relating to liability (civil or criminal) that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and

  (d)   any provisions that limit or limited, or that otherwise affect or affected, the operation of any of the core provisions at that time (whether or not they also limit or limited, or affect or affected, the operation of other provisions).

    old Corporations Act means this Act as in force immediately before the FSR commencement.'.

  (2)   Subregulation (1) operates only in relation to a financial services licensee (other than an exempt licensee under regulation   7.6.02AAA):

  (a)   who has not complied with subsection   912B(1) of the Act, in its unmodified form; and

  (b)   until the licensee does so comply.

  (3)   Subregulations (1) and (2) are not taken to displace, or diminish, the requirement for a financial services licensee to comply with subsection   912B(1) of the Act in its unmodified form.

  (4)   A security bond lodged with ASIC by a financial services licensee in compliance with section   912B of the Act as modified by subregulation   (1), or with any provision of the old Corporations Act, may be released by ASIC, at its discretion, if:

  (a)   ASIC considers that, in relation to the licensee, a security bond is no longer required because the licensee:

  (i)   has complied with subsection   912B(1) of the Act, in its unmodified form; or

  (ii)   is an exempt licensee within the meaning of regulation   7.6.02AAA; and

  (b)   ASIC has published, in accordance with subregulation (5):

  (i)   a proposal that it release the security bond; and

  (ii)   a direction to the web address at which further information may be obtained; and

  (c)   ASIC has advertised, at that web address, the existence of the security bond, and an invitation to submit valid claims against the bond; and

  (d)   3 months after publication of the advertisement, no valid claim has been submitted.

  (5)   A proposal and direction mentioned in paragraph   (4)(b) are published in accordance with this subregulation if they are published in a manner that results in the proposal and direction being accessible to the public and reasonably prominent.