Corporations Amendment Regulation 2012 (No. 1) (42 of 2012)

Schedule 1   Amendments

[19]   Schedule 10A, after Part 18

insert

Part 19 Modifications for carbon units, Australian carbon credit units and eligible international emissions units

19.1 Subsections 1012D (1) to (3), including the subheadings

substitute

Recommendation, issue or sale situation for carbon unit - statements on Clean Energy Regulator's website

(1)Subject to subsections (2) and (3), in a recommendation situation, issue situation or sale situation for a carbon unit, the regulated person:

(a)does not have to give the client a Product Disclosure Statement; and

(b)must inform the client that the client should consider each statement about the carbon unit that is mentioned in section 202 of the Clean Energy Act 2011.

Recommendation, issue or sale situation for carbon unit - client has considered statements on Clean Energy Regulator's website

(2)In a recommendation situation, issue situation or sale situation for a carbon unit, the regulated person does not have to inform the client as described in paragraph (1)(b) if the regulated person believes, on reasonable grounds, that the client has already considered each statement about the carbon unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011.

Recommendation, issue or sale situation for carbon unit - specified persons

(3)In a recommendation situation, issue situation or sale situation for a carbon unit, the regulated person does not have to inform the client as described in paragraph (1)(b) if the person is:

(a)the Clean Energy Regulator; or

(b)the Clean Development Mechanism Executive Board; or

(c)the government of a country other than Australia; or

(d)an authority acting on behalf of the government of a country other than Australia.

Recommendation, issue or sale situation for Australian carbon credit unit - statements on Clean Energy Regulator's website

(3A)Subject to subsections (3B) and (3C), in a recommendation situation, issue situation or sale situation for an Australian carbon credit unit, the regulated person:

(a)does not have to give the client a Product Disclosure Statement; and

(b)must inform the client that the client should consider each statement about the Australian carbon credit unit that is mentioned in section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011.

Recommendation, issue or sale situation for Australian carbon credit unit - client has considered statements on Clean Energy Regulator's website

(3B)In a recommendation situation, issue situation or sale situation for an Australian carbon credit unit, the regulated person does not have to inform the client as described in paragraph (3A)(b) if the regulated person believes, on reasonable grounds, that the client has already considered each statement about the Australian carbon credit unit that is published on the website of the Clean Energy Regulator as mentioned in section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011.

Recommendation, issue or sale situation for Australian carbon credit unit - specified persons

(3C)In a recommendation situation, issue situation or sale situation for an Australian carbon credit unit, the regulated person does not have to inform the client as described in paragraph (3A)(b) if the person is:

(a)the Clean Energy Regulator; or

(b)the Clean Development Mechanism Executive Board; or

(c)the government of a country other than Australia; or

(d)an authority acting on behalf of the government of a country other than Australia.

Recommendation, issue or sale situation for eligible international emissions unit - statements on Clean Energy Regulator's website

(3D)Subject to subsections (3E) and (3F), in a recommendation situation, issue situation or sale situation for an eligible international emissions unit, the regulated person:

(a)does not have to give the client a Product Disclosure Statement; and

(b)must inform the client that the client should consider each statement about the eligible international emissions unit that is mentioned in section 61 of the Australian National Registry of Emissions Units Act 2011.

Recommendation, issue or sale situation for eligible international emissions unit - client has considered statements on Clean Energy Regulator's website

(3E)In a recommendation situation, issue situation or sale situation for an eligible international emissions unit, the regulated person does not have to inform the client as described in paragraph (3D)(b) if the regulated person believes, on reasonable grounds, that the client has already considered each statement about the eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 61 of the Australian National Registry of Emissions Units Act 2011.

Recommendation, issue or sale situation for eligible international emissions unit - specified persons

(3F)In a recommendation situation, issue situation or sale situation for an eligible international emissions unit, the regulated person does not have to inform the client as described in paragraph (3D)(b) if the person is:

(a)the Clean Energy Regulator; or

(b)the Clean Development Mechanism Executive Board; or

(c)the government of a country other than Australia; or

(d)an authority acting on behalf of the government of a country other than Australia.

19.2 Subsection 1012D (5)

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give the client a Product Disclosure Statement

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inform the client as described in paragraph (1)(b), (3A)(b) or (3D)(b)

19.3 Subsection 1012D (6)

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give the client a Product Disclosure Statement

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inform the client as described in paragraph (1)(b), (3A)(b) or (3D)(b)

19.4 Subsections 1012D (7) to (10), including the subheading

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19.5 Subsection 1012IA (1), definition of regulated acquisition

substitute

regulated acquisition means an acquisition of a financial product pursuant to an instruction by the client under a custodial arrangement, being an acquisition:

(a)by way of issue by the issuer (the regulated person ); or

(b)pursuant to a sale by a person (the regulated person ) in circumstances:

(i)described in subsection 1012C(5) or (8); or

(ii)to which subsection 1012B(3), 1012C(3) or 1012C(6) would apply if those subsections were applicable in relation to a carbon unit, an Australian carbon credit unit or an eligible international emissions unit.

19.6 Subsection 1012IA (2), subheading

substitute

Obligation on provider to inform client about statements on Clean Energy Regulator's website

19.7 Subsection 1012IA (2)

omit

must give the client a Product Disclosure Statement for the product if a Product Disclosure Statement for the product would

insert

must inform the client that the client should consider each statement about the carbon unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, or each statement about the Australian carbon credit unit that is published on the website of the Clean Energy Regulator as mentioned in section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011, or each statement about the eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 61 of the Australian National Registry of Emissions Units Act 2011, if the statement would

19.8 Subsection 1012IA (3), subheading

substitute

Determining whether client should be informed about statements on Clean Energy Regulator's website for an equivalent direct acquisition

19.9 Subsection 1012IA (3)

omit

give the client a Product Disclosure Statement for the financial product

insert

inform the client that the client should consider each statement about the carbon unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, or each statement about the Australian carbon credit unit that is published on the website of the Clean Energy Regulator as mentioned in section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011, or each statement about the eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 61 of the Australian National Registry of Emissions Units Act 2011

19.10 Paragraph 1017E (1) (b)

substitute

(b)a seller (the product provider ) of a carbon unit in relation to which the seller has informed the client that the client should consider each statement about the carbon unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011; or

(ba)a seller (the product provider ) of an Australian carbon credit unit in relation to which the seller has informed the client that the client should consider each statement about the Australian carbon credit unit that is published on the website of the Clean Energy Regulator as mentioned in section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011; or

(bb)a seller (the product provider ) of an eligible international emissions unit in relation to which the seller has informed the client that the client should consider each statement about the eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 61 of the Australian National Registry of Emissions Units Act 2011;

19.11 Subsection 1017G (1)

substitute

(1)This section does not apply to:

(a)the Regulator; or

(b)the CDM Executive Board; or

(c)the government of a country other than Australia; or

(d)an authority acting on behalf of the government of a country other than Australia.

(1A)If:

(a)carbon units are, or have been, available for acquisition (whether by issue or sale) by a person or persons as retail clients; and

(b)the issue or sale of the carbon units is not covered by an Australian financial services licence;

the issuer and any regulated person who is required, under subsection 1012D(1), to inform a client that the client should consider each statement about the carbon unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, must both have a dispute resolution system complying with subsection (2).

Note 1: If the issue of the carbon units is covered by an Australian financial services licence, the requirement to have a dispute resolution system relating to the issue of the units is imposed by paragraph 912A(1)(g).

Note 2: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(1B)If:

(a)Australian carbon credit units are, or have been, available for acquisition (whether by issue or sale) by a person or persons as retail clients; and

(b)the issue or sale of the Australian carbon credit units is not covered by an Australian financial services licence;

the issuer and any regulated person who is required, under subsection 1012D(3A), to inform a client that the client should consider each statement about the Australian carbon credit unit that is published on the website of the Clean Energy Regulator as mentioned in section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011, must both have a dispute resolution system complying with subsection (2).

Note 1: If the issue of the Australian carbon credit units is covered by an Australian financial services licence, the requirement to have a dispute resolution system relating to the issue of the units is imposed by paragraph 912A(1)(g).

Note 2: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(1C)If:

(a)eligible international emissions units are, or have been, available for acquisition (whether by issue or sale) by a person or persons as retail clients; and

(b)the issue or sale of the eligible international emissions units is not covered by an Australian financial services licence;

the issuer and any regulated person who is required, under subsection 1012D(3D), to inform a client that the client should consider each statement about the eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 61 of the Australian National Registry of Emissions Units Act 2011, must both have a dispute resolution system complying with subsection (2).

Note 1: If the issue of the eligible international emissions units is covered by an Australian financial services licence, the requirement to have a dispute resolution system relating to the issue of the units is imposed by paragraph 912A(1)(g).

Note 2: Failure to comply with this subsection is an offence (see subsection 1311 (1)).

19.12 Section 1018A, heading

substitute

1018A Advertising or other promotional material for financial product must refer to statements on Clean Energy Regulator's website

19.13 Subsection 1018A (1), subheading

substitute

Advertisements and promotional material must identify issuer (or issuer and seller) and refer to statements on Clean Energy Regulator's website

19.14 Subsection 1018A (1)

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if a particular financial product is available for acquisition by persons as retail clients (whether or not it is also available for acquisition by persons as wholesale clients) by way of issue, or pursuant to sale offers to which section 1012C applies or will apply,

insert

in an issue situation or sale situation for a carbon unit, an Australian carbon credit unit or an eligible international emissions unit that is available for acquisition by persons as retail clients (whether or not it is also available for acquisition by persons as wholesale clients),

19.15 Subparagraph 1018A (1) (c) (ii)

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to which section 1012C applies or will apply

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to which paragraphs 1012C(3)(b) and (4)(c), and subsection 1012C(6), would apply if section 1012C were applicable in relation to a carbon unit, an Australian carbon credit unit or an eligible international emissions unit

19.16 Paragraphs 1018A (1) (d) and (e)

substitute

(d)informs the person that the person should consider:

(i)each statement about the carbon unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011 in deciding whether to acquire, or to continue to hold, the carbon unit; or

(ii)each statement about the Australian carbon credit unit that is published on the website of the Clean Energy Regulator as mentioned in section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011 in deciding whether to acquire, or to continue to hold, the Australian carbon credit unit; or

(iii)each statement about the eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 61 of the Australian National Registry of Emissions Units Act 2011 in deciding whether to acquire, or to continue to hold, the eligible international emissions unit.

19.17 Subsection 1018A (2)

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if a particular financial product, or proposed financial product, is not available for acquisition by persons as retail clients but it is reasonably likely that the product will become so available (whether or not it is, or will also become, available for acquisition by persons as wholesale clients) by way of issue, or pursuant to sale offers to which section 1012C will apply,

insert

in an issue situation or sale situation for a financial product that is a carbon unit, an Australian carbon credit unit or an eligible international emissions unit and is not available for acquisition by persons as retail clients, but is reasonably likely to become so available (whether or not it is, or will also become, available for acquisition by persons as wholesale clients),

19.18 Subparagraph 1018A (2) (c) (ii)

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to which section 1012C will apply

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to which paragraphs 1012C(3)(b) and (4)(c), and subsection 1012C(6), would apply if section 1012C were applicable in relation to a carbon unit, an Australian carbon credit unit or an eligible international emissions unit

19.19 Paragraphs 1018A (2) (d) to (f)

substitute

(d)informs the person that:

(i)a statement about the carbon unit is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011; or

(ii)a statement about the Australian carbon credit unit is published on the website of the Clean Energy Regulator as mentioned in section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011; or

(iii)a statement about the eligible international emissions unit is published on the website of the Clean Energy Regulator as mentioned in section 61 of the Australian National Registry of Emissions Units Act 2011; and

(e)informs the person that the person should consider each statement about the carbon unit, Australian carbon credit unit or eligible international emissions unit that is published on that website in deciding whether to acquire, or to continue to hold, the carbon unit, Australian carbon credit unit or eligible international emissions unit.

19.20 Subsection 1018A (3)

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distribute a Product Disclosure Statement

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inform a person that the person should consider each statement about the carbon unit, Australian carbon credit unit or eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011 or section 61 of the Australian National Registry of Emissions Units Act 2011

19.21 Subparagraph 1018A (4) (c) (i)

substitute

(i)does not contain information that materially affects affairs of the issuer, other than information about the carbon unit, Australian carbon credit unit or eligible international emissions unit that is published:

(A)on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011 or section 61 of the Australian National Registry of Emissions Units Act 2011; or

(B)in a disclosure document that has been lodged with ASIC; or

(C)in an annual report or in a notice or report referred to in paragraph (a) or (b); and

19.22 Subparagraphs 1018A (4) (d) (i) and (ii)

substitute

(i)information about the carbon unit, Australian carbon credit unit or eligible international emissions unit that is published:

(A)on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011 or section 61 of the Australian National Registry of Emissions Units Act 2011; or

(B)in a disclosure document that has been lodged with ASIC; or

19.23 Paragraph 1020D (b)

substitute

(b)if the acquisition occurs in circumstances in which the party is required by a provision of this Part to have been informed that the party should consider each statement about the carbon unit, Australian carbon credit unit or eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011 or section 61 of the Australian National Registry of Emissions Units Act 2011 - taken to have notice of any contract, document or matter not specifically referred to in those statements.

19.24 Paragraph 1020E (7) (b)

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the document, advertisement or statement

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the statement or advertisement

19.25 Section 1021C, heading

substitute

1021C Offence of failing to refer to statements on Clean Energy Regulator's website

19.26 Subparagraph 1021C (1) (a) (i)

substitute

(i)is required by a provision of this Part to inform a person that the person should consider each statement about a carbon unit, an Australian carbon credit unit or an eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011 or section 61 of the Australian National Registry of Emissions Units Act 2011 (the required statement ); or

19.27 Subparagraph 1021C (1) (b) (i)

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(i)if subparagraph (a)(i) applies - inform the person that the person should consider each required statement; or

19.28 Subparagraph 1021C (3) (a) (i)

substitute

(i)is required by a provision of this Part to inform a person that the person should consider each statement about a carbon unit, an Australian carbon credit unit or an eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011 or section 61 of the Australian National Registry of Emissions Units Act 2011 (the required statement ); or

19.29 Subparagraph 1021C (3) (b) (i)

substitute

(i)if subparagraph (a)(i) applies - inform the person that the person should consider each required statement; or

19.30 Paragraph 1021C (4) (b)

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(b)the representative's failure to inform the person that the person should consider each required statement occurred because the representative was acting in reliance on that information or those instructions; and

19.31 Section 1021G

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to give or communicate disclosure documents or statements as and when required by this Part.

insert

to inform a person that the person should consider each statement about a carbon unit, an Australian carbon credit unit or an eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011, section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011 or section 61 of the Australian National Registry of Emissions Units Act 2011 as and when required by this Part.

19.32 After paragraph 1022B (1) (ac)

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(ad)a person:

(i)is required to inform another person (the client ) that the client should consider each statement about a carbon unit that is published on the website of the Clean Energy Regulator as mentioned in section 202 of the Clean Energy Act 2011; and

(ii)does not inform the client by the time the person is required to do so; or

(ae)a person:

(i)is required to inform another person (the client ) that the client should consider each statement about an Australian carbon credit unit that is published on the website of the Clean Energy Regulator as mentioned in section 162 of the Carbon Credits (Carbon Farming Initiative) Act 2011; and

(ii)does not inform the client by the time the person is required to do so; or

(af)a person:

(i)is required to inform another person (the client ) that the client should consider each statement about an eligible international emissions unit that is published on the website of the Clean Energy Regulator as mentioned in section 61 of the Australian National Registry of Emissions Units Act 2011; and

(ii)does not inform the client by the time the person is required to do so; or