Corporations Regulations 2001

CHAPTER 10 - REPEALS, TRANSITIONAL MATTERS AND APPLICATION PROVISIONS  

PART 10.2 - TRANSITIONAL ARRANGEMENTS RELATING TO FINANCIAL SERVICES REFORM LEGISLATION  

Division 20 - Rules for dealing with liability during transition period  

REGULATION 10.2.102   LIABILITY OF RESPONSIBLE PERSON: GENERAL RULES  

10.2.102(1)   [ Determination of liability]  

If, at the time the conduct is engaged in, the person who has engaged in the conduct is not the representative of an FSR principal, the liability (if any) for the conduct is to be determined in accordance with:

(a) the relevant old legislation; or

(b) any requirement or law, other than the relevant old legislation, that applies to the conduct; or

(c) any provisions of the amended Corporations Act that apply to the conduct.

Note: A number of representatives in the financial services industry currently act:

(a) on behalf of more than one principal; or

(b) as a principal in some circumstances but as a representative in others; or

(c) in both capacities.

On this basis, it is possible that different liability regimes simultaneously apply to the representative, depending on the kind of conduct. These regimes include:

(a) the Corporations Act as in force before the FSR commencement; and

(b) the Corporations Act as in force after the FSR commencement; and

(c) the Australian Securities and Investments Commission Act 2001 ; and

(d) the Insurance (Agents and Brokers) Act 1984 ; and

(e) the common law.

10.2.102(2)   [ Liability where each principal an FSR principal]  

If, at the time the conduct is engaged in, each principal in respect of which the representative acts is an FSR principal, the liability of each person is to be determined in accordance with the amended Corporations Act as in force from time to time after the FSR commencement.

Note: The main liability provisions of the Act are in Division 6 of Part 7.6 .

10.2.102(3)   [ Representative in respect of more than one principal]  

Subregulations (4) and (5) apply if, at the time the conduct is engaged in by a person:

(a) the person is a representative in respect of more than 1 principal, and

(b) at least 1 of those principals is an FSR principal; and

(c) at least 1 of those principals is a non-FSR principal.

10.2.102(4)   [ Conduct of representative]  

If, as a result of the conduct of the representative, 1 or more of the principals issues, transfers, varies, or disposes of a financial product:

(a) each of those principals is jointly and severally liable for the conduct of the representative; and

(b) the nature of the liability is to be determined in accordance with the relevant law that applies to the conduct under the relevant legal regime under which the particular principal is operating.

10.2.102(5)   [ Limitation]  

If subregulation (4) does not apply:

(a) the liability for the conduct is to be determined in accordance with the relevant law that applies to the conduct; and

(b) section 917B and subsection 917C(4) of the Act apply in relation to the liability of an FSR principal only if the conduct is in a class of financial services that the FSR principal has authorised the representative to provide.